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-475

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38-Fee Splitting

40-Trust Accounts

Because another lawyer who has entered into a fee-split arrangement with a lawyer is a "third person" under ABA Model Rule 1.15's trust account rules, the lawyer receiving a fee that will be split with the other lawyer must: notify the other lawyer of the fee's receipt; hold the money in a trust account until it is appropriate to disburse it; promptly "deliver" any earned fee to the other lawyer; provide a full accounting if the other lawyer asks for one; keep any disputed funds in the trust account until any dispute is resolved.12/7/2016
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
1884

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20-Government Official Conflicts

32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

Lawyers in a law firm or in a consulting firm that the law firm owns "may not represent clients or otherwise lobby before the General Assembly" or any other public body on which lawyer's colleague sits – even if that colleague recuses herself. This prohibition applies to all lawyers in the law firm and the consulting firm, and also extends to non-lawyers in the consulting firm, "regardless of whether the lawyers have any managerial or supervisory authority over the non-lawyer employees."9/30/2016
1886

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21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

45-Law Firms - Miscellaneous

Lawyers must report an impaired colleague if the colleague engages in sufficiently serious misconduct (under Rule 8.3), but also must "take precautionary measures before" a colleague's impairment reaches that level; such lawyers: (1) must "take reasonable steps to prevent the impaired from violating the Rules" (including considering whether the lawyer must withdraw from a representation under Rule 1.16); (2) may be able to "work around or accommodate" the impairment by reducing the impaired colleague's workload, arranging for a supervisor until the impairment dissipates, restrict the impaired colleague's scope of practice, etc.; (3) should suggest that the impaired colleague seek appropriate help. If the impaired colleague has committed sufficiently egregious misconduct that requires reporting under Rule 8.3, arranging for the impaired lawyer to participate with Lawyers Helping Lawyers does not eliminate the reporting obligation. [Approved by the Supreme Court of Virginia 12/15/16]12/15/2016
ABA-476

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8-Bills and Fees

30-Disclosing Confidences Under Court Order

46-Confidentiality - Miscellaneous

Lawyers seeking to withdraw as counsel of record because they are not being paid must "err on the side of non-disclosure" of their grounds for seeking withdrawal. Courts "have differed widely" as to information they require before considering such a withdrawal motion, and should work with lawyers to minimize the required disclosure. Lawyers "could": (1) seek withdrawal without disclosing any client confidences; (2) if unsuccessful, respond to courts' insistence for some additional information by requesting an in camera or under seal process; and (3) publicly disclose client confidences only if the court orders such disclosure.12/19/2016

Copyright 2000, Thomas E. Spahn