VSB Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1879

Additional Info

final Legal Ethics Opinion 1879 (PDF)

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 advisory Legal Ethics Opinion 1879, Application of Rules 3.1 and 3.8 to Administrative Prosecutor in a Non-Criminal Case.

This proposed opinion generally addresses whether Rule 3.8 applies to a government lawyer acting as a “prosecutor” in a proceeding before a regulatory agency or board, and therefore whether the lawyer is barred from proceeding with the case if there is not probable cause to support a finding of a violation. Alternatively, if Rule 3.8 does not apply, the opinion asks whether the lawyer must exercise her own independent judgment as to whether there is a non-frivolous basis to proceed with the matter under Rule 3.1, or whether the board’s previous finding of probable cause to proceed is sufficient to create a non-frivolous basis for the proceeding, regardless of the lawyer’s own evaluation of the matter.

In this proposed opinion, the Committee concluded that Rule 3.8 is limited to lawyers prosecuting criminal cases, not the administrative proceedings at issue in this hypothetical. Rule 3.1 does apply, as it applies to any lawyer, regardless of the type of matter involved or the lawyer’s employment. However, Rule 3.1 does not permit the lawyer to simply rely on the board’s judgment of whether there is a basis to proceed; the lawyer must exercise her own independent judgment in evaluating the matter and may not proceed with the case if there is no non-frivolous basis for doing so.

view proposed LEO 1879 (PDF file)

Inspection and Comment

The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, 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.

Not later than January 5, 2015, any individual, business, or other entity may file or submit to Karen A. Gould, at publiccomment@vsb.org, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.

Updated: Jan 21, 2015