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. 
 Back to main menu
LEO NumTopicsSummaryDate

2-Adversity to Former Clients

16-Lawyer's Personal Interests

36-Withdrawal from Representations

43-Conflicts of Interest - Miscellaneous

49-Lawyers - Miscellaneous

The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case- and fact-specific inquiry. No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation. Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client. An attorney-client relationship ends when: the engagement letter specifies such a time, the lawyer or the client explicitly end the relationship, "when overt acts inconsistent with the continuation of the attorney-client relationship indicate that the relationship has ended," or "when it would be objectively unreasonably to continue to bind the parties to each other." An "episodic" client might be a continuing client in the absence of any ongoing matter if the client periodically engaged the lawyer, and the client "reasonably expects that the professional relationship will span any [such] intervals and that the lawyer will be available when the client next needs representation."4/17/2018

47-Lawyer Referral Services


85-Business Cards

This compendium opinion (initially issued on 3/20/01, and revised on 4/4/06, 12/18/08 and 4/20/18 [in light of 2017 Virginia Rules changes]) provides guidelines about lawyer advertising: advertisements using actors to portray lawyers or employees must disclose "that the actor is not truly an employee or member of the firm." Advertisements may not use terms such as "no recovery, no fee". "We guarantee to win, or you don't pay." "We are paid only if you collect." "No charge unless we win" and must explain that litigation expenses and court costs would be payable regardless of outcome (because the public "generally may not distinguish the differences between the terms 'fee' and 'costs'"). Lawyers may use a corporate trade or fictitious name for their firm as long as they practice under that name (and use the name on signage, letterheads, business cards, etc.) and the name is not misleading. It is “potentially misleading” for lawyers to advertise their “use of a non-exclusive office space, including an executive office rental,” if the lawyer does not actually provide legal services there (quoting Virginia LEO 1872’s warning that lawyers may not list such space to mislead prospective clients about the law practice’s geographic diversity or resources). Advertisements may not indicate that automobile accident victims "will have to consult an attorney." Lawyers participating in lawyer referral services must comply with all ethics rules and earlier LEOs, and may not falsely state or imply that the lawyer's inclusion on a referral list is based on quality, that the referral list includes all lawyers or law firms eligible for the list on some objective criteria, or that there are many lawyers participating in the service in a certain geographic area. After the 2017 Rules change eliminating the disclaimer obligation when lawyers advertise specific or cumulative case results, it “can be misleading” for lawyers to advertise “specific case results” depending on the circumstances (for instance, a lawyer advertising that she obtained a $1 million verdict after refusing a $2 million settlement offer would have to explain those additional facts). Advertisements may not use statements such as "the best lawyers" or "the most experienced" because they “cannot be factually substantiated.” Clients' testimonials may not make claims that lawyers could not themselves make, but may include such "soft endorsements" as "the lawyer always returned phone calls” and “the attorney always appeared concerned." Lawyers may state that an A.V. Martindale-Hubbell rating represents its "highest rating." Lawyers may state that they are included in publications such as "The Best Lawyers in America," but must describe the years they were included in such publications if they are ever delisted, may not include any reference to such lists if the lists are "not based upon objective criteria or a legitimate peer review process" or are "available to any lawyer who is willing to pay a fee," must not parlay inclusion on such a list into a claim that "I am the best lawyer in America," and may not "impute any such endorsement to others in the law firm not so recognized." Lawyers may not use the word "specialist" or "specialize" if such terms are false or misleading. Lawyers may claim to be “certified as a specialist,” as long as the claim is not false or misleading, and they identify the organization that “purportedly conferred the certification” (which “must undertake some bona fide evaluation” rather than awarding certificates to any lawyers who pay a fee or joins the organization). Lawyers may not use the word "expert" or "expertise" if "the claim cannot be factually substantiated."].4/20/2018

Copyright 2000, Thomas E. Spahn