These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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LEO NumTopicsSummaryDate
ABA-477

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Because communication technology, its accompanying risks and the ethics rules have changed since ABA LEO 413 (3/10/99), lawyers must take the following steps when communicating with their clients using new technology: comply with the ABA Model Rules 2012 "technology amendments"; assess what "reasonable efforts" a lawyer must make when protecting client confidentiality (which "is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors"); consider using encryption for sensitive client communications, although "the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication"; recognize that for "certain highly sensitive information" lawyers might have to "avoid" the use of electronic methods or any technology to communicate with the client altogether"; understand the nature of threats to client confidentiality, including how client information is transmitted, stored -- and the vulnerability of security at "[e]ach access point"; understand and use reasonable "electronic security measures"; recognize that "'deleted' data may be subject to recovery," so it may be necessary to "consider whether certain data should ever be stored in an unencrypted environment, or electronically transmitted at all"; carefully label client confidential information; train lawyers and non-lawyers in the use and risk of electronic communications and storage; undertake reasonable due diligence on communication technology vendors; inform clients about the risks of communicating sensitive information; comply with clients' requirements for special protective measures.5/11/2017
ABA-478

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19-Judge Conflicts

Judges may independently research background information and may "judicially notice" facts under court rules, but may not independently investigate material facts involved in their adjudicative function. "The key inquiry here is whether the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing through the adversary process." "[E]ven general subject-area research is not permissible . . . if the judge is acquiring information to make an adjudicative decision of material fact." Judges may not investigate through online research (or otherwise) information about jurors or parties, but may investigate lawyers -- unless the investigation "is done to affect the judge's weighing or considering adjudicative facts."12/8/2017
ABA-479

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Under ABA Model Rule 1.9, lawyers may not disclose former clients' protected client information unless the rules permit it, and may not "use" such information to the former clients' disadvantage unless the rules permit it -- or unless the information has become "generally known." Information is not "generally known" simply because it is publicly available, is discussed in open court, is in court records, or is otherwise a matter of public record. Instead, information is "generally known" if "through traditional media sources" or "through publication on internet web sites; or through social media" the information is: (1) "widely recognized by members of the public in the relevant geographic area"; or (2) "widely recognized in the former client's industry, profession, or trade without being widely recognized by the public."12/15/2017
1887

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21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

Unlike supervisory lawyers (whose duties to supervise and to report other lawyers' misconduct was addressed in Virginia LEO 1886 (12/15/16)), lawyers not playing a supervisory role are governed only by Rule 8.3's reporting obligation – which is sometimes triggered by Rule 1.16's requirement that lawyers withdraw from representing clients if their "physical or mental condition materially impairs" their ability to represent a client. This reporting obligation arises only if the other lawyer violates an ethics rule, so "a lawyer's impairment, on its own, does not necessarily violate the RPCs at all." This means that lawyers without a supervisory role have no duty to "proactively address the impairment of other lawyers." However, lawyers must report another lawyer whose "material impairment" requires the other lawyer's withdrawal from a representation under Rule 1.16. Although the reporting obligation remains subject to lawyers' confidentiality duty, "in many cases a report may be accomplished without disclosing information that would be embarrassing or detrimental to the firm's clients." Lawyers must also remember that "reporting a lawyer's impairment to both the Bar and to LHL [Lawyers Helping Lawyers] is important, and each report serves different purposes."6/28/2017

Copyright 2000, Thomas E. Spahn