Overview of Virginia’s Rules of Professional Conduct
The rules of professional conduct in Virginia govern Virginia lawyers in their practice and the representation of their clients. The Rules set forth binding obligations by which Virginia lawyers must abide. They establish "minimum standards which must be observed by all attorneys in representing clients." Formal Op. 1085 (May 1, 1987). In addition to the formal rules, lawyers must also be "guided" by the Virginia Code of Professional Responsibility when they represent clients. See e.g. Formal Op. 1085 (May 1, 1987); Formal Op. 942 (July 20, 1986).
The rules of professional conduct in Virginia apply to Virginia lawyers in both Virginia state courts and before federal courts, unless otherwise preempted by federal court rules . In a state court, "an attorney is bound to follow the ethical rules of this Commonwealth, regardless of the law governing the dispute." Wiggins v. Illinois Cent. Gulf Rwy., 275 Va. 510, 513, 659 S.E.2d 539, 540-41 (2008) (emphasis added).
The ethical standards in Virginia apply to all lawyers. That is, any lawyer practicing in Virginia, regardless of where the lawyer is licensed to practice regardless of whether or not the lawyer is licensed in Virginia, must abide by the Virginia Rules of Professional Conduct. The rules govern both those lawyers who are licensed only in Virginia as well as those lawyers who are licensed in Virginia and one or more other states. See e.g. Va. Sup. Ct. R. Pt. VI, § II, Par. (A) (Rule 8.5(a)); Formal Op. 187 (Jan. 15, 1974).
Fundamental Principles of Professional Conduct in Virginia
A core principle central to the professional standard of work for attorneys is competency. Virginia Rule 1.1 instructs that an attorney shall provide "competent representation to a client" and that such representation requires the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." While this encompasses a range of issues, it is clear that an attorney cannot competently represent a client in any legal capacity unless he or she has the appropriate level of experience in that area of law. Not only is this crucial for the client’s desired outcome, but it is crucial to the integrity of the legal profession that licensed attorneys do not practice in areas where they have no experience or expertise. Failure to perform competently can lead to malpractice actions and possible disbarment.
Confidentiality may well be the most well-known component of the Virginia Rules of Professional Conduct across all legal practices. Rule 1.6 on confidentiality states simply that, except in certain explicit situations, an attorney "shall not reveal information relating to the representation of a client unless the client gives informed consent." This rule extends to information learned through agents such as investigators and paralegals. While functioning as a legal safeguard for a client, the rule additionally protects attorneys from being forced to disclose confidential information against a client’s will outside of the legal process.
Aside from attorney-client confidentiality, Virginia attorneys are additionally bound to maintain a high level of loyalty to their respective clients when providing legal representation. Rule 1.7 on conflicts of interest with current clients states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." A concurrent conflict of interest exists when one or more of the following conflicts exist as defined by Rule 1.7: (1) the representation of two or more clients are directly adverse; or (2) there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to another client. The rule goes on to explain that despite the existence of conflicts of interest, an attorney may proceed with representation if the clients provide informed consent, "confirmed in writing." At times, when two clients’ interests are aligned, they may jointly consent to proceed with common representation. However, if the conflict arises as a result of a personal interest of the attorney that is likely to adversely affect the client, then informed consent is not a sufficient basis for finding an absence of a conflict of interest.
Attorneys breach their duty of loyalty to their clients whenever they fail to disclose or act upon a conflict of interest. In such situations, an attorney may be exposed to both disciplinary action and a subsequent claim for legal malpractice.
Requirements Under Virginia’s Rules of Professional Conduct
When looking at Virginia Rule of Professional Conduct 1.0 – the definitions – there is a very broad inclusiveness to the definitions. This vastness of the Virginia Rules, however, is offset by the limitations or exclusions contained within the Virginia Rules. For example, the responsibilities, duties and obligations imposed in Rule 1.15, concerning trust accounts, trust money, trust funds, and the like contain some specific exclusions not found in other states’ ethics rules.
Virginia uses the terms "client," "person," and "third person." Many of the rules limit their application to a "client." However, the duties imposed in the Virginia Rules on a lawyer can extend beyond that "client" category. For example, Rule 1.2, "Scope of Representation and Allocation of Authority Between Client and Lawyer," applies broadly to "client" but may also apply to the word "person." When analyzing the ethical obligations of a lawyer in Virginia, a lawyer must analyze whether himself or herself as a lawyer is governed by the Rule.
The nontraditional definitions of "person" is intended to aid the legal practice group that may be serving an organization that must broadly consider the fiduciary duties a lawyer owes to a "client" under the Virginia Rules.
Rule 1.5 establishes the fees a lawyer can charge a client. In Virginia, Rule 1.5(e) states that in a matter involving a contingent fee, the lawyer and the client may not enter into the contingent fee contract except in writing which describes the method by which the fee is to be determined, including the percent or percentages that shall accrue to the lawyer upon the successful conclusion of the matter. Virginia does not prohibit a lawyer from working outside of these guidelines. So while the rule sets a presumptively reasonable and acceptable fee, it does not prohibit a fee greater than these parameters.
The difference between Virginia’s Rule regarding fee splitting and the Model Rule of Professional Conduct 1.5 is its reference to "charge". Virginia Rule 1.5(e) prohibits any arrangement between lawyers or firms that divides fees for services unless the agreement is in proportion to the service performed or responsibility exercised by each lawyer or firm. Virginia courts have interpreted Virginia Rule 1.5(e) to mean that the dividing of fees is permitted if each lawyer or firm who receives a share of the total fee assumes joint responsibility for the representation.
In addition to the uniqueness of Rule 1.5, Virginia Bar Association established an informal opinion that Virginia lawyers are definitely permitted to pay referral fees. Referral fees have been part of the law in Virginia for decades.
Another important and unique provision of the Virginia Rules involves bar admission. Rule 8.1, et seq. governs how a candidate for admission to the Virginia Bar is treated in the event he or she is denied admission to the Bar. Rule 8.1, Comment [5] states that bias in the admissions process impermissibly impinges on the integrity of the legal profession, thereby impairing the trust the public places in it. The comment goes on to explain that Justice Kagan recommends requiring students at an earlier stage to come forward with information about their character and fitness is important so that any problems are easily identified. Virginia may be at the forefront of implementing Justice Kagan’s proposal in that what may have been a troubled so-so character report in the past, the Virginia State Bar is likely to embrace the "no way" to "maybe" philosophy before recommending or approving an applicant for the Virginia Bar.
Compliance and Enforcement Provisions
The Virginia State Bar enforces the Virginia Rules of Professional Conduct as well as the Rules of Court a and certain other statutes. Any violations may result in disciplinary actions. Moreover, the Rules empower lawyers to sue over the breach of their fiduciary duty.
The most common way that the Rules are enforced is through the Virginia State Bar’s disciplinary process. When the Virginia State Bar receives a complaint about an attorney’s behavior, it has a duty to investigate that complaint. The investigation usually includes a review of any relevant documents and an interview with the client who made the complaint. If the disciplinary counsel cannot resolve the matter informally, then it has to conduct a preliminary review hearing before a subcommittee of the Virginia State Bar Disciplinary Board (the "Board") before proceeding to a formal disciplinary hearing.
If the matter potentially involves a felony or a crime or fraud that supports moral turpitude, then the disciplinary counsel would refer it to the Board for referral for criminal prosecution:
In 2009-2010 the Virginia Supreme Court mandated that all disciplinary proceedings must be resolved within 364 days of the Virginia State Bar’s receipt of the client’s original complaint. This timetable for resolution does not, however, apply to criminal matters or any disciplinary matters that are resolved in the lawyer’s favor. Also, the Supreme Court’s 2009-2010 rules only apply to complaints made on or after October 1, 2010.
The Board has the discretion to place an attorney on a temporary suspension if it deems that the discipline is necessary in order "to protect the public from being deceived as a result of dishonest and deceitful acts." The Board’s ability to impose a temporary suspension has been clarified such that a single instance of dishonesty at the time of a disciplinary hearing can justify immediate suspension of the license.
When there is a finding of misconduct, a variety of punishments are available. These include private reprimand, public reprimand, probation, suspension, disbarment or even death. The disciplinary counsel will often argue for a writ of penalty in addition to a finding of guilt. A writ of penalty is essentially an order for judgment against the lawyer with specific recommendations. When a writ of penalty is issued, it is binding on the Virginia State Bar Disciplinary Board and the board can only issue a penalty of no more than 10 days of suspension. However, the penalty is not binding on the lawyer, who may request a formal evidentiary hearing where the board would hear witnesses in a public setting. If sought, the evidentiary hearing would be scheduled within 90 days of the request. At the hearing, the hearing panel would hear both parties’ arguments on the proper sanction. After the hearing, the hearing panel issues its findings to the Virginia State Bar Disciplinary Board and either, adopts the Panel’s recommendation and that full report is then considered by the Virginia State Bar Disciplinary Board, or, the report is returned to the panel for further participation.
Recent Revisions and Amendments
Professional Conduct ("RPC" or the "Rules") are periodically revisited, and on June 11, 2019 limited amendments will go into force. In 2018 the Virginia State Bar offered a yearlong series of over 30 seminars called "The Ethics of Leadership in a Time of Change", live and by webinar, to address the topics and proposed changes to the RPC. Here are some of the details of those changes, why they took place and what they mean for existing and prospective members of Virginia’s bar.
Changes to Comments to Rule 4.2 – Communication with Person located in Representatives of an Organziations:
The phrase "organized" changes to "formed" in Comment [2] to this Rule. These language adjustments were made to align the term more closely to the Restatement (Third) of the Law Governing Lawyers’ use of the term. The previously used term "conduit" has been changed to "agent" to replace a term that could be interpreted to mean "commercial address." Language was also added to clarify that in representing an organization, a lawyer may communicate with "current" employees. This change was the result of concerns the Virginia State Bar heard during its seminars throughout Virginia .
Amendment to Comment [2] to Rule 1.5 – Fees:
Comment [2] now adds language that specifies when a client agrees to pay a lawyer’s fees by using funds held in an irrevocable trust, it does not constitute aiding the client’s future crime or fraud.
New Rule 7.5 – Firm Names and Letterheads:
Rule 7.5 previously dealt exclusively with lawyers and law firms with offices in multiple jurisdictions but now extends to lawyers in Virginia who have offices in other jurisdictions. This new rule permits a lawyer or firm to use the name of a lawyer or firm belonging to the lawyer’s firm or office in another jurisdiction on letterhead and communication, but not in association with Virginia matters, in the absence of their consent.
Amendments to Rule 1.17 to Address Moving Jurisdictions:
Moving from one jurisdiction to another presents a myriad of challenges, including problems with clients and third-party clients. Sometimes, it may create conflicts for the attorney. The Virginia State Bar updated this Rule to address common issues known to arise with moving between states, as well as to help attorneys meet their obligations under Rule 1.16.
Impact on Legal Practice in Virginia
The implications of adhering to these rules for legal practitioners are substantial. The Rules are the proverbial teeth in the Virginia State Bar’s otherwise largely toothless disciplinary process. Not only are the Rules the standard that lawyers are alleged to have violated in Virginia Bar disciplinary proceedings; they shape virtually every facet of day-to-day legal practice and decision making, up to and including whether to accept certain representations in the first place.
Virtually all of the most well-known complexities emanate from Rule 1.5(e), the rule governing division of fees between lawyers of different firms. Numerous lawyers, especially those in smaller firms with less established reputations, have had their fees found unethical for inappropriately attempting to keep too much to themselves. And every so often a prominent ethics discussion arises over ambiguous provisions in Rule 1.7, which – again – is the Rule that governs potentially conflicting comparable clients.
At least one of Virginia’s leading legal malpractice attorneys has penned a compelling article demonstrating how ignoring Rule 3.3, governing candor to the tribunal, has been at the center of most legal malpractice claims against Virginia lawyers who otherwise enjoy a strong reputation. And all experienced Virginia trial lawyers know of and are affected by Rule 4.2, the rule preventing "up the ladder" contacts with adverse litigants.
And as even these few examples demonstrate, there are real world implications to every type of legal work. Whether you are a trial lawyer, in private practice or in house, on a firm’s managerial committee or on a government agency’s legal staff, the Rules are there to guide your conduct and help you give it and your clients the best possible chance of winning.
Conclusion and Helpful Tips
In conclusion, the Virginia Rules of Professional Conduct is a crucial document that governs the behavior of legal professionals in the state. These rules define the responsibilities of lawyers, ensuring that they run their practices ethically and professionally. In this article, we have outlined some important topics discussed within the rules, including confidentiality, client communication, conflict of interest, fee arrangements, and the use of social media by legal professionals.
The Confidentiality of Information clause requires lawyers to maintain the privacy of their clients’ information, while the Client Communication rule emphasizes the importance of keeping clients informed about their cases. The Conflict of Interest rule addresses the potential issues that can arise when a lawyer represents multiple clients who may have opposing interests , and the Fee Arrangements section focuses on how lawyers should handle fees in a transparent and ethical manner. Finally, the Social Media section provides guidance on the use of social media, which has become a significant part of personal and professional life.
We have also suggested some best practices for lawyers and law firms, including creating a comprehensive ethics handbook to ensure compliance with the rules, staying up to date with changes in regulations, and training your employees to follow these rules to avoid potential issues. Overall, it is vital for law firms and legal professionals to be aware of the rules and fully adhere to them.