VSB September 20, 2004

Must a Virginia lawyer disclose to opposing counsel that he sent a letter supporting a judge in a judicial-inquiry proceeding?

Short answer: No. The opinion concludes a lawyer's letter of support to the Judicial Inquiry and Review Commission is citizen participation in a government process, not a 'thing of value' given to influence the judge, so Rule 3.5(d) does not apply and no disclosure to opposing counsel is required; because the letter is confidential by statute, the lawyer can readily comply with Rule 8.4(d) as well.

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This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Lawyer A occasionally appears before Judge X. When a complaint (not involving any of A's cases) was filed against Judge X with the Judicial Inquiry and Review Commission, Lawyer A filed a letter of support for the judge with the Commission. The committee was asked whether, each time Lawyer A later appears before Judge X, Rule 3.5(d) requires the lawyer to disclose the letter to opposing counsel, given that Virginia Code Section 17.1-913 makes such letters confidential.

The committee holds Rule 3.5(d) does not reach this conduct. By its terms, paragraph (d) applies only to giving or lending "anything of value" to a judge under circumstances suggesting an attempt to influence official action. A letter to the Commission is neither a gift nor a loan; it is participation as a citizen in a government process, which Rule 3.5(d) neither prohibits nor requires the lawyer to disclose when appearing before the judge.

The committee adds that the lawyer must remain mindful of Rule 8.4(d), which bars stating or implying an ability to improperly influence a tribunal or public official. Because the statute requires the letter to be kept confidential, the committee notes the lawyer should have no difficulty complying with Rule 8.4(d). The committee declines to address the judge's conduct under the Canons of Judicial Ethics, which is outside its purview.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a lawyer's letter of support to the Judicial Inquiry and Review Commission is not a "thing of value" under Rule 3.5(d), so the lawyer need not disclose it to opposing counsel when later appearing before that judge. Per the opinion, the lawyer must still avoid stating or implying an ability to improperly influence the tribunal under Rule 8.4(d), a constraint the statutory confidentiality of the letter helps satisfy.

Common questions

Q: Must a lawyer tell opposing counsel about a letter supporting the judge?

A: The opinion says no. A letter of support to the Judicial Inquiry and Review Commission is not covered by Rule 3.5(d), so it does not trigger a disclosure obligation to opposing counsel.

Q: Is a letter of support a prohibited "gift" to a judge under Rule 3.5(d)?

A: No. The opinion says Rule 3.5(d) applies only to giving or lending something of value to influence official action; a letter to the Commission is citizen participation in a government process, neither a gift nor a loan.

Q: Does Rule 8.4(d) come into play?

A: The opinion says the lawyer must still avoid implying an ability to improperly influence the judge under Rule 8.4(d), but because the letter is confidential by statute, compliance should not be a problem.

Background and rules framework

The opinion interprets Rule 3.5(d) (Model Rule 3.5, impartiality and decorum of the tribunal), which bars giving or lending anything of value to a judge in circumstances suggesting an attempt to influence official action, and Rule 8.4(d) (Model Rule 8.4, misconduct), which bars implying an ability to improperly influence a tribunal or public official. It notes Virginia Code Section 17.1-913 making Commission letters confidential, and declines to interpret the Canons of Judicial Ethics.

Citations and references

Rules of Professional Conduct:

Model Rule 3.5 / Virginia Rule 3.5(d) (giving or lending value to a judge to influence official action)
Model Rule 8.4 / Virginia Rule 8.4(d) (implying an ability to improperly influence a tribunal)

Statutes:

Virginia Code Section 17.1-913 (confidentiality of Judicial Inquiry and Review Commission proceedings)

Source

Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1804.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 1804

IMPARTIALITY OF A JUDGE FOR WHOM AN
ATTORNEY SUPPORTED AS A WITNESS IN
AN INQUIRY PROCEEDING AGAINST THE
JUDGE .

You have presented a hypothetical involving a complaint brought against a judge before the
Judicial Inquiry and Review Commission (“the Commission”). Lawyer A occasionally
represents clients before Judge X. When Judge X has a complaint filed against him with the
Commission, Lawyer A files a letter of support with the Commission on behalf of the judge.
The subject matter of the complaint did not involve a case of Lawyer A.
Under the facts you have presented, you have asked the committee to opine whether whenever
this attorney appears before the judge, must the attorney disclose to opposing counsel that the
attorney sent the letter of support for the judge to the Commission?
Your request specifically asks whether Rule 3.5(d) triggers a conflict of interest, requiring
disclosure by the attorney to opposing counsel in this situation. Rule 3.5(d) states as follows:
A lawyer shall not give or lend anything of value to a judge, official, or
employee of a tribunal under circumstances which might give the appearance
that the gift or loan is made to influence official action.
The concern raised for the lawyer in the hypothetical is that a letter of support provided as part
of a Commission investigation of a judge must be kept confidential, under Virginia Code §17.1913, which would preclude the attorney from disclosing to opposing counsel that he sent the
letter on behalf of the judge.
This committee does not consider Rule 3.5(d) as reaching the sort of action taken by this
attorney. Paragraph (d) expressly applies only to gifts and loans. This letter to the Commission
is neither. Rather, it represents participation as a citizen in a government process. Rule 3.5(d)
does not preclude that participation and does not require its disclosure by this attorney when
appearing before the judge.
This committee notes that the attorney in this hypothetical does have to be mindful of Rule
8.4(d), which precludes an attorney from stating or implying “an ability to influence improperly
or upon irrelevant grounds any tribunal, legislative body, or public official.” As the attorney in
the hypothetical must by statute keep his letter to the Commission confidential, he should have
no problem complying with Rule 8.4(d).
The committee notes that while your request only expressly asked about the attorney’s proper
conduct, your request did highlight provisions in the Canons of Judicial Ethics regarding the
conduct of the judge. Interpretation of those rules is outside the purview of this committee and,
therefore, the committee declines to opine on that issue.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
September 20, 2004

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