Trying to limit a client’s or former client’s ability to pursue disciplinary action against you via contract? You might want to think again. Effective March 4, 2024, Rule 8.4 of the Virginia Rules of Professional Conduct will prohibit agreements limiting a current or former client’s right to file or pursue a bar complaint before a lawyer regulatory or disciplinary authority. Any attempt by a Virginia lawyer to enter such an agreement will constitute professional misconduct.
The Supreme Court of Virginia recently adopted an amendment to Rule 8.4, which adds a new subsection (f). The amended Rule 8.4 will now include the following provision:
It is professional misconduct for a lawyer to…(f) enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before a lawyer regulatory or disciplinary authority.
While some states, like Arizona and Colorado, have addressed this issue through judicial or ethics opinions under Rule 8.4(d), Virginia joins Georgia and Illinois as the only jurisdictions that expressly prohibit agreements limiting bar complaints in their Rules of Professional Conduct.
This change stems from a need to reemphasize the improper nature of such discipline-limiting agreements. The Virginia Rules of Professional Conduct have long had language discouraging such conduct. Rule 8.1(d) prohibits any applicant to the bar or admitted lawyer from obstructing “a lawful investigation by an admissions or disciplinary authority.” Va. R. Prof. Cond. 8.1(d). Some have argued that this language alone did not suffice to put lawyers or clients on notice that the Rules prohibit such conduct.
But those opposing the new provision in Rule 8.4 asserted that prohibiting agreements limiting bar complaints would waste Virginia State Bar (“VSB”) resources by requiring review of baseless or retaliatory complaints or otherwise resolvable disputes between lawyers and clients. One commenter expressed concern that the new Rule 8.4 would promote “vindictiveness rather than justice.” Another commenter stressed that limiting a client’s right to file a bar complaint against a lawyer is a “perfectly appropriate, ethical, and practical” attempt to amicably resolve disputes.
Nonetheless, the new provision in Rule 8.4 goes beyond issues regarding the freedom of contract; it considers the public interest and prevents lawyers from coercing their clients. In response to those opposing Rule 8.4(f), the VSB stressed that lawyers do not bring all potential lawyer misconduct to light. The Bar often relies on others to uncover misconduct too. While they may settle claims with clients under certain circumstances, lawyers cannot shield their conduct from investigation and action via agreements with current or former clients not to report it. The VSB has adequate resources to handle a high volume of bar complaints.
The new provision of Rule 8.4 expands the definition of professional misconduct in Virginia and adds another prohibited action to ensure protection of the public interest and the profession’s integrity. Thus, Virginia-licensed lawyers will need to reevaluate how they engage with their clients when Rule 8.4(f) goes into effect in March 2024, especially if the standard settlement agreement includes such limiting provisions.