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: 73 - Family Law Lawyers
LEO NumTopicsSummaryDate
1553

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23-Communicating with an Adversary - Miscellaneous

73-Family Law Lawyers

[WITHDRAWN in 2009] Lawyers representing parents in a custody dispute may communicate ex parte with minor children, without the guardian ad litem's consent, but must follow the guidelines for communictions with an unrepresented person.10/20/1993
1074

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31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A client hires a lawyer to obtain a divorce from his second wife. The lawyer accidentally discovers that the client's first divorce took place after the client's second marriage. The client explained that he obtained his first divorce overseas, but later filed for a divorce in the United States to appease his second wife. The lawyer then notices that his client indicated on the second marriage license that he had not been previously married. The lawyer asked the client for more information, but the client has never responded. Instead, the client fires the lawyer.The lawyer advises the judge and the opposing lawyer of these facts, but is reluctant to withdraw without advising the Commissioner in Chancery. Since the client has not acknowledged any fraudulent conduct, fraud has not been "clearly established" and the lawyer cannot advise the Commissioner in Chancery. [Because the Bar found that the "clearly established" test under Rule 1.6 was not met, it is unclear why the Bar did not disapprove of the lawyer's disclosure to the judge and the opposing lawyer.] 5/20/1988
1439

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19-Judge Conflicts

20-Government Official Conflicts

73-Family Law Lawyers

A Commissioner in Chancery involved in a divorce proceeding left a firm to become a judge. The client may hire another lawyer in the firm to represent the client in a child custody dispute. 10/21/1991
1390

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8-Bills and Fees

16-Lawyer's Personal Interests

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

73-Family Law Lawyers

A divorce client grants a deed of trust on the marital home to a lawyer to secure the payment of attorneys' fees. Because the divorce has not been concluded and the spouses are quarreling over their interests in the house, this arrangement impermissibly gives the lawyer a proprietary interest in the divorce action and may not be cured by consent. 3/12/1991
1794

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A husband planning to divorce his wife interviewed a number of lawyers in town, "but with no intent to hire them" because he already knows he will retain another lawyer. The wife interviewed that lawyer, and signed a disclaimer confirming that her initial interview "does not create an attorney/client relationship." The Bar held that lawyers must maintain the confidentiality of information they acquire from prospective clients. The disclaimer did not eliminate that duty, because it did not address the confidentiality issue. "To be effective, the disclaimer must clearly demonstrate that the prospective client has given informed consent to the attorneys' use of confidential information protected under Rule 1.6." Thus, the lawyer interviewed by the wife could not represent the husband unless the wife consented. In contrast, the husband's interview of other lawyers (including the one ultimately hired by the wife) did not create a duty of confidentiality, because the husband's "primary purpose in meeting with Attorney B was to preclude him from representing the wife." Thus, the wife's lawyer was not disqualified despite having acquired confidential information from the husband. The Bar further explained that a lawyer would be acting unethically if the lawyer were "to direct a new client to undertake this sort of strategic elimination of attorneys for the opposing party." 6/30/2004
1663

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17-Fraud on the Tribunal

73-Family Law Lawyers

A lawyer (representing a wife in a domestic relations case) who learns that someone has forged the husband's signature on a motion must report the fraud to the court, but need not report it to the police. The "determinative factor" in assessing the duty to disclose a third party's fraud on a court is "whether disclosure is necessary to prevent the court's judgment from being corrupted by a party's unlawful conduct." Although the lawyer suspects that someone in the Clerk's Office forged the signature, the lawyer has no obligation to report the individual unless the lawyer has information "clearly establishing" that the employee committed the forgery. This requires a "subjective determination" by the lawyer, guided by the Bar's indication that "at a minimum the 'clearly establishes' standard imparts a good faith belief based upon a substantial degree of certainty and not merely upon suspicion or rumor." 4/1/1996
0544

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68-Lawyers Acting as Mediators

73-Family Law Lawyers

A lawyer acting as a mediator in a divorce matter may not represent either party in a later divorce proceeding (even if uncontested). [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.]3/1/1984
1631

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6-Lawyers Paid by Third Party

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

73-Family Law Lawyers

A lawyer being paid by a serviceman's parents to represent him in a divorce matter nevertheless owes a duty to the serviceman instead of the parents. When the serviceman filed a bankruptcy petition that seems inconsistent with the lawyer's understanding of who is paying the lawyer's bill, the lawyer must attempt to communicate directly with the serviceman or his bankruptcy counsel to obtain the true facts. The lawyer need not withdraw yet, but depending on what the lawyer discovers may be obligated to withdraw from representing the client. If so, the lawyer must take reasonable steps "for the continued protection of client's interests." 2/7/1995
1015

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer discussing the possibility of representing a husband in an uncontested divorce matter realizes that the lawyer currently represents the wife in an unrelated matter. The lawyer may not represent the husband and also may not represent the wife in the divorce (having discussed confidences with the husband) [the Bar does not address the possibility of consent, although the request for Legal Ethics Opinion states that the wife would not object to the lawyer's representation of the husband.] 1/5/1988
0903

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22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer for an ex-wife may continue to represent her in a child custody matter even if the current wife (who will be a witness in the child custody matter) had asked the lawyer for advice about a child support issue (the lawyer had advised the present wife to see the Juvenile and Domestic Relations Court Intake Officer). The Bar held that the lawyer had not received any confidences in a "professional relationship" and in any event would not be barred from representing a third party (the ex-wife). 5/1/1987
1389

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73-Family Law Lawyers

77-Communicating with an Individual Adversary

A lawyer for one parent in a child custody matter may not directly communicate with the other parent absent that parent's lawyer's consent, because entry of a final decree in the child custody case does not normally end the matter. In a situation like this, a lawyer who is unsure if the other party is still unrepresented may write the other party for the sole purpose of determining if the party is represented by a lawyer (this rule would apply in litigation and non-litigation contexts). 11/30/1990
1378

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer formerly represented a divorce client in negotiating a separation and property agreement. The former client later declares bankruptcy, and the lawyer knows that the former client has failed to include property on his bankruptcy petition. The Bar held that the lawyer could reveal this fact because "it is information contained in the property settlement between the parties which was not created with any expectation of confidentiality and therefore does not constitute a secret." [This LEO was overruled by LEO 1643.] 10/1/1990
1222

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer has advised a client to enter into an agreement under which the client will not reveal the client's wife's lover's criminal drug use. The Bar held that if the lawyer's conduct constituted misprision of a felony, the lawyer would be violating the Rules. 6/5/1989
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
0669

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3-Multiple Representations on the Same Matter

25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer in a divorce case may not prepare pleadings for both parties or for an unrepresented defendant, and likewise may not provide sample forms to an unrepresented defendant. [This LEO was overruled to the extent it is inconsistent with LEO 1112 and Va. Code § 20-99.1:1.] 2/20/1985
0755

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25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer in a divorce case may prepare a statutory waiver of rights and deliver it to a service person as long as the waiver cannot be executed without a legal officer's advice. 1/13/1986
0689

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25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer in a divorce case may prepare an acceptance of service form to be signed by an unrepresented party as long as the signature involves an administerial function only. 5/10/1985
0782

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35-Threatening Criminal and Disciplinary Action

48-Criminal Defense Lawyers

51-Government Attorneys

73-Family Law Lawyers

A lawyer in a divorce case may properly advise the client to start criminal proceedings against the spouse for taking personal property if the facts show that the criminal case was not initiated solely to gain an advantage in the civil divorce case, and the Commonwealth's Attorney did not act improperly in prosecuting.4/22/1986
1546

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer interviewed about a possible divorce case by a wife may not represent the husband in a divorce case the wife brings three years later unless the wife consents. According to the Bar, "a potential client's initial consultation with an attorney creates an expectation of confidentiality which must be protected by the attorney even where no attorney-client relationship arises in other respects," although "the law firm may have an obligation to put the prospective client on notice that no attorney-client relationship exists between the firm and the prospective client until the firm accepts the engagement." 8/12/1993
0667

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may charge a contingent fee in collecting child support arrearages if the children are older, the arrangement would not hurt the children, the client is indigent and no other fee arrangement is practical. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]3/15/1985
1409

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73-Family Law Lawyers

81-Communicating with an Adversary's Health Provider

A lawyer may contact an adversary's treating physician, although courtesy would demand that the lawyer advise the adversary before doing so. Here, a defense lawyer was also permitted to initiate ex parte communications with the plaintiff's estranged wife. [Such contact would now be improper under Va. Code § 8.01-399(D).]3/12/1991
0405

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may enter into a contingent fee arrangement to represent a wife seeking to obtain alimony arrearages if the wife is indigent and the amount of alimony had been fixed by a court order. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]4/6/1981
1174

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may handle litigation seeking child support arrearages on a contingent fee basis as long as the non-custodial parent is dead (and thus the case could not affect the human relationship between the children and that parent), the client cannot afford to pay an hourly fee and the fee is fair and reasonable. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]10/26/1988
1062

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may handle on a contingent basis a representation of a divorced husband in a matter relating to an asset that was not contemplated in the separation agreement because the husband could not afford to pay an hourly rate and no "human relationships" would be adversely effected (the parties were divorced and there were no children). [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]4/8/1988
0363

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may not accept a contingent fee in a representation to recover child support arrearages or determine future support rights. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]3/10/1980
0423

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may not enter into a contingent fee with a domestic relations client based on a percentage of the lump sum property settlement awarded by the court. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]8/14/1981
0276

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7-Family Conflicts

73-Family Law Lawyers

A lawyer may not handle an adoption that has been investigated by the wife of another lawyer in the firm. 12/5/1975
0884

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25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer may not prepare pleading for the unrepresented party in a divorce matter, even if both parties would benefit from the pleading. [Va. Code § 20-99.1:1 permits a lawyer to prepare certain pleadings for an unrepresented opponent in a domestic relations matter.]3/11/1987
0535

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25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer may not prepare pleadings for or provide samples of pleadings to an unrepresented party in a divorce proceeding. [This Legal Ethics Opinion was overruled to the extent that it is inconsistent with Va. Code § 20-99.1:1 and LEO 1112.]12/16/1983
0778

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may not pursue a child support arrearage case on a contingent fee basis if the parent is not indigent. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]3/11/1986
0707

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer may not represent a husband in a contested divorce matter (including child custody issues) when the lawyer previously represented the husband and wife in the adoption of their children. 7/11/1985
0792

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent a husband in a divorce case when the lawyer earlier represented the wife in an unrelated matter -- because the lawyer learned confidential information from the wife relating to the issues in the divorce. 5/1/1986
1516

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent a mother seeking custody of her child currently in the custody of another couple when the lawyer earlier represented the other couple in adopting another child of the same mother, because the matters are substantially related and it is presumed that the lawyer learned confidences from the couple that could now be used to their disadvantage. 5/28/1993
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
0227

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent a spouse in a divorce action when the other spouse had consulted the lawyer's firm, even if the spouse later hired another firm and the matters discussed were unrelated to the grounds ultimately at issue in the divorce.9/20/1973
0619

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7-Family Conflicts

73-Family Law Lawyers

A lawyer may not represent a wife in a child custody matter if the husband is represented by the lawyer's spouse; the lawyer's colleague may represent the wife as long as the husband consents. [Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.]11/13/1984
0221

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent a wife in a divorce action when an associate had discussed the divorce with the husband (but had not been hired). The Bar noted that the lawyer requesting the Opinion lived in a small town and therefore "a moderately knowledgeable person could visit the office of each trial lawyer in town, without actual intention of hiring any of them, then retain counsel, and claim that every other lawyer was disqualified." 11/29/1972
0337

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent a wife in domestic matter when two years earlier the lawyer had conferred with her husband about separation. 9/21/1979
0403

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent a wife when the lawyer had previously represented the husband in a dispute with the husband's first wife in a child support matter. 2/27/1981
0741

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3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer may not represent both the adoptive and biological parents in an adoption case (even if the representation involves only counseling about possible questions from the court). 1/20/1986
0354

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent the husband in a contested divorce after representing both the husband and wife in preparing a property settlement and in an adoption matter. 1/7/1980
0452

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent the husband in a divorce action when the lawyer had previously approached the wife at a social gathering and discussed her marital status "in detail." 4/12/1982
1191

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent the mother in a custody dispute after having previously represented the grandparents in a separate custody proceeding, because it was "extremely likely" that the mother's interests would be adverse to the grandparents (the representation would also be impermissible if the lawyer had obtained confidences from the grandparents that could now be used against them). 2/13/1989
0888

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent the wife in divorce action if the lawyer represented the husband in a contemplated divorce nine years earlier (even though the couple's financial and marital conditions have changed). 4/1/1987
0737

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19-Judge Conflicts

20-Government Official Conflicts

73-Family Law Lawyers

A lawyer may not serve as a Commissioner in Chancery in a divorce action in which the defendant is a sitting judge in that circuit. 11/1/1985
0890

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25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer may obtain an endorsement on a consent order from an unrepresented party in a divorce matter as long as the lawyer advises the party to secure counsel and that the lawyer represents a party with adverse interests. 8/1/1987
1081

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may properly enter into a contingent fee arrangement with a client suing a father for child abuse, because the arrangement is unlikely to have an improper effect on "human relationships." [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]5/17/1988
0588

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may represent a client on a contingent fee basis in seeking child support arrearages as long as the client cannot afford a retainer fee and no other fee arrangement is practical. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]10/23/1984
0850

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may represent a divorced mother in seeking child support arrearages if: (1) the children have or will soon reach the age of maturity; (2) the lawyer determines that the contingent fee agreement would not undermine the noncustodial parent's relationship with the child; (3) the prospective client is indigent and no other fee arrangement is practical; and (4) the fee agreement is fair. The Bar determined that in the facts of this hypothetical such a contingent fee agreement was appropriate. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]11/10/1986
1298

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52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer may represent a divorced wife on a contingent basis in seeking reclassification of marital assets, because the parties are already divorced (and thus the representation would not adversely affect any "human relationships") and the wife cannot afford to pay a regular hourly rate. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]10/25/1989
1139

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

73-Family Law Lawyers

A lawyer may represent a husband in a divorce action although a partner (while in a different firm) represented the wife in an earlier divorce action against a previous husband, as long as further inquiry shows that there are no issues in the current divorce related to the previous divorce. 10/18/1988
0289

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3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer may represent a party challenging the adoption of the client's child while representing the other parent in a divorce proceeding against the person who wishes to adopt the child. 12/22/1977
0764

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5-Lawyers Changing Jobs

73-Family Law Lawyers

A lawyer may represent a party in a child support matter even though the lawyer's former firm represented the client's adversary in the divorce proceeding (because the divorce representation had been concluded before the lawyer had joined the firm). 1/29/1986
0295

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may represent a spouse in a no-fault divorce and in negotiating a property settlement although the lawyer previously represented both husband and wife in their home purchase, as long as the lawyer had not acquired "any type of special knowledge" during the earlier representation. 2/17/1978
1180

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer may represent a wife in a divorce case even though the lawyer previously represented the husband in a land dispute. In the previous representation, the lawyer learned general financial information about the husband, including the value of the property and the husband's difficulty in paying attorneys' bills, but this information was of a general and a public nature and not a "confidence or secret." 12/9/1988
0445

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may represent a wife in a no fault divorce when a partner had previously represented the husband in an assault charge, as long as the wife will not allege physical abuse and the partner obtained no material confidential information. 1/18/1982
0520

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19-Judge Conflicts

20-Government Official Conflicts

73-Family Law Lawyers

A lawyer may represent a wife in a personal injury case against her husband even though the lawyer's partner (sitting as a substitute judge) found the husband guilty of a traffic violation. 5/16/1983
0538

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may represent a wife in custody and support matter although the lawyer formerly represented the husband in an unrelated matter, but must withdraw if the lawyer learns that confidences acquired from the husband in earlier representation would be relevant to the custody and support issue. 1/18/1984
0569

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer may represent the husband in a divorce matter although the lawyer previously represented both the husband and wife in buying their home, unless in the earlier representation the lawyer learned confidences that could now be used against the wife. 4/20/1984
1697

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25-Dealing with Unrepresented People

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may represent the husband in a domestic assault case although the lawyer's partner has been acquainted with the victim's family for many years and acquired confidences about the victim's family, because the family never sought or received legal advice from the partner and none of the discussions occurred in the lawyer's "professional capacity as a lawyer, to which an expectation of confidentiality might attach, as opposed to conversations between friends." The lawyer representing the husband may nevertheless withdraw as long as there would be no material prejudice to the husband and the lawyer receives court approval (if there was a pending case).6/24/1997
1147

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18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may reveal to a current client that the lawyer formerly represented the client's adversary's lawyer in that lawyer's own divorce years earlier. The disclosure should not embarrass the former client/lawyer and must be made to the current client in order to obtain proper consent. 1/4/1989
0901

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4-Witness-Advocate Rule

36-Withdrawal from Representations

73-Family Law Lawyers

A lawyer must withdraw from a divorce matter when the lawyer was a party to a telephone conversation (involving both clients and both lawyers) about a settlement agreement over which the parties now disagree. 3/11/1987
1653

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8-Bills and Fees

16-Lawyer's Personal Interests

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer presented two hypotheticals in which a divorce client unable to pay a lawyer's bills might assign proceeds of the sale of the client's domicile. The Bar held that such arrangements improperly give the lawyer a proprietary interest in a cause of action and are barred unless: "the final order or decree has been entered, conclusively adjudicating all issues with respect to the use, possession, division and sale of such property;" the client consents after full disclosure; the transaction is fair and reasonable ("giving consideration to the client's sophistication, ability to pay, and feasibility of other methods of fee payment"); and the "client is advised that he or she may seek independent counsel to review the transaction and is afforded an opportunity to do so, if the client so elects." [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]9/21/1995
0822

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer represented a client in a divorce action, and learned substantial facts about the client's close friend and associate. After the divorce case was over, the friend's former wife asked the lawyer to represent her in a spousal support case. The lawyer may do so as long as the lawyer does not use confidential information gained from the client in the first representation. [The Bar did not indicate whether confidential information about the client's "close friend and associate" would be considered such a protected confidence.] 10/9/1986
1643

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8-Bills and Fees

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

73-Family Law Lawyers

A lawyer represented a client in a divorce. After the representation ended, the former client filed for bankruptcy. The former client listed the lawyer's bill as a debt, but failed to list assets that were included in the publicly filed divorce property settlement agreement. The Bar held that the existence of these assets could still be a secret "despite the fact that others share the same information or the information is a matter of public record." The lawyer may therefore only reveal the fraud on the bankruptcy court if the lawyer's duty of confidentiality was outweighed by some other duty. The lawyer had no such other duty here, because the fraud: (1) did not occur during the course of the attorney-client relationship; and (2) did not relate to the subject matter of the representation. Furthermore, the lawyer may not reveal the confidences "to establish the reasonableness of his fees" because the client did not dispute the fees. The lawyer therefore may not reveal the fraud on the bankruptcy court. As the Bar explained it, "the protection of client confidences and secrets is so fundamental to the attorney-client relationship that any exceptions to the bedrock principle must be strictly limited." 9/8/1995
1652

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer represented a client in contempt proceedings in which the client seeks arrearages from her ex-husband under a property settlement agreement. The ex-husband later hires the same lawyer to represent him on unrelated matters. Both the original client and the ex-husband sign waivers of conflicts. Five years later, the ex-husband hires the lawyer to represent him on criminal and traffic charges, and he and the original client again sign waiver forms. However, the ex-husband now objects to the lawyer's continued representation of the original client in seeking the arrearages.Because the lawyer's representation of the ex-husband ended in 1992, the ex-husband is a former client of the lawyer. A lawyer may be adverse to a former client unless the matters are the same or "substantially related" or unless the lawyer gained confidential information that can now be used against the former client. In discussing the "substantially related" standard, the Bar used the following terms: "involve either the same facts . . . the same parties . . . or the same subject matter;" "essentially the same, arise from substantially the same facts, or are by-products of the same transaction;" "entail virtually a congruence of issues or a patently clear relationship in subject matter." The Bar concluded that the lawyer's representation of the ex-husband is not "substantially related" to the lawyer's representation of the original client.The Bar could not determine if the lawyer would have learned pertinent confidences from the ex-husband, because the "ex-husband's earnings, employment, ability to earn, assets, use of earnings, lifestyle and life" could be material to the original client's contempt proceedings.The Bar acknowledged that both the original client and ex-husband had consented on two specific occasions to the simultaneous representations, but held that "it is doubtful that [the lawyer's] consent from ex-husband, as well as Client, cured [his] conflict of interest in his simultaneous representation of both." The Bar indicated that "in any event, consent is not a contractual obligation and a client under certain circumstances may withdraw the consent." The Bar held that the lawyer had "an incurable conflict" and must withdraw from the representation of the original client. [The Bar overruled as "overbroad" its initial Opinion that client consent may be withdrawn at any time.]7/8/1996
1032

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

58-Real Estate Lawyers

73-Family Law Lawyers

A lawyer represented a couple in the purchase and refinance of their home. The lawyer may now represent the husband in a divorce action because the lawyer has only public knowledge about the home transaction. Although the wife claims that the lawyer will be a witness to the transaction, the lawyer may continue to represent the husband unless it is obvious that the lawyer will be called as a witness and the lawyer's testimony is or may be prejudicial to the husband. 2/2/1988
1279

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer represented a husband in a child support matter. The husband's ex-wife later wanted to hire the lawyer in an action against another man for child support. One of the children's paternity was disputed, so the action could have adversely affected the lawyer's former client (the husband). The lawyer may represent the wife if the husband consents after full disclosure, but the lawyer may not represent either the wife or the former client husband should a conflict later arise. 9/21/1989
1484

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31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer represented a husband in a divorce case. The wife was having an affair with another man. This man's wife gave the lawyer correspondence indicating that her husband was sexually abusing children from an earlier relationship. The Bar indicated that whether or not the lawyer has a duty to reveal the letters to law enforcement officials "raises a legal question which is beyond the purview of the committee." 12/14/1992
0693

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17-Fraud on the Tribunal

73-Family Law Lawyers

A lawyer represented a wife in a divorce matter. The wife confessed to adultery, but later testifies -- after the representation is over -- that she did not commit adultery. Since the fraud on the court occurred after the representation was over, the lawyer had no duty to reveal it. 4/12/1985
0839

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

73-Family Law Lawyers

A lawyer represented a wife interested in starting a divorce action against her husband. The wife advised the lawyer that she has called a new boyfriend from her home telephone. The lawyer advised the client to destroy the telephone bills and call the boyfriend from another telephone, since any proof of adultery would hurt the wife's position in the planned divorce action. The Bar indicated that the lawyer's advice did not amount to an ethical violation. [The lawyer almost surely could not advise the client to destroy the telephone bills if it is foreseeable that the bills would be relevant evidence in the planned divorce action.] 10/9/1986
1349

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer represented an ex-husband in child-support matters. After that representation, the lawyer was hired by another client (in a divorce action), who was living with the ex-husband's former wife. After that representation ended, the ex-husband again hired the lawyer for child-support matters. The Bar concluded that the representation of the ex-husband and the prior representation of the other client in the divorce matter were unrelated, but that the lawyer could represent the ex-husband only if the lawyer had not gained any confidences about the former wife while representing the other client then living with the former wife. 4/20/1990
1084

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer representing a husband in a divorce case may not prepare two decrees that might induce federal officials to believe that the wife continues to remain eligible for federal payments, because preparation of the decrees would be misleading. In addition, the lawyer would be violating the ethics rules if the client has a duty to provide full information to federal authorities. 6/14/1988
0788

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65-Lawyers Acting as Notaries

73-Family Law Lawyers

A lawyer representing a party in a divorce case (even an uncontested case) may not also serve as Notary Public before whom depositions are taken, because the role of advocate is inconsistent with the neutral role of a Notary Public (who acts as a witness to the authenticity of the testimony). 5/1/1986
0543

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17-Fraud on the Tribunal

73-Family Law Lawyers

A lawyer representing a party in a divorce must disclose the inaccuracy of the adversary's allegation of twelve-month separation if the client has indicated that the statement is inaccurate. The lawyer must disclosure the fraud even if the lawyer does not represent the client, but must obtain the client's consent to reveal the fraud if the information about the inaccuracy was given in confidence to the lawyer. [If the fraud amounted to "fraud on a tribunal," the lawyer would have to reveal the fraud even if the client objected.] 3/1/1984
0382

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32-Lawyers Acting in Other Roles (Miscellaneous)

73-Family Law Lawyers

A lawyer representing a plaintiff in a divorce case may not also serve as a notary public before whom a deposition is taken. 7/27/1980
1304

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3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

73-Family Law Lawyers

A lawyer representing an ex-wife in a custody matter may not also represent the ex-wife and child in a criminal matter (because the custody dispute relates to the mother's lack of parental supervision). It is not obvious that the lawyer could adequately represent both the ex-wife and the child, and consent is impossible because the minor child could not consent.11/21/1989
0895

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3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer representing grandparents with custody of a child may not represent the child's mother if her interests are adverse to those of the grandparents. It is proper to represent multiple clients if their interests are not adverse and if all clients consent. 4/1/1987
0749

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24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer representing the defendant in a divorce case may also represent witnesses subpoenaed by the plaintiff to support an adultery claim for purposes of advising the witnesses to plead the Fifth Amendment. 1/17/1986
1468

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

73-Family Law Lawyers

A lawyer representing the ex-wife of another lawyer in a divorce case found irregularities in the other lawyer's trust accounts. The ex-wife asked the lawyer to keep the irregularities secret, because revealing them could jeopardize the ex-wife's support payments. Although generally trust account violations must be reported, in this case the lawyer would violate the duty of confidentiality if the disclosed the husband's trust account irregularities to the Bar (the court had already been advised of the irregularities, and had placed all the information under seal). [The Bar did not discuss the circumstances under which the court had been advised of the trust irregularities.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]12/14/1992
1455

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4-Witness-Advocate Rule

7-Family Conflicts

73-Family Law Lawyers

A lawyer wants to represent his wife in a child custody matter involving her former husband. Opposing counsel has moved to disqualify the lawyer because he must be a witness. Because the wife does not intend to call her lawyer-husband as a witness and it is not obvious that the lawyer "ought" to be called as a witness "simply by virtue of his status as husband of Client and stepfather of the child," the lawyer may continue to represent his wife -- even if opposing party calls him as a witness -- unless his testimony prejudices his wife. 3/13/1992
1759

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7-Family Conflicts

11-"Of Counsel" Relationship

18-Consent and Prospective Waivers

50-Lawyer-Owned Businesses

68-Lawyers Acting as Mediators

73-Family Law Lawyers

A lawyer who owns a mediation company is "of counsel" to a law firm in which his/her spouse is a partner. After mediation of a domestic dispute, one of the parties asks an associate in the law firm to file for divorce on behalf of that party. The Bar holds that lawyers/mediators may not represent either party after they handle a mediation, even with the clients' consent (overruling earlier LEOs 1684, 590, 544 and 511). Because this specific disqualification applies only to the lawyer/mediator, an associate in the firm would not be disqualified based on the mediator's disqualification. However, the lawyer/mediator's duty of confidentiality arising from the mediation also disqualifies that lawyer, and is imputed to the firm to which the lawyer/mediator is "of counsel" (although client consent can cure this conflict). If there were no connection between the lawyer/mediator and the law firm, lawyers practicing in the firm would not be disqualified from representing the party in the divorce as a result of the spousal relationship to the mediator. [Rule 1.10 now imputes the individual's disqualification to the entire law firm, as explained in Virginia LEO 1826.]2/4/2002
1685

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2-Adversity to Former Clients

71-Representing Corporations

73-Family Law Lawyers

A lawyer who represented a corporation owned by three shareholders (approximately six years earlier) may now represent the corporation's sole remaining shareholder's wife in a divorce, as long as the lawyer "never represented the shareholder individually" and "no confidences or secrets were obtained from the shareholder or the corporation during [the lawyer's] representation of the corporation that would be pertinent to the divorce action" (the lawyer "did not perform any work necessitating an evaluation of the corporation or any review of financial records of the corporation"). 9/23/1996
0774

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer who represented a husband and wife in arranging for a second mortgage on their home may then represent the husband in preparing a property settlement agreement during a no-fault divorce, as long as the lawyer did not learn any relevant confidences during the earlier joint representation. 3/11/1986
0766

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer who represented a husband and wife in child support litigation against the wife's former husband may now represent the husband in a divorce case (and a custody matter involving a different child) if the lawyer did not obtain confidential information in the course of the earlier joint representation. 1/17/1986
0677

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

33-Office Sharing with Other Lawyers

73-Family Law Lawyers

A lawyer who represented both the husband and wife in drafting a property settlement and giving legal advice about it may not now represent the wife in a divorce action. Likewise, the husband may not be represented by another lawyer with whom the first lawyer shares office space and secretarial help. 4/2/1985
0575

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32-Lawyers Acting in Other Roles (Miscellaneous)

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer who represents and is a member of the board of an adoption agency which located a child and performed a home study may not now represent the adopting parents. 5/10/1984
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
1481

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7-Family Conflicts

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer's spouse worked in a crisis center, and received confidential information from a woman who called the crisis center. The spouse never revealed this information to the lawyer/spouse. The lawyer later began to represent (in a divorce case) the husband of the woman who had called the crisis center. Because the lawyer had not learned any of the confidences the spouse had acquired from the woman, and had never represented the woman, the lawyer may continue to represent the husband in the divorce matter. 8/24/1992
0949

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A legal aid society lawyer interviewed a spouse in a possible divorce matter. The spouse later hired a private lawyer. When the divorce action begins, the legal aid society represents the other spouse. The legal aid society must withdraw, but the private lawyer may continue to represent the first spouse (if the parties consent). The legal aid society may help find substitute counsel if the parties consent. 7/8/1987
1463

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9-Government Lawyer Conflicts

51-Government Attorneys

67-Lawyers Acting as Guardians Ad Litem"

73-Family Law Lawyers

A part-time Assistant Commonwealth's Attorney may act as a guardian ad litem in proceedings before the Juvenile & Domestic Relations Court as long as there are no pending criminal or civil proceedings in which the Commonwealth's Attorney might have to participate. 6/9/1992
0600

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9-Government Lawyer Conflicts

51-Government Attorneys

73-Family Law Lawyers

A part-time Assistant Commonwealth's Attorney may represent a private party in a domestic case in the local Juvenile & Domestic Relations Court when there are no pending proceedings or investigations. 9/14/1984
0969

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9-Government Lawyer Conflicts

73-Family Law Lawyers

A part-time assistant public defender with a private practice may represent a client in a custody action even though the public defender's office previously represented the client's spouse in a sexual abuse case. The sexual abuse case was terminated before the lawyer became an assistant public defender and although the lawyer has heard general references to the accused spouse's personality, the lawyer has received no information from the file or any confidences or secrets. 9/30/1987
0594

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9-Government Lawyer Conflicts

51-Government Attorneys

73-Family Law Lawyers

A part-time Commonwealth's Attorney may handle civil domestic relations cases as long as criminal proceedings are not pending or "being evaluated." 5/14/1984
0420

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51-Government Attorneys

73-Family Law Lawyers

A part-time Commonwealth's Attorney may represent a mother in a custody dispute, even if the lawyer is theoretically subject to be called upon by the court to represent the mother under the Uniform Reciprocal Enforcement of Support Act, as long as the lawyer is not requested to undertake that representation by the court. 8/13/1981
0613

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9-Government Lawyer Conflicts

51-Government Attorneys

73-Family Law Lawyers

A part-time Commonwealth's Attorney may represent a private party in a child custody matter as long as there are no pending criminal charges or investigations. 2/1/1985
0770

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

Absent consent, a lawyer may not represent a wife in a divorce action when the lawyer had previously represented both the husband and wife with regard to marital property. 3/11/1986
1229

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52-Fees in Family Law Cases

73-Family Law Lawyers

82-Advertising

An advertisement indicating that contingent fees in domestic cases are generally acceptable would be misleading, but the advertisement could indicate that a contingent fee may be possible if child support arrearages have been reduced to judgment. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]4/25/1989
0511

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3-Multiple Representations on the Same Matter

68-Lawyers Acting as Mediators

73-Family Law Lawyers

As long as both clients consent, a lawyer may provide "legal information" (as opposed to "legal advice") to both a husband and wife involved in a divorce mediation. [Rule 2.11 deals with lawyers acting as mediators.] [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.]4/28/1983
0492

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3-Multiple Representations on the Same Matter

68-Lawyers Acting as Mediators

73-Family Law Lawyers

As long as both the husband and wife consent, a lawyer may draft a child support agreement and give non-partisan advice as long as the lawyer is not negotiating the matter and simply memorializing the agreement already reached. [This LEO was effectively overruled by Rule 2.2(d).]3/3/1982
0519

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68-Lawyers Acting as Mediators

73-Family Law Lawyers

As long as the clients consent, a lawyer may provide "legal information" (as opposed to advice) to both parties as part of a mediation arrangement or an uncontested divorce; payment by the mediation service to the lawyer would not be per se unethical but the lawyer must be very careful to avoid ethical violations. [Rule 2.11 deals with lawyers acting as mediators.]4/28/1983
0661

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

73-Family Law Lawyers

As long as the former client (the ex-wife of the prospective client) consents, a lawyer may represent the father of a child in a custody proceeding against the ex-wife, even though the wife had consulted the lawyer nine years earlier about marital problems. 2/4/1985
1189

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22-Interviews with Prospective Clients

73-Family Law Lawyers

Because the wife has not consented, a lawyer may not represent a husband in a divorce case if one of the lawyer's associates had five years earlier met with the wife to discuss domestic matters (and the lawyer had viewed a memorandum memorializing that discussion), even though the associate who had earlier met with the wife had since left the firm. [Rule 1.10(b) would now permit this representation as long as no lawyer remaining in the firm has any material confidential information.]11/17/1988
0189

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52-Fees in Family Law Cases

73-Family Law Lawyers

Except in "extremely rare situations," lawyers may not enter into contingent fee arrangements in family law matters. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]7/1/1984
0190

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7-Family Conflicts

73-Family Law Lawyers

General rules regarding family members practicing in law firms opposing each other; representation of opposing parties by different members of the same family is per se unethical; lawyers sharing "intimate or close relationships" may represent opposing parties only with consent. [This was overruled by Rule 1.8(i), which now allows related lawyers to be directly adverse to one another if the clients consent.]4/1/1985
1075

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3-Multiple Representations on the Same Matter

73-Family Law Lawyers

If both spouses consent, a lawyer retained by a husband to draft a separation agreement (which both spouses have signed) may now represent the wife in an uncontested divorce. 5/4/1988
1193

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18-Consent and Prospective Waivers

44-Conflicts - Miscellaneous

73-Family Law Lawyers

It is not per se improper for a legal aid office to undertake a limited representation of a divorce client as long as the client fully understands and consents to the limited representation (which would not include any litigation or support, custody or property issues). The Bar warns that the disclosure and consent must be carefully addressed because the legal aid client may feel that the client has no choice but to agree to the limitation. 2/13/1989
1112

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25-Dealing with Unrepresented People

73-Family Law Lawyers

LEOs 535 and 669 (regarding a lawyer preparing a waiver of notice for an unrepresented party in a domestic relations matter) are overruled by Va. Code § 20-99.1:1, although a lawyer may not provide any advice to an unrepresented party except to secure counsel. 9/1/1988
1576

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16-Lawyer's Personal Interests

45-Law Firms - Miscellaneous

73-Family Law Lawyers

The Bar declines to indicate whether a commissioner in chancery may order a lawyer to issue stock in the lawyer's law firm and give it to the lawyer's ex-spouse as part of a divorce settlement. 2/8/1994
1472

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3-Multiple Representations on the Same Matter

73-Family Law Lawyers

75-Representing Estates and Executors

76-Trust and Estate Lawyers

The lawyer for a divorced wife may not represent the estate of the former husband. 8/24/1992
1188

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8-Bills and Fees

16-Lawyer's Personal Interests

73-Family Law Lawyers

Unless the client consents after full disclosure, a divorce lawyer may not accept an increase in compensation as part of a settlement agreement. 1/26/1989
0355

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2-Adversity to Former Clients

73-Family Law Lawyers

Unless the wife's current husband consents, a lawyer may not represent the wife's ex-husband in a custody proceeding after having represented the current husband in a marital matter related to the child custody issue. 2/6/1980
1700

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5-Lawyers Changing Jobs

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

73-Family Law Lawyers

Whether a lawyer may represent a wife in a child support reduction proceeding when one of the lawyer's former partners represented the husband in the original child support proceeding depends on whether the lawyer "participated in the representation of the husband while employed at the former firm or whether [the lawyer] acquired confidences and secrets relative to husband's case" (the Bar did not have enough facts to reach a conclusion).A lawyer's failure to notify an adversary of an action seeking to transfer venue and failure to check for available dates before filing a notice of hearing is conduct "governed by the applicable Rules of Court, local rules, custom and professional courtesy, but not the Code of Professional Responsibility," unless the lawyer is disregarding a standing rule or if the lawyer intentionally or is habitually violating an established rule.A lawyer's service of a subpoena duces tecum outside Virginia "may" violate the ethics code if the lawyer knows that the subpoena is not enforceable, if the documents served on the individual "threaten contempt for non-compliance" and if the subject of the subpoena has not accepted service. 6/24/1997

Copyright 2000, Thomas E. Spahn