Professional Guidelines

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Home > Actions on Rule Changes and Legal Ethics Opinions > amendments to Rules 1.8, 1.10, 1.15, and 3.3 of the Rules of Professional Conduct.

Proposed | amendments to Rules 1.8, 1.10, 1.15, and 3.3 of the Rules of Professional Conduct. Comments due April 3, 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 publiccomment@vsb.org.


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.

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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.

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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).

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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.

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RULE 1.15  Safekeeping Property

  1. Depositing Funds.
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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.

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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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Updated: February 28, 2020