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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  Topic: 1 - Adversity to Current Clients
LEO NumTopicsSummaryDate
ABA-367

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1-Adversity to Current Clients

24-Representation of or Adversity to Witnesses

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

"The Committee concludes that a lawyer's examining the lawyer's client as an adverse witness, or conducting third party discovery of a client, will ordinarily present a conflict of interest that is disqualifying absent consent of one or both of the clients involved (depending . . . on the nature and degree of the conflict)." A witness would be considered a current client for conflicts purposes "if there is a continuing relationship between lawyer and client, even if the lawyer is not on a retainer, and even if no active matters are being handled." A lawyer in that situation could face a conflict if the lawyer has "specific confidential information relevant to the cross-examination," or even if the lawyer only has general information -- "to the extent a lawyer's general familiarity with how a client's mind works is relevant and useful information, it may also be disqualifying information within the contemplation of Rule 1.8(b), which generally prohibits a lawyer from using information relating to the representation of a client to the disadvantage of the client unless the client consents after consultation." In a situation where the lawyer is called upon to cross-examine a doctor client who is acting as the adversary's expert witness, "there will almost inescapably be a direct adverseness," thus requiring the doctor's consent to handle the cross-examination. "In some instances, a sufficient solution may be to provide for other counsel, also representing the litigation counsel, to deal with the client-witness: where local counsel as well as principal counsel are involved in a litigation, the disqualication applying to one of these will not ordinarily affect the other. In other circumstances, a satisfactory solution may be the retention of another lawyer solely for the purpose of examining the principal lawyer's client."10/16/1992
1642

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1-Adversity to Current Clients

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

A bar association wants to set up a question referral network under which lawyers from other firms will answer questions without obtaining specific confidential or secret information. The Bar holds that it is likely that the lawyer answering a question will acquire confidential or secret information, and that therefore the inquiring lawyer should obtain the client's consent before asking the questions.The Bar explains that "the anonymous hypothetical approach to consultation encounters difficulties as more details are revealed during the consultation, and seemingly innocuous information may be harmful to the client if revealed to others." Although no attorney-client relationship arises between the inquiring lawyer's client and the answering lawyer, a "special relationship" arises. The consultation "would give rise to a reasonable expectation of confidentiality," so the answering lawyer should arrange for a disclaimer making it clear that the lawyer need not maintain the information's secrecy. Although no attorney-client relationship arises, the answering lawyer may not be adverse to the inquiring lawyer's client without the client's consent. To avoid possible disqualification, the answering lawyer should perform a conflicts check before answering any questions. The inquiring lawyer may not reveal the client's identity to the answering lawyer without the client's consent. [Rule 1.6 Comment [7a] discusses such "mentor" communications.]6/9/1995
1203

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney may not hire a private lawyer to represent the Commonwealth in collection cases if the lawyer will be representing criminal defendants in prosecutions by the Commonwealth's Attorney. The disqualification would extend to the entire firm.4/3/1989
0843

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

A county lawyer representing a county subdivision committee may not represent a developer before the committee unless all parties consent and the committee hires another lawyer. 10/9/1986
1796

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

A criminal defense lawyer acted improperly in representing two criminal defendants in separate cases, knowing that one defendant's defense to a fire arms charge was based on his acquisition of a gun to protect himself from the other defendant. The Bar concluded that "the adverse affect [sic] of these simultaneous representations was too clear to have reasonably been believed otherwise." Although consent could not have cured the conflict, the Bar also noted that the lawyer had not obtained consent after full disclosure.3/31/2004
1875

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

A government lawyer who will personally be subjected to a sequestration furlough (1) may not represent the agency in defending the sequestration furloughs, because "there is a conflict between the lawyer's personal interest in not being furloughed and the agency's interest in upholding the furloughs. . . . [T]he conflict may not be waived because the lawyer cannot reasonably believe that he will be able to provide competent and diligent representation to the agency in light of the nature and strength of his personal interest in the matter."; (2) may represent the agency in unrelated matters, with the agency's consent. These answers would be the same even if the lawyer retained private counsel to challenge his personal furlough. If the lawyer's employment with the agency ends, he may challenge his furlough (the Bar noted that the agency was willing to consent to his undertaking such a challenge while at the agency, so "it is manifestly unfair and illogical that the lawyer would be ethically precluded from pursuing his furlough challenge after the representation of the client has ended, solely on the basis that the agency will not consent.")7/24/2013
0290

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1-Adversity to Current Clients

5-Lawyers Changing Jobs

A law firm may not represent a client against a county Board of Supervisors when the lawyer representing the county will be joining the firm through a merger, even though the county's lawyer will not be representing the county in the particular matter. 1/9/1978
1337

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

A law firm represented a mother and her young child injured in an automobile accident allegedly caused by the mother's negligence. As the matter develops, the firm stops representing the mother and engages co-counsel to represent the child against the mother. Co-counsel has never met the mother and has only discussed the merits of the child's case with the lawyer. Both the firm and co-counsel may represent the child against the mother if the mother consents. [The Bar did not address the possible different positions of the lawyer and co-counsel (who had no contact with the mother).] 4/20/1990
1609

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A law firm represents a property-owner wishing to sell the property and resist imposition of a lien on it. The firm receives a letter of intent to buy the property from an individual who is a judgment debtor of another firm client (and against whom the firm obtained the judgments and is attempting to collect them).Although the judgments against the individual are "available in the public record," the firm may not advise the property-owner of the judgments against the individual, and likewise may not advise its judgment-creditor client that the individual has offered to buy the property. Because the assets the individual might use to buy the property from one client might otherwise be used to satisfy the other client's judgments, the law firm had an irreconcilable conflict and would have to withdraw from both representations (without explanation, because the firm "may not reveal specifics to either client with regard to the nature of the conflict"). If the property-owner client sues the law firm, it may defend itself by revealing the conflict, but "only to the extent necessary to rebut any accusation . . . of the firm's wrongful conduct." 9/14/1994
0234

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1-Adversity to Current Clients

A law firm which represents the Highway Department in condemnation proceedings may represent a landowner in purchasing new property under the Relocation Assistance Act as long as negotiations with the Highway Department have concluded and neither the Department nor the landowner objects. 1/3/1974
1094

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1-Adversity to Current Clients

58-Real Estate Lawyers

A lawyer for a borrower may sign a stipulation that the loan agreements prepared by the bank are legal and enforceable, because this is a traditional way to handle a closing and does not create a conflict of interests. 10/26/1988
1460

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer helping a legal services agency as part of a pro bono program represents a domestic relations client. The lawyer is approached by a client in a divorce matter, and learns that the client's spouse is being represented by the legal services agency. The lawyer may continue to represent the pro bono client and the paying divorce client because the matters are unrelated and therefore there will be no adversity between the clients. The fact that the same agency represents the spouse of the divorce client and also provides assistance to the lawyer in the representation of the domestic relations client does not create a conflict. However, the lawyer must be careful to avoid the sharing of any confidences. 4/13/1992
0253

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1-Adversity to Current Clients

A lawyer hired by a title insurance company to represent a landowner and trustees under a Second Deed of Trust may not also file a third party action against the trustees. 12/3/1974
1225

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1-Adversity to Current Clients

2-Adversity to Former Clients

A lawyer is retained by a client to pursue a wrongful death case, but later finds that one of decedent's relatives is the proper plaintiff (as administrator) and that the client and the relative have adverse interests (among other things, the relative believes that the client is guilty of child abuse). Unless there is consent after full disclosure, the lawyer may not drop the client and represent the relative, because the relative's interests are adverse to the lawyer's first client. 4/26/1989
0495

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

A lawyer may be adverse to school board when the lawyer's partner represents the Board of Supervisors, because the governmental entities are separate "with neither being a parent body of the other". 9/3/1982
1057

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1-Adversity to Current Clients

44-Conflicts - Miscellaneous

54-Insurance Defense Lawyers

A lawyer may charge a fixed percentage overhead fee for miscellaneous expenses in most representations, although such an arrangement would be improper in contingent fee matters (in which the client must be responsible for the actual costs incurred). (3/22/88)A law firm who occasionally represents an insurance company may represent a company whose interests are adverse to the insurance company's as long as the matters are not substantially related. However, consent would be required if the firm routinely handled the insurance company's matters "from time to time, whether on retainer or not, [or] whether presently engaged or not." (Here, no consent was required because the representation of the carrier was not "ongoing").The Bar contrasted this time-to-time representation (in which consent would be required) from what it described as a representation which was "not ongoing, but was based on the completion of a specific project which has not been completed" in which case consent would not be required. [The "not" is probably a typographical error -- the Bar probably meant "now been completed."] 3/23/1988
1821

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1-Adversity to Current Clients

63-Lawyers Acting as Corporate Officers or Directors

78-Communicating with an Employee of a Corporate Adversary

A lawyer may file a lawsuit against a trust company on whose board the lawyer's partner sits (but who does not represent the trust department) if (1) the "affected client/clients" (the plaintiff suing the trust company) consents; and (2) the lawyer "reasonably believes" that he can "provide competent, diligent representation" to his clients. Although the board member's recusal is not mentioned as a cure in the rules, it is a factor in analyzing the second requirement, which could be met if the board (in consultation with its lawyer) allows such recusal, after considering "such matters as whether the litigation is 'routine' or 'non-routine' in the course of the board's business; whether the claim goes to matters that had been determined by the board, or lower level administrative staff; and whether the claim involves matters on which [the partner who is a member of the board] has voted or has been involved in." The board member's resignation might cure the conflict, unless there is some contractual undertaking that would affect his post-withdrawal activities. Under Rule 4.2, the plaintiff's lawyer should not have dealt with the company through his partner who serves on the board, but rather through the lawyer representing the trust company.1/11/2006
0223

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

54-Insurance Defense Lawyers

A lawyer may not defend two insureds in a personal injury case while representing the insurer in a declaratory judgment action against them. 4/18/1973
0947

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1-Adversity to Current Clients

76-Trust and Estate Lawyers

A lawyer may not represent a client in a will dispute when the lawyer's partner represents ("even in the smallest way") the adverse party in an unrelated matter. The Bar "does not believe that a firm or an individual attorney may ethically represent a given client at the same time that they are suing the same client, regardless of whether or not the matters in the separate litigation are the same or substantially related." 6/25/1987
1769

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1-Adversity to Current Clients

67-Lawyers Acting as Guardians Ad Litem"

A lawyer may not represent a client in seeking a guardianship for another client who has become incompetent (the conflict would be imputed to all of the other lawyers with whom the disqualified lawyer practices) -- although under Rule 1.14 the lawyer may on his or her own seek the appointment of a guardian for an incompetent client.2/10/2003
0222

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1-Adversity to Current Clients

A lawyer may not represent a client's girlfriend in an action against the client. 1/8/1973
0344

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1-Adversity to Current Clients

71-Representing Corporations

A lawyer may not represent a party against a corporation when the lawyer's partner is currently representing the corporation's sole stockholder in an unrelated matter. 7/30/1979
0241

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1-Adversity to Current Clients

73-Family Law Lawyers

A lawyer may not represent a spouse in a divorce action when the lawyer's partner represents the other spouse in an unrelated matter. 3/28/1974
0595

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1-Adversity to Current Clients

75-Representing Estates and Executors

76-Trust and Estate Lawyers

A lawyer may not represent an estate in attempting to recover the proceeds of a note payable to the decedent (thus treating the note as an asset of the estate), while also representing the trustee in decedent's bankruptcy (treating the note as an asset of the bankrupt estate). 8/10/1984
0296

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1-Adversity to Current Clients

A lawyer may not represent third-party defendants while simultaneously acting as local counsel for third-party plaintiff in unrelated matters. 2/17/1978
ABA-435

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

A lawyer may represent a client against an adversary insured by an insurance company that the lawyer represents in unrelated matters, unless the insurance company becomes a formal party because the lawyer's litigation client and the insurance company are economically rather than legally adverse. The lawyer might be prohibited from taking discovery of the insurance company client, depending upon the adverseness involved. The lawyer might be unable to represent the litigation client if the lawyer has protected information from the insurance company client that "would materially help the plaintiff in his claims against the insured defendant."12/8/2004
0894

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1-Adversity to Current Clients

71-Representing Corporations

A lawyer may represent a corporation which is adverse to the lawyer's client in litigation but which has assigned right against another individual to the lawyer. 4/1/1987
0739

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1-Adversity to Current Clients

74-Representing Associations

A lawyer may represent landowner association while suing individual members, as long as failure to pay dues results in loss of right to vote in the association. 11/1/1985
0819

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1-Adversity to Current Clients

A lawyer may represent the Virginia Department of Highways and Transportation in condemnation cases and also be adverse to it in an unrelated personal injury action, as long as both parties consent. 10/9/1986
1408

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1-Adversity to Current Clients

18-Consent and Prospective Waivers

71-Representing Corporations

A lawyer represented a borrower in an action brought by a bank's real estate loan division. One of the lawyers' partners was later hired by the bank's commercial finance division in unrelated litigation. The commercial finance division consented, recognizing that the two divisions of the bank act independently.The Bar held that there were "inherent dangers" in these two representations despite the bank's indication that the subdivisions are distinct from each other. Because both divisions "are part of the same entity managed under the same supervisory scheme," there was a danger of "misuse of the client's information." The Bar held that the simultaneous representation was improper and could not be cured by consent (because it was not "obvious" that the lawyer could adequately serve both clients). [The Bar's conclusion that consent would not cure this conflict would almost surely be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard.]5/13/1991
1731

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

17-Fraud on the Tribunal

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing.6/29/1999
0244

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

A lawyer representing a client in a personal injury action against a city may become a part-time city attorney as long as another city attorney would work on the case and both the city and the client consent. 5/9/1974
1623

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1-Adversity to Current Clients

2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

A lawyer representing a client in an eviction case discovers that the lawyer is representing another client (on an unrelated matter) who could be an adverse witness in the eviction matter. Because it is "not obvious" that the lawyer can adequately represent both clients (the lawyer must challenge the credibility of one client in representing the other client), the lawyer should withdraw from representing the eviction client. Once the lawyer drops the eviction client, the lawyer may continue to represent the other client in the unrelated matter. [The Bar's conclusion that consent would not cure this conflict might be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard] [There may be limits on a lawyer's ability to withdraw from a current representation to avoid a conflict created by multiple representations.]2/17/1995
1312

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

A lawyer representing a defendant in a personal injury case may also represent a hospital (which had earlier treated the plaintiff in an unrelated matter), because the hospital could not be named as a third-party defendant and because the earlier treatment was unrelated to the current litigation. However, both the defendant and the hospital must consent after full disclosure. 5/8/1990
1168

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1-Adversity to Current Clients

74-Representing Associations

A lawyer representing a homeowner's association has an attorney-client relationship with the entity, and therefore may represent the association in a declaratory judgment action against some of its members (who are not otherwise clients of the law firm). 11/16/1988
1815

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

A lawyer representing a locality has appeared as counsel of record for the Board of Zoning Appeals ("BZA") in an appeal to the Circuit Court by a land use applicant who lost before the BZA. In a totally unrelated matter involving different land and different issues, the lawyer has now been asked by a zoning administrator to represent him in an appeal of a BZA decision to the Circuit Court (in which the petition will name the BZA as a defendant). In contrast to Virginia LEO 1785 (which involved a lawyer representing multiple clients on the same zoning variance), this situation involves multiple representations on different matters. The lawyer's direct adversity to the BZA (which is a client in the other matter) triggers Rule 1.7(a)(1), and there is thus no need to analyze whether the lawyer's representation will be "materially limited" under Rule 1.7(a)(2) which "must always be decided on a case-by-case basis, with a context driven analysis rather than a bright line rule". Before proceeding in direct adversity to his client the BZA, the lawyer must 1) "reasonably believe" that he can provide "competent and diligent representation to each affected client" (which uses an objective "disinterested attorney" standard under Comment 10); (2) determine that the representation is not prohibited by law; (3) assure himself that he is not representing adversaries in the same proceeding; and (4) memorialize the client’s consent in writing (the Bar explains that "obtaining a client's signature to acknowledge the consent is advisable in most instances," but a lawyer may meet that requirement if the lawyer "merely makes a note to file regarding what transpired").The lawyer had "commented" on the merits of the second matter, but the lawyer does not believe that the BZA "considered the comments to be legal advice." The Bar warns that LEO 1785 would apply if the BZA "reasonably considered" the lawyer's comment to be legal advice (explaining that the lawyer had the responsibility to explain his role at the hearing, and "expressly communicate to the BZA that he was not appearing before them as their legal advisor" if he was not).1/10/2006
0692

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1-Adversity to Current Clients

74-Representing Associations

A lawyer representing an unincorporated condominium association against unit owners who have not paid their assessments may also represent the unit owners in a class action against the manufacturer of the condominium's air conditioning system. 5/10/1985
1882

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer representing two clients in unrelated criminal matters who learns from one client that the client would like to cooperate with the prosecutor and offer to testify against the other client the lawyer is representing (in an unrelated criminal matter) faces an incurable conflict, because: (1) the lawyer cannot advise the client who wants to cooperate, because it would be adverse to the lawyer's other client; and (2) the lawyer cannot obtain that other client's consent to the adversity, because the first client's interests in cooperating is a client confidence that cannot be disclosed without consent. The conflict would be incurable even if the prosecutor disclaimed any interest in using information obtained from the cooperating client, because the lawyer still could not advise the cooperating client adverse to the other client (and could not obtain the other client's consent, because the first client's interest in cooperating is a client confidence).7/23/2015
0327

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

A lawyer representing two clients with a direct conflict in a case scheduled for trial should advise the court. 6/14/1979
1239

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1-Adversity to Current Clients

A lawyer represents a client on a number of matters. The client lost a business investment when one of the client's business partners started a competing business (the competing business successfully convinced the landlord to cancel a lease with the client's business and lease the same space to the new business). The lawyer was not representing the client in the business venture. The client later learns that the former business partner was being represented by the same law firm representing the client on unrelated matters. The Bar found this simultaneous representation improper, and held that it could not be cured by consent. [It is unclear why this situation does not involve permissible business adversity rather than impermissible legal adversary.] 5/30/1989
1427

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

58-Real Estate Lawyers

A lawyer represents two clients in a real estate matter. One of the clients is indicted on criminal charges, and wants to retain the lawyer on that matter. The other client is an alleged co-conspirator. The lawyer may not represent the criminal defendant if the criminal matter is related to the real estate matter.9/16/1991
1592

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1-Adversity to Current Clients

44-Conflicts - Miscellaneous

54-Insurance Defense Lawyers

A lawyer retained by an uninsured motorist insurance carrier but providing informal advice to the defendant motorist has an attorney-client relationship with the motorist. The lawyer may provide such advice without a conflict because the carrier and the motorist share an interest in defeating the plaintiff's claim (although adversity may later develop if the carrier asserts a subrogation claim against the motorist). The lawyer may not permit the motorist to tell the Court that the motorist is appearing pro se, and must comply with any court rules requiring disclosure of informal assistance by a lawyer. [overruled to the extent it is inconsistent with LEO 1874 (7/28/14), which explained that the ethics rules do not prohibit undisclosed assistance to a pro se litigant, but some courts forbid it]9/14/1994
0873

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1-Adversity to Current Clients

6-Lawyers Paid by Third Party

54-Insurance Defense Lawyers

A lawyer who "from time to time" represents the same insureds may be adverse to one of the insureds if all parties consent (a lawyer representing an insured owes his "sole allegiance" to the insured). Although the Bar has "suggested" that "it may be improper" for a lawyer to represent a client while at the same time suing it, the Bar approved such an arrangement as long as: the clients consent after full disclosure; the matters are not "substantially related"; the lawyer has "learned nothing in one capacity which would help you in another"; and the lawyer's "independent ability to represent your client" is in "no way affected." 2/2/1987
0493

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1-Adversity to Current Clients

7-Family Conflicts

33-Office Sharing with Other Lawyers

54-Insurance Defense Lawyers

A lawyer who "usually" represents those insured by the defendant's insurance company may represent the plaintiff in a personal injury action against the defendant only if both parties consent. (The request for an opinion reveals that the lawyer's father, with whom the lawyer shared an office, was currently representing an insured of the insurance company on an unrelated matter). 9/20/1982
1681

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer who represents a lender in closing residential loans (often at the recommendation of the builder) may not represent a borrower in litigation against the builder, because: (1) the lawyer is administering settlement funds on behalf of other borrowers that the client could use to satisfy the client's claim against the builder; and (2) the lawyer is privy to confidential information about funds owed to or to be disbursed to the builder. Once the lawyer stops representing the borrower in the action against the builder, the lawyer may continue to handle other closings on behalf of other borrowers. 5/16/1996
1630

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1-Adversity to Current Clients

73-Family Law Lawyers

A lawyer who undertakes collection work for doctors and also represents domestic relations clients may attempt to collect from parties against whom the lawyer has represented others in domestic relations matters (because there is no attorney-client relationship between the lawyer and the client's adversaries). 2/7/1995
0808

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1-Adversity to Current Clients

A legal services corporation may not obtain confidential information from and then refer out clients who are adverse to the corporation. 6/25/1986
0483

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may challenge the constitutionality of a state law as long as the lawyer has no duty to enforce the law and the main defendants do not include any state employees for whom the lawyer must provide legal representation. 11/29/1982
1785

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1-Adversity to Current Clients

2-Adversity to Former Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests].11/14/2003
1257

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1-Adversity to Current Clients

16-Lawyer's Personal Interests

Absent informed consent, a lawyer may not both represent a client and be pursuing criminal charges against the client for a bounced check. The Bar appears to state that in this situation that the lawyer's self-interest would necessarily interfere with the lawyer's independent judgment.7/25/1989
0236

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1-Adversity to Current Clients

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney may not represent any private party in criminal matters before a court in which the lawyer practices.1/3/1974
1774

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1-Adversity to Current Clients

21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

An associate may not (absent consent) prepare a patent opinion seeking to invalidate a patent held by another firm client (which the associate’s law firm represents in different technologies). The supervising partner who knowingly directed the associate’s action violated Rule 5.1, because the partner ordered and ratified inappropriate conduct by a subordinate lawyer. 2/10/2003
0310

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1-Adversity to Current Clients

74-Representing Associations

As long as all clients consent, a lawyer may defend an action brought by the owner's council of a condominium even though the lawyer represents a number of condominium unit owners in unrelated matters. 12/13/1978
0698

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1-Adversity to Current Clients

54-Insurance Defense Lawyers

As long as both clients consent, a lawyer may represent a defendant driver in a declaratory judgment action to determine insurance coverage and also be adverse to the driver in personal injury litigation. 5/10/1985
1637

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1-Adversity to Current Clients

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

As long as the client consents, a law firm may continue to represent it even though the client is suing the firm for unrelated legal malpractice. "[A]n informed consent is a product of an adequate explanation of the nature, extent and implications of a conflict of interest, including the possible effect on the exercise of the lawyer's independent professional judgment on behalf of the client." The law firm must advise the client that one of its lawyers will cross-examine the client in the malpractice action. The firm may not reveal to its malpractice counsel any confidences or secrets it obtained from its client through a representation of the client in unrelated matters.Although "[c]onsent may be oral or written," written consent would be best here. "Significantly, client consent is not contractually binding; it may be withdrawn at any time." ([The Bar softened an equally broad statement in revised LEO 1652.] 4/19/1995
ABA-434

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1-Adversity to Current Clients

76-Trust and Estate Lawyers

Because a will beneficiary normally has only an expectancy in receiving money from the testator, a lawyer representing a potential beneficiary in unrelated matters may assist the testator in disinheriting the beneficiary (although the lawyer might decline the assignment). This situation differs from a lawyer asked to advise one client "as to his rights under a contract with another client of the lawyer, or as to whether the statute of limitations has run on potential claims against, or by, another client of the lawyer" which the conflicts rules prohibit, because they involve legal rights there are no similar legal rights involved in a will, "except where the testator has a legal duty to make the bequest that is to be revoked or altered." There is a "heightened risk" that the lawyer's representation of the testator will be "materially limited" by the lawyer's duty to the beneficiary if the lawyer advises the testator "whether, rather than how, to disinherit the beneficiary." 12/8/2004
0706

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1-Adversity to Current Clients

Because simultaneous representation of adverse clients "creates a presumption of adverse effect on the attorney's absolute duty of loyalty," it is improper despite the dissimilarity of subject matters of the representation. Absent consent, the entire firm is disqualified from representing either party in a medical malpractice action when it represents the plaintiff and defendant doctors in unrelated matters. 11/11/1985
1842

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1-Adversity to Current Clients

22-Interviews with Prospective Clients

Because the duty of confidentiality attaches (according to the Preamble) "when the lawyer agrees to consider whether a client lawyer relationship shall be established," lawyers may use to their client's advantage (and represent the adversary of a prospective client who sent) a prospective client's (1) unsolicited voicemail message containing confidential information, sent to a lawyer who advertises in the local Yellow Pages and includes his office address and telephone number; (2) unsolicited e-mail containing confidential information, sent to a law firm which "maintains a passive website which does not specifically invite consumers to submit confidential information for evaluation or to contact members of the firm by e-mail." Someone submitting such confidential information does not have a reasonable basis for believing that the lawyer will maintain the confidentiality of the information, simply because the lawyer uses "a public listing in a directory" or a passive website. The lawyer in that situation "had no opportunity to control or prevent the receipt of that information," and "it would be unjust for an individual to foist upon an unsuspecting lawyer a duty of confidentiality, or worse yet, a duty to withdraw from the representation of an existing client." Lawyers might create a reasonable expectation of confidentiality if they include in advertisements or in their website language that implies "that the lawyer is agreeing to accept confidential information." In contrast to lawyers who merely advertise in the Yellow Pages or maintain a passive website, a lawyer would have to keep confidential (and would be prohibited from representing a client adverse to a prospective client which supplies) information provided by a prospective client who completes an on-line form on a law firm website which "offers to provide prospective clients a free evaluation of their claims." Law firms "may wish to consider" including appropriate disclaimers on their website or external voicemail greeting, or including a "click through" disclaimer "clearly worded so as to overcome a reasonable belief on the part of the prospective client that the information will be maintained as confidential."9/30/2008
1776

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

9-Government Lawyer Conflicts

Each jurisdiction's Public Defender and each jurisdiction's Capital Defense Unit should be considered separate legal entities for conflicts purposes, because each office acts independently, has a secure computer system and bears none of the indicia of offices in a multi-office law firm. Although a single state Commission oversees all of the offices, this fact should not result in a presumption that information in one office is shared with other offices. A Public Defender in an office may represent a capital defendant in a matter adverse to a client formerly represented by another lawyer in that office, "unless the defense of the current client would require the use of [protected] information obtained in the representation of the former client."5/19/2003
1150

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1-Adversity to Current Clients

54-Insurance Defense Lawyers

Even if both parties consent, a lawyer may not represent a plaintiff in an action against a hospital medical group when the lawyer's partner was retained by an insurance carrier to represent the medical group in an unrelated matter; the law firm must withdraw from both representations. [The Bar's conclusion that consent would not cure this conflict might be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard.]10/26/1988
0975

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1-Adversity to Current Clients

Even if the clients consent, a lawyer may not represent a client on two matters and also be adverse to the client (on behalf of the client's spouse) in an unrelated matter [consent should cure this conflict.] 10/9/1987
0800

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1-Adversity to Current Clients

2-Adversity to Former Clients

64-Lawyers Acting as Deed of Trust Trustees

If both clients consent, a lawyer acting as a substitute trustee may oversee a foreclosure (using an independent lawyer) although the trustee's partner has previously represented "from time to time" and on unrelated matters adverse parties who might try to delay the foreclosure. 5/27/1986
1476

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1-Adversity to Current Clients

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

54-Insurance Defense Lawyers

56-Duty to Advise the Court

In an employment case, a lawyer may argue in the Circuit Court that the plaintiff's exclusive remedy was under the Worker's Compensation Act and at the same time argue to the Commission that the matter should be addressed by the Circuit Court. The lawyer's duty to diligently represent the client outweighed any "credibility problem" the lawyer's inconsistent positions might create, as long as "the validity of the rule [of law] is subject to legitimate dispute." The Bar analogized the inconsistent arguments to the filing of pleadings in the alternative. [This LEO was effectively overruled by Va. Code § 65.2-706.1 and Va. Code § 8.01-420.5.] 8/24/1992
0371

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1-Adversity to Current Clients

Lawyer representing two clients in unrelated matters may not represent either client if they become adversaries. 7/21/1980
0631

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1-Adversity to Current Clients

5-Lawyers Changing Jobs

45-Law Firms - Miscellaneous

Lawyers representing clients with adverse interests may continue to do so after merging, as long as the clients consent. 11/20/1984
1725

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1-Adversity to Current Clients

18-Consent and Prospective Waivers

67-Lawyers Acting as Guardians Ad Litem"

Lawyers who serve as guardians ad litem must follow the ethics rules "whether or not an attorney-client relationship exists" with the children, and therefore must obtain consent if they will simultaneously be representing the Department for Social Services on some matters and acting as guardians ad litem on other unrelated matters. The lawyers need consent because "even where the legal matters are dissimilar, the simultaneous representation of adverse clients is improper unless the clients consent and waive the conflict." Because the children are incapable of giving consent, a court must grant the consent. 4/20/1999
1767

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1-Adversity to Current Clients

2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

The Commonwealth's Attorney's Office may not prosecute defendants being represented by lawyers at a firm which is representing the Office in collection matters (consent is unavailable, because the client in the criminal cases is the Commonwealth, "which is unable to provide consent"). It would be unreasonable for defense attorneys to believe that their representation of criminal defendants would not be affected by the attorneys' representation of the Office (because the work provides a source of income to the defense attorney). Criminal defense lawyers would not be able to handle collection cases against their former clients without the former clients' consent (which seems "at best, unlikely"), yet the law does not allow the collection lawyer to subcontract cases involving the lawyer's former criminal clients. All of these disqualifications would be imputed to the entire law firm and the Office. The law establishing the collection procedures does not trump the ethics Rules.9/25/2002
ABA-377

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1-Adversity to Current Clients

Unless both clients consent, a lawyer should not take differing positions in unrelated matters if there is a substantial risk that the lawyer will materially undercut the position the lawyer is taking for a client (this is more likely to occur if the litigation is in the same jurisdiction). 10/16/1993

Copyright 2000, Thomas E. Spahn