At the forefront of legal ethics

Jim McCauley went from prosecuting unethical lawyers to trying to keep them from getting into trouble with the bar. For 23 years, he has led the office that offers free advice on ethics rules and opinions to Virginia lawyers.

His role has gained national significance with his participation in both the Association of Professional Responsibility Lawyers and the ABA’s national conference on professional responsibility.

His work put Virginia in the forefront of reforming lawyer advertising rules, trimming the regulations to avoid unnecessary detail and steer clear of First Amendment issues. McCauley’s leadership made Virginia’s revised rules the model for the country.

McCauley was honored as a member of Virginia Lawyers Weekly’s 2018 class of Leaders in the Law. By a vote of the class members, McCauley was tapped as “Leader of the Year.” He and the others in the Class of 2018 were feted at an event Oct. 25 at The John Marshall in downtown Richmond.

Growing office

McCauley worked in private practice before joining the VSB in 1989 as a bar prosecutor. At the time, there was no office of bar ethics counsel. One of the bar prosecutors would give advice over the phone if lawyers called with questions, McCauley said.

The practice raised concerns about ethics prosecutors giving advice to lawyers that other bar counsel later might have to prosecute. The bar started a separate office to give ethics advice, and McCauley was asked to consider taking that role in 1995.

“I decided it was time for a change,” McCauley said.

The office has grown. McCauley had just one assistant when he started. Now, McCauley heads a staff of three other lawyers and an executive assistant. The Virginia legal ethics hotline is (804) 775-0564.

Writing the rules

McCauley says one of the most satisfying things about the job is creating the rules that guide the profession.

“We write rules for lawyers. It really is an awesome responsibility,” he said.

As ethics counsel, McCauley works with the VSB’s Standing Committee on Legal Ethics to craft rule changes and draft legal ethics opinions. The committee also handles the regulatory work that used to be done by separate committees on lawyer advertising and unauthorized practice of law.

The process has changed somewhat. Rule amendments and proposed legal ethics opinions now are put up for comment from the public. In 2016, the Supreme Court of Virginia said it wanted the final say on legal ethics opinions.

“Gone are the days of sitting behind closed doors and making up all the rules and opinions. The process is more transparent and active. Issues are getting vetted better,” McCauley said.

He said he wants to be sure the Supreme Court gets all the negative comments as well as the positive when the justices consider changes.

New challenges

New technology and new ways of delivering legal services arise daily, it seems.

“We are constantly bombarded with novel issues,” McCauley said.

For a year, the Supreme Court has been considering a proposed LEO that discourages lawyers from participating in a form of attorney-client matching service similar to that offered for a time by Avvo.

Other websites offer do-it-yourself legal services for a price, including those that produce legal forms. Cellphone applications now offer legal help. In Florida, regulators are tangling with a start-up that offered speeding ticket help for drivers.

“We’ve been keeping an eye on that,” McCauley said of the Florida litigation.

Giving advice

Not every state has an ethics counsel to provide real legal advice to lawyers with questions. Some state bars have ethics hotlines staffed with legal assistants, trained to tell lawyers where to look to guidance on their questions. They can’t give legal advice.

The VSB offers a higher level of service, since its ethics lawyers will render an opinion.

“We try to give answers, to tell them, ‘Yes, you can’ or ‘No, you can’t,’” McCauley said. “As far as I’m concerned, there is no such thing as a silly question.”

Lawyers say the answer is generally, “No, you can’t,” when they call the VSB ethics counsel office. McCauley admits he and his legal staff generally err on the side of caution.

“We set the bar a little higher. We’re not urging lawyers to test the waters or push the envelope,” McCauley said. He said lawyers are free to seek independent legal advice on ethics issues. Nevertheless, lawyers generally seem grateful.

“I enjoy it. It’s one of those situations where you make people happy, even though the answer you give them is not the answer they were hoping for. We’re trying to help keep them from getting in trouble with the bar.”

Setting the pace on legal advertising was rewarding, as well.

“I’m really proud that Virginia, of all states, took the lead on liberalization of these advertising rules,” he said.

People he helps are “effusive” with their praise, grateful for somewhere to ask for guidance, McCauley said. “We think the bar is very happy with the service.”

“All the money in the world can’t beat that,” he said.