1. The Missing Client and Abandoned Client Funds
What should a lawyer do when he cannot locate a client, yet has client
funds in the trust account and/or a statute of limitations deadline is
looming?
As part of the duties in an attorney/client relationship, Rule 1.3 requires that the attorney "act with diligence and promptness"
and "not intentionally prejudice or damage a client." The attorney
faced with a missing client with unclaimed funds in the trust account
should "exercise reasonable diligence" in locating that
client. LEO 1644. The attorney can deduct the costs of the search from the client’s
funds, if the costs incurred are reasonable and do not completely
deplete the funds as that would defeat the purpose of the
search. LEO 1673. However, unlike those costs, the attorney may not deduct a fee for
his services in performing the search, nor may he have a client agree
in advance that the attorney may keep any unclaimed
property. Id. When diligent efforts have failed to
locate the client, the attorney can follow the Virginia Disposition of
Unclaimed Property Act, Virginia Code Section 55.1, Chapter 25. The act prescribes that the attorney should consider the funds
abandoned five years after the money became distributable. At that
point, the attorney can transfer the funds to the commonwealth as
outlined in the act. Download forms for reporting unclaimed funds to the Controller under the Act.
Under Rule 1.3, as highlighted above, an attorney should never
intentionally prejudice a client. Thus, where a client is missing, and
reasonable efforts to locate him have proved fruitless, an upcoming
statute of limitations deadline must not be ignored by the attorney.
The attorney should file the lawsuit needed to prevent the statute of
limitations from running; the attorney may also at that time, if he
wishes, file a contemporaneous motion to withdraw. LEOs 841, 872, 1088 and 1173.
2. The Witness/Advocate Rule
Can a lawyer represent a client in litigation if a member of that
lawyer’s firm might testify in the matter?
This question triggers an application of what is commonly referred to
as the "witness/advocate" rule. The witness/advocate rule addresses
the effect of a lawyer testifying in one of his client’s cases. Rule3.7 (a) directs a lawyer to decline a representation of a client where
the lawyer would be a necessary witness, unless the testimony comes
within three specific exceptions: where testimony would be related to
uncontested issues, where testimony would be related to the lawyer’s
provision of legal services and where disqualification of the
particular lawyer would prove a hardship for the client. Rule 3.7 (b) provides, in effect, an additional exception that may arise when the
need to testify is not evident until after the representation has
begun: The lawyer is permitted to continue the representation even
should he learn, or it is obvious, that the lawyer would be called as
a witness other than on behalf of his client in pending or
contemplated litigation, unless it becomes apparent that the testimony
is or may be prejudicial to the client.
Rule 3.7 also addresses the propriety of member of a lawyer’s firm
testifying in the matter. Under the former Code of Professional
Responsibility, the witness/advocate rule was imputed to all members
of an attorney’s firm. In contrast, Rule 3.7 (c) allows a lawyer to
act as advocate in a proceeding in which another member of the firm is
a witness, except when the lawyer has either a current conflict of
interest (Rule 1.7) or a conflict of interest arising out of
representation of a former client (Rule 1.9).
3. Disclosing Former Client’s File
What should a lawyer do if he receives a subpoena seeking either his
testimony about a former client or the contents of the file from that
representation?
A series of LEOs establishes the proper response in this situation.
See, LEOs 300, 334, 645, 967, 1352 and 1628. The underlying principle is that an attorney’s duty to maintain the
confidentiality of his client’s information survives both the end of
the relationship and even the client’s death. Rule 1.6, Comment22; LEO 1664. Therefore, if an attorney is asked to disclose confidential
information about a former client, the attorney must be sure to
fulfill his obligation under Rule 1.6 to maintain a client’s
confidentiality. While there are exceptions in the Rule allowing
disclosure in certain situations, receipt of a subpoena is not one of
those exceptions. That attorney should first determine whether
disclosure of the information would be favorable or prejudicial to his
client. If the former, the attorney should seek client consent to
disclose. If the latter, the attorney should move to quash the
subpoena, informing the court that the attorney’s ethical duty
precludes him from voluntarily disclosing the information requested.
If the court rules against the motion and orders the attorney to
provide the documents or to answer the questions, the attorney then is
within one of the exceptions to the general 1.6 duties. Rule 1.6(b)(1) permits an attorney to disclose information to comply with a
court order.
LEO 1859 concludes that the fact that a former client has filed a habeas
petition alleging ineffective assistance of counsel does not on its
own permit an attorney to reveal confidential information in response
to the allegation. Unless additional facts and circumstances justify
earlier disclosure, the attorney should not provide this information
voluntarily.
4. Returning File to Client
What if a client wants his file? Does it matter whether he’s paid his
bill or whether the matter has concluded?
Prior to January 1, 2000, a lawyer had to go searching through the
legal ethics opinions for advice on these file questions. However, on
that date, Rule 1.16(e) went into effect; that provision directly
addresses how to handle the client’s file. To the extent that the
prior ethics opinions conflict with Rule 1.16 (e), they are overruled,
and the lawyer should follow Rule 1.16 (e) in resolving client file
issues. Rule 1.16(e) breaks the contents into three categories.
The first is "all original, client-furnished documents and any
originals of legal instruments or official documents." Those documents
are deemed to be the client’s property, and the attorney must
unconditionally return them to the client upon request.
The second category includes lawyer/client and lawyer/third-party
communications, copies of client-furnished documents (unless the
original has already been returned), working and final drafts of legal
instruments, official documents, investigative reports, legal
memoranda and other attorney work product documents, research
materials and copies of prior bills. For this second category, a
lawyer may charge the client for the expense of making a copy of the
items for his own retention.
For both of these categories, an attorney must provide the requested
items regardless of whether the client has paid his bill. The old common law "retaining" lien on the client’s file is
overruled by Rule 1.16 (e). A lawyer may ethically pursue all normal
collection options against a former client for unpaid fees; however,
the retention of the file must never be held up in exchange for
payment of the bill for fees, the copying cost, or other costs
associated with the representation.
A third category presented in Rule 1.16(e) includes copies of billing
records and documents intended only for internal use, such as
memoranda prepared by the lawyer discussing conflicts of interest,
staffing considerations or difficulties arising with the
attorney/client relationship. A lawyer is not required to provide
those items to the client. It is important to note that attorney work
product is not in this category. An attorney must provide copies of
things like his research, witness interview notes, drafts of documents
and outlines of case strategies to the client upon request, as those
items are within the second category discussed above.
This provision is a part of the general rule 1.16, addressing an
attorney’s duties upon the end of the attorney/client relationship.
The intent of this rule is that an attorney be required to provide the
outlined items at the termination of the representation, upon request
of the client, one time.
5. File Retention
How long must an attorney retain the files of former clients?
The only express requirement regarding file retention found in the
ethics rules applies to trust account records. Rule 1.15 (e) requires
that all records required to be maintained under that rule should be
retained for five years after the end of the fiduciary relationship.
For all other files, the ethics rules do not direct an exact time
period; however, Rule 1.16 does establish a general duty not to
prejudice a client upon termination of the relationship. Thus, an
attorney should not destroy a former client’s file so quickly that the
client’s interests are prejudiced. LEO 1305 provides detailed suggestions for the destruction of client
files. Some considerations to keep in mind are whether files still
contain any client property or original legal documents. Also,
consider which documents are worth retaining for malpractice
protection and which documents are necessary for conflicts checks.
Certainly, any relevant statute of limitations must be kept in mind.
The exact retention period for any file will depend on the area of law
and nature of the particular matter.
If you conduct residential real estate closings as a registered
attorney settlement agent, you are required to maintain records
related to each settlement for a minimum of 5 years after the
settlement is completed (Va. Code Section 55.1-1011).
6. Clients of Departing Attorneys
When a lawyer leaves a law firm, who "owns" the clients for which that
lawyer had been working?
No one. Clients in no way "belong" to a particular attorney or to the
firm. Clients retain the right at all times to fire and/or replace
their attorney. This common misconception frequently arises when a
lawyer’s departure from a firm, or a firm dissolution, is less than
amicable. Arguments arise file-by-file regarding which attorney or
firm gets to keep which clients. The clients always get to choose who
will represent them in the future. As recommended in Rule 5.8 and
LEO1332, the preferred way to handle this issue is for the departing
attorney and the firm to send a joint letter to each client that the
attorney served. That letter should, in a neutral tone, recommend that
the client needs to select one of the following options: stay with the
firm, go with the new attorney or hire new counsel altogether.
Unilateral contact by either the departing lawyer or the law firm is
only permitted after the two sides have conferred or made an attempt
to confer about sending a joint letter. The client should be
encouraged to make that selection as quickly as possible to ensure a
smooth transition. The physical (or electronic) file should follow
that choice. As discussed in Question 5 regarding file retention, no
attorney or firm should hold the file "hostage." A seemingly obvious,
but at times disregarded, point is that the remaining firm must always
provide the contact information for the new attorney whenever asked. A
firm must not refuse to provide that new address and phone number to
clients, potential clients and other attorneys who contact the firm
seeking the departed attorney.
LEO 1506.
7. Malpractice Liability
What advice is available regarding malpractice avoidance?
The purpose of the Ethics Hotline is to provide interpretation of and
advice regarding the Rules of Professional Conduct. Thus, the ethics
staff is prepared to answer questions regarding discipline exposure;
however, this service is not the appropriate source of advice
regarding exposure to civil damages such as malpractice liability. An
attorney with questions in that area would be better served by
discussing the matter with either his malpractice carrier and/or the
Attorney Consultation Service. The Attorney Consultation Service is
the Virginia State Bar’s risk management service. John Brandt, an
attorney with 50 years of experience in private practice, is available
for free and confidential consultations regarding malpractice
prevention, law office management, claims repair and liability
insurance. He can be reached at (800) 215-7854 or (703) 659-6567.
8. Attorneys on Associate Status
What services may an attorney perform if he is on associate status?
A lawyer who wants to retain his license to
practice, but whose legal work is on hiatus, may find switching from
active to associate status an appropriate option. Attorneys on
associate status are "entitled to all privileges of active members
except that they may not practice law, vote or hold office (other than
as members of committees) in the Virginia State Bar.” (See Rules of the Supreme Court of Virginia, Part 6, §IV,
Para. 3.) While on associate status, the member pays reduced dues and does
not need to comply with the usual Continuing Legal Education
requirements. If an associate member is going to take an occasional
case, he would need to return to active status. However, while on
associate status, the lawyer could provide legal work directly to
another attorney in a paralegal/law clerk type of arrangement, teach
law as an adjunct professor or serve as an expert/consultant for a
licensed attorney.
9. Foreign Attorneys Working in Virginia
Is there any sort of legal work that an attorney licensed in another
state may perform in Virginia?
Effective February 1, 2009, Virginia adopted revised versions of Rules
5.5 and 8.5 of the Rules of Professional Conduct. Virginia's rules now
mirror similar versions of Rules 5.5 and 8.5 adopted by a majority of
other jurisdictions and based on the ABA Model Rules. Rule 8.5 places
jurisdiction and authority to discipline non-Virginia lawyers for any
unauthorized practice of law with the Virginia State Bar. These
attorneys now are subject to the same discipline as Virginia-licensed
attorneys. Rule 5.5 controls and sets the limits of practice in
Virginia of non-Virginia licensed attorneys. Attorneys who are not
licensed in Virginia cannot establish an office or continuous presence
in Virginia for the practice of law. They can, however, engage in
certain temporary or occasional practice: (1) undertaken in
association with a Virginia-licensed attorney (including an attorney
admitted under Part I of the corporate counsel rule, Rule 1A:5 Rulesof the Virginia Supreme Court); (2) related to pending or potential
proceeding before a Virginia tribunal if the foreign attorney expects
to be authorized to practice before that tribunal or is assisting
someone who is authorized; (3) related to a pending or potential ADR
proceeding; or (4) related to representation of a client by the
foreign attorney in the foreign attorney's licensing jurisdiction or
regarding international law. Before undertaking these various services
the foreign attorney must tell the client and any interested third
parties that he/she is not admitted to practice in Virginia, where the
lawyer is licensed to practice and the lawyer's office address in the
foreign jurisdiction.
LEO 1856 provides a detailed analysis of how the provisions for
temporary and occasional practice apply to foreign lawyers who are
physically located in Virginia. See also UPL Opinion 158.
Another safe harbor for a foreign attorney performing services in
Virginia is a pro hac vice appearance in a Virginia
court case. Rule 1A:4 of the Rules of Supreme Court of Virginia allows for a court to
grant a motion upon application by a foreign attorney, after the
foreign attorney has associated with a Virginia-licensed attorney, to
appear in a particular matter before the court. The Virginia attorney
must appear and participate in proceedings conducted before the
tribunal and must accept joint responsibility for the client and the
case. The foreign attorney must pay a $250 fee per case along with
his/her application and is limited to admission on twelve (12) cases
within a twelve (12)-month period preceding a current
application.
Another safe harbor available for some foreign attorneys is Comment
[4] to Rule 5.5. That provision acknowledges, and defers to, the
administrative regulatory provisions of particular practice areas that
do not require membership in the local bar. This rule allows foreign
attorneys to work in Virginia in a number of areas of law. Common
examples include immigration, patents and federal tax. The allowable
parameters of such a practice would be determined by the rules of the
appropriate agency.
Finally, a foreign attorney may perform certain legal work as in-house
corporate counsel pursuant to Rule 1:A5. An extended explanation of that Rule appears with Question 11,
below.
10. Recent Law School Graduates
What can a recent law school graduate do while waiting for bar
admission?
Law school graduation alone does not provide any authority to practice
law. The law degree does not change the person’s status as a nonlawyer
under the UPRs. As such, the graduate can only work in a law clerk
status with all of his work being provided to a lawyer to review, and
not directly to clients, opposing counsel or a court. Therefore, the
graduate cannot give legal advice to any person. The graduate will be
deemed a member of the Virginia State Bar and, therefore, able to
practice law when they have met all criteria for admission to the bar
and the membership staff at the bar has assigned that person a
membership number. That bar membership authorizes the person to
practice law; however, to appear in court, the lawyer would also need
to be properly sworn in.
11. In-House Counsel
Must a corporation’s in-house counsel be licensed to practice in
Virginia?
The Supreme Court of Virginia adopted Rule 1A:5 to govern corporate counsel in Virginia, effective September 1,
2003. That rule requires all attorneys, not active members in good
standing of the Virginia State Bar, who wish to serve as in-house
counsel in Virginia to either be certified or registered under the
terms of the rule.
Under Part I of the rule, a lawyer may obtain a corporate counsel
certificate permitting limited representation of one Virginia
employer. The certificate authorizes in-house counsel to represent his
or her employer in state courts without a pro hac vice appearance as would otherwise be required by Rule 1A:4.
The lawyer must meet all the requirements for Virginia State Bar
membership, including CLE requirements. Should this lawyer ever
choose to become an active member of the Virginia State Bar without
examination pursuant to Rule 1A:1, work done pursuant to a
corporate counsel certificate constitutes the practice of law for that
determination. In addition to his practice for his employer, a lawyer
certified pursuant to Part I of the rule may provide pro bono legal
services in Virginia.
Under Part II of the rule, a lawyer may choose, instead of a
certificate, to merely register as a corporate counsel. Registration
does not entitle the lawyer to represent the employer in state court;
a pro hac vice appearance would be needed. Also,
should the registered attorney seek to become a member of the Virginia
State Bar without examination, the time spent as a registrant will not
constitute the practice of law for purposes of Rule 1A:1.
Note that Part I's certificate is only available to foreign attorneys
licensed in another state. For foreign attorneys
licensed only in foreign countries, only registration under Part II is
available.
12. Initial Consultations
Does an attorney owe any duty of confidentiality to someone who meets
with, but never retains, the attorney?
A frequent scenario is one in which, for example,
a wife comes in to meet with a potential divorce attorney. After
discussion of the matter, the wife does not retain this attorney.
Later, the husband comes in and wants the same attorney to represent
him in the same divorce. Rule 1.18 provides that when a
person comes in and shares information in good faith with an attorney
in order to seek representation, the attorney must maintain the
confidentiality of the information even where the attorney is not
retained; the person clearly provides the information to the attorney
with a reasonable expectation that confidentiality will be protected.
Although the lawyer may not use or reveal any information learned
during the consultation with the wife, the lawyer is only disqualified
from representing the husband if he learned information from the wife
that "could be significantly harmful" to the wife in the divorce
proceeding. Even if the lawyer has received such information, he may
represent the husband if both husband and wife consent to the
representation, or another lawyer in the firm may represent the
husband if the lawyer who received the information from the wife took
reasonable measures to avoid exposure to more disqualifying
information than was reasonably necessary to determine whether to
represent the wife, is screened from the representation, and gives
written notice of the screening to the wife. Rule1.18 (d).
13. Chinese Walls/Screens
When can a law firm use a "Chinese wall" to screen an attorney to
avoid a conflict of interest?
A common misconception regarding conflicts of interest is that a law
firm can "cure" a conflict of interest stemming from one lawyer’s work
by screening that attorney from the rest of the firm with regard to
that matter. Actually, the ethics rules do not allow for a screen, or
Chinese wall, to cure conflicts of interest in most contexts.
Specifically, most conflicts involve an attorney’s work for a current
or former client. Rule 1.7 addresses conflicts regarding
current clients, and Rule 1.9 addresses conflicts triggered
by work done for former clients. Both of those types of conflicts are
imputed to all members of the lawyer’s firm under Rule 1.10.
Thus, if an attorney must decline or withdraw from a case because of
work he’s done for a current or former client, all members of his firm
face the same conflict. The "cure" for such conflicts, for the lawyer
or any member of his firm, is not a screen, but rather consent from
the former and/or the current client. Note that for conflicts under
Rule 1.7, consent is not sufficient in certain instances.
There are three exceptions in the rules where a screen is acceptable:
to avoid imputation of a conflict: "revolving door" situations
involving government attorneys and situations involving former judges
and arbitrators. Rule 1.11 addresses attorneys switching
from government practice to private practice, and vice versa. Paragraph (b) of that rule outlines a screening procedure for an
attorney in a private firm who had worked "personally and
substantially" on a matter where another member of that firm now will
represent a party "in connection with" that matter. Rule1.12 addresses the private practice of former judges and
arbitrators. Paragraph (c) outlines a screening procedure for an
attorney in a private firm who had participated in a matter as judge
or arbitrator where another member of the firm will now represent a
party in that same matter. Rule 1.18 addresses duties to
prospective clients, and paragraph (d) outlines a procedure for
screening an individual lawyer who has received disqualifying
information from a prospective client while permitting another lawyer
in the firm to represent a party adverse to the potential client.
Outside the scenarios addressed by Rules 1.11, 1.12 and 1.18, a screen
is not a sufficient cure for conflicts of interest triggered by the
ethics rules.
14. Executor
When a lawyer is hired by the executor of an estate, who is the
client?
Attorneys hired by executors are not always clear to whom they owe
duties of loyalty and confidentiality. Both the executor and
beneficiaries may interact with the attorney as if he represents the
interests of everyone involved. However, as outlined in LEOs 1452, 1599 and 1720, when an attorney is hired by the executor, she represents that
person in that role. She does not represent the beneficiaries.
Nonetheless, beneficiaries are not always knowledgeable on that point
and may look to the attorney for advice and share personal information
with the attorney. An attorney always has a duty to clarify his role
whenever dealing with an unrepresented person when that person is
confused on the point. Rule 4.3. Accordingly, where a beneficiary
is under the impression that the attorney is protecting that
beneficiary’s individual interest, the lawyer has an affirmative duty
to clarify the matter. Also, while the executor’s attorney does not
represent the beneficiary personally, she must, nonetheless, maintain
awareness of the executor’s fiduciary duty to the beneficiaries and
never assist in a breach of that duty. LEO 1599 and 1778.
15. Second Opinions
May an attorney provide a second opinion to a client of another
attorney?
Clients at all times retain the right to counsel of their own
choosing. That right includes the right to fire and replace their
attorneys at any time. As part of that right, a client may need to
consult another attorney regarding the case to be able to make an
informed decision as to whether a change in attorney is warranted.
Comment [3] to Rule 4.2 makes clear that it is not improper
for an attorney to speak with a represented party regarding that
person’s legal matter. Of course, an attorney would be prohibited from
such contact if he represented any other party in the matter. While an
attorney may provide a consultation in the manner of a second opinion,
he should take no action in the matter and decline actual
representation of the person unless and until the original lawyer is
fired, withdraws or agrees to joint representation as
co-counsel. See LEOs 369 & 1328.
16. Guardians Ad Litem
Are there any special considerations regarding conflicts of interest
for guardians ad litem?
Two LEOs provide guidance for attorneys serving as guardians ad litem.
In LEO 1725, the question is whether one attorney can serve both as
guardian ad litem in matters involving the Department of Social
Services and, in other matters, represent the Department of Social
Services. The opinion points out that as the attorney cannot obtain
effective consent from a minor, the attorney must look to the court
for consent regarding a potential conflict of interest. The attorney
should disclose the pertinent information to the appointing court
necessary for that court to determine the appropriateness of that
attorney serving as guardian ad litem.
In LEO 1729, the issue raised is whether one attorney may serve as guardian ad
litem in a matter and also testify as a witness (having been the
visitation supervisor) in that same matter. The opinion concludes that
as the testimony to be given is part of the statutory duties of a
guardian ad litem, (i.e., to present a report to the court), the usual
witness/advocate rule does not apply. The opinion establishes as a
basic principle that, "where fulfilling a specific duty of a guardian
ad litem conflicts with traditional duties required of an attorney
under the [ethics rules], the specific duty of the guardian ad litem
should prevail." Lawyers looking for other guidance on fulfilling
their duties as GAL for a child should consult Advocacy in Motion, a
guide prepared by the Supreme Court of Virginia Office of the
Executive Secretary to facilitate implementation of the Standards to
Govern the Performance of Guardians Ad Litem for Children. Many of the
issues addressed by the guide are beyond the purview of the VSB ethics
department and questions should be directed to the Office of the
Executive Secretary.
17. Contingent Fee Where Representation Terminates Prior to Matter’s End
What right to his fee does an attorney have under a standard
contingent/percentage fee agreement, when that attorney’s
representation is terminated prior to the end of the case?
LEO 1606 (approved by the Supreme Court November 2, 2016) squarely
addresses the rightful compensation of an attorney who is fired or who
withdraws prior to the end of a case where the original agreement had
been for a contingent fee. As explained in that opinion:
When the attorney is discharged prior to the completion of the
representation he may only recover the reasonable value of the
services which he has rendered . . . and in instances where the fee is
contingent upon the outcome of the matter, the attorney may not
recover the full agreed upon fee. He is entitled only to a recovery in
quantum meruit for services actually rendered.
While that opinion was issued prior to the current ethics rules, the
committee has endorsed that conclusion more recently in LEO 1766 and 1812. The basic principle in these opinions comes from Heinzman v. Fine, Fine, Legum and Fine, 217 Va. 958 (1977).
18. Representation of Former Client in Divorce
Can an attorney represent a spouse in a divorce where the attorney
previously represented the couple jointly in some other legal matter?
Satisfied clients usually return to former counsel when new matters
arise. This is generally a good thing. However, potential conflicts of
interest must be considered where the prior representation was part of
joint representation of spouses. Frequently, an attorney will have
done estate planning, bankruptcy or real estate work for a couple only
to be contacted by one of the spouses when the marriage is dissolving.
Each of these new representations must be analyzed regarding two
rules: 1.6 governing client confidentiality and 1.9 regarding former
clients. Rule 1.9 (a) prohibits an attorney from
representing a party adverse to a former client in a matter
substantially related to the prior representation. This prohibition is
often not the hindrance to accepting these new representations, as
while the divorce certainly is adverse to the former client, it is not
usually "substantially related" to the prior matter. Nevertheless,
Rule 1.9 (c), together with Rule 1.6, may be the source of a
conflict in many of these instances. Rule 1.9 (c) prohibits a lawyer
from using confidential information obtained during a prior
representation to the disadvantage of the former client. Attorneys
must consider whether any of the information obtained during the first
matter would be pertinent in the divorce. If such information was
received, then, under Rules 1.6 and 1.9(c), the attorney may only
represent one spouse in the divorce if the other spouse consents to
the use of that information against him or her. See,
LEOs 569, 677, 707, 774, 792, 1032 and 1181, reaching the same conclusions under the former Code of Professional
Responsibility.
19. Trust Accounts
How does an attorney handle bank fees for his trust account?
Under Rule 1.15, an attorney must place all client funds in a
trust account, operated according to the specific requirements of that
rule. The attorney’s own funds are not to be in that account; thus,
the normal arrangement is for each attorney or each law firm to have a
trust account and an operating account. Client funds should only be
moved from the trust account to the operating account when those funds
have been earned.See, LEO 1606. While Rule 1.15 does require this separation of client funds from
attorney funds, paragraph (a)(3) of that rule permits an attorney to
deposit into his trust account, "funds reasonably sufficient to pay
service or other charges or fees imposed by the financial institution
or to maintain a required minimum balance to avoid the imposition of
service fees, provided the funds deposited are no more than necessary
to do so." This provision permits the trust account to contain
attorney funds to cover both traditional service fees as well as the
fees charged by credit card companies.
(See Trust Accounting Frequently Asked Questions below).
20. Clients with a Disability
How should an attorney provide legal services to a client who appears
to have less than full mental capacity?
Particularly in the practice area of elder law, attorneys frequently
face difficult issues as the mental competency of some clients may be
in decline. Rule 1.14 provides specific guidance to
attorneys in that situation. Entitled, "Client under a Disability,"
that rule discusses both the situation where a client’s abilities are
merely limited and where that client just cannot act in his or her own
best interest. The comments to Rule 1.14 provide helpful direction to
an attorney making the difficult decision as to what, if any,
protective action he needs to take on behalf of his client. Note that
the rule does contemplate that such protective action may include,
where appropriate, seeking the appointment of a guardian for the
client. However, the attorney should not represent some third party in
bringing that guardianship petition but instead should himself serve
as petitioner. LEO 1769. An attorney dealing with his client’s possible incapacity should,
throughout the course of the representation, be mindful of Rule 1.14’s
directive that the attorney "as far as reasonably possible, maintain a
normal client-lawyer relationship with the client."
21. Medical Liens
What is the obligation of the lawyer when the client and a third party
claim a right to the same funds?
These situations normally arise in the circumstance where a medical
provider asserts that they have a lien against any recovery in the
client's matter. The client may contest that lien or simply want
distribution of the funds to themselves with the assertion they will
handle or deal with the lien. The lawyer cannot ignore a third party's
legitimate legal interests in the settlement proceeds if those
interests exist either by law or assignment. Further, the lawyer
cannot disburse funds that are in controversy.
The lawyer's ethical duties do not require the lawyer to make a legal
determination as to who is entitled to the proceeds, only that the
lawyer must protect both the client and the third party who appear to
have conflicting claims to the funds (lawyer's fiduciary duty to the
third party). If the dispute cannot be resolved, the lawyer may
interplead the funds into court and request that the court determine
the legal entitlement to the funds. Rule 1.15, Comment[4]; LEO 1747.
22. Flat Fees
When is a flat/fixed fee considered earned? What happens if the
attorney's representation is terminated before the representation is
complete?
Unless the fee agreement specifies otherwise, the entire flat fee is
unearned and must remain in the trust account until the entire
representation is complete. If the representation is terminated before
the matter is complete, the attorney is entitled to a fee based on
quantum meruit for the work done prior to termination.
The fee agreement may provide for certain portions of the flat fee to
be earned upon the completion of certain benchmarks, which would allow
the attorney to draw down the flat fee in stages throughout the
representation rather than earning the full fee at the conclusion of
the matter. The fee earned at each benchmark must be reasonable
considering the amount of work completed.
23. Self-reporting Potential Misconduct
Under what circumstances must an attorney report her own conduct to
the Bar?
The Rules of Professional Conduct only require self-reporting for
discipline by another state or federal disciplinary authority, agency,
or court, conviction of a felony, or conviction of a crime involving
theft, fraud, extortion, bribery or perjury or
attempt/solicitation/conspiracy to commit those offenses. The Rule
does not require self-reporting of traffic violations, including
reckless driving. Rule 8.3(e). The Rules of Professional Conduct also
do not require that an attorney report a personal bankruptcy.
24. Incorporating a Law Firm
What corporate structures are permissible for a limited liability law
firm?
A law firm, if incorporated, may only incorporate as a professional
corporation (PC), professional limited liability corporation (PLLC),
or registered limited liability partnership (RLLP). After
incorporating, the entity must also register with the Virginia State Bar. Code § 54.1-3902
25. Contact with Employees of a Represented Organization
When can a lawyer communicate with current or former constituents of
an organization when that organization is represented by counsel in
the matter?
Before January 6, 2021, Rule 4.2 limited its application to members of
the organization's "control group" or "alter ego." This group
typically includes current officers and/or directors of an
organization or other employees who have the authority to bind the
corporation. As of January 6, 2021, Comment 7 to Rule 4.2 was amended
by the Supreme Court of Virginia to prohibit communication with any
constituent of a represented organization who supervises, directs, or
regularly consults with the organization’s lawyer concerning the
matter or has authority to obligate the organization with respect to
the matter or whose act or omission in connection with the matter may
be imputed to the organization for purposes of civil or criminal
liability. This amendment matches the language in Comment 7 to ABA
Model Rule 4.2 and enlarges the scope of constituents with whom
ex parte communications are prohibited without the consent of
the organization’s lawyer.
Some earlier federal court decisions in Virginia were already applying
the ABA approach, barring communication with: (1) persons having
managerial responsibility for the organization; (2) any other person
whose act or omission in connection with the matter may be imputed to
the organization for purposes of criminal or civil liability; or (3)
any other person whose statement may constitute an admission on the
part of the corporate party.
Armsey v. Medshares Mgt. Servs., Inc., 184 F.R.D. 569 (W.D.
Va. 1998) (decided under former DR 7-103). At least one state court
has interpreted the rule in the same way.
Dupont v. Winchester Med. Ctr., Inc., 34 Va. Cir. 105
(Winchester Cir. Ct. 1994).
State and federal courts generally agree that a lawyer may communicate
with former constituents of the represented organization. See
Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 2d 948 (W.
D. Va 2008); Rule 4.2, Comment 7.
26. Clients Who Make Credible Threats of Suicide
May a lawyer disclose otherwise confidential information to protect a
client who threatens to commit suicide?
Rule 1.14 ("Client With Impairment") provides guidance to a
lawyer whose client's physical and financial well-being is at risk of
substantial harm due to the client's diminished capacity. Sadly, there
have been many instances when a client facing incarceration, loss of
child custody, or loss of income and property has informed his or her
lawyer that the client intends to commit suicide. When the lawyer
"reasonably believes" that such a threat is credible, the lawyer "may
take reasonably necessary protective action" on behalf of the client.
Neither the Rule nor the Comments which follow it specifically address
a client's threat of suicide, but the Rule should be interpreted to
allow the lawyer to contact the client's family, close friends, mental
health care providers, or emergency medical services personnel so that
an intervention can be made to save the client from harm. Lawyers who
take protective action consistent with Rule 1.14 do not
violate Rule 1.6 ("Confidentiality of Information") because
Rule 1.6 (a) permits disclosures which are "impliedly authorized in
order to carry out the representation.” Lawyers must nonetheless
adhere to the requirement of Rule 1.14 (c) to reveal otherwise
confidential information "only to the extent reasonably necessary to
protect the client's interests."
The Standing Committee on Legal Ethics has opined that it is not a
violation of the ethical duty of confidentiality for a lawyer to
disclose to appropriate authorities a client's stated intention to
commit suicide. See LEO 560
27. OK, I passed the Bar Exam. When can I practice law?
You may practice law once you have received a license by the Virginia
Board of Bar Examiners. See Va. Code §54.1-3900. However, you may not appear in any court in the Commonwealth until
you are "sworn in," i.e., administered the oath of qualification by
the Supreme Court of Virginia or qualified by an individual court to
practice only in that court. See Va. Code §54.1-3903. Every person licensed by the Virginia Board of Bar Examiners or
admitted to practice before the Supreme Court of Virginia shall
register with the Virginia State Bar within one year after licensure
or admission if they intend to practice law in the Commonwealth of
Virginia. Va. S. Ct. R., Part 6, §IV, ¶ 2(a). In other words, if you are not yet "sworn in," but hold a
license to practice law, you may engage in the practice of law but may
not appear in court on behalf of a client. The admissions ceremony at
the Supreme Court of Virginia qualifies you to practice in any court
in the Commonwealth, but not any federal or bankruptcy courts sitting
in Virginia. You must be separately admitted to the federal and
bankruptcy courts. Note that the signing and filing of a pleading with
a court is an appearance in that court and you must be admitted to
practice in that court to do so.
28. Contact with a Person Represented by Counsel on a Limited Scope
Representation (LSR).
Rule 4.2 states: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized by law
to do so. Rule 1.2(b) allows a lawyer and a client to limit
the scope of the representation.
Effective January 1, 2019, and until December 31, 2023, lawyers may be
able to enter a limited appearance ("limited scope representation") on
behalf of a client pursuant to Rule 1:5(f) of the Rules of the
Supreme Court of Virginia.
Suppose you are representing a client in a case filed in circuit court
and the adversary is a pro se litigant. Shortly thereafter you are
served with a "Notice of Limited Scope Representation" indicating that
your self-represented adversary is represented by LSR counsel solely
for briefing and arguing in opposition to your motion for summary
judgment. Prior to hearing on the motion for summary judgment, the pro
se litigant calls you and wants to talk about settlement of the case.
May you communicate directly with the adversary about settlement, or
must you communicate with the LSR lawyer or obtain consent from the
LSR lawyer to speak directly with your adversary?
New Rule 1:5 (f) makes clear that if LSR counsel has appeared in the
case, you are to serve notices and pleadings on both LSR counsel and
their client, and the latter is considered "unrepresented" in that
matter. But, does that mean that your adversary is "unrepresented" in
other activities, e.g., settlement negotiations, etc., that do not
require a filing or activity in court?
The best answer is "yes," your adversary is unrepresented for purposes
of Rule 4.2 unless you have actual knowledge that the LSR
lawyer is representing her client for negotiations also. Treating the
LSR client as "represented" on matters for which no notice of
representation has been given belies the actual knowledge requirement
of Rule 4.2 and disregards the limited scope of the representation for
which notice has been given.
If the scope of the notice of LSR is unclear, you could inquire and
confirm that she is not being represented by counsel before discussing
settlement of the case. Alternatively, you could contact the LSR
lawyer to confirm that she is not representing the client for purposes
of settlement negotiations. If your inquiry is not satisfactorily
answered by either, you may regard the adversary as unrepresented and
communicate directly with her.
29. Conflicts for Lawyers Moving Between Private Practice and Government
Employment
When a lawyer changes jobs from private practice to government
employment, what conflict rules apply? Are the lawyer’s conflicts
based on her previous practice imputed to other government lawyers?
And how about vice versa, for lawyers leaving government
practice?
Rules 1.6, 1.7, and 1.9 apply to a lawyer in
government employment, just as they do to any other lawyer, but the
primary rule to assess conflicts in this situation is Rule 1.11.Rule 1.11(d) provides that a lawyer serving as a public officer or
employee (regardless of whether the lawyer is engaged in the practice
of law) shall not participate in a matter in which the lawyer participated personally and
substantially while in private practice. “Matter” is defined in paragraph (f)
of the rule to include, among other things, any judicial proceeding,
application, request for a ruling, claim, investigation, or
accusation, and Comment [3] clarifies that the rule applies regardless
of whether the lawyer is adverse to a former client; the test is only
whether there was personal and substantial involvement in the same
matter. Under paragraph (e), however, these conflicts are not imputed
to other lawyers in the agency, and the disqualified lawyer can be
screened from the matter to allow others to handle the matter. See
also LEO 1746.
Likewise, a lawyer who leaves government employment may not represent
a private client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee. That conflict can be waived
with the informed consent of the private client and the appropriate
government agency, or the former government employee can be screened
from the matter under Rule 1.11(b)(1) and (2) to allow others in
the firm to be involved in the matter.
When a criminal defense lawyer (in private practice or a public
defender’s office) changes jobs to become a prosecutor, what
conflicts exist? Is a special prosecutor required to resolve those
conflicts? And how about vice versa, when a lawyer moves from
prosecution to criminal defense?
The primary conflict rule in this situation is Rule 1.11. Rule1.11(d) provides that a prosecutor (or other government lawyer) shall
not participate in a matter in which the lawyer participated personally and
substantially while in private practice. “Matter” is defined in paragraph (f)
of the rule to include, among other things, any judicial proceeding,
application, request for a ruling, claim, investigation, or
accusation, and Comment [3] clarifies that the rule applies regardless
of whether the lawyer is adverse to a former client; the test is only
whether there was personal and substantial involvement in the same
matter. Under paragraph (e), however, these conflicts are not imputed
to other lawyers in the office, and the disqualified lawyer can be
screened while other lawyers handle the matter. See also LEO 1746.
The lawyer who “switched sides” is personally subject to Rule
1.9 and cannot use or disclose any confidential information about
a former client, but that conflict is not imputed to other lawyers
within the office. A special prosecutor is not required because of one
lawyer’s conflict with a former client or matter.
Likewise, a prosecutor who becomes a criminal defense lawyer may not
represent a private client in connection with a matter in which the lawyer participated
personally and substantially as a prosecutor. That conflict can be waived with the informed
consent of the private client and the Commonwealth’s attorney, or the
former prosecutor can be screened from the matter under Rule1.11(b)(1) and (2) to allow others in the firm to be involved in the
matter.
The same analysis applies to any lawyer moving between government and
private employment, regardless of the nature of the employment.