Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Unauthorized Practice Rule 8 - Trade Associations

Trade Associations.

UPR 8-101. Giving Legal Advice.

  • (A) A trade association shall not give legal advice or provide legal services to its members, directly or through its employed or retained lawyer, except that a trade association may:
    • (1) Distribute to its members any legal opinion rendered to the trade association by its lawyer on a matter which affects or may affect the general membership of the association.
    • (2) Appear through its lawyer as an intervenor or amicus curiae in any case involving a member, to the extent otherwise permitted by the court.
    • (3) Refer one or more of its members to its lawyer with respect to any legal matter so long as such lawyer is recognized throughout by all concerned as representing solely the interest of such member or members, free of control by or interference from the trade association.
    • (4) Solicit the comments of its members on proposed legislation or regulations drafted by its lawyer which affect or may affect the general membership of the association.
    • (5) Provide legal advice and the services of its lawyer to one or more of its members preliminary to and in connection with any matter that may seek to:
      • (a) Further the political goals of the association;
      • (b) Obtain meaningful access to the courts; or
      • (c) Vindicate civil liberties guaranteed by the Constitutions of Virginia or the United States.

UPR 8-102. Holding Out With Regard to Legal Services.

  • (A) Except to the extent legal advice or services are permitted to be provided under UPR 8-101, a trade association shall not hold itself out as authorized to furnish its members legal advice or services.

UPR 8-103. Attorney-Client Relationship.

  • (A) A trade association shall not:
    • (1) Disrupt the relationship of confidence and trust which must exist between a lawyer and his client.
    • (2) Prevent a lawyer from exercising independent judgment on behalf of his client by attempting to fix the lawyer's compensation, or sharing in a percentage of his compensation, or prescribing the terms of his employment, or attempting in any way to control or direct his actions, except that in matters of collective interest a trade association may negotiate on behalf of its members with respect to the legal fees to be charged.
    • (3) Place itself between the lawyer and the member in an attempt to act as the only conduit of information between the two, since this would prevent the establishment of the fundamental relationship of trust and direct personal responsibility which ought to exist between a lawyer and his client.

UPR 8-104. Referral of Business.

  • (A) A trade association may refer its member to a lawyer subject to the following:
    • (1) The member shall first have the opportunity to select a lawyer of his own choosing.
    • (2) If the member does not so select a lawyer, the trade association shall submit a list of lawyers from which the member may make his selection, which list may include the customary fee of each lawyer on the list.
    • (3) The lawyer shall be free at all times to communicate directly with such member, now his client; and upon receipt of the initial referral, as well as upon the receipt of any subsequent business unacceptable to the lawyer on the basis of the prior fee arrangement, the lawyer shall communicate with his client for the purpose of establishing the fee arrangement, in which arrangement the trade association, in pursuit of its associational goals, may participate as a negotiator or contributor, or both.
  • (B) A trade association shall not exercise or attempt to exercise any control or imply that it has any right to control the action of the lawyer in the handling of the transaction. All decisions are to be those of the lawyer acting on behalf of his client.

Unauthorized Practice Considerations.

UPC 8-1. The term "trade association" as used herein means a nonprofit organization formed for the principal purpose of furthering the common business or professional interest of its members. Any organization that qualifies as a business league or chamber of commerce under Section 501(c)(6) of the Internal Revenue Code shall be presumed to be a trade association for purposes of this Rule. The conduct of a prepaid legal services plan is not to be considered governed by this Rule.

UPC 8-2. A trade association may recommend to its members the services of a lawyer. A trade association should not interfere with the personal lawyer client relationship that should exist between a member and such member's own lawyer.

UPC 8-3. If a trade association offers to provide or provides its members with the services of a lawyer subject to the trade association's direction and control, it is engaged in the unauthorized practice of law unless such services seek to further the political or ideological goals of their associational activity. For example, a trade association may provide its members with its views, including the legal opinions of its employed or retained lawyer, on legislative, administrative and judicial developments or other matters of general interest to some or all of its members, but may not advise, or hold itself out as permitted to advise, an individual member as to the application of a statute, regulation or decision to such member's particular set of facts, unless such advice is incident to or part of the association's collective activity undertaken to obtain meaningful access to the courts or other fundamental rights within the protection of Article I, Section 12 of the Virginia Constitution or the First Amendment to the United States Constitution.

UPC 8-4. Incident to his normal duties as a lobbyist or otherwise, a non-lawyer representative of a trade association may discuss with a member of the trade association the possible application of a proposed or enacted statute, regulation or decision to a particular set of facts; provided that such discussion does not constitute the giving of legal advice.

Updated: April 20, 2010