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For years, Virginia attorneys have found these Rules in a complex maze of regulations based on the old Model Code of Professional Responsibility which the American Bar Association adopted in 1969. [1] That Code is a confusing array of "Disciplinary Rules" (DRs) and "Ethical Considerations" (ECs) with accompanying Legal Ethics Opinions from the Virginia State Bar interpreting the DRs and ECs. The existing structure has become so confusing that the State Bar has established a toll free number which a lawyer can call to receive advice from attorneys who are especially well versed in the intricacies of legal ethics. Though in 1983 the ABA decided to adopt new Model Rules, which have today been embraced by at least 38 states, and despite the fact that most law schools, including those in Virginia, now teach Professional Responsibility from the standpoint of those new Rules, Virginia has stubbornly retained the old DRs and ECs. [2]

With this in mind, the Virginia State Bar approved most of the first 21 proposed Rules of ethics at its meeting this past June. [3] Sixteen additional Rules have been proposed, but not yet approved, and about 15 more will be proposed shortly. [4] Assuming that approval is obtained from the Virginia Supreme Court, the new Rules could constitute a significant change in the way lawyers do business in Virginia. Many of the new Rules are of practical import only to attorneys, but some, such as those described below, should be noted by clients as well.

• Under the existing rules, lawyers are prohibited from discussing a client's confidential legal concerns with anyone outside of their own firm unless consent is given by the client. This would change somewhat with the adoption of proposed Rule 1.6, which permits disclosures which are "impliedly authorized in order to carry out the representation," except where the client instructs otherwise. Specifically, the Rule would permit attorneys from different law firms to consult and confer with each other for the benefit of the client, provided that no conflict of interest is involved. This would be of particular benefit to young lawyers who are either sole practitioners or in very small law firms with relatively specific areas of practice. Where a lawyer has access to the expertise of other members of his own firm, however, consultation with attorneys outside of that firm would usually be unnecessary.
• Proposed Rule 1.8(h) provides that an attorney may under certain circumstances limit his malpractice liability prior to his representation of a client if the client consents in writing and is either independently represented in the agreement or knowingly waives such representation. This appears to be a significant change from the current Disciplinary Rule, which provides that a lawyer shall not limit his liability to a client for his personal malpractice.
• Several of the newly proposed Rules concern "Alternative Dispute Resolution" (ADR), an alternative to the traditional adversarial system of justice. Under ADR, an attorney assumes a more complex role than simply that of advocate and advisor. For example, under ADR, with the approval of client a lawyer may act as a "intermediary" (representing both sides of the dispute), a "third party neutral" (representing neither party, but helping them to voluntarily resolve the dispute), a "mediator" (a particular kind of third party neutral), or may evaluate a matter affecting a client for the use of someone else. While the use of ADR is, for the time being, relatively rare when compared to the use of more traditional litigation, it has become more and more popular for the past several years. The current ethical Rules, which were adopted at a time when ADR was practically non-existent in Virginia, do not address ethical considerations involving ADR, and to that extent they are a welcome addition.
• The existing ethical Rules provide that associate attorneys, who are employees of, and therefore expected to strictly follow the directives of, a law firm's partners, are nevertheless treated as though they act independently with regard to application of the Rules of ethics. Proposed Rule 5.2 addresses this matter and provides that a "subordinate lawyer" does not violate the ethical Rules if that lawyer acts in accordance with a supervisory lawyer's reasonable determination of a question of professional duty. If, for example, a subordinate files a frivolous pleading at the direction of a superior, a subordinate would not be guilty of an ethical violation unless he knew or should have known that the pleading was frivolous.
• This proposed Rule will, no doubt, be a welcome change to the thousands of associate attorneys practicing in law firms across the Commonwealth. In this writer's view, few potential hazards loom as a result of the change, since associates will remain responsible for relatively clear-cut ethical violations. Where the question is reasonably arguable, however, the new Rule permits the subordinate lawyer to rely upon the expertise and judgment of the supervisory lawyer. Only in situations where the rule is vague or subject to varied interpretations would an associate lawyer's conduct be mitigated by his dependence on a senior attorney's judgment.
• Another significant change from the current Rules is found at proposed Rule 3.1, which states that a lawyer shall not make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. This provision, which has no direct counterpart in the Virginia Code, [5] addresses a matter which is of significant concern to litigants and their attorneys who propound discovery materials upon an opposing party only to all too often see those requests ignored for months by that party or his counsel. The monetary and psychological costs to the system caused by such dilatory behavior are considerable, yet under the current system litigants faced with stall tactics or simple lack of diligence by opposing counsel are usually left with no practical recourse. The proposed Rule makes clear that an attorney must, in the immortal words of Donald Litten, "keep the case moving" or be subject to discipline by the State Bar.
• Probably the most questionable of the Rules which have been proposed so far is Rule 3.2, which holds that a lawyer must disclose to a tribunal controlling legal authority known by the lawyer to be adverse to the position of his client where the opposing counsel has failed to reveal that authority to the tribunal.

Adoption of such a Rule would in my view be a highly injudicious and potentially destructive change from current law. While attorneys are not, and should not be, permitted to lie to a judge or jury, lying is a far cry from honestly presenting the best spin on a client's case that the lawyer possibly can. Why should an attorney have to present adverse authority to the Court simply because opposing counsel has been too lazy or negligent to do so? How does the attorney explain this to his client? In an adversarial system such as ours, counsel acting as a zealous advocate should not have to present his client's case in a disinterested, nonpartisan manner. He should instead make the best argument for the client that he possibly can, and leave it to the Court and to opposing counsel to "poke holes" in his reasoning. That is how the system works. Proposed Rule 3.2 threatens to "dumb down" the entire process by rewarding the derelict lawyer at the expense of the one who has worked hard to properly represent his client.

More proposed Rules, including one permitting the sale of a practice, and another which attempts to address the ongoing debate as to whether an attorney can charge the client for copying a file to protect himself from possible malpractice or disciplinary situations, are likely to be presented soon, after which time the entire amended package will be sent to the Virginia Supreme Court for final approval.6 If the new Code's most obvious foibles are excised, both attorneys and their clients will benefit from its adoption, since the "rules of the game" will then be clearer to everyone involved. The result should be less moral shenanigans and more energy spent pursuing the true objective of law -- justice.

[1] Baker McClanahan, "VSB Floats Switch to Model Rules," Virginia Lawyers Weekly, 8/26/96, p. A-4.

[2] Id.

[3] Baker McClanahan, "Rule Requiring Fees in Writing Rejected," Virginia Lawyers Weekly, 6/30/97, p. A-1.

[4] Dennis W. Dohnal, "The Continuing Saga of the Proposed Model Rules," Virginia Lawyer, Oct. 1997, p. 11.

[5] Id. at pp. 11 -12.

[6] Id. at pp. 11 -12.