VIRGINIA NEWS SOURCE™ A CIVICS MEMORANDUM | MEMORIALIZING |ANALYZING
LAWYER WORKING FOR A GOVERNMENT AGENCY | VSB RULES; RULE 1-13[9]
(Prepared by David M. Lindsey* | Relator* |Commentator | Editor |Narrator | Petitioner)

Rules of Supreme Court of Virginia
The Virginia State Bar’s authority is found in, e.g.: Virginia Code Section 54.1-3909, the Supreme Court of Virginia’s authority to promulgate rules and regulations regarding the practice of law; Virginia Code Section 54.1-3910, establishing the Virginia State Bar as an administrative agency of the Court for professional regulation; and the Rules of Court Part 6, Section IV, paragraph 9, which dictate the organization and government of the Virginia State Bar. The most recent version of the mission statement was approved by Bar Council on October 25, 2019.

Rules and Regulations Governing the Bar

Government Agency

1.13 [9] The duty defined in this Rule applies to government organizations. However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Government lawyers, in many situations, are asked to represent diverse client interests. The government lawyer may be authorized by the organization to represent subordinate, internal clients in the interest of the organization subject to the other Rules relating to conflicts.

Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority.

1.13 Organization as Client

(a)A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b)If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
   (1)asking for reconsideration of the matter;
 (2)advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization;
    (3)referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

(c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign or may decline to represent the client in that matter in accordance with Rule 1.16.
(d)In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
(e)A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.