Bar dissenters: ‘No-contact rule’ too narrow

ALEXANDRIA – Leaders of the Virginia State Bar appear split over the ethical boundaries of talking with your adversary’s employees. Dissenters are pressing for a rule that would bar any contact with employees of a litigation opponent. An existing rule limits the prohibition to just the “control group” of an organization.

The VSB Council voted 41-22 last month to recommend a legal ethics opinion with a narrow construction of what’s termed the “no-contact rule” governing lawyers’ communications with unrepresented employees of a party.

Proposed LEO 1890 – a compendium of prior guidance on Rule 4.2 of the Rules of Professional Conduct – was billed as no more than a helpful summary of existing law. But Bar Council members William Moffet of Abingdon and Dabney Carr of Richmond argued the LEO would perpetuate a flawed policy that allows lawyers to dig for information from employees of a litigation target without notice to the target’s lawyers.

Moffet cited a hypothetical involving a retained surgical sponge claim. The plaintiff’s lawyer learns the names of the nurses involved in the sponge count and interviews them without telling the hospital’s lawyers.

Most lawyers and most lay people would be “surprised and shocked” to learn that practice is proper under Virginia ethics rules, Moffet said. He said it would be a violation in 44 other states that follow a broader rule advanced by the American Bar Association.

“It’s an issue that has come up in cases I’ve handled in the past,” Moffet said.

At the Oct. 25 meeting of Bar Council in Alexandria, Moffet urged that the proposed compendium LEO on Rule 4.2 be sent back to the VSB Ethics Committee for reconsideration of the employee contact guidance.

“I believe Virginia is on the wrong side of this issue,” Moffet told fellow council members. “I believe it is more important that we get it right than we get it done sooner,” he said. He warned the proposed LEO could be used “by people who carry on conduct which I believe is not professional and not ethical.”

Moffet said he was not speaking for the Virginia Association of Defense Attorneys. The Virginia Trial Lawyers Association is not involved in the issue, according to VTLA president-elect Elliott Buckner.

Carr joined Moffet to request committee reconsideration, but the Council voted 41-22 to approve the LEO. Later, the Council voted without opposition to request a closer look at the employee contact issue by the VSB Ethics Committee.

“We’d be happy to look into it,” said committee chair Dennis Quinn.

Overall, proposed LEO 1890 addresses 14 scenarios arising under Rule 4.2 – the no-contact rule – and seeks to explain the application of the rule to the most common issues that arise.

Talking with government officials

The Bar Council also was divided on the companion LEO 1891 which would authorize a lawyer’s communication with a represented government official for the purpose of addressing a policy issue within the purview of that official.

The LEO outlines an exception to the no-contact rule in recognition of the constitutional and statutory rights of citizens to access government and petition for the redress of grievances.

The governmental no-contact LEO was approved by a vote of 53-8, with five abstentions.

Other rule tweaks

The Bar Council unanimously approved changes to simplify and clarify Virginia’s trust account recordkeeping requirements in Rule 1.15.

The change was suggested by a bar investigator who said he met with attorneys confounded by the archaic terminology of the existing rule, explained ethics chair Quinn.

“It’s just so confusing,” the investigator said, summing up the reaction of lawyers entangled in bookkeeping trouble.

The proposed amendments remove the term “cash” and clarify that a check register can be used as the required journal, as long as it includes the necessary information, according to a VSB summary. The proposal would ditch the term “subsidiary ledger” and clarify that only a separate record or ledger page is required for each client. The LEOs and proposed rule changes go the Supreme Court of Virginia for final decision.

Also adopted without dissent at the Bar Council meeting were changes to the rules for the Clients’ Protection Fund.

Updated to reflect that the CPF rule changes are adopted and do not require Supreme Court approval.