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Panel proposes changes in lawyer conflict rules

The Virginia State Bar is looking for comments on two proposed changes to ethics rules affecting lawyer conflicts of interest.

One proposal from the VSB’s Standing Committee on Legal Ethics would eliminate a client repayment obligation for costs and expenses in contingency litigation. Another would limit the imputed conflict for a law firm when one firm lawyer has a purely personal interest in a case.

Contingency cases

Rule 1.8(e) now provides that a lawyer may advance costs and expenses of litigation, but only with the provision that the client remains ultimately liable for such costs and expenses.

The ethics committee would remove that provision and allow the repayment of costs and expenses to be contingent on the outcome of the matter. A proposed comment would explicitly approve allowing lawyers representing indigent clients to pay court costs and litigation expenses “regardless of whether those funds will be repaid.”

The committee said the change would bring Virginia’s rule in line with at least 47 other states that have adopted an ABA model rule on the topic.

Law firm disqualification

The other bar proposal would keep an entire law firm from being conflicted out of representation merely because one of the firm’s lawyers is disqualified because of a relationship with a witness or some similar personal interest. Revisions to Rule 1.10 would allow firm representation if a lawyer’s conflict “is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by other lawyers in the firm.”

Proposed comments describe an additional exception to the blanket imputed-disqualification rules: “When one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified,” the comment would read.

The full proposals are posted on the VSB website. Comments on the proposed rules changes should be sent by July 13 to VSB Executive Director Karen A. Gould at publiccomment@vsb.org.