UPDATES IN PROFESSIONAL RESPONSIBILITY
Here are some updates selected as hot topics –fodder, in the bar complaint arena.
CLIENT RE-PAYMENT OF LITIGATION EXPENSES CAN BE CONTINGENT
Personal injury attorneys will welcome changes to RPC 1.8(e) effective February 15, 2019 which allow attorneys to make recovery of advanced litigation expenses contingent upon the outcome of the case. http://www.courts.state.va.us/courts/scv/amendments_tracked/2018_1212_part_six_sect_ii_rule_1_8.pdf
Previously, the Rule required that the Client be ultimately responsible no matter the outcome of the case. The amendment further included a new Comment  which explicitly recognized as permissibly contingent litigation expenses “medical examination and the costs of obtaining and presenting evidence.” This should include expert witness fees.
These changes bring Virginia in conformance to the ABA Model Rules—and as a colleague in personal injury practice stated, “the old rule made little sense and ignored the realities of personal injury practice.”
DISPUTES OVER TRUST FUNDS CANNOT BE UNILATERALLY DETERMINED BY LAWYER
In a case which underscores just how literally the VSB and the SCV will interpret trust accounting rules under RPC 1.15, the Court upheld the VSB’s public reprimand of a lawyer who withdrew $143 from trust for partial payment of his quantum meruit claim for fees when the client and the VSB both agreed that he had performed substantial work, but had withdrawn the funds while there was a dispute over the quantum of his fee entitlement. An attorney cannot unilaterally determine whether a dispute exists. Roberts v. Va. State Bar, 296 Va. 105, 818 S.E.2d 45 (2018)
IOLTA ACCOUNTS ARE REQUIRED
Effective July 1, 2022, if you are required to maintain a trust account, the trust account must be a an IOLTA account if the administrative fees and costs which the lawyer is entitled to charge would equal or exceed the pro-rata interest earned on the client’s funds. Beginning on July 1, 2023, Virginia lawyers will be required to file an annual IOLTA Report stating their compliance or their exemption from the Rule. Client notice and consent is not required. The Report apparently will be provided with annual dues statements. Pt 6, Sec. IV, Para. 20 of the Rules of Court..
“REPLY ALL” DOES NOT VIOLATE THE REPRESENTED PARTY RULE OF RPC 4.2
In its September 19, 2022 opinion, the SCV approved LEO 1897 which ruled that an attorney sending an email which includes email addresses of his or her client, has given implied consent for the responding attorney to include the represented party in the email response. The Opinion reasoned that clients included in the email thread are simply bystanders to the conversation between the attorneys.
The better practice of course is to bcc our clients or to forward our emails to our clients to control the flow of information to our client and to reduce the risks of our clients jumping directly into the fray.