In Virginia, can a licensed attorney still choose to serve on a jury, and does the jury service exemption cover out-of-state attorneys?

Plain-English summary

A circuit court clerk asked whether the statutory exemption from jury service for "licensed practicing attorneys" in Va. Code § 8.01-341(5) barred lawyers from sitting on juries, or merely let them opt out. He also asked whether the exemption applied only to Virginia-licensed lawyers or reached out-of-state lawyers too.

The AG answered both questions. On the first, the exemption was a right, not a disqualification. The Supreme Court of Virginia had already said this in Caterpillar Tractor Co. v. Hulvey, where the Court noted that being exempt did not make an attorney "incompetent to serve." So a lawyer who wanted to serve could waive the exemption and sit on the jury.

On the second question, the AG read the statute's plain language: it didn't say "Virginia attorneys" or "members of the Virginia State Bar." Other Virginia statutes that meant to limit something to Virginia-licensed attorneys said so explicitly (the opinion cited §§ 54.1-3900.01, 54.1-3936, and 54.1-3901 as examples). Section 8.01-341(5) used the broader phrase "licensed practicing attorneys" without qualification. The AG noted he found no cases directly on point for this question and relied on standard statutory construction, which meant the exemption reached attorneys licensed in any U.S. state or territory, plus D.C.

There was still one limit. The exemption required active practice. A licensed attorney who wasn't practicing didn't get the exemption. "Practicing" meant actually rendering legal services in a courtroom, an office, or a corporate setting, including legal advice, drafting documents, and counseling clients.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Virginia attorney just say "I'm a lawyer" and skip jury duty?
Under the opinion's reading, an actively practicing licensed attorney was exempt by statute. The lawyer could invoke the exemption or waive it. The exemption was the lawyer's to claim or decline.

What about retired lawyers or inactive bar members?
The opinion drew a line at active practice. A "licensed practicing attorney" had to be both licensed and actively practicing. An inactive or retired lawyer who held the license but no longer practiced was not within the exemption.

Does someone working as in-house counsel for a corporation count?
Yes under this opinion. The AG cited Black's Law Dictionary and said the practice of law was "not limited to appearing in court" but included legal advice, counsel, and preparation of legal instruments by which legal rights are established. In-house counsel doing those things was practicing.

Did the AG read this as bar-state specific?
No. The AG explicitly extended the exemption to lawyers licensed in any U.S. state, territory, or D.C. The lawyer just had to be actively practicing somewhere, not necessarily in Virginia.

Could a court still strike an attorney for cause during voir dire?
The opinion didn't address that. It was strictly about the statutory exemption, not about whether either party could challenge an attorney-juror for cause based on the facts of a particular case.

Background and statutory framework

Section 8.01-341 lists the categories of people exempt from serving on juries in civil and criminal cases. Subdivision 5 covers "Licensed practicing attorneys."

The Supreme Court of Virginia interpreted that exemption in Caterpillar Tractor Co. v. Hulvey. The Court treated the statute as exempting attorneys but not disqualifying them, noting that the exemption did not make an attorney "incompetent to serve." On the separate question of whether the exemption reached out-of-state lawyers, the AG noted he found no case directly on point.

The AG followed two interpretive canons. First, plain language controls unless it leads to manifest absurdity. Second, courts must give meaning to all the words the General Assembly enacted, and where statutes elsewhere say "Virginia attorney" but § 8.01-341(5) says only "licensed practicing attorney," the silence is intentional.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 8.01-341 (jury service exemptions)
• Va. Code § 54.1-3900.01 (referenced; uses "Virginia attorneys")
• Va. Code § 54.1-3901 (referenced; distinguishes Virginia Bar from other admissions)
• Va. Code § 54.1-3936 (referenced; uses "Virginia attorneys")
• Caterpillar Tractor Co. v. Hulvey (Va. Supreme Court)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-030_Ferguson.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

May 18, 2012

The Honorable Paul Ferguson
Clerk of the Circuit Court
Arlington County
1425 North Courthouse Road
Suite 6700
Arlington, Virginia 22201

Dear Mr. Ferguson:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You inquire whether, consistent with § 8.01-341(5), a licensed practicing attorney is permitted to serve as a juror or whether that individual must be excused from jury service. You further inquire whether the exemption provided in § 8.01-341(5) is limited to attorneys who practice in Virginia.

Response
It is my opinion that, while § 8.01-341(5) provides an exemption from jury service for licensed practicing attorneys, it does not bar lawyers from serving on a jury when a lawyer is willing to waive the exemption. It is further my opinion that, for the purpose of § 8.01-341(5), a "licensed practicing attorney" is a person licensed to practice law in any state or territory of the United States, including the District of Columbia, who is engaged in the active practice of law.

Applicable Law and Discussion
Section 8.01-341 of the Code of Virginia provides, in pertinent part, "The following shall be exempt from serving on juries in civil and criminal cases: ... 5. Licensed practicing attorneys . . . ." Thus, in clear and unequivocal terms, the General Assembly has exempted licensed practicing attorneys from jury service. You ask whether this exemption serves to bar licensed practicing attorneys from sitting on a jury or whether licensed practicing attorneys may waive the exemption, and thus, be eligible for jury service.

The Supreme Court of Virginia has expressed that the statutory exemption from jury service found in § 8.01-341(5) does not bar licensed practicing attorneys from serving on juries. Specifically, in Caterpillar Tractor Co. v. Hulvey, the Court noted that while § 8.01-341(5) renders a "[licensed practicing attorney] exempt from jury service, [it does] not make him incompetent to serve" on a jury. I therefore conclude that licensed practicing attorneys are permitted to serve on juries if they are willing to waive the exemption granted by statute.

With respect to your second question, whether the exemption afforded "licensed practicing attorneys" extends to attorneys licensed and practicing outside Virginia, I find no cases directly on point. Thus, I rely on familiar rules of statutory construction to answer your inquiry. Foremost, in construing a statute, the plain meaning of the language determines the legislative intent unless a literal construction would lead to a manifest absurdity. Further, statutes must be construed to give meaning to all of the words enacted by the General Assembly, and a court is "not free to add language, nor to ignore language, contained in statutes."

Section 8.01-341(5) does not contain language limiting the exemption for licensed practicing attorneys to those licensed and practicing law in the Commonwealth of Virginia. While other statutes in the Code of Virginia specifically reference "Virginia attorneys" to indicate a requirement that the attorney be licensed by the Virginia State Bar, § 8.01-341(5) does not contain any words of qualification or limitation in reference to licensed attorneys. For example, §§ 54.1-3900.01 and 54.1-3936, which relate to the regulation of the legal profession and protection of client funds and interests, specify that these statutes concern "the quality of legal services provided by Virginia attorneys." Similarly, § 54.1-3901, which relates to the practice of patent law, distinguishes among an attorney "who is admitted as an active member of the Virginia State Bar," an attorney "who is not an active member of the Virginia State Bar," and an attorney "who is authorized to practice law in any state or territory of the United States, or the District of Columbia." Unlike these statutes, § 8.01-341(5) does not include a reference to Virginia or the Commonwealth. Absent language qualifying or limiting application of the exemption to attorneys from a particular jurisdiction, the exemption must extend to all licensed practicing attorneys. Accordingly, § 8.01-341(5) encompasses all attorneys who are licensed and practicing in any state or territory of the United States, including the District of Columbia.

I do note, however, that irrespective of any jurisdictional question, § 8.01-341(5) does require that the lawyer be a "practicing" attorney for the exemption to apply. The adjective "practicing" is commonly defined as "[a]ctively working in a particular profession or occupation: a practicing attorney." Thus, a practicing attorney is engaged in the active practice of law. Black's Law Dictionary defines the practice of law as "[t]he rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent." The "active practice of law" thus contemplates an attorney-client relationship. Black's Law Dictionary further states that the practice of law "is not limited to appearing in court, or various shapes of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and in larger sense includes legal advice and counsel and preparation of legal instruments by which legal rights and obligations are established." In short, anyone who is licensed as an attorney and regularly engages in what is generally thought of as the practice of law, whether in a courtroom, in an office setting, or in a corporate setting, is a "licensed practicing attorney[]" for the purposes of § 8.01-341(5), and thus, is exempt from jury service.

Based on the above, I conclude that § 8.01-341(5) exempts from jury service those persons licensed to practice law in any state or territory of the United States, including the District of Columbia, who are engaged in the active practice of law.

Conclusion

Accordingly, it is my opinion that, while § 8.01-341(5) provides an exemption from jury service for licensed practicing attorneys, it does not bar lawyers from serving on a jury when a lawyer is willing to waive the exemption. It is further my opinion that, for the purpose of § 8.01-341(5), a "licensed practicing attorney" is a person licensed to practice law in any state or territory of the United States, including the District of Columbia, who is engaged in the active practice of law.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General