Adopted | amendments to Rules 1.8, 1.10,
and 1.15 of the Rules of Professional Conduct.
Adopted by the Supreme Court of Virginia December 22, 2021. Effective February
20, 2022.
December 22, 2021
On December 22, 2021, the Supreme Court of Virginia amended Rules of
Professional Conduct 1.8, 1.10, and 1.15, effective February 20, 2022.
View the orders:
Part Six, Section II, Rule 1.8. (Effective February 20, 2022.)
Part Six, Section II, Rules 1.10 and 1.15. (Effective February 20,
2022.)
November 29, 2021
On November 24, 2021, the petition on Rules of Professional
Conduct 1.8(k) and associated re-enumeration of Rule 1.10(d) was resubmitted
to the Supreme Court of Virginia for approval.
View the petition to the Court
(PDF file)
October 6, 2021
On October 1, 2021, the VSB re-submitted petitions seeking
approval of the amendments to Rule 1.8(b) and associated comments 1 and 2 and
the amendments to Rule 1.10 comment 1 and Rule 1.15 comment 1.
View the petition to the Court on Rule 1.8
View the petition to the Court on Rules 1.10 and 1.15
July 21, 2021
On July 21, 2021, the Supreme Court of Virginia denied the VSB
petition to amend Rules 1.8, 1.10, and 1.15, of the Rules of Professional
Conduct.
View the Court's letter
April 29, 2021
Bar Council approved proposed amendments to Rules 1.8, 1.10,
and 1.15, of the Rules of Professional Conduct at its meeting on April 21,
2021. Council voted to table Rule 3.3 The proposed changes will be presented
to the Supreme Court of Virginia for approval.
View the petition to the Court (PDF file)
April 7, 2021
Bar Council will review the proposed changes at its meeting on
April 21, 2021.
The Standing Committee on Legal Ethics will consider the amendments at
its October 20 meeting.
February 28, 2020
Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of
Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics
(“Committee”) is seeking public comment on proposed amendments to Rules 1.8,
1.10, 1.15, and 3.3 of the Rules of Professional Conduct.
The proposed amendment to Rule 1.8(b) amends the rule to mirror the standard
for confidentiality set out in Rule 1.6(a), rather than the broader standard
of “information relating to representation of a client,” and adds proposed new
Comment [2] to explain the purpose and application of Rule 1.8(b). The
proposed amendment to Rule 1.10(d) is a companion to the proposed amendments
to Rule 1.8(k) (also currently pending public comment); if the amendment to
Rule 1.8 is adopted, it will renumber the paragraphs of Rule 1.8 and Rule
1.10(d) will need to be amended to refer to Rule 1.8(l) instead of Rule
1.8(k).
The proposed amendments to Rule 1.10 Comment [1] and to Rule 1.15 Comment [1]
replace uses of “should” with “must” where the comments are describing
mandatory duties. Finally, the proposed amendment to Rule 3.3 Comment [11]
removes the potentially confusing phrase “except in the defense of a criminal
accused,” since the comment as written could imply that the rules for
remedying a client’s perjury differ in a criminal case; the proposed revision
clarifies and streamlines the comment to be clear that a lawyer must take
reasonable remedial measures when a client commits perjury, regardless of the
nature of the representation.
Inspection and Comment
The proposed rule amendments may be inspected below or at the office of the
Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia
23219-0060, between the hours of 9:00 a.m. and 4:30 p.m., Monday through
Friday, or by contacting the Office of Ethics Counsel at 804-775-0557.
Any individual, business, or other entity may file or submit written comments
in support of or in opposition to the proposed opinion with Karen A. Gould,
executive director of the Virginia State Bar, not later than
April 3, 2020. Comments may be submitted via email to
[email protected].
proposed amendments underlined
RULE 1.8 Conflict of Interest: Prohibited Transactions
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(b) A lawyer shall not use information
relating to representation of a client
protected under Rule 1.6 for
the advantage of the lawyer or of a third person or to the disadvantage of
the client unless the client consents after consultation, except as
permitted or required by Rule 1.6 or Rule 3.3.
***
Comment
Transactions Between Client and Lawyer
[1]
Rule 1.8(a) states the general principle that As a general principle, all transactions between client and lawyer
should be fair and reasonable to the client. In such transactions a review by
independent counsel on behalf of the client is often advisable. Furthermore, a
lawyer may not exploit information relating to the representation to the
client's disadvantage. For example, a lawyer who has learned that the client
is investing in specific real estate may not, without the client's consent,
seek to acquire nearby property where doing so would adversely affect the
client's plan for investment. Paragraph (a) does not, however, apply to
standard commercial transactions between the lawyer and the client for
products or services that the client generally markets to others, for example,
banking or brokerage services, medical services, products manufactured or
distributed by the client, and utilities services. In such transactions, the
lawyer has no advantage in dealing with the client, and the restrictions in
paragraph (a) are unnecessary and impracticable.
Similarly, paragraph (b) does not limit an attorney’s use of information
obtained independently outside the attorney-client relationship.
[2] Use of information protected by Rule 1.6 for the advantage of the lawyer or
a third person or to the disadvantage of the client violates the lawyer's
duty of loyalty. Paragraph (b) applies when the information is used to
benefit either the lawyer or a third person, such as another client or
business associate of the lawyer. For example, if a lawyer learns that a
client intends to purchase and develop several parcels of land, the lawyer
may not use that information to purchase one of the parcels in competition
with the client or to recommend that another client or third party make such
a purchase. Paragraph (b) prohibits the use of a client’s confidential
information for the advantage of the lawyer or a third party or to the
disadvantage of the client unless the client gives informed consent, except
as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3,
4.1(b). Paragraph (b) does not limit an attorney’s use of information
obtained independently outside the attorney-client relationship.
[2-3-5]
ABA Model Rule Comments not adopted.
***
RULE 1.10 Imputed Disqualification: General Rule
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(d) The imputed prohibition of improper transactions is governed by Rule
1.8(kl).
***
Comment
Definition of "Firm"
[1] Whether two or more lawyers constitute a firm as defined in the
Terminology section can depend on the specific facts. For example, two
practitioners who share office space and occasionally consult or assist each
other ordinarily would not be regarded as constituting a firm. However, if
they present themselves to the public in a way suggesting that they are a firm
or conduct themselves as a firm, they should be regarded as a firm for the
purposes of the Rules. The terms of any formal agreement between associated
lawyers are relevant in determining whether they are a firm, as is the fact
that they have mutual access to information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the underlying
purpose of the Rule that is involved. A group of lawyers could be regarded as
a firm for purposes of the Rule that the same lawyer should
must not represent opposing
parties in litigation, while it might not be so regarded for purposes of the
Rule that information acquired by one lawyer is attributed to the other.
***
RULE 1.15 Safekeeping Property
- Depositing Funds.
***
Comment
[1] A lawyer should
must hold property of others
with the care required of a professional fiduciary. Securities
should must be kept in
a safe deposit box, except when some other form of safekeeping is warranted by
special circumstances. For purposes of this Rule, the term “fiduciary”
includes personal representative, trustee, receiver, guardian, committee,
custodian, and attorney-in-fact. All property that is the property of clients
or third persons should
must be kept separate from the
lawyer's business and personal property and, if funds, in one or more trust
accounts. Separate trust accounts may be warranted when administering estate
funds or acting in similar fiduciary capacities.
***
RULE 3.3 Candor Toward The Tribunal
Comment
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[11] Except in the defense of a criminal accused, tThe rule generally recognized
is that, if necessary to rectify the situation, an advocate must disclose the
existence of the client's deception to the court or to the other party. Such a
disclosure can result in grave consequences to the client, including not only
a sense of betrayal but also loss of the case and perhaps a prosecution for
perjury. But the alternative is that the lawyer cooperates in deceiving the
court, thereby subverting the truth-finding process which the adversary system
is designed to implement. See Rule 1.2(c).
Furthermore, unless it is clearly understood that the lawyer will act upon
the duty to disclose the existence of false evidence, the client can simply
reject the lawyer's advice to reveal the false evidence and insist that the
lawyer keep silent. Thus the client could in effect coerce the lawyer into
being a party to fraud on the court.
Perjury by a Criminal Defendant
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