Home > Professional Regulation > Supreme Court of Virginia to review a proposed new Rule 1.18 of the Rules of Professional Conduct
Pursuant to Part Six: Section IV, Paragraph 10(g) of the Rules of the Supreme Court of Virginia, the Virginia Supreme Court is expected to consider for approval, disapproval, or modification, proposed Rule 1.18 of the Rules of Professional Conduct by the Standing Committee on Legal Ethics and approved by the Council of the Virginia State Bar on October 16, 2009.
RULE 1.18
Proposed Rule 1.18 will give guidance to Virginia lawyers as to their duties to prospective clients. Rule 1.18 defines a prospective client and clarifies the distinction between the duty of confidentiality owed to someone who unilaterally gives information to a lawyer as opposed to one who communicates with a lawyer with a reasonable expectation of forming an attorney/client relationship.
Rule 1.18 removes the imputed disqualification and conflict of interest created from an initial consult that does not result in the formation of a lawyer-client relationship. The proposed rule allows the tainted lawyer to be screened, thereby avoiding disqualification of the entire firm. The tainted lawyer must take reasonable measures to control his exposure to disqualifying information and the affected client must receive written notice that the firm is employing a screen regarding their consultation and the procedures employed in the screening process.
Under the current rules and ethics opinions, even if a lawyer-client relationship does not ensue, an initial interview with a prospective client triggers the duty of confidentiality under Rule 1.6 and potentially conflicts the interviewing lawyer and any other lawyer associated with the firm from undertaking representation adverse to the interviewed prospective client. If the requirements of proposed Rule 1.18 are followed, the conflicts and imputed disqualification of a law firm triggered by an initial consult will be significantly reduced. The proposed rule provides an additional protection to the law firm that is not available under the existing rules, particularly in those instances where a person pre-textually contacts a lawyer or law firm merely for strategic elimination of the lawyer or law firm for that person’s adversary. See, e.g., Legal Ethics Op. 1794 (2004). In sum, proposed Rule 1.18 provides a better balance between a prospective client’s right to protection under Rule 1.6 and the adverse party’s right of access to and choice of counsel.
Inspection and Comment
The proposed rule may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed rule can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.
Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed rule by filing nine copies with the Clerk of the Court and three copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than December 14, 2009.
Updated: October 28, 2009