VIRGINIA STATE BAR SPECIAL COMMITTEE TO STUDY

THE VIRGINIA CODE OF PROFESSIONAL RESPONSIBILITY

QUICK REFERENCE LIST

SUBSTANTIVE DIFFERENCES BETWEEN THE

PROPOSED VIRGINIA RULES OF PROFESSIONAL

CONDUCT AND THE CURRENT CODE

OF PROFESSIONAL RESPONSIBILITY

Prepared by

T. Spahn

July 23, 1998

General Format

Rules are organized by lawyers' roles and responsibilities: client representative; third party neutral; legal system officer; public citizen with special responsibility for the quality of justice (Preamble)

Rules are authoritative; Comments are interpretive (unlike the current "aspirational" Ethical Considerations) (Preamble)

Use of the Rules

Rule violations "should not give rise to a cause of action" and the Rules "are not designed to be a basis for civil liability." The Rules should not be invoked "as procedural weapons" and an "antagonist in a collateral proceeding or transaction" may lack standing to seek enforcement of the Rules (Preamble)

"Diligence" Requirement

Lawyers must represent clients with "reasonable diligence" (this is broader than "zealous representation" and includes collaborative strategies) (Rule 1.3)

"Informed Decisions" Requirement

Explicit requirement that lawyers must give clients the information and opportunity to "make informed decisions" (Rule 1.4(b))

Fees

Codification of LEOs regarding domestic relations contingent fees (Rule 1.5(c)(1))

Fee-splitting permitted with client consent after full disclosure of the fee, the split and the lawyers' participation (participating lawyers are not required to expressly assume responsibility for their co-counsels' actions; the new Rule allows referral arrangements with client consent) (Rule 1.5(e))

Confidences

Comment on "mentor" discussions (Rule 1.6(a))

Lawyer "required" to request client's consent to "blow the whistle" on another lawyer's unethical conduct (Rule 1.6(c)(3))

Conflicts of interest

Bedrock conflict rule explicitly stated -- lawyers may never be adverse to current clients unless it would not hurt the clients and the clients consent after full disclosure (Rule 1.7(a))

No one in a lawyer's firm may prepare an instrument giving the lawyer or member of the lawyer's immediate family a "substantial gift" from a client unless the client is a relative of the donee (Rule 1.8(c)) (this prohibition extends to the entire firm -- (Rule 1.10(a))

Specific provision governing the conflicts rules for lawyers who move from firm to firm (a lawyer is disqualified from being adverse to a former client in the "same or substantially related matter" in which the lawyer's former firm represented the client only if the lawyer has material confidential information -- avoids the "Typhoid Mary" effect) (Rule 1.9(b))

Advancing costs

Lawyer may pay costs and expenses for indigent client without expecting reimbursement (Rule 1.8(e)(2))

Limiting liability

In-house lawyers may prospectively limit malpractice liability to their employers if the employers are independently represented in making the arrangement (Rule 1.8(h))

Related lawyers

Related lawyers may represent clients adverse to each other with consent (Rule 1.8(i))

Government lawyers

A former government lawyer may not undertake representations in matters in which the lawyer "participated personally and substantially" while a government employee unless the client and the government consent. The lawyer's firm may undertake the representation if the lawyer is screened, does not share in the fees and advises the government agency. (The term "matter" is defined as "a particular matter involving a specific party or parties"). (Rule 1.11(b)(e))

A former government lawyer possessing material "confidential government information" about a person may not be adverse to that person, but the lawyer's firm may undertake the representation if the lawyer is screened and does not share in the fee. The term "confidential government information" is defined as information "obtained under governmental authority", the disclosure of which is prohibited by law and which is "not otherwise available to the public." (Rule 1.11(c)(f))

A government lawyer may not participate in a matter "in which the lawyer participated personally and substantially while in private practice or non-government employment" or "negotiate for private employment" with a party or lawyer in a matter in which the lawyer is "participating personally and substantially" (except for law clerks and certain other specified government lawyers). (Rule 1.11(d))

Representing organizations

Guidance for lawyers who discover that an employee or officer is hurting an organization (Rule 1.13))

When dealing with an organization's constituents, a lawyer must "explain the identity of the client" if the constituents' interests are adverse to the organization's interests (Rule 1.13(d))

Representing clients under a disability

If a client's ability to make "adequately considered decisions" becomes "impaired," the lawyer shall try to maintain a normal relationship, but may seek the appointment of a guardian or take "other protective action" if the lawyer "reasonably believes that the client cannot adequately act in the client's own interest" (Rule 1.14)

Handling funds

Lawyer must segregate and maintain property which is the subject of a dispute (Rule 1.15(b))

Specific guidelines for lawyers or law firms acting as fiduciaries (trustees, receivers, etc.) (Rules 1.15(d) and 1.15(e)(2))

Withholding files from a client

Whether they are paid or not, lawyers must give former clients all original documents provided by the client (without charging for copying) and other work product prepared during the representation (the lawyer may bill the client for copying but may not withhold these documents until the copying bill is paid). Lawyers are not required to give former clients documents intended for internal use (including memoranda discussing "difficulties arising from the lawyer/client relationship") (Rule 1.16(e))

Sale of law practices

Lawyers intending to cease practicing law in the "geographic area" in which they practice may sell all or part of their practice (including "good will") if they provide actual written notice to the clients and the clients affirmatively consent to the sale; lawyers must make their entire practice available for purchase, but may sell only part of it; clients' fees may not be increased "by reason of the sale" (Rule 1.17)

Lawyer's role as advisor, intermediary, evaluator, third party neutral and mediator

Specific new rules govern these roles and emphasize disclosure of lawyer's role in a particular setting (Rule 2.1-2.3, 2.10-2.11)

Lawyers must advise clients of alternative dispute resolution options "that might be appropriate" (Rule 1.2 Comment)

Non-frivolous positions

Lawyers may only bring or defend cases or take positions if there is an objectively-determinable non-frivolous basis for doing so (unless the lawyer is arguing for a modification of law or is defending a criminal case) (Rule 3.1)

Dealing with adversaries

Lawyers may not "present or threaten to present" criminal or disciplinary charges solely to obtain an advantage in a civil matter. This prohibition does not extend to "participating" in such conduct, so lawyers may advise their clients of their rights under the criminal laws (Rule 3.4(h))

Dealing with non-clients

In civil cases, lawyers may request relatives and current or former employees or other agents of a client to refrain from providing information to other parties (Rule 3.4(g))

Lawyer may not communicate ex parte with a "person" (not just a "party") who is represented in the matter (Rule 4.2)

Dealings with tribunals

A lawyer must advise the court of "controlling legal authority in the subject jurisdiction" (Rule 3.3(a)(3))

A lawyer may refuse to offer evidence that the lawyer "reasonably believes is false" (the current Code offers no guidance to lawyers who suspect but do not "know" of such falsity) (Rule 3.3(b))

In an ex parte proceeding, lawyer shall fully advise the court of all relevant facts and law (Rule 3.3(c))

Prohibition on frivolous discovery requests and failing to diligently respond to requests (Rule 3.4(e))

Lawyers "shall not engage in conduct intended to disrupt a tribunal (Rule 3.5(d))

Prohibition on criminal matter pre-trial communications that will have a "substantial likelihood" of interfering with the fairness of a jury trial (Rule 3.6)

Witness-advocate rule disqualification is not imputed to the entire law firm (Rule 3.7(c))

Required disclosure to avoid assisting wrongful conduct

Lawyers must disclose facts "when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client" (Rule 4.1(b))

Supervision of lawyers and non-lawyers

Supervisory lawyers are responsible for another lawyer's or a non-lawyer's misconduct if they order or ratify the conduct or fail to take reasonable remedial actions (Rule 5.1, 5.3)

Non-lawyers may engage in such traditionally acceptable misrepresentations as those involved in criminal "sting" operations and housing discrimination "tests."

Restrictions on practice

Lawyers may enter into settlement agreements that broadly restrict their practice only if a tribunal or governmental entity approves (Rule 5.6)

Pro bono work

Lawyers should devote two percent of their time each year to pro bono legal services or provide "direct financial support" to pro bono activities. Lawyers in a firm may satisfy this aspirational responsibility collectively. (Rule 6.1)

Lawyers' other activities

Lawyers may participate in a legal services organization even if it represents clients adverse to the lawyer's clients, as long as the lawyer is recused (Rule 6.3)

Advertising

All advertisements must include the name and address of a Virginia lawyer responsible for its content (Rule 7.1(e))

Lawyers may describe themselves as "patent" or "admiralty" lawyers (as under the current Code), and may also describe themselves as a "certified" specialist in other areas of the law as long as either: (1) the lawyers have been certified as specialists by the Virginia Supreme Court; or (2) the lawyers name the certifying organization and "clearly state" that Virginia has no procedure for approving certifying organizations (Rule 7.4(c))

Reporting misconduct

Lawyer may not obstruct admissions or disciplinary authority investigations and must respond to requests for information (unless the information is protected by confidentiality rules) (Rule 8.1(c)(d))

Lawyers must report a judge's misconduct under certain circumstances (Rule 8.3(b))

Judge misconduct

A lawyer may not knowingly assist a judge or other judicial officer in violating "applicable rules of judicial conduct or other law" (Rule 8.4(e))

Choice of laws

Conduct in court proceedings is governed by whatever ethics code the court follows; Virginia lawyers are subject to Virginia rules for misconduct elsewhere; another states' rules might apply if the lawyer is licensed there and the conduct has its "predominant effect" there (Rule 8.5)

A:\OUTLINE.WPD