VSB Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1861

Additional Info

view draft of proposed LEO 1861 (PDF file)

Pursuant to Part Six: Section IV, Paragraph 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 advisory Legal Ethics Opinion 1861, May a Lawyer Serving as a Bankruptcy Trustee Communicate with the Debtor Without Consent by the Debtor’s Lawyer?

This proposed opinion addresses the question of whether a Virginia lawyer who is appointed to serve as the bankruptcy trustee in a Chapter 7 bankruptcy case may have contact with a debtor who is represented by counsel without that lawyer’s consent.  Because the bankruptcy trustee acts as a fiduciary to “collect and reduce to money the property of the estate,” the opinion reviews previous legal ethics opinions that conclude that a lawyer acting as a fiduciary may be disciplined for actions taken in that role if the same actions would have warranted discipline if the actions occurred in the context of a traditional attorney-client relationship.  The opinion also considers the question in light of the stated purpose of Rule 4.2, which is to protect persons from being taken advantage of by opposing counsel, and concludes that Rule 4.2 applies to bar a lawyer/bankruptcy trustee from communicating with a represented debtor, unless the debtor’s lawyer consents or the communication is otherwise authorized by law.   

Inspection and Comment

The proposed advisory opinion 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 advisory opinion 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 https://www.vsb.org/site/regulation/pending-leo.

Not later than November 3, 2011, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.


Updated: Sep 28, 2011