VSB committee withdraws controversial opinion

Political reality outweighs a nuanced view of legal ethics.

The Standing Committee on Legal Ethics of the Virginia State Bar reached that conclusion last week in withdrawing advisory Legal Ethics Opinion 1829, which would have eliminated the bright-line guidance that generally bars members of a law firm from appearing before a public body on which another member of the law firm sits.

The proposal created a political firestorm during the 2007 General Assembly session, and 19 of 22 comments submitted to the committee opposed the opinion.

James McCauley, VSB ethics counsel, said the committee still has concerns about the lack of authority in the Code of Professional Responsibility for the earlier opinions and will convey those apprehensions to VSB Council in October. “It’s a political issue as much as it is a legal ethics issue,” he said.

The concept of the appearance of impropriety was eliminated in the adoption of the Code of Responsibility in 2000. The Virginia State and Government Conflicts of Interest Act also has been adopted since the earlier rules and requires disclosure of potential conflicts and recusal of a legislator if a conflict exists.

Those concerns and the potential loss of public service of members of large law firms prompted the recommendation for the adoption of LEO 1829.

Several legislators responded that the change would increase the possibility of collusion and improper conduct.