Legal Ethics

The Standing Committee on Legal Ethics was established to issue advisory opinions interpreting and applying the Rules of Professional Conduct. Published opinions are incorporated into an optional volume of the Code of Virginia and may also be found in issues of the Virginia Lawyer magazine and on the VaCLE website.

A Virginia lawyer may request a written legal ethics opinion (LEO) from the Standing Committee on Legal Ethics. A legal ethics opinion applies ethics rules to a hypothetical set of facts and states whether the activity or conduct complies with or violates such ethics rules. This committee meets regularly to review and consider formal requests for advisory opinions by members of the bar seeking guidance on legal ethics matters. Due to the high number of legal ethics opinions (LEOs) already published, the committee issues new opinions only if prior opinions are not dispositive of the inquiry, or if the committee believes a prior opinion needs reconsideration.

Read the full mission of the Standing Committee on Legal Ethics.

The Standing Committee on Legal Ethics was established to issue advisory opinions interpreting and applying the Rules of Professional Conduct. Published opinions are incorporated into an optional volume of the Code of Virginia and may also be found in issues of the Virginia Lawyer magazine and on the VaCLE website. The nine (9) committee members are appointed by the president of the Virginia State Bar and may serve two consecutive three-year terms. This committee meets regularly to review and consider formal requests for advisory opinions by members of the bar seeking guidance on legal ethics matters. Due to the high number of legal ethics opinions (LEOs) already published, the committee issues new opinions only if prior opinions are not dispositive of the inquiry, or if the committee believes a prior opinion needs reconsideration. If prior opinions address the inquiry, the Ethics Counsel and staff send an informal letter to the requesting party making reference to specific prior opinions that appear dispositive.

The Ethics Counsel and staff support the committee by conducting the necessary research and preparing initial draft opinions for discussion at meetings. Some requests involve controversial issues that require discussion over more than one meeting before a consensus can be reached. If an opinion is adopted by the committee, it must be submitted for review and approval by Council and the Supreme Court. All committee deliberations, draft opinions, memoranda, correspondence and the like shall be confidential and privileged as provided for in Part 6, § IV, Para. 10-2(E), of the Rules of Supreme Court of Virginia.

In addition, Ethics Counsel and staff proactively monitor and review lawyer advertising on behalf of the committee and alert lawyers of violations or potential violations of the Rules of Professional Conduct in order to educate and assist them in avoiding the disciplinary process. Typically, the lawyers receiving such letters will make requested changes, at staff’s suggestion, to rectify the problems identified with their advertising. In those few instances where a lawyer disagrees with the staff’s interpretation of the Rules, the matters may be referred to the committee for review and sent to discipline for action.

The committee also serves as a clearing house for receiving comments on or proposals for amendments of the Rules of Professional Conduct.

The committee may study a proposal to amend the Rules of Professional Conduct and make recommendations to the Executive Committee and Council regarding such a proposal. The committee’s work may include other specific assignments or requests in its area of general responsibility from the bar’s officers, the Executive Committee or Council.

At the end of each bar year on June 30, the chair of the committee shall submit a written report outlining the work and accomplishments of the committee during the preceding bar year for inclusion in the VSB Annual Report.

Legal Ethics Opinions

A Virginia lawyer may request a written advisory legal ethics opinion (LEO) from the Standing Committee on Legal Ethics.

The Ethics Hotline

Any Virginia lawyer may seek informal ethics or unauthorized practice of law advice by calling or emailing the Ethics Hotline, a confidential consultation service for Virginia lawyers.

Legal Ethics Topical Information

The Virginia State Bar’s legal staff includes the ethics unit. The Ethics Hotline serves Virginia lawyers and the public by answering questions regarding ethics and the unauthorized practice of law. Below, are some of the most frequently asked questions, along with summary answers. References in these answers are made to the Rules of Professional Conduct, the Unauthorized Practice Rules (UPRs), Legal Ethics Opinions (LEOs), and Unauthorized Practice of Law Opinions (UPLs).

General Legal Ethics Questions

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 8418721088 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 3003346459671352 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. Screens

When can a law firm use a "screen" 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, 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 14521599 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 5696777077747921032 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.SeeLEO 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, have paid the required dues to the VSB, and are an active member in good standing. See Va. Code §§54.1-3900 and 3910. 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). 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. If you are not yet "sworn in," but are an active member in good standing of the VSB, 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. 

Legal Advertising Opinions

In 2018, the Standing Committee on Legal Ethics withdrew 12 Legal Advertising Opinions (LAOs) issued by the former Standing Committee on Lawyer Advertising and Solicitation, as the LAOs had become obsolete, superseded by amendments to the Rules of Professional Conduct, or had been restated in whole or in part in LEO 1750. The one Legal Advertising Opinion that remains current and enforceable is Legal Advertising OpinionA-0114, concerning communication to the public involving a lawyer’s recognition by a listing in a publication such as The Best Lawyers in America.

Social Networking Questions

Diligence and competence require the lawyer to:

  • Understand if/how clients are using social networking;
  • Advise clients as to their further use of social networking to their best advantage; and
  • Use social networking sites as investigative tools (opposing party, witnesses, jurors).

Unintended Relationships:

Despite the informality of social networking, the giving of legal advice to others including friends and acquaintances may create unintended client-lawyer relationships. At the very least, it can create confidentiality and conflicts issues. See LEO 1842 (communications with website visitors). See also ABA Formal Opinion 10-457 (August 5, 2010) (Lawyer Websites)

  • Legal information of general application about a particular subject or issue is not “legal advice” and should not create any lawyer-client issues for the blogging or posting lawyer. Appropriate disclaimers will assure this conclusion.
  • However, if a lawyer by online forms, email, chat room, social networking site, etc. elicits specific information about a person’s particular legal problem and provides advice to that person, there is a risk that a lawyer-client relationship will have formed. See LEO 1842.

Confidentiality:

  • Messages via Twitter or other social networks must be treated with the same degree of reasonable care as messages via email or other traditional communications.
  • Discussion about pending legal matters raises problems, and generally should be left to traditional email format.

Pretexting:

  • Pretextually “friending” someone online to garner information useful to a client or harmful to the opposition violates Virginia Rule 8.4 (c) prohibition against “dishonesty, fraud, deceit or misrepresentation.”  
  • Even with a friendly pretext, Rules 4.2 and 4.3 apply to communications with persons represented by counsel or with unrepresented persons.

Lawyer Advertising and Marketing:

  • Statements made on social networks about a lawyer’s services may be subject to the advertising rules.
  • Disclaimers are no longer required for all case results identified in advertising, but one should be used when necessary to prevent the case result listed from being misleading. Rule 7.1, Comment [2]. 
  • LinkedIn allows you to ask for and receive “recommendations” from clients, colleagues, etc., which should be edited, if necessary, to ensure they comply with all RPCs.
  • Client recommendations are analogous to client testimonials, so: 
    • You can’t have your client say things about you that you can’t say, Rules 7.1 and 8.4 (a). 
    • You probably have a duty to monitor your social network sites and blogs for comments and recommendations that may require revision or deletion to the extent that you have control over the posts contained thereon.
    • For example, the lawyer cannot permit to remain on his LinkedIn page a client recommendation that says the lawyer is the “best personal injury lawyer in town” because it is a comparative statement that cannot be factually substantiated. Rule 7.1 and Comment [2]. 
  • An invitation from a lawyer to a prospective client on the lawyer’s LinkedIn or Facebook page is not a “solicitation” unless the lawyer knows that the prospective client is in need of legal services in a particular matter. The words “ADVERTISING MATERIAL” are thus not required under Rule 7.3 (c). 
  • Blogging is considered communication/advertising and is subject to Rule 7.1, as well as all other RPCs, particularly those that govern public statements made in respect to ongoing criminal matters. Rule 3.6. 

Law Firm Policies Regarding Social Media:

  • Lawyers in law firms have an ethical duty to supervise subordinate lawyers and non-lawyer staff to ensure that their conduct complies with applicable rules of conduct, including the ethical duty of confidentiality. See Rules 5.1 and 5.3.  
  • Law firms need to have policies in place regarding employees’ use of blogs and social networking websites during and after normal business hours.

Social Media Tips:

  • Keep personal and professional interests separate. Facebook is better suited for personal, family, and friend connections.
  • Remember: “the whole world is watching!”
  • Frequently monitor and update your posts.
  • Regard social media as a powerful marketing tool.
  • Use the built-in privacy capabilities of the social networking sites, and consider limiting the access of users you are connected with. 
  • Remember that what you put out there is permanent!
  • Remember the RPCs still apply to all social networking!

Trust Accounting Questions

1. Defining “Funds” held in “Trust” Accounts

A. What types of funds must be held in the lawyer’s trust account?

The types of funds required to be held in the lawyer’s trust account are:

  • all funds given to the lawyer by the client that are to be applied against future legal fees;
  • all funds placed with the lawyer for present or future use on the client’s behalf or at the client’s direction;
  • all funds received by the lawyer for future litigation expenses;
  • all funds received by the lawyer for the benefit of the client or his designees;
  • all funds held by the lawyer on behalf of a third party; and
  • all funds held by the lawyer as a fiduciary.

Rule 1.15 (a)

B. What types of funds may NOT be held in a lawyer’s trust account?

Funds that belong to the lawyer or law firm or to which another are/may be entitled are not escrow/trust account funds. Such funds may not be held in the  lawyer’s trust account unless they have been placed there “to pay service or other charges or fees” imposed by the bank, to maintain a required minimum balance to avoid service fees, or unless “two or more persons (one of whom may be the lawyer)”  dispute entitlement to the funds. In the latter case, the funds shall be held in the trust account until the dispute is resolved.  Rule1.15 (a)(3)(i) and (ii). 

Frequently a lawyer will receive funds that belong in part to the lawyer and in part to the client. Once a deposit has cleared the bank, the portion belonging to the lawyer or law firm must be withdrawn. Rule 1.15 (d)(2). This includes all earned legal fees and all costs expended or accrued.

None of the following reasons overrides the clear and unequivocal ethical prohibition against commingling client’s and lawyer’s funds:

  • the need to create a buffer in the event a check deposited into escrow is returned for insufficient funds;
  • the need to hide money from creditors, the I.R.S., or a spouse;
  • the use of the escrow account as a "personal" or office savings account or as a mechanism for budgeting and managing cash flow; and
  • the desire to maintain a high enough trust account balance to qualify additional banking benefits beyond just avoiding service fees.

2. “IOLTA” and “Other” Trust Accounts

A. Do all lawyer trust accounts have to be IOLTA accounts?

For the most part, yes. In March 2022, the Supreme Court of Virginia amended Part Six, Section IV, Paragraph 20 (the IOLTA Rule) to require any Virginia lawyer who receives short-term or nominal client trust funds to place those funds in pooled, interest-bearing IOLTA accounts, thus removing from the Rule the previous option of non-interest-bearing client trust accounts. The Rule takes effect July 1, 2022. The interest earned on such accounts is remitted directly by the participating financial institution to LSCV to fund its local legal aid programs. As described below, lawyers may still use interest-bearing trust accounts in appropriate circumstances, but if those circumstances are not present, an IOLTA account is the only permissible option.

LSCV provides a “Request to Establish IOLTA account form at www.lscv.org/IOLTA that allows any attorney, law firm or title company to open a new IOLTA account or convert an existing non-IOLTA account to IOLTA. The lawyer fills out the form and brings it to the financial institution who then sends it to LSCV after opening or converting the account.  Each IOLTA account is opened in the name of the law firm or lawyer or title company with Legal Services Corporation added to the account name as third-party beneficiary of the interest generated on the account. More information is available in the IOLTA guidebook, also available at www.lscv.org/IOLTA.

See, Rules of the Supreme Court of Virginia, Part 6, §IV, Para.20(E).  LSCV contact: (804) 782-9438.

B. May a lawyer deposit funds of clients in one or more interest-bearing accounts or a non-interest bearing trust account?

A lawyer may deposit funds in one or more interest-bearing  trust accounts provided the lawyer has established and maintains strict procedures for accounting and paying to each client the interest on such client’s funds. See Rules of Supreme Court of Virginia, Part 6, §IV, Para. 20 (A). As of July 1, 2022, non-interest-bearing trust accounts are not permitted by Paragraph 20, and if an interest-bearing account is not appropriate for the circumstances, funds must be held in an IOLTA account.  

C. Is a lawyer required to remit to the client interest earned when funds are deposited into an “interest” bearing trust account?

A lawyer is required to develop a program that allows for the computation of 1) interest earned and 2) the administrative costs of maintaining the account, and requires the lawyer to remit to the client, at least quarterly, the interest earned on funds held in an interest bearing trust account.

D. Are any lawyers exempt from the IOLTA program?

An attorney may be eligible for exemption from participation in the Virginia IOLTA program if:

  1. the attorney never receives client funds that would require the establishment of a trust account; or
  2. the attorney is not engaged in the practice of law in Virginia, does not receive client funds in Virginia, and does not receive funds from Virginia clients; or
  3. the attorney/law firm maintains an IOLTA account in a neighboring jurisdiction where its law practice is located and certifies as such on the Virginia IOLTA compliance form; or
  4. the attorney is a full-time judge, government attorney, military attorney, or an associate member of the Virginia State Bar.

In order to receive an exemption, the attorney must check the appropriate box on the IOLTA compliance form that will be available after July 1, 2023, on both the LSCV.org and the VSB.org websites. See Paragraph 20(F) and (G).

3. “Insufficient Funds” Reporting Requirements

Unless the client expressly directs the lawyer to do otherwise, may lawyer trust accounts be maintained only in financial institutions approved by the VSB?

Yes. Financial institutions approved by the VSB are required to submit a timely report to the VSB in the event of an overdraft of the lawyer's trust account. See Rules of Supreme Court ofVirginia, Part 6, §IV, Para. 20 and Appendix A. See the VSB's list of trust account depositories.

4. Commingling funds or “Salting” a Trust Account

A. Can a lawyer maintain a sum of money on deposit in his/her trust account for his/her own purposes?

Generally, no. There are only 2 exceptions:

  1. the lawyer may deposit enough of his/her own funds to cover bank charges made for administration of the  trust account or to maintain a required minimum balance to avoid service fees (See  Rule 1.15(a)(3) and LEO 1510); and
  2. when “funds in which two or more persons (one of whom may be the lawyer) claim and interest” and those interests are disputed, those funds “shall be held in the trust account until the dispute is resolved.” Rule 1.15 (a)(3)(ii). 

B. Can a lawyer maintain a sum of money on deposit in his/her trust account to cover credit card merchant fees?

A lawyer may pass along merchant fees associated with credit card use to the client with disclosure and consent. These fees may be deducted from the lawyer’s escrow account; however, when possible, a lawyer should contract with the financial institution that all debits of fees and costs associated with credit card use, including “chargebacks,” be made from the lawyer’s operating account. (See LEO 1848)

 

5. Managing your Escrow Account

A. The following 3 types of records must be kept on a trust account:

  1. Receipts and disbursements journals. – recording all cash received. (Rule 1.15 (c)(1))
    These journals must include (i) identification of the client or matter; (ii) date and amount of the transaction; (iii) name of the payor or payee; (iv) manner in which funds were received, disbursed, or transferred; and (v) current balance. A checkbook or transaction register may be used for this purpose as long as the necessary information is included. Bear in mind, however, that for routine record keeping purposes as well as for compliance with Rule 1.15, the lawyer should maintain additional records that articulate “the purpose” underlying the receipt of funds into escrow (i.e., invoices, transmittal letters with explanation, etc.).
  2. Client ledger which includes recordation of transactions for each client. (Rule 1.15 (c)(2)) Rule 1.15 (c)(2) requires the lawyer to maintain “a separate record for each client, other person, or entity from whom money has been received in trust.” Each entry must also identify the client or matter, the date and amount of the transaction, source of funds received or purpose of the disbursement, and the current balance. The concept of receipts and disbursements journals and client ledgers is simple. The sum total of all client ledgers at any given time should equal the amount in the escrow account. If a combined transfer is being made from client's funds held in escrow into the lawyer or firm operating account which transfer is intended to both cover legal fees and reimburse for previous disbursements, the best procedure would be to clearly identify on the client ledger the dollar amounts being transferred for each, i.e., “Transfer to firm: Fees - $xxx.xx; Costs - $yy.yy.

B. Rule 1.15 requires the lawyer to maintain the following reports:

  1. 1. a monthly reconciliation “of the client ledger balance for each client, other person, or entity on whose behalf money is held in trust.” Rule 1.15 (d)(3)(i); 
  2. 2. a monthly reconciliation of the trust account balance (Rule 1.15 (d)(3)(ii)); and
  3. 3. a monthly reconciliation of the trust account balance and the client ledger balance. (Rule 1.15 (d)(3)(iii))

All reconciliations must be approved by a lawyer in the law firm, and any discrepancy discovered must be explained and approved by the lawyer who approves the reconciliations. Comment [5].

C. What are the record keeping requirements for lawyers serving as fiduciaries?

Lawyers serving as fiduciaries must keep annual summaries of all receipts and disbursements “comparable to…an accounting…required of a court-supervised fiduciary.”  (Rule1.15 (c)(3)). 

D. For how long must books and records be maintained?

At least 5 calendar years after termination of representation or fiduciary responsibility. (Rule 1.15 (c)(4)) 

E. What happens when the law firm has monies in trust that belong to clients, and the firm is unable to locate the client?

The firm can use a reasonable amount of the client’s monies to try to locate the client. Otherwise, the lawyer is required to turn over to the Commonwealth unclaimed funds after 5 years of not being able to locate the client. (Virginia Disposition of Unclaimed Property Act, Virginia Code Section 55.1, Chapter 25). (See also “General Legal Ethics Questions #1. The Missing Client & Abandoned Client Funds.")

F. What should a lawyer do prior to disbursing funds from his/her trust account?

The lawyer must have client consent or consent of any third part with a valid lien, preferably in writing. Client authorization can be obtained in a retainer agreement for litigation costs etc., or separate written instruction from the client. See Rule1.15 (b)(5) and Comment [2a].

When can a lawyer ethically disburse monies from their escrow account?

The lawyer cannot disburse the funds until they are deposited, credited, “cleared,” and are available for disbursement.

Guidance on Generative Artificial Intelligence

By now it’s well known that lawyers must pay attention to “the benefits and risks associated with relevant technology.” Comment [6] to Rule 1.1. In the case of generative AI, those benefits and risks seem to be evolving by the day as the technology, and our skills to use it, rapidly develop. Nonetheless, a lawyer’s basic ethical responsibilities have not changed, and many ethics issues involving generative AI are fundamentally similar to issues lawyers face when working with other technology or other people (both lawyers and nonlawyers). These resources attempt to provide some specific guidance on how to evaluate the benefits and risks of particular uses of generative AI and how to apply ethics rules and standards to generative AI applications.

Confidentiality

A lawyer must be very aware of the Terms of Service and any other information about the possible use of information input into an AI model. Many free, publicly available models specifically instruct users not to input any confidential or sensitive information and any information input into such a model might be disclosed to other users or used as part of the model’s training. Legal-specific products or internally-developed products that are not used or accessed by anyone outside of the firm may provide protection for confidential information, but lawyers must make reasonable efforts to assess that security and evaluate whether and under what circumstances confidential information will be protected from disclosure to third parties. It may be appropriate to consult with IT professionals or other experts before sharing confidential information with any generative AI product.

Disclosure to clients

There is no per se requirement to inform a client about the use of generative AI in their matter. Whether disclosure is necessary will depend on a number of factors, including the existence of any agreement with or instructions from the client on this issue, whether confidential information will be disclosed to the generative AI, and any risks to the client from the use of generative AI.

Competence and supervision

After a few high-profile instances of lawyers submitting court filings citing non-existent cases that were hallucinated by ChatGPT and Google Bard, many of those systems have made it more difficult to do legal research and obtain case citations. However, caution is still necessary, especially for general-purpose generative AI products; legal-specific products generally are linked to a legal research database and therefore should be more reliable with case citations. As with any legal research or drafting done by software or by a nonlawyer assistant, a lawyer has a duty to review the work done and verify that any citations are accurate (and real).

Beyond generating information that is simply false, generative AI might also produce information that is not completely accurate or is biased. These issues are thought to arise because of the information in the dataset used for training the models. For example, IBM reported that researchers found bias in Midjourney, a generative AI art generator. When Midjourney was asked to create images of people in certain professions, it showed a mix of ages, but the older people were always men.

Such issues are difficult to detect or address in advance because of the lack of information about how these systems work and what material they were trained on, so output must be carefully evaluated to ensure that it is accurate and that it is consistent with the interests of the lawyer’s client. Work product generated by generative AI should always be critically reviewed by the lawyer exercising independent judgment about the contents.

The duty of supervision extends to generative AI use by others in a law firm, and partners and other supervisory lawyers should consider whether Rule 5.1 requires adopting a policy on the use of generative AI, including education and safeguards on when use of generative AI is appropriate. Firms should also consider systems for tracking use of generative AI within the firm – for example, when it is used, what specific prompts and other information are used, and what output is generated.

Billing and fees

In all instances, fees must be reasonable and adequately explained to the client under Rule 1.5. A lawyer may not charge an hourly fee in excess of the time actually spent on the case and may not bill for time saved by using generative AI. The lawyer may bill for actual time spent using generative AI in a client’s matter or may wish to consider alternative fee arrangements to account for the value generated by the use of generative AI. The lawyer may only charge the client for costs associated with generative AI if permitted by the fee agreement and by Rule 1.5; any costs passed along to the client and described to the client as costs must be actual costs and cannot be marked up. See LEO 1850.

Court disclosure requirements

Some courts throughout the country have imposed requirements to certify whether generative AI has been used in any document filed with the court. The content and scope of these requirements vary depending on the court, and new requirements may be added at any time. A lawyer must determine whether any disclosure requirement applies to a filing that the lawyer is making and must comply with that requirement pursuant to Rule 3.4(d).

Resources from other bars

American Bar Association

The ABA has established a task force that is expected to issue a report this year. The task force mission is to (1) address the impact of AI on the legal profession and the practice of law, (2) provide insights on developing and using AI in a trustworthy and responsible manner, and (3) identify ways to address AI risks, with a focus on six critical issues: AI in the legal profession; AI risk management; AI and access to justice; AI governance; AI challenges: generative AI; AI in legal education.

The task force also provides resources including webinars, articles, and compilations of government policy statements.

State Bar of California

The State Bar of California issued “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law,” a document that describes itself as guiding principles rather than best practices and that demonstrates how to comply with lawyers’ professional responsibility obligations while using generative AI products.

Florida Bar

The Florida Bar issued an advisory ethics opinion in January 2024 also giving guidance on the use of generative AI in the practice of law, with specific discussions of appropriate billing for the use of generative AI and use of generative AI chatbots.

New Jersey Supreme Court

The New Jersey Supreme Court issued preliminary guidelines on the use of artificial intelligence by New Jersey lawyers.