Adopted | amendments to Rule 1.2 of the Rules of Professional Conduct.
Adopted by the Supreme Court of Virginia January 11, 2022. Effective March 12,
2022.
January 11, 2022
On January 11, 2022, the Supreme Court of Virginia adopted
amendments to Rule 1.2 of the Rules of Professional Conduct effective March
12, 2022.
View the Court's order
(PDF)
November 5, 2021
At its meeting on October 29, 2021, the Virginia State Bar Council approved
proposed changes to Rule 1.2 of the Rules of Professional Conduct.The proposed
amendment and new comment address whether, and how, lawyers can advise clients
who wish to engage in marijuana-related activities that are legal under state
law (whether Virginia or other states) but illegal under federal law.The
proposed changes have been presented to the Supreme Court of Virginia for
approval.
View the petition to the Court
View the appendix to the petition to the Court
September 28, 2021
At its meeting on September 16, 2021, after discussion, an amendment was made
to the draft, after which the committee voted to send the proposed rule to
Council for approval at its meeting on October 29, 2021.
June 29, 2021
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 amendments to Rule 1.2 of
the Rules of Professional Conduct.
The proposed amendment addresses the dilemma faced by lawyers who are asked to
advise clients about cannabis- or marijuana-related activities that are legal
under applicable state law but are illegal under federal law. The proposed
amendment would allow lawyers to advise clients on how to comply with state
law as long as the clients are also cautioned about the application of federal
law. The proposal also includes proposed new Comment [13] to further explain
the purpose of the rule and the content of the advice that must be provided to
the client.
Inspection and Comment
The proposed rule amendments may be inspected below or by contacting the
Office of Ethics Counsel at (804) 775-0557.
Any individual, business, or other entity may file or submit written comments
in support of or in opposition to the proposed opinion with Karen A. Gould,
executive director of the Virginia State Bar, not later than August 30, 2021.
Comments may be submitted via email to [email protected].
proposed amendments underlined
RULE 1.2 Scope of Representation
(a) A lawyer shall abide by a client's decisions concerning the objectives
of representation, subject to paragraphs (b), (c), and (d), and shall
consult with the client as to the means by which they are to be pursued. A
lawyer shall abide by a client's decision, after consultation with the
lawyer, whether to accept an offer of settlement of a matter. In a criminal
case, the lawyer shall abide by the client's decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial and
whether the client will testify.
(b) A lawyer may limit the objectives of the representation if the client
consents after consultation.
(c) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer
may
(1)
discuss the legal consequences of any proposed course of conduct with a
client; and
(2)
may counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning, or application of the law.; and
(3) may counsel or assist a client regarding conduct expressly permitted
by state or other applicable law that conflicts with federal law, provided
that the lawyer counsels the client about the potential legal consequence
of the client's proposed course of conduct under applicable federal
law.
(d) A lawyer may take such action on behalf of the client as is impliedly
authorized to carry out the representation.
(e) When a lawyer knows that a client expects assistance not permitted by
the Rules of Professional Conduct or other law, the lawyer shall consult
with the client regarding the relevant limitations on the lawyer's
conduct.
Comment
Scope of Representation
[1] Both lawyer and client have authority and responsibility in the objectives
and means of representation. The client has ultimate authority to determine
the purposes to be served by legal representation, within the limits imposed
by the law and the lawyer's professional obligations. Within those limits, a
client also has a right to consult with the lawyer about the means to be used
in pursuing those objectives. In that context, a lawyer shall advise the
client about the advantages, disadvantages, and availability of dispute
resolution processes that might be appropriate in pursuing these objectives.
At the same time, a lawyer is not required to pursue objectives or employ
means simply because a client may wish that the lawyer do so. A clear
distinction between objectives and means sometimes cannot be drawn, and in
many cases the client-lawyer relationship partakes of a joint undertaking. In
questions of means, the lawyer should assume responsibility for technical and
legal tactical issues, but should defer to the client regarding such questions
as the expense to be incurred and concern for third persons who might be
adversely affected. These Rules do not define the lawyer's scope of authority
in litigation.
[2-3] ABA Model Rule Comments not adopted.
[4] In a case in which the client appears to be suffering mental disability,
the lawyer's duty to abide by the client's decisions is to be guided by
reference to Rule 1.14.
Independence from Client's Views or Activities
[5] Legal representation should not be denied to people who are unable to
afford legal services, or whose cause is controversial or the subject of
popular disapproval. By the same token, a lawyer's representation of a client,
including representation by appointment, does not constitute an endorsement of
the client's political, economic, social or moral views or activities.
Services Limited in Objectives or Means
[6] The objectives or scope of services provided by a lawyer may be limited by
agreement with the client or by the terms under which the lawyer's services
are made available to the client. For example, a retainer may be for a
specifically defined purpose. Representation provided through a legal aid
agency may be subject to limitations on the types of cases the agency handles.
When a lawyer has been retained by an insurer to represent an insured, the
representation may be limited to matters related to the insurance coverage.
The terms upon which representation is undertaken may exclude specific
objectives or means. Such limitations may exclude objectives or means that the
lawyer regards as repugnant or imprudent.
[7] An agreement concerning the scope of representation must accord with the
Rules of Professional Conduct and other law. Thus, the client may not be asked
to agree to representation so limited in scope as to violate Rule 1.1, or to
surrender the right to terminate the lawyer's services or the right to settle
litigation that the lawyer might wish to continue.
[8] ABA Model Rule Comment not adopted.
Criminal, Fraudulent and Prohibited Transactions
[9] A lawyer is required to give an honest opinion about the actual
consequences that appear likely to result from a client's conduct. The fact
that a client uses advice in a course of action that is criminal or fraudulent
does not, of itself, make a lawyer a party to the course of action. However, a
lawyer may not knowingly assist a client in criminal or fraudulent conduct.
There is a critical distinction between presenting an analysis of legal
aspects of questionable conduct and recommending the means by which a crime or
fraud might be committed with impunity.
[10] When the client's course of action has already begun and is continuing,
the lawyer's responsibility is especially delicate. The lawyer is not
permitted to reveal the client's wrongdoing, except where permitted or
required by Rule 1.6. However, the lawyer is required to avoid furthering the
purpose, for example, by suggesting how it might be concealed. A lawyer shall
not continue assisting a client in conduct that the lawyer originally supposes
is legally proper but then discovers is criminal or fraudulent.
See Rule 1.16.
[11] Where the client is a fiduciary, the lawyer may be charged with special
obligations in dealings with a beneficiary.
[12] Paragraph (c) applies whether or not the defrauded party is a party to
the transaction. Hence, a lawyer should not participate in a sham transaction;
for example, a transaction to effectuate criminal or fraudulent escape of tax
liability. Paragraph (c) does not preclude undertaking a criminal defense
incident to a general retainer for legal services to a lawful enterprise.
Paragraph (c)(2) last clause of paragraph (c) recognizes that determining the validity
or interpretation of a statute or regulation may require a course of action
involving disobedience of the statute or regulation or of the interpretation
placed upon it by governmental authorities. See also Rule 3.4(d).
[13] Paragraph (c)(3) addresses the dilemma facing a lawyer whose client
wishes to engage in a cannabis or marijuana business that is permitted by
applicable state or other law. Conduct permitted by state law may be
prohibited by the federal Controlled Substances Act, 21 U.S.C. §§ 801-904
and other law. The conflict between state and federal law makes it
particularly important to allow a lawyer to provide legal advice and
assistance to a client seeking to engage in conduct permitted by Virginia
law. In providing such advice and assistance, a lawyer shall also advise the
client about related federal law and policy. Paragraph (c)(3) is not
restricted in its application to the marijuana law conflict.