Virginia Association of Criminal Defense Lawyers

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*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.

DISCOVERY REFORM VICTORY!

 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:



Quote of the Quarter: 

      "On lawyering: When the law is on your side, pound the law; when the facts are on your side, pound the facts; when neither is on your side, pound the table” 

            

CLE

Thank you to everyone who attended our Fall CLE in Portsmouth! It was a great event and we look forward to seeing you in Richmond on April 5th for the Spring Seminar!

*Special thanks to our seminar sponsors: MLM Insurance, Smart Start, Recovery for Life, and Lantagne Legal Printing*

Sponsors

VACDL endorses the following sponsors and partners:



VIDC Initial Certification Training Class (2018)

  • December 17-18, 2018 (Virginia 529 College Saving Plan Building - North Chesterfield, VA)
Registration is through the VIDC, and there is no cost. 

VIDC Initial Certification

The VIDC website (vadefenders.org) provides an overview of the court-appointed counsel certification process. We encourage all VACDL members to become certified to take court-appointed cases, and we offer a mentorship program to assist with the trial requirements for felony case certification. 

VIRGINIA FAIR TRIAL COALITION:

 We support the efforts to reform discovery rules in Virginia to ensure just and fair trials for all accused of criminal offenses. If you'd also like to support this initiative, click on the link below:

Virginia Fair Trial Coalition Support Agreement.pdf

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VACDL List Serv

Our List Serv is hosted through Yahoo Groups. If you are a VACDL member and you wish to be added to the List Serv, please send an email to vacdlmembers-subscribe@yahoogroups.com or contact Executive Director Danielle Payne at vacdlawyers@gmail.com.

VACDL Newsletter

 Each quarter, VACDL sends a newsletter, The Virginia Champion, to active members. Recent past editions are available in the Member's Only Section. 

*Members can now choose electronic or mailed delivery for The Virginia Champion. In your Member Profile, click "Edit Profile" and select your preferred delivery option!*


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