*NEW* Virginia State Bar seeks comments on proposed revisions to two Rules:

1.Proposed Comment [5] to Rule 3.8, Additional Responsibilities of a Prosecutor

[5] Paragraph (d) requires disclosure of the existence of exculpatory evidence known to the prosecutor. As referred to in Comment 4, the duty is dependent on actual knowledge. Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely disclose the evidence. What constitutes sufficient disclosure is dependent on the circumstances. In many cases, providing a copy of or access to the evidence or information is sufficient. In some circumstances, additional steps may be necessary to fulfill the disclosure obligation.

Comments on the proposed changes should be sent to publiccomment@vsb.org by Nov. 30. For additional information, please follow the link:Rule 3.8 Comment 5

2. Revisions to Rule 4.4, Respect for Rights of Third Persons (receipt of inadvertently sent privileged information).

The proposed changes to the Rule add paragraph (b), which codifies the guidance currently found in LEO 1702 regarding a lawyer who receives privileged information that was inadvertently sent. Specifically, paragraph (b) requires that a lawyer who receives information relating to the representation of the lawyer’s client and who knows that the information is privileged and was inadvertently sent must immediately terminate review or use of the information, promptly notify the sender, and abide by the sender’s instructions, if applicable, to return or destroy the information.

Proposed Comment 2 further explains the scope of the rule by defining when a document is inadvertently sent and when the lawyer knows or reasonably should know that that is the case. Proposed Comment 2 also clarifies that the rule does not apply to information that was wrongfully obtained rather than inadvertently obtained, and that it only applies to metadata if the metadata is privileged and inadvertently disclosed. Finally, proposed Comment 3 explains that the rule, and LEO 1702, are justified by the extreme importance of preserving lawyer-client confidences, and that the duties established by the proposed rule override the lawyer’s duty of communication under Rule 1.4. Proposed Comment 3 concludes by distinguishing situations involving pre-trial discovery and other situations where rules of court or other law permit the receiving lawyer to contest a sender’s claim of privilege following an inadvertent disclosure; the proposed rule does not prohibit such actions and the recipient is permitted to sequester the inadvertently sent document pending use of such a process. 

Follow the link for the full text: Rule 4.4 Revisions

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed amendment with Karen A. Gould, Executive Director of the Virginia State Bar, not later than November 30, 2018. Comments may be submitted via email to publiccomment@vsb.org.

 On September 5, 2018, the Supreme Court of Virginia approved new rules regarding criminal discovery. After many years of work by VACDL members and our allies advocating for reform, a new playing field will emerge when these rules go into effect on July 1, 2019. To read the letter from Chief Justice Donald W. Lemons and the new rules, click below:

Supreme Court of VA adoption of discovery rules 9-5-18.pdf

Stay tuned for upcoming events with Justice Forward Virginia as we prepare for the 2019 Virginia General Assembly legislative session. 

To read more about what Justice Forward Virginia has on their "to do list", please click the link below:

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