Va. R. Sup. Ct. 1:17

As amended through April 19, 2024

Rule 1:17 - Electronic Filing and Service

(a)Scope of Electronic Filing Rules Pursuant to § 8.01-271.01 and Article 4.1 (§§ 17.1- 258.2 et seq.) of Chapter 2 of Title 17.1 of the Code of Virginia, this Rule applies in any court that has established an electronic filing system under the standards and procedures set forth in subdivision (c) of this Rule, and applies in civil cases in circuit court as provided in Rule 3:3, in criminal cases in circuit court as provided in Rule 3A:23, in general district court proceedings as provided in Rule 7A:7(c), and in juvenile and domestic relations district court proceedings as provided in Rule 8:8(f).

(b)Definitions.

(1) "Electronic Document" means any defined set of textural matter, graphic content or other encoded information in an approved format, that can be read, printed, and stored or retained as electrical, magnetic or optically encoded signals in some medium and that can be transmitted by a data-link.

(2) "Data-link" refers to any means of electronic transmission of a document in a coded form such that the document can be received, read, printed, and stored by the recipient.

(3) "E-Filing Portal" means the electronic web site maintained by the Supreme Court of Virginia designated as the facility for electronically filing documents, or an alternative which meets the standards set forth in this Rule and is made available by individual circuit courts.

(4) "Electronic filing" means the official filing of an electronic document on the court's docket and case files in electronic form by transmission over a datalink.

(5) "Electronically Filed Case" means a case in which pleadings, motions, notices and other filings are made electronically in accordance with these rules.

(6) "Hyperlink" means an electronic connection or reference to another place in the document, such that when the hyperlink is selected the user is taken to the portion of the document to which the link refers. It is not in itself a part of the document.

(c)System Operational Standards. In addition to the obligations and procedures set forth in subdivision (d) of this Rule, electronic filing systems under this Rule must meet these requirements:

(1) Electronic documents must be stored without loss of content or material alteration of appearance.

(2) Files capable of carrying viruses into court computers must be scanned for viruses prior to being written to disk in the clerk's office.

(3) The electronic filing system must be capable of securing the document upon receipt so that it is protected from alteration.

(4) The electronic filing system must be capable of establishing the identity of a sender of a document by means of a registered user identity and password, or by digitally encrypted electronic signatures, or by any other means reasonably calculated to ensure identification to a high degree of certainty.

(5) Remote electronic access to documents submitted in an electronically filed case and stored electronically will be limited to judges, court personnel, any persons assisting such persons in the administration of the electronic filing system, and to active members of the Virginia State Bar and their authorized agents, who have complied with the registration requirements to use the electronic filing system.

(6) If the court accepts payment of fees by credit card, debit card, debit account, or electronic funds transfer, registration for the user identity must include submission of all information required to effect the payment of fees. Electronic submission of this information will be deemed a signature by the cardholder sender, authorizing the payment of document filing fees. This information must be kept confidential. There will be an electronic confirmation from the clerk of any charge to or the debit from the user's account.

(7) No unauthorized person is permitted access to other court networks, data or applications unrelated to electronic filing. Administrative access to computer equipment and networks handling electronic filing will be restricted to designated court employees or authorized maintenance personnel.

(8) Electronic filing systems must reasonably protect filed documents against system and security failures and must provide, at a minimum, for daily backup, periodic off-site backup storage if feasible, and prudent disaster recovery mechanisms.

(d)Electronic Service and Filing Practice and Procedures.

(1) In an Electronically Filed Case, all pleadings, motions, notices and other material filed with the court must be in the form of Electronic Documents except where otherwise expressly provided by statute or the Rules of Court, or where the court orders otherwise in an individual case for good cause shown.

(2) Each attorney admitted to practice in the Commonwealth is entitled to a registered User ID and password issued by the clerk, or access using any comparable identification system approved by the Supreme Court, for the electronic filing and retrieval of documents.

(3) The clerk must provide a means, in the courthouse or other designated location, for the parties, counsel and the public to review and copy electronic records from the electronic file during normal business hours.

(4) The format for electronically filed material must be the Portable Document Format (PDF). Notice will be provided if any other format is approved.

(5)(i) Subject to the provisions of subsections (d)(6) and (7) of this Rule, an electronic document must be filed by following the procedures of the applicable E-Filing Portal, and will be deemed filed on the date that it is received in the E-Filing Portal without regard to whether the filing occurred within or outside of standard business hours. If the electronic document is received in the E-Filing Portal on a Saturday, Sunday, legal holiday, or any day or part of a day on which the clerk's office is closed as authorized by an act of the General Assembly, then such document will be deemed filed on the next day that is not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office is closed.

(ii) Upon electronic filing of a document, an electronic confirmation will be transmitted to the filing party indicating that the document has been successfully filed through the E-Filing Portal. In addition, the court to which the document is directed will promptly transmit an electronic acknowledgement of its receipt of the electronically filed document, specifying the identity of the receiving court, the date the document was received by the court, and a courtassigned document reference or docketing number.

(6) A person who files a document electronically has the same responsibility as a person filing a document in paper form to ensure that the document is properly filed, complete, and readable. However,

(i) if technical problems at the E-Filing Portal result in a failure to timely file the electronic document, counsel must provide to the clerk of the court on the next business day all documentation which exists demonstrating the attempt to file the document through the E-Filing Portal, any delivery failure notice received in response to the attempt, and a copy of the document, and

(ii) in the event that the E-Filing Portal was not available due to technical problems during the last filing hours of a business day, the office of the clerk of the court to which the document is directed will be deemed to have been closed on that day solely with respect to that attempted filing and the provisions of Virginia Code § 1-210(B) and (C) will apply to that particular attempted filing for purposes of computing the last day for performing any act in a judicial proceeding or the filing of any legal action.

(7) Clerk's notice of defects in a filing; striking documents; court orders.

(i) Incorrect or missing fee. If the clerk of court determines that an electronically filed document is defective because of an incorrect or missing filing fee, and

(A) if the clerk has been provided by the filing party with a credit or payment account through which to obtain payment of fees, the clerk must immediately process payment of the correct fee through such credit or payment account; or

(B) if processing by the clerk of the proper payment through a credit or payment account authorized by the filing party is not feasible, notice must be sent by the clerk electronically to the filing party, and all other parties who have appeared in the case.

(ii) Document filed in the wrong case by counsel. If the clerk of court determines prior to acceptance that an electronic document has been filed by counsel under the wrong case or docket number, the clerk must notify the filing party as soon as practicable, by notice through the EFiling system, by telephone, or by other effective means.

(iii) A copy of all notices transmitted by the clerk under this subpart (d)(7) must be retained in the permanent electronic case file maintained by the clerk. A copy of any document stricken must be retained by the clerk with a designation clearly reflecting that it was stricken and the date of such striking, as a record of its content and disposition.

(8) The clerk's office must accommodate the submission of non-electronic documents in an Electronically Filed Case if filing in electronic form cannot, as a practical matter, be achieved. Such documents must be imaged to facilitate the creation of a single electronic case file to the extent reasonably possible. An outsized document that is capable of being imaged must be retained in the form submitted.

(9) When an order is entered, the electronic record will be updated to identify the judge who directed entry of the order and the date it was entered, and a notification will be sent to counsel of record that the order has been entered, along with a copy of the order or an electronic link providing access to such order. If the entry of an order is done on a paper copy of the order, a digital image of such order will be made a part of the electronic record, and the endorsed original paper will be retained for the record.

(10) Hyperlinks between two portions of a filed document or between two or more documents filed in the same case, are permissible, but hyperlinks to other documents, or to external websites, are prohibited. A hyperlink is not itself a part of the official filed document and each hyperlink must contain a text reference to the target of the link.

(e)Application of, and Compliance with, Other Rules. In an Electronically Filed Case:

(1) Unless otherwise agreed by all parties, or ordered by the court in an individual case for good cause shown, all documents required to be served - after the initial service of process must be served by electronic transmission. Such service is effective as provided in Rule 1:12.

(2) Annotation by the clerk as provided in Rule 1:4(h) is not required to be made physically upon the face of the pleading and - if it is made by a separate document - it must specify the pleading to which such annotation pertains.

(3) An e-mail address of the counsel of record must be included in the electronic documents filed as required by Rule 1:4(l).

(4) The approved electronic identification accompanying the document when filed constitutes that person's signature on the document for purposes of Rule 1:5 and Virginia Code § 8.01-271.1.

(5) The provisions of Article 4.1 (§§ 17.1-258.2 et seq.) of Chapter 2 of Title 17.1 of the Code of Virginia apply where a document is to be notarized, sworn, attested, verified, or otherwise certified, or if any sworn signatures, stamps, seals or other authentications relating to the document are required by any statute or Rule, and an electronic or digitally imaged document with such accompanying entries must be filed in the clerk's office. Electronic notarization in compliance with the Virginia Notary Act (§§ 47.1-1 et seq.) may also be employed with the filing.

(6) An acceptance of service or a certificate of counsel that electronic copies were served as this Rule requires, showing the date of delivery, must electronically accompany the served papers and satisfies Rule 1:12.

(7) In compliance with Rule 1:13, drafts of orders, decrees and notices must be served on each counsel of record. Such service may be by electronic transmission and must make provision for electronic endorsement by multiple parties where applicable. Objections or other notations by the parties must be entered upon the drafts so circulated, or appended to such drafts by specific cross- reference or other unambiguous association. Endorsed drafts must be submitted electronically whenever possible, and must be accompanied by proof of service or acceptance of service when required by the rules of court. If there is no practical means of submitting an electronic or digitally imaged endorsed draft, the manually endorsed document must be filed in the clerk's office. The clerk must accommodate the imaging of the document into electronic form and must retain the original endorsed document.

Comment

[1] The practice of law is a profession, not merely a business. Clients are not commodities that can be purchased and sold at will. Pursuant to this Rule, when a lawyer or an entire firm ceases to practice and another lawyer or firm takes over the representation, the selling lawyer or firm may obtain compensation for the reasonable value of the practice as may withdrawing partners of law firms. See Rules 5.4 and 5.6.

Termination of Practice by Seller

[2] The fact that a number of the seller's clients decide not to be represented by the purchaser but take their matters elsewhere does not result in a violation. Neither does the seller's return to private practice after the sale as a result of an unanticipated change in circumstances result in a violation. For example, a lawyer who has sold the practice to accept an appointment to judicial office does not violate the requirement that the sale be attendant to cessation of practice if the lawyer later resumes private practice upon leaving the office.

[3] Comment [3] to ABA Model Rule 1.17 substantially appears in paragraph (a) of this Rule.

[4] The Rule permits a sale of an entire practice attendant upon retirement from the private practice of law within the jurisdiction.

[5] This Rule also permits a lawyer or law firm to sell an area of practice. If an area of practice is sold and the lawyer remains in the active practice of law, the lawyer must cease accepting any matters in the area of practice that has been sold, either as counsel or co-counsel or by assuming joint responsibility for a matter in connection with the division of a fee with another lawyer as would otherwise be permitted by Rule 1.5(e). For example, a lawyer with a substantial number of estate planning matters and a substantial number of probate administration cases may sell the estate planning portion of the practice but remain in the practice of law by concentrating on probate administration; however, that practitioner may not thereafter accept any estate planning matters. Although a lawyer who leaves a jurisdiction or geographical area typically would sell the entire practice, this Rule permits the lawyer to limit the sale to one or more areas of the practice, thereby preserving the lawyer's right to continue practice in the areas of the practice that were not sold.

[6] The Rule requires that the seller's entire practice, or an entire area of practice, be sold. The prohibition against sale of less than an entire practice area protects those clients whose matters are less lucrative and who might find it difficult to secure other counsel if a sale could be limited to substantial fee-generating matters. The purchasers are required to undertake all client matters in the practice or practice area, subject to client consent. This requirement is satisfied, however, even if a purchaser is unable to undertake a particular client matter because of a conflict of interest.

Client Confidences, Consent and Notice

[7] Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Rule 1.6 than do preliminary discussions concerning the possible association of any lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser access to client-specific information relating to the representation and to the file, however, requires client consent. The Rule provides that before such information can be disclosed by the seller to the purchaser the client must be given actual written notice of the contemplated sale, including the identity of the purchaser and any proposed change in the terms of future representation, and must be told that the decision to consent or to make other arrangements must be made within 90 days. If nothing is heard from the client within that time, the client's refusal to consent to the sale is presumed.

[8] A lawyer or law firm ceasing to practice cannot be required to remain in practice because some clients cannot be given actual notice of the proposed purchase. Since these clients cannot themselves consent to the purchase or direct any other disposition of their files, the Rule requires an order from a court having jurisdiction authorizing their transfer or other disposition. The Court can be expected to determine whether reasonable efforts to locate the client have been exhausted, and whether the absent client's legitimate interest will be served by authorizing the transfer of the file so that the purchaser may continue the representation. Preservation of client confidences requires that the petition for a court order be considered in camera.

[9] All the elements of client autonomy, including the client's absolute right to discharge a lawyer and transfer the representation to another, survive the sale of the practice.

Fee Arrangements Between Client and Purchaser

[10] The sale may not be financed by increases in fees charged the clients of the practice. Existing agreements between the seller and the client as to fees and the scope of work must be honored by the purchaser, unless the client consents after consultation.

Other Applicable Ethical Standards

[11] Lawyers participating in the sale of a law practice are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, the seller's obligation to assure that the purchaser is qualified to assume the practice and the purchaser's obligation to undertake the representation competently (see Rule 1.1); the obligation to avoid disqualifying conflicts, and to secure client consent after consultation for those conflicts which can be agreed to (see Rule 1.7); and the obligation to protect information relating to the representation (see Rules 1.6 and 1.9).

[12] If approval of the substitution of the purchasing attorney for the selling attorney is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be included in the sale (see Rule 1.16).

Applicability of the Rule

[13] This Rule applies to the sale of a law practice by representatives of a deceased, disabled or disappeared lawyer. Thus, the seller may be represented by a nonlawyer representative not subject to these Rules. Since, however, no lawyer may participate in a sale of a law practice which does not conform to the requirements of this Rule, the representatives of the seller as well as the purchasing lawyer shall see to it that they are met.

[14] Admission to or retirement from a law partnership or professional association, retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase governed by this Rule.

[15] This Rule does not apply to the transfers of legal representation between lawyers when such transfers are unrelated to the sale of a practice.

Va. Sup. Ct. 1:17

Amended by order dated November 2, 2009, effective 1/4/2010; amended by order dated March 1, 2011, effective 5/2/2011; amended by order dated November 1, 2012, effective 1/1/2013; amended by Order dated November 1, 2012; effective 1/1/2013; amended by order dated September 3, 2020, effective 9/3/2020; amended by order dated November 23, 2020, effective 3/1/2021; amended by order dated December 23, 2020, effective 12/23/2020.

Committee Commentary

The Committee was persuaded to eliminate the prohibition of the sale of a law practice currently set forth in Ethical Consideration 4-6 by several arguments, the first being that sole practitioners and their clients are often unreasonably discriminated against when the attorney's practice is terminated. When lawyers who are members of firms retire, the transition for the client is usually smooth because another attorney of the firm normally takes over the matter. Such a transition is usually more difficult for the clients of a sole practitioner, who must employ another attorney or firm.

Another persuasive argument is that some attorneys leaving practice, firm members and sole practitioners alike, indirectly "sell" their practices, including its good will, by utilizing various arrangements. For example, firm members sometimes receive payments from their firm pursuant to retirement agreements that have the effect of rewarding the lawyer for the value of his/her practice. Sole practitioners contemplating leaving the practice of law may sell their tangible assets at an inflated price or bring in a partner prior to retirement, then allow the partner to take over the practice pursuant to a compensation agreement. Such arrangements do not always involve significant client participation or consent.

In addition, an attorney's practice has value that is recognized in the law. Under Virginia divorce law, for example, a professional's practice, including its good will, may be subject to equitable distribution. (Russell v. Russell, 11 Va. App. 411, 399 S.E.2d 166 (1990)). Therefore, under the Virginia Code, an attorney in a divorce proceeding may be required to compensate his/her spouse for the value of the practice, yet be forbidden to sell it.

The Committee recommended, after considering all of these factors, that adopting a carefully crafted rule allowing such sales without resort to these alternate methods would be preferable and would assure maximum protection of clients. This recommended Rule is based on the ABA Model Rule 1.17 with several significant changes, the chief ones relating to consent and fees.