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: 13 - Marketing - Miscellaneous
LEO NumTopicsSummaryDate
1543

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13-Marketing - Miscellaneous

47-Lawyer Referral Services

[WITHDRAWN 9/16] It is improper for a lawyer to join a for-profit lawyer referral service that exclusively refers individuals in four Virginia counties to the lawyer for traffic matters.8/12/1993
0821

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

[WITHDRAWN 9/16] Lawyers who are not acting as partners may not circulate publications that imply a partnership arrangement, and may not pay a firm to recommend it in a brochure.9/19/1986
1348

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13-Marketing - Miscellaneous

47-Lawyer Referral Services

[WITHDRAWN 9/16] This LEO discusses lawyer referral services.6/24/1990
0505

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13-Marketing - Miscellaneous

[WITHDRAWN 9/8/83] A lawyer may not include on stationery or an office door the fact that the lawyer is also a Commissioner-in-Chancery.3/30/1983
1676

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8-Bills and Fees

13-Marketing - Miscellaneous

38-Fee Splitting

42-Payments to Solicit Recommendations

A collections lawyer may not pay a percentage of the lawyer's fee to a company that offers an electronic communications system to facilitate the collections, because it would amount to impermissible fee-splitting with a non-lawyer. This rule would also apply if the company referred collections clients to the lawyer. 5/16/1996
0540

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13-Marketing - Miscellaneous

51-Government Attorneys

A Commonwealth's Attorney may maintain a private law practice as long as no public communications mention both roles. 1/18/1984
1341

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13-Marketing - Miscellaneous

53-Office Sharing with Non-Lawyers

55-Firm Names and Letterhead

57-In-House Lawyers

71-Representing Corporations

A firm's letterhead may include a retired former partner's name as long as the former partner is accurately characterized. Corporate counsel must disclose the name of the corporate employer on letterhead and business cards. If a lawyer operates a private law practice out of a company's office, there must be separate office space, separate sign, separate files and a separate telephone listing. 4/20/1990
ABA-393

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9-Government Lawyer Conflicts

13-Marketing - Miscellaneous

A government lawyer may disclose information to a non-lawyer supervisor only with the client's consent if it is necessary to carry out the representation (otherwise, the lawyer may disclose data only if it does not reveal the client's identity or any confidential information). 4/24/1995
1658

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13-Marketing - Miscellaneous

16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

38-Fee Splitting

50-Lawyer-Owned Businesses

53-Office Sharing with Non-Lawyers

A law firm may establish a non-legal consulting firm (to provide human resource advice) and share common directors, use similar logos and letterheads, share overhead expenses (such as secretarial support, library resources and lobby space), engage in joint marketing and refer clients to each other, as long as: the public would not be confused by any advertising; the joint marketing does not result in any misperceptions; the firms avoid sharing any confidential client information; the firms do not split fees or pay one another a referral fee; the firms advise their clients of other available referral options; the firms adopt "adequate conflicts screening procedures"; any lawyers involved in the consulting firm "comply at all times with applicable rules of the Code of Professional Responsibility, whether or not the attorney is acting in a professional capacity as a lawyer." 12/6/1995
1406

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13-Marketing - Miscellaneous

A law firm may not list its lawyers as available to work on matters in certain legal areas when the lawyers do not possess the requisite legal knowledge to practice in those areas. 3/12/1991
1632

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13-Marketing - Miscellaneous

17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

42-Payments to Solicit Recommendations

50-Lawyer-Owned Businesses

A law firm may not pay a service fee to a so-called "lender service bureau" in return for obtaining legal work from the bureau. Because the bureau apparently is not engaging in fraud against a tribunal, however, the law firm is not obligated to disclose the bureau's operations to the proper authorities. If the law firm determines that the possible misconduct of lawyers holding an "ownership or management interest" in the bureau meets the proper standards, the misconduct would have to be reported. 2/7/1995
0225

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13-Marketing - Miscellaneous

28-Law Firm Staff

A law firm may place legal assistants' names on their offices as long as it does not create the impression that the legal assistants are lawyers. 5/21/1973
ABA-351

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13-Marketing - Miscellaneous

45-Law Firms - Miscellaneous

A law firm may use terms such as "affiliated" and "associated" in describing other firms as long as the terms are not misleading. [Overruled in ABA LEO 388.] 10/20/1984
0469

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13-Marketing - Miscellaneous

45-Law Firms - Miscellaneous

55-Firm Names and Letterhead

A law practice may indicate the absence of a partnership by using the term "affiliated law offices." 9/20/1982
0775

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13-Marketing - Miscellaneous

16-Lawyer's Personal Interests

55-Firm Names and Letterhead

85-Business Cards

A lawyer employed by an insurance carrier must make full disclosure of the employment status on business cards, letterheads, office signs and other public representations. 4/3/1986
1295

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

A lawyer may accept clients who contacted the lawyer based on the recommendation of prison inmates, as long as the lawyer has not compensated the inmates or engaged in false advertising. 11/21/1989
1374

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13-Marketing - Miscellaneous

31-Protecting and Disclosing Confidences and Secrets

42-Payments to Solicit Recommendations

85-Business Cards

A lawyer may accept referrals from a mental health therapist as long as the lawyer maintains total loyalty to the client and does not reveal any client confidences without consent. The lawyer may also leave business cards at the therapist's office as long as they are truthful and the lawyer does not compensate the therapist. 9/13/1990
1098

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13-Marketing - Miscellaneous

A lawyer may circulate wallet-sized cards for automobile accident victims to use in protecting their rights, although: the card may not imply that contingent fee clients will not be obligated to make any payments unless they recover; the card may not state that its distribution is a "public service" because presumably the card is intended to solicit business; and the Bar is "concerned" that the card contains the label "Virginia" because it might imply that the state has approved the card. 6/14/1988
1577

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13-Marketing - Miscellaneous

A lawyer may ethically establish a "900" line from which callers may obtain recorded messages with general information about bankruptcy matters, as long as each message includes a statement that: "the message is general information only and not legal advice, and which cautions the listener against trying to solve problems based on the message's general information"; the caller will be charged for the call; the call includes an advertising message; and "there are substantial limitations as to the content's information, as it is of general applicability." 2/8/1994
0875

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

A lawyer may market a pre-paid legal service plan through non-lawyers who receive commissions for subscribers. 1/30/1987
0387

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13-Marketing - Miscellaneous

38-Fee Splitting

42-Payments to Solicit Recommendations

76-Trust and Estate Lawyers

A lawyer may not discount fees for preparing a will contingent on the client's contributing money to a charity which advertises the lawyer's services. 9/12/1980
1572

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13-Marketing - Miscellaneous

38-Fee Splitting

42-Payments to Solicit Recommendations

83-Solicitation

A lawyer may not engage in an arrangement with a non-lawyer under which the non-lawyer refers cases to the lawyer, assists in helping the lawyer for a fee and in personal injury cases receives a percentage of the client's recovery. The arrangement impermissibly involves a lawyer: (a) paying the non-lawyer a referral fee for soliciting clients and; (b) splitting fees with a non-lawyer. 2/8/1994
1328

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13-Marketing - Miscellaneous

A lawyer may not properly advertise that the lawyer will answer all legal questions on a telephone for a period of one year in return for a specific sum, because: not all legal questions can be answered on the telephone without thorough research; the lawyer might not have the expertise to answer some of the questions; and the lawyer might be prohibited from fulfilling the agreement because of a conflict. 2/27/1990
ABA-355

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6-Lawyers Paid by Third Party

13-Marketing - Miscellaneous

A lawyer may participate in a for-profit prepaid legal services plan as long as the lawyer remains completely loyal to the client, maintains client confidences, avoids conflicts and assures that the plan does not violate the advertising or solicitation rules. 12/14/1987
0434

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13-Marketing - Miscellaneous

A lawyer may permit an organization to use the lawyer's name in making an endorsement of the organization. 11/3/1981
0380

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13-Marketing - Miscellaneous

A lawyer may post general office information in local police or sheriff's offices to help those who might need a lawyer. 7/29/1980
0955

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13-Marketing - Miscellaneous

54-Insurance Defense Lawyers

A lawyer may recommend a "referral system" to insurance carriers, may notify carriers that the lawyer limits the lawyer's practice to certain areas and may send carriers a resume. 8/21/1987
1532

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13-Marketing - Miscellaneous

33-Office Sharing with Other Lawyers

55-Firm Names and Letterhead

A lawyer may use the term "and associates" in describing the lawyer's practice if the lawyer employs an associate in a manner that is more than office-sharing. The lawyer may use the term "associates" in the plural only if the lawyer employs at least two lawyers. 5/11/1993
1029

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13-Marketing - Miscellaneous

29-Advancing Fees and Costs

47-Lawyer Referral Services

55-Firm Names and Letterhead

A lawyer referral service may not call itself "The Litigation Group" without explaining that it is not a law firm, and may not use the statement "no recovery -- no fee" because clients will be liable for costs even if they lose [explained in LEO 1750].2/1/1988
0339

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13-Marketing - Miscellaneous

A lawyer's name may appear on a list of lawyers in the Virginia Association of Home Builders directory. 10/19/1979
0333

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13-Marketing - Miscellaneous

A lawyer's name may be placed on a list of preferred lawyers by an organization in which the lawyer participates. 9/18/1979
0430

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13-Marketing - Miscellaneous

16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer/stockbroker may send out announcements describing both roles, but must advise clients that the attorney-client privilege would not cover communications if the lawyer is acting as a stockbroker. 10/16/1981
0410

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13-Marketing - Miscellaneous

44-Conflicts - Miscellaneous

A legal aid lawyer may give general legal advice and answer specific questions in a newspaper column, as long as the readers are warned that the information is general. 4/28/1981
0978

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13-Marketing - Miscellaneous

A legal aid society may post an informational poster in a court clerk's office. 10/13/1987
0440

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13-Marketing - Miscellaneous

41-Non-Virginia Lawyers

A multi-jurisdictional law firm may include Virginia lawyers in the firm's retainer agreements without listing the non-Virginia lawyers. 11/18/1981
1073

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

58-Real Estate Lawyers

A real estate developer may advise buyers that it will deduct $500 from closing costs if the buyer uses a designated lawyer, because the offer is not false or misleading. [This arrangement would violate Rule 7.3(a) if the lawyer gives "anything of value" to the developer. Although the Bar did not address this possibility, it seems unlikely that the developer would enter into this arrangement unless it received something in return from the lawyer.] 6/8/1988
1177

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6-Lawyers Paid by Third Party

13-Marketing - Miscellaneous

58-Real Estate Lawyers

A real estate purchaser's lawyer may arrange in advance for the seller to pay part of the lawyer's fee, but may not impose such a fee without the seller's prior consent. The lawyer must be careful not to use the communication to steer clients to the lawyer's firm. 12/9/1988
1492

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13-Marketing - Miscellaneous

55-Firm Names and Letterhead

A solo practitioner may not use the term "attorneys at law" in describing the lawyer's practice.10/19/1992
1035

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13-Marketing - Miscellaneous

38-Fee Splitting

42-Payments to Solicit Recommendations

An arrangement under which a lawyer would join a trade and barter association would violate the fee-splitting roles if the lawyer shared 10% of the lawyer's fee with the association, because the 10% fee would be seen as compensation for the referral. [Rule 1.5(e) does not require that a lawyer sharing in fees also share responsibility, thus allowing "referral fees" if the client consents after full disclosure.]2/19/1988
0509

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13-Marketing - Miscellaneous

57-In-House Lawyers

An in-house lawyer employed by an insurance carrier must reveal the employment in all public communications, and may not wait until a representation begins to do so. 3/30/1983
0910

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13-Marketing - Miscellaneous

47-Lawyer Referral Services

An out-of-state corporation may obtain clients for a Virginia lawyer as long as it complies with the lawyer referral rules, but any public statements that violate the ethics code would amount to a violation by a participating lawyer. 5/4/1987
ABA-388

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11-"Of Counsel" Relationship

13-Marketing - Miscellaneous

45-Law Firms - Miscellaneous

Describing relationships between law firms using terms like "network", "alliance", "correspondent", "affiliate" or "associate", without more, tends to mislead. If such a relationship would be relevant to a prospective client, the lawyer could include such a description in a retainer letter with such a client. Clients must be advised of relationships among firms (such as "of counsel" relationships) that might create a conflict of interests. 12/5/1994
1026

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13-Marketing - Miscellaneous

41-Non-Virginia Lawyers

55-Firm Names and Letterhead

If a law firm lists different states where its lawyers are licensed, the names of the lawyers should be included. A statement indicating that the law firm "serves" three jurisdictions might give the erroneous impression that each lawyer is licensed in those jurisdictions. 2/1/1988
ABA-457

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13-Marketing - Miscellaneous

82-Advertising

In a general discussion of lawyer and law firm websites, the ABA explains that: (1) websites can include information about clients and matters, as long as the website keeps the information up to date (and thus is not misleading) and "as long as the clients or former clients give informed consent" to the inclusion of "[s]pecific information that identifies current or former clients or the scope of their matters"; (2) websites can include information about the law, as long as it is accurate, current and not misleading (acknowledging that it is difficult to draw the line between general legal information and specific legal advice, and suggesting that it would be "prudent" for websites to warn visitors "that the legal information provided is general and should not be relied on as legal advice" -- which "cannot be given without full consideration of all relevant information relating to the visitor's individual situation"); (3) websites allow lawyers to "control features and contents so as to invite, encourage, limit, or discourage the flow of information to and from website visitors" -- which will help determine if a visitor has initiated a "discussion" that could render the visitor a "prospective client" under Rule 1.18 (contrasting a website that encourages visitors to "submit a personal inquiry about a proposed representation" and a website that simply lists information about the lawyer and includes contact information, which "alone does not create a reasonable expectation that the lawyer is willing to discuss a specific client lawyer relationship"; warning that "[i]mprecision in a website message and failure to include a clarifying disclaimer may result in a website visitor reasonably viewing the website communication itself as the first step in a discussion"; in analyzing the "significantly harmful" standard under Rule 1.18; explaining that a prospective client that discloses "only an intention to bring a particular lawsuit" normally will not be able to argue that such information could be "significantly harmful"; (4) a website's "[w]arnings or cautionary statements . . . can be designed to and may effectively limit, condition, or disclaim a lawyer's obligation to a website reader," as long as they are "reasonably understandable, properly placed, and not misleading." Among other things, such language "should be conspicuously placed to assure that the reader is likely to see it before proceeding." Such language can avoid misunderstandings about the creation of a client lawyer relationship, a visitor's expectation of confidentiality, the absence of "legal advice" on the website and whether "the lawyer will be prevented from representing an adverse party."8/5/2010
1813

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11-"Of Counsel" Relationship

13-Marketing - Miscellaneous

Law firms may use the term "affiliated" or "associated" in describing their relationship, as long as one firm is "closely associated or connected with the other lawyer or firm in an ongoing and regular relationship." The terms are analogous to the "of counsel" relationship, which "must be close and regular, continuing and semi-permanent, and not merely that of a forwarder-receiver of legal business." It may be necessary for the law firms to use "more descriptive language" if the relationship between them involves one firm's limited availability to handle certain types of matters, or availability to handle matters in another state. Law firms using these terms must also ordinarily handle conflict as if they were one single firm.3/16/2005
ABA-465

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13-Marketing - Miscellaneous

38-Fee Splitting

40-Trust Accounts

82-Advertising

Lawyers may engage in "daily deal" marketing, but must comply with all of their Model Rules obligations, "including avoiding false or misleading statements and conflicts of interest, providing competent and diligent representation, and appropriately handling all money received." Under a "coupon deal" arrangement, a lawyer sells a coupon entitling the purchaser to a certain number of hours of legal service at a discounted rate. The marketing organization handling the arrangement collects purchasers' payments and forwards them to the lawyer, retaining a contractually-agreed upon percentage of the payments. The purchaser later directly pays the lawyer at the discounted rate when the lawyer provides the services. Under a "prepaid deal" arrangement, the purchaser pays the marketing organization the entire legal fee, and then receives services that would normally have cost more than that payment. Despite some state bars conclusion that such daily deal marketing are per se unethical, the ABA Model Rules do not automatically prohibit such daily deals if lawyers follow the Rules. First, payments to the marketing organization do not constitute unethical fee splitting. Instead, they essential constitute "payment for advertising and processing services." However, "one caveat is that the percentage retained by the marketing organization must be reasonable." Second, lawyers may not advertise daily deals in a false or misleading fashion. For instance, lawyers must "define the scope of services offered," and "explain under what circumstances the purchase price of a deal may be refunded, to whom, and what amount." Third, lawyers must explain that until the lawyer and the daily deal purchaser engage in a "consultation," no client-lawyer relationship exists. Lawyers must further warn anyone trading for, or receiving as a gift, any daily deal rights must carefully review all the terms and conditions. Fourth, before entering into a client-lawyer relationship, lawyers must assure that they are competent to undertake the representation, and warn any prospective clients if their matters will require more of the lawyers' time than the prospective client purchased under the daily deal. Lawyers must also assure that they do not accept so many daily deal clients that they cannot competently and diligently represent them all. Fifth, lawyers must properly handle any payments they receive from the marketing organization. Under a coupon deal, payments collected by the marketing organization and sent to lawyers are not legal fees -- and must be deposited into lawyers' operating account. Under a prepaid deal, payments lawyers receive from the marketing organization constitute "advance legal fees," and must be deposited into the lawyers' trust account. Lawyers must explain to anyone purchasing a prepaid deal what amount of the payment "is not a legal fee and will be retained by the marketing organization." Although it may be difficult, lawyers must also coordinate with marketing organizations to obtain required information about the purchasers whose funds the lawyers deposit into their trust account. Sixth, lawyers must properly handle money they have received in connection with purchasers who never use the lawyer's services. If a coupon purchaser never uses the lawyer's services, the lawyer may retain such payments (despite some state bars' disagreement) -- if the lawyer has "explained as part of the offer that the cost of the coupon will not be refunded." If a prepaid deal purchaser never uses the lawyer's services, the lawyer "likely" must refund any unearned advanced fees -- unless the prepaid offer was "for a simple service at a modest charge," in which case "it is possible no refund would be required, provided proper and full disclosure of a no-refund policy had been made." Seventh, lawyers must properly handle money they receive from daily deal purchasers whom the lawyer cannot represent because of a conflict or other "ethical impediment." In such a situation, lawyers must provide a full refund to the purchaser under either a coupon or a prepaid deal -- and cannot avoid this duty by disclosing otherwise in marketing materials. Because the lawyer is unable to undertake the representation "through no fault of the purchaser," the lawyer must refund all the money the purchaser has paid -- even if the lawyer cannot recoup the money retained by the marketing organization.10/21/2013
1369

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13-Marketing - Miscellaneous

55-Firm Names and Letterhead

Lawyers practicing as a professional corporation must reveal the form of their association in communications to the public or clients. 11/15/1990
1497

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13-Marketing - Miscellaneous

44-Conflicts - Miscellaneous

74-Representing Associations

The ethical rules permit a law firm to enter into an agreement with a national trade association under which the firm would provide a free initial consultation to association members, and offer discounted fees to any association member who hired the firm. The lawyer could not let the association direct the lawyer's representation of individual members.10/19/1992
1826

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2-Adversity to Former Clients

13-Marketing - Miscellaneous

50-Lawyer-Owned Businesses

68-Lawyers Acting as Mediators

Under Rule 2.10(e), a lawyer who acts as a mediator in a dispute may not later represent any party in that dispute (this conflict cannot be cured with consent). Although the conflict is imputed to all the lawyers in the law firm, another lawyer in the firm may represent a party in the dispute with consent. Although a "screen" (which is the proper term for "fire wall," "Chinese wall," etc.) cannot take the place of such consent, it frequently is used as an inducement for obtaining the consent. Lawyers serving together in a mediation firm do not face imputed disqualification, because the mediation firm is not considered a "firm" under Rule 1.10. Lawyers practicing in a law firm and also acting as independent contractors or directors of a mediation firm (and who refer mediation firm clients to their law firm) must consider whether the "personal interest" they have by virtue of participating in the mediation firm creates a conflict under Rule 1.7 -- requiring disclosure and consent. Any lawyer acting as a mediator must also comply with the Virginia statute requiring confidentiality of all mediation material. Lawyers owning an interest in a mediation firm must comply with the ancillary business rules. Lawyers referring cases between law firms and mediation firms must comply with Rule 7.3, which prohibits giving anything of value in return for a recommendation.3/28/2006

Copyright 2000, Thomas E. Spahn