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: 16 - Lawyer's Personal Interests
LEO NumTopicsSummaryDate
0536

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8-Bills and Fees

16-Lawyer's Personal Interests

A civil rights defense lawyer may raise the issue of attorneys' fees in settlement discussions, and the plaintiff's lawyer may negotiate a fee as part of a settlement as long as the client consents. 12/7/1983
0541

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8-Bills and Fees

16-Lawyer's Personal Interests

A collection lawyer may be paid from attorneys' fee awards as long as the lawyer reimburses any award greater than the lawyer's bill. 2/25/1984
1266

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

51-Government Attorneys

A Commonwealth's Attorney has represented UMW strikers and has expressed public sympathy with them. The Commonwealth's Attorney also personally has an interest in a non-union coal mine. The Commonwealth's Attorney may not prosecute striking miners because of this personal interest in the matter. Also, the lawyer's earlier representation of the miners is substantially related to the possible prosecution. Consent would be impossible, because there is no identifiable public client from whom consent could be obtained. The Bar stated that "a lawyer and, in particular, one who is engaged in representing the public rather than individual clients, must be keenly aware of the admonitions within the Code of Professional Responsibility to avoid even the appearance of an impropriety; he must not place himself in a situation where his loyalties are or may be perceived as being divided." 6/14/1989
0789

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

51-Government Attorneys

A Commonwealth's Attorney may not prosecute defendants whose lawyer represents the Commonwealth's Attorney in unrelated personal matters. 4/22/1986
1465

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

51-Government Attorneys

74-Representing Associations

A Commonwealth's Attorney who is a member of a homeowner's association may provide information to the homeowner's association about trespassers on common property owned by the association, because the Commonwealth's Attorney's personal interest creates only a de minimis conflict. 6/9/1992
1558

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

36-Withdrawal from Representations

48-Criminal Defense Lawyers

A criminal defense lawyer learning that the client claims that the lawyer pressured the client into a plea of guilty against the client's wishes has a conflict with the client that cannot be cured with consent. The lawyer should move to withdraw, but "would be bound to continue the representation" if the court denies the motion. Until the lawyer withdraws, the lawyer must fully protect the client and therefore (presumably) may have to advise the client about the possibility of withdrawing the guilty plea. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.]10/20/1993
1343

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16-Lawyer's Personal Interests

48-Criminal Defense Lawyers

50-Lawyer-Owned Businesses

A criminal defense lawyer may not represent a criminal defendant for whom the lawyer's bail bond business has written a bond. Such a representation is per se unethical regardless of disclosure and consent.5/8/1990
1817

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16-Lawyer's Personal Interests

34-Limiting Liability to Clients

36-Withdrawal from Representations

48-Criminal Defense Lawyers

A criminal defense lawyer who has failed to properly perfect an appeal must (under the duty to communicate material facts) "notify the client of the dismissal of the appeal, the reasons for the dismissal and what rights or recourse the client has under those circumstances" (which "would include advising the client of the right to file a petition for a writ of habeas corpus alleging ineffective assistance of counsel; or a claim for legal malpractice based upon the lawyer's act or omission"). Although this situation obviously involves the lawyer's own interests (which might otherwise prevent the lawyer from proceeding on the client's behalf), new legislation requires the lawyer to assist the client in preparing and filing an affidavit explaining the lawyer's error. To the extent that this new statute requires a continuing representation (thus trumping the ethics rules), it overrules the holdings of Virginia LEO 1122 and 1558.8/17/2005
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
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
0966

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16-Lawyer's Personal Interests

34-Limiting Liability to Clients

39-Miscellaneous

58-Real Estate Lawyers

A law firm hired to advise on a real estate matter must disclose to the client that the law firm mistakenly failed to obtain an extension of time to file a tax return, even though the law firm was not hired to file the return. 9/30/1987
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
1083

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A law firm may form and invest in a non-legal services subsidiary (which the firm would also represent). There is nothing per se improper about this action, but the law firm must be cautious. 11/3/1988
1131

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A law firm may invest in a realty corporation and continue to represent clients of the corporation if the clients consent after full disclosure. [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.]9/1/1988
1438

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16-Lawyer's Personal Interests

28-Law Firm Staff

38-Fee Splitting

45-Law Firms - Miscellaneous

50-Lawyer-Owned Businesses

A law firm may not share profits with an advertising agency unless its employees are bona fide and regular employees of the law firm. [Approved by the Supreme Court of Virginia 11/2/16].10/21/1991
1137

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A law firm may represent the plaintiff although a member of the firm is a general partner in the partnership that includes the defendant as a limited partner (the plaintiff had consented). There appeared to be no attorney-client relationship between the law firm and the defendant. 10/13/1988
0914

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A law firm may sell a computer software package under an agreement in which the law firm maintains the exclusive right to use the software for a certain period of time. 4/30/1987
1198

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A law firm may use a court reporting service in which it has an ownership interest as long as the client consents after full disclosure. [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.]2/22/1989
1053

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5-Lawyers Changing Jobs

16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A law firm represented a city in a case brought by a developer. The law firm has discovered that one of its new lawyers is a shareholder of the developer (although not its lawyer). The new lawyer attended a board meeting at which the developer voted to sue the city, but there was no discussion of the merits of the case. The new lawyer claims to have no knowledge that could assist the city's defense. The city has consented to the firm's continued representation of it. The firm may continue to represent the city even if the developer objects, because its new lawyer had never represented the developer. 3/8/1988
1283

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16-Lawyer's Personal Interests

76-Trust and Estate Lawyers

A law firm's policy of routinely omitting self-proving clauses from wills it prepares is inconsistent with the requirement to vigorously represent clients. 9/21/1989
1041

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16-Lawyer's Personal Interests

A lawyer and a non-lawyer friend entered into a partnership to purchase vacation property. The friend raised some questions, and the lawyer assured the friend that things could be worked out later. A dispute later arose between them. The lawyer should have made an adequate disclosure of the potential adversity, and advised the friend to retain another lawyer. [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.]2/19/1988
1587

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16-Lawyer's Personal Interests

63-Lawyers Acting as Corporate Officers or Directors

A lawyer became an investor in and vice-president of a company, although the lawyer did not represent the company. The lawyer later resigned as an officer and director, but remained a shareholder. Because the lawyer never represented the company and "never received the benefit of any proprietary information" from the company or its other principal, the Code did not apply to the lawyer's proposal to directly compete with the company. 4/11/1994
1382

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16-Lawyer's Personal Interests

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer could work with a securities broker/ insurance agent in making presentations to potential clients, but must be careful to obtain the new client's consent to have the broker/agent present during any conversations protected by the attorney-client privilege. 9/13/1990
0869

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A lawyer employed by a law firm may also be employed as a part-time life insurance agent. 12/19/1986
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
0473

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16-Lawyer's Personal Interests

A lawyer having a relationship with a finance company may refer a client to the company, but only after full disclosure. The lawyer may not refer the debtor to the company if the lawyer represented the creditor. 9/20/1982
1099

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

72-Representing Partnerships

A lawyer is a general partner in a partnership with three limited partners. The lawyer has filed an action against the three limited partners. The Bar declines to say whether it is proper for the lawyer to file a lawsuit against the limited partners while retaining the status of a general partner. 7/11/1988
0571

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16-Lawyer's Personal Interests

76-Trust and Estate Lawyers

A lawyer is not per se prohibited from writing a testamentary document in which the lawyer or a member of the family is a beneficiary, as long as the lawyer is related to the donor. However, the lawyer must be careful to exercise independent professional judgment. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.]4/20/1984
0980

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16-Lawyer's Personal Interests

74-Representing Associations

A lawyer living in a neighborhood requiring membership in a homeowners association (and who thus has personal interests at stake) may represent the association if everyone consents. 10/12/1987
1581

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8-Bills and Fees

16-Lawyer's Personal Interests

A lawyer may accept a fee or commission for referring clients to a company which buys notes and other forms of commercial paper secured by real estate, as long as there is full disclosure and consent and the lawyer does not represent the client in connection with the company's purchase of the note. 2/8/1994
0810

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16-Lawyer's Personal Interests

A lawyer may accept a gift from a pro bono client. 6/25/1986
1593

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8-Bills and Fees

16-Lawyer's Personal Interests

71-Representing Corporations

A lawyer may accept compensation in the form of corporate stock for legal services as long as: "he feels his independent professional judgment will not be affected by his status as a stockholder;" the client consents after full disclosure; and the transaction "is not unconscionable, unfair or inequitable when made." [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.]4/11/1994
1077

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16-Lawyer's Personal Interests

28-Law Firm Staff

A lawyer may arrange for a non-lawyer accountant to perform work for the lawyer's clients, as long as the accountant does not perform legal work and the client consents after full disclosure. 5/23/1988
1152

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may arrange for title insurance for a client through a company of which the lawyer is part owner, as long as the client consents. [This LEO was further explained in LEO 1564.] [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.]11/16/1988
0558

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8-Bills and Fees

16-Lawyer's Personal Interests

38-Fee Splitting

40-Trust Accounts

A lawyer may engage in a "barter" arrangement in which the lawyer renders services in return for other goods, as long as: the lawyer does not share legal fees (in cash or in kind) with any non-lawyers; the client consents; the legal fees are reasonable; and the lawyer keeps the legal fees in a trust account (or segregated in the case of goods) until the fees are earned. [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.]4/10/1984
1501

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16-Lawyer's Personal Interests

28-Law Firm Staff

A lawyer may hire a former client to help organize and manage other similar cases for other clients, as long as the lawyer fully discloses these facts to the other clients.12/14/1992
1097

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may issue title binders on behalf of a client as long as the client consents after full disclosure. [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.]7/11/1988
0584

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16-Lawyer's Personal Interests

40-Trust Accounts

A lawyer may maintain a personal non-legal bank account entitled "Trust Account." 5/28/1984
0367

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16-Lawyer's Personal Interests

40-Trust Accounts

A lawyer may not ethically establish a trust account at a particular bank under an arrangement in which the lawyer receives payment for placing the account there. 4/23/1980
1441

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16-Lawyer's Personal Interests

29-Advancing Fees and Costs

A lawyer may not loan money to a corporation that extends credit to the lawyer's personal injury clients. 1/6/1992
1534

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16-Lawyer's Personal Interests

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer may not prepare a trust for a godparent (not a blood relative) under which the lawyer is an ultimate beneficiary, even if the lawyer and the godmother "maintained a mother/daughter-like relationship for nearly thirty years." However, it is not per se improper for the lawyer to serve as executor or trustee. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.]8/12/1993
1100

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16-Lawyer's Personal Interests

A lawyer may not prepare an instrument giving the lawyer or a member of the lawyer's family any gift from a client, unless the lawyer is the client's relative. If the client wishes to have a lawyer select charities to whom the client's bequest should be distributed, the client should use a trust. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.]7/11/1988
1550

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16-Lawyer's Personal Interests

34-Limiting Liability to Clients

A lawyer may not prospectively limit liability to a client, but may secure a release from the client for "specific completed acts" in exchange for consideration if the client consents after full disclosure, is "first advised to seek independent counsel as to whether to sign such an agreement" and if the transaction was not "unconscionable, unfair or inequitable when made."The Bar reaffirmed the ethical propriety of arbitration provisions in retainer agreements covering any malpractice claims as long as the client consents after full disclosure and "is advised to seek independent counsel in regard to the advisability of such a provision." 10/20/1993
1122

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16-Lawyer's Personal Interests

48-Criminal Defense Lawyers

A lawyer may not represent a client in a criminal appeal when one of the grounds for appeal is the lawyer's own ineffective assistance to the client. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.]9/7/1988
1512

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16-Lawyer's Personal Interests

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

65-Lawyers Acting as Notaries

A lawyer may notarize documents prepared by a partner (the Bar declines to indicate whether the lawyer or the partner may witness a will the lawyer prepares). 5/28/1993
1072

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may obtain title insurance for clients through a company in which the lawyer has an interest as long as the client consents after full disclosure. [This LEO was further explained in LEO 1564.] [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.]5/31/1988
0591

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A lawyer may offer the services of a title insurance agency in which the lawyer is a shareholder as long as there is full disclosure. [This LEO was further explained in LEO 1564.] [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.]7/5/1984
1045

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16-Lawyer's Personal Interests

A lawyer may personally market a prepaid legal services program as long as it is properly licensed. 3/2/1988
1318

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8-Bills and Fees

16-Lawyer's Personal Interests

45-Law Firms - Miscellaneous

50-Lawyer-Owned Businesses

A lawyer may practice law and operate a consulting firm out of the same office as long as the activities are kept separate and clients consent after full disclosure. The lawyer may send out one bill for both services as long as the bill fully discloses the separate services. 2/1/1990
0411

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16-Lawyer's Personal Interests

44-Conflicts - Miscellaneous

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer may provide free will-writing services to members of a religious organization. The services will create an attorney-client relationship in which the lawyer owes a duty solely to the non-paying client. Although not unethical in every case, it probably would be improper for the lawyer to be named as trustee or executor in such a will. 4/6/1981
0274

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16-Lawyer's Personal Interests

A lawyer may purchase accounts receivable from a trustee in bankruptcy and then collect them. 12/3/1975
0489

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16-Lawyer's Personal Interests

A lawyer may receive an originator's fee from a bank for sending clients to the bank, as long as the client consents after full disclosure. 9/3/1982
1254

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16-Lawyer's Personal Interests

48-Criminal Defense Lawyers

50-Lawyer-Owned Businesses

A lawyer may refer clients to a bail bond business the lawyer partially owns if there is full disclosure. [LEO 1343 indicates that the lawyer may not represent the criminal in the matter on which the bonding company has supplied the bond.] [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.]7/25/1989
1027

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A lawyer may represent a business in which the lawyer has a personal or financial interest as long as the lawyer's judgment will not be affected and the client consents after full disclosure. 2/1/1988
1521

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4-Witness-Advocate Rule

16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may represent a developer in litigation in which an employee of a title company (of which the lawyer is part-owner) may have to testify, because the witness-advocate rule applies only when a lawyer must testify. 5/11/1993
1535

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may represent a home builder in an action brought by a home buyer even though the buyer had paid a settlement or closing fee to the title corporation of which the lawyer was president. [The Bar indicated that the lawyer did not have an attorney-client relationship with the home buyer, although both the Opinion itself and the summary indicate that the lawyer "represented" the home buyer.] 6/2/1993
0811

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16-Lawyer's Personal Interests

76-Trust and Estate Lawyers

A lawyer may represent an estate administrator even if the lawyer's firm is a creditor of the estate, as long as the administrator consents. 6/25/1986
1444

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

A lawyer may represent someone adverse to a former client who did not pay the lawyer, as long as the "matters are not related and no secrets or confidences were obtained" by the lawyer. The lawyer must obtain the new client's consent before representing the client in the bankruptcy proceeding of the former client, because the lawyer (who is also a creditor of the bankrupt estate) has a personal interest adverse to the client. 1/6/1992
1433

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

A lawyer may reveal privileged information to defend against charges of criminal conduct made by a former client, although "disclosure should be made only to the extent necessary to rebut any accusation by the former client." The Bar suggested that the lawyer should seek a judicial ruling on the propriety of disclosure.10/21/1991
0995

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8-Bills and Fees

16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

A lawyer may sue a former client for an unpaid legal bill, but may not write the former client's supervisor unless the revelation is necessary to determine the reasonableness of the fee. 11/12/1987
0498

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8-Bills and Fees

16-Lawyer's Personal Interests

40-Trust Accounts

A lawyer may take a promissory note from a client as evidence of a fee as long as the amount and terms are reasonable; the lawyer may assign or discount the note if the client consents; the lawyer must place in the trust account any amounts paid before the fee is earned. 2/15/1983
0193

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16-Lawyer's Personal Interests

20-Government Official Conflicts

55-Firm Names and Letterhead

A lawyer may use firm letterhead in soliciting support for a public office that must be held by a lawyer.9/28/1965
1345

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7-Family Conflicts

16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A lawyer may use the lawyer's spouse as a court reporter if there is disclosure and consent. The disclosure must include a description of the fees received by the spouse. Another lawyer in the firm could use the spouse as a court reporter without disclosure and consent. Any lawyer in the firm could use another reporter at the spouse's reporting company without disclosure and consent unless the spouse is an owner of the reporting company. 5/18/1990
1381

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

A lawyer must obtain a former client's consent before writing a book based loosely on a former representation that ended ten years earlier. 9/13/1990
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
ABA-354

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16-Lawyer's Personal Interests

A lawyer recommending that a client employ a medical-legal consulting firm must take steps to comply with all ethical requirements. 11/7/1987
1509

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer relying on a title insurance agency to search title must fully disclose (before closing) any fees paid to the agency. 2/3/1993
1737

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16-Lawyer's Personal Interests

39-Miscellaneous

A lawyer representing a capital murder defendant must comply with the client's decision not to present any mitigating evidence at the sentencing hearing, as long as the lawyer has fully advised the client of the consequences of such conduct and the client is "competent to make an informed, rational and stable choice regarding whether to fight the death penalty with mitigating evidence." [Rule 1.14 provides guidance to lawyers representing clients under a disability.]10/20/1999
1436

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3-Multiple Representations on the Same Matter

16-Lawyer's Personal Interests

25-Dealing with Unrepresented People

58-Real Estate Lawyers

63-Lawyers Acting as Corporate Officers or Directors

A lawyer representing a lender who sends documents to the borrower for signature should advise the borrower that the lawyer is representing the lender. Because the lawyer should not give any legal advice to non-clients, the lawyer is not required to advise the borrower of the opportunity to purchase title insurance. If the lawyer is to represent the borrower and lender, the lawyer must advise the borrower (and obtain the borrower's consent) if the lawyer serves on the lender's board of directors. If the lawyer represents both the borrower and lender, the lawyer should advise the borrower about the availability of title insurance. 11/1/1991
0340

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16-Lawyer's Personal Interests

75-Representing Estates and Executors

76-Trust and Estate Lawyers

A lawyer representing an estate may purchase an estate asset if all interested parties consent. [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.]11/2/1979
ABA-406

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16-Lawyer's Personal Interests

43-Conflicts of Interest - Miscellaneous

A lawyer representing another lawyer may also represent a client adverse to the other lawyer's client unless the representation of the client may be "materially limited" by the relationship between the lawyers. Determining whether such a material limit exists depends on such factors as: the importance and sensitivity of the matters; the size of the fee; any similarity between the representations; whether the representations will "cause either or both of [the lawyers] to temper advocacy on behalf of their opposing third-party clients." If the representation meets this standard, the lawyer may proceed (if at all) only with consent, although even curative consent would be unavailable if the lawyer could not make full disclosure because of other client confidences. Even if not required, it might be prudent to disclose the lawyers' relationship. Any non-curable conflict would disqualify the representing lawyer's entire firm, but representation of a lawyer in a purely personal matter would not result in disqualification of the represented lawyer's entire firm. 4/19/1997
1068

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16-Lawyer's Personal Interests

47-Lawyer Referral Services

A lawyer representing himself or herself may not settle a case in return for the defendant's promise to refer clients to the lawyer, because the lawyer would be giving something of value in exchange for a recommendation. 4/11/1988
0746

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4-Witness-Advocate Rule

16-Lawyer's Personal Interests

A lawyer represents a client in arbitrated claims against three other parties. One of the parties later sues the client and the lawyer in state court on grounds involving the arbitration. As long as the client consents, the lawyer may continue to represent the client in the arbitration despite the lawyer's role as defendant in the state court action. Because the lawyer's testimony "may be critical" to the client's defense in the action, the lawyer must withdraw as counsel in the state court proceeding. 12/30/1985
1037

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

72-Representing Partnerships

A lawyer represents a limited partnership suing a city on a zoning matter. One of the five general partners later joins the law firm representing the city. The general partner has conveyed the partnership interest to a trust, and the city's law firm has erected an ethics screen around the former general partner. Although the general partner was involved in "legal discussions involving strategy, settlement and the conduct of the suit" before leaving the limited partnership, there was no ethical violation because there had been no attorney-client relationship between the partner and the limited partnership. 3/8/1988
0814

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer represents the lawyer's aunt in a dispute regarding real estate. The lawyer is interested in purchasing the real estate personally, and therefore must either terminate the representation of the aunt or make full disclosure and obtain her consent. [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.]7/25/1986
1462

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16-Lawyer's Personal Interests

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer violates the ethics rules by writing a letter to the court, a witness and opposing counsel providing the lawyer's personal view of the facts and opinions as to the merits of the case "if the information could not be presented in court." 6/22/1992
1612

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

A lawyer who also sells insurance may represent plaintiffs against insurance companies or their insureds for which the lawyer has written insurance policies, as long as the client consents. In fact, the lawyer may pursue such cases even if the lawyer wrote the policy for the defendant insured. [The Bar did not discuss the possibility that as an insurance agent the lawyer might have acquired confidential information about the defendant.]9/21/1994
0272

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer who has represented a corporation may answer a government agency's questions about the lawyer's purchase of stock in the corporation. 10/27/1975
0987

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who is a member of a local human rights committee at a treatment center may represent two patients in the center as long as the matters are unrelated to the lawyer's membership on the committee. 10/29/1987
1163

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who is also a CPA may perform both legal and accounting services as long as the client consents after full disclosure. [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.]11/16/1988
0302

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer who is also a partner in a real estate firm may represent a real estate seller and/or purchaser after full disclosure and consent. 9/23/1978
1498

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4-Witness-Advocate Rule

16-Lawyer's Personal Interests

A lawyer who is named as a co-defendant may act as an advocate for the client and a witness and advocate for himself or herself, unless the lawyer's testimony would be prejudicial to the client. [It is surprising that the Bar did not find a conflict here, because the lawyer's interests would seem likely to conflict with the client's interests.] 12/14/1992
0886

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer who owns an interest in a title insurance company may purchase insurance from the company for the lawyer's clients as long as they consent. [This LEO was further explained in LEO 1564.] [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.]4/1/1987
0578

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16-Lawyer's Personal Interests

A lawyer who purchased a note may sue on the note, even though the Bar had "grave reservation" about the propriety of the lawyer preparing agreements in which the lawyer had a financial interest. 5/31/1984
0577

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8-Bills and Fees

16-Lawyer's Personal Interests

A lawyer who represents a cable television franchisee may accept as legal fees a proprietary interest in the franchise as long as the client consents. [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.]4/30/1984
1351

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer who represents both the buyer and seller in a real estate transaction and who fails to find several judgments against the seller may not, without the seller's consent, purchase the judgments at a discount and then enforce them against the seller, because the lawyer may not be adverse to a former client in a debt collection (other than for legal fees) without the former client's consent. 5/24/1990
1311

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

A lawyer wishes to sell insurance to other law firms representing a clients' adversaries. The clients must consent to this arrangement. 11/21/1989
1564

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer's ownership interest in a title insurance agency is not per se improper, but the lawyer must: follow all conflicts rules; completely separate the lawyer's law practice from any title insurance agency; and avoid any revelation of client confidences. The lawyer may not: be compensated by the title insurance agency based on the referrals of clients to the agency; receive a fixed salary unless it is related to the work performed for the agency; receive any interest earned on funds deposited in the agency's trust account; or arrange for the agency to pay for any law firm salaries, services or advertisements.It is per se improper for the lawyer to represent a party in a transaction if the lawyer "directly or indirectly performs the function of a Title Insurance Agent" for the transaction, or holds a license as a Title Insurance Agent. A lawyer may arrange for title insurance through the agency to one of the lawyer's clients only: with consent after full disclosure; and if the transaction is not "unconscionable, unfair or inequitable when made." The Bar indicates that "all doubts regarding the sufficiency of the disclosure must be resolved in favor of the client, and against the attorney." The disclosure should be in writing and accepted by the client in writing, and should include an explanation of the cost and the availability of alternatives. (Revised 2/15/95) [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.]2/15/1995
0450

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16-Lawyer's Personal Interests

A lawyer/landlord may rent space to an insurance claims adjuster and provide secretarial services to the adjusting business. 4/13/1982
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
1523

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

A plaintiff in a dog bite case hired a lawyer who is a "casual acquaintance" of the defendant. The lawyer's casual relationship with the defendant is a "personal interest" that may create a conflict. The "impact of such personal interests may be measured along a continuum, with the least significant interests representing only a de minimus conflict which does not require disclosure to or consent from the client." Here, any conflict was cured by the client's consent. The client also consented to the lawyer's limiting the representation to non-litigation matters only, with the understanding that the lawyer would withdraw from the case if litigation became necessary. 5/11/1993
0649

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16-Lawyer's Personal Interests

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

A plaintiff's lawyer may not enter into settlement in which the lawyer agrees not to take similar cases against same defendant. [Rule 5.6(b) would permit such an agreement if a court or government agency approved it.]1/7/1985
1356

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

55-Firm Names and Letterhead

A professional corporation may establish a subsidiary for collections practice, as long as there is disclosure to prospective clients, and nothing in the law firm's or new professional corporation's name was misleading. 1/22/1990
1417

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16-Lawyer's Personal Interests

40-Trust Accounts

58-Real Estate Lawyers

A real estate lawyer has no duty to place trust money in a bank that will insure the entire amount, but may deposit money in a bank for which the lawyer acts as a director, shareholder and counsel if the client consents after full disclosure. [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.]5/14/1991
1405

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

53-Office Sharing with Non-Lawyers

58-Real Estate Lawyers

82-Advertising

A title insurance company owned by a lawyer and sharing office space with the lawyer's firm may not pay for the firm's salaries or advertisements. [This LEO was further explained in LEO 1564.] 9/17/1991
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
ABA-432

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

29-Advancing Fees and Costs

50-Lawyer-Owned Businesses

Although some states totally prohibit lawyers from posting bail bonds for their clients, such conduct is sometimes permissible as long as clients consent after full disclosure. Lawyers should recognize that: (1) there is a possibility of conflicts because someone posting a bail bond has a financial incentive to apprehend a fugitive client or otherwise assure that the client appears in court; (2) some states consider the posting of bail bonds to be a form of impermissible financial assistance to a client; and (3) obtaining the necessary consent from a client would be extremely difficult if the client were incarcerated. Posting such bail bonds is more likely to be permissible if there is an immaterial amount of money at stake, or if there is a family or friendship relationship between the lawyer and client. 1/14/2004
1853

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16-Lawyer's Personal Interests

Although warning lawyers that initiating a sexual relationship with a client during the course of a representation will almost always be unethical for various reasons, the Bar declines to adopt a per se ban on such relationships.12/29/2009
0714

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16-Lawyer's Personal Interests

An associate may bid on property in a public auction even though the associate's law firm represented the client in the partition suit that awarded the property to the client. [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.]8/20/1985
0342

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16-Lawyer's Personal Interests

An inventor/patent lawyer may participate as a member of an inventors club. 11/8/1979
0634

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

54-Insurance Defense Lawyers

As long as both the insurer and the former client-insured consent, a lawyer may represent the insurer in a subrogation claim even though the former client (the insured) has filed an ethics complaint against the lawyer on a related matter. 12/19/1984
1647

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

As long as it does not violate some federal or state law, lawyers may own a title insurance agency with share ownership percentages based upon past premiums paid by each lawyer's client. [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.]12/15/1995
1129

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16-Lawyer's Personal Interests

71-Representing Corporations

As long as the client consents after full disclosure, a corporation's lawyer may represent the corporation in a breach of contract action even though the lawyer was to personally benefit under the contract that was breached. 10/28/1988
0939

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

As long as the client consents after full disclosure, a lawyer may purchase title insurance from a company in which the lawyer has an interest. [This LEO was further explained in LEO 1564.] [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.]6/11/1987
1286

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16-Lawyer's Personal Interests

44-Conflicts - Miscellaneous

As long as the client consents after full disclosure, a small town lawyer may continue to represent a client even though the client's adversary is represented by a lawyer with whom the client's lawyer is currently associated on an unrelated matter. 10/19/1989
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
0603

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

As long as the client consents, a law firm may obtain title insurance from a business in which the law firm or its members have a business interest. [This LEO was further explained in LEO 1564.] [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.]6/24/1985
0712

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

As long as the client consents, a law firm's client may use a title agency in which the law firm has an interest. [This LEO was further explained in LEO 1564.] [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.]8/30/1985
0834

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7-Family Conflicts

8-Bills and Fees

16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

As long as the client consents, a lawyer may refer clients to the lawyer's spouse (a financial planner). The lawyer may not disclose the clients' identity to the spouse without the clients' consent. A lawyer may employ a collection agency to help collect past-due fees, but should not disclose any more information than the agency would need to collect the fee.9/23/1986
0783

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

As long as the client consents, a real estate lawyer may buy property for which the lawyer was to be the closing attorney (the transaction fell apart when the buyer defaulted). [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.]4/22/1986
1336

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

As long as the client consents, and it would not prejudice the client, a lawyer may write an article about a case that is currently pending on appeal (it is unlikely the publication of an article in a professional journal would improperly affect any jury that might hear the case on remand). 5/8/1990
0932

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

As long as the guardians, heirs and the court approve, a lawyer may act as a committee for an incompetent although the lawyer is a residual legatee of and may exercise a power of attorney for the incompetent. 6/11/1987
1479

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16-Lawyer's Personal Interests

As long as the personal injury client consented, a lawyer may represent the client in an action against a defendant insured by the same carrier that provides the lawyer with professional liability, health insurance disability and automobile insurance coverage. 8/24/1992
0784

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16-Lawyer's Personal Interests

Assuming there has been full disclosure to the client, a lawyer may represent the plaintiff even though the lawyer is a third party defendant in another suit (involving the alleged malpractice of the lawyer's predecessor) [the Bar did not explicitly indicate that consent was required.] 5/27/1986
1715

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16-Lawyer's Personal Interests

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

Defendants in an employment discrimination case may arrange a settlement under which the plaintiff's lawyers will represent the defendants (thereby implicitly prohibiting the lawyers from representing other plaintiffs against the same defendants without their consent). Although such an arrangement could be seen as "merely a ruse" to circumvent the Code's ban on settlements that "broadly restrict" a lawyer's right to practice law, the lawyers here "have not represented any other clients adverse to defendants and do not have a present expectation of such representation in the future," and could "provide valuable advice to defendants" on employment discrimination law. Furthermore, the facts did not suggest that the defendants were trying to "buy off" plaintiff's counsel or "conflict out" plaintiff's counsel by hiring him or her.Determining if such a settlement agreement "broadly restricts" the lawyers' practice requires a factual determination, but a settlement agreement like this entered into by a large firm with many practice areas might survive, while the Code might prohibit a similar arrangement entered into by a small "boutique" firm giving up a substantial portion of its practice. Here, the settlement agreement did not completely restrict the lawyers' right to practice, since they could take cases against the defendants with consent. [Rule 5.6(b) would permit such a restriction if "approved by a tribunal or governmental entity."]2/24/1998
1799

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16-Lawyer's Personal Interests

33-Office Sharing with Other Lawyers

51-Government Attorneys

Determining whether a business relationship such as a landlord/tenant relationship between a Commonwealth Attorney and a private lawyer prevents the private lawyer from defending cases handled by the Commonwealth Attorney (and which cannot be cured with consent because the Commonwealth Attorney cannot obtain consent from the Commonwealth) is a fact intensive matter. Here, the following facts triggered the prohibition: the Commonwealth Attorney and the private lawyer co- owned a building; were each responsible for the mortgage; the building houses the defendant lawyer's practice; and the Commonwealth Attorney is the co owner of the "computers, office equipment and furniture of the defense attorney's law practice."6/30/2004
1261

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

51-Government Attorneys

Even with consent, a Commonwealth's Attorney may not prosecute UMW member if the lawyer owned part of a coal company against which the UMW members are striking. The Bar stated that it "is cognizant of the need for a heightened sensitivity to public perception of ethical improprieties in the legal profession in general and in particular of one who is engaged in representing the public rather than individual clients. The government lawyer must not place himself in a situation where his loyalties are or may be perceived as being divided." 5/24/1989
0690

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

Even with full disclosure, a lawyer may not execute title binders issued by an agency in which the lawyer is an officer, director or stockholder. [This LEO was further explained in LEO 1564.]5/10/1985
0974

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8-Bills and Fees

16-Lawyer's Personal Interests

36-Withdrawal from Representations

If a lawyer is granted permission to withdraw as counsel, the lawyer may sue the former client for fees "should it be determined that a gross imposition has been made upon the lawyer's practice due to the client's failure to pay the fee" [The lawyer should be free to sue the former client for fees under normal contract rules; the "gross imposition" standard should apply only if the lawyer wants to sue a current client for unpaid fees.] 10/9/1987
0825

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

It is not improper per se for a law firm to own and represent a non-legal corporate entity. 10/9/1986
0258

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

76-Trust and Estate Lawyers

It is not per se improper for a lawyer to be named as executor in a will the lawyer prepares for a client. 2/11/1975
1016

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8-Bills and Fees

16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

It is not per se unethical for a lawyer and bookkeeper to set up a company that handles law firms' billings, but they must be careful not to violate the ethics rules. 12/21/1987
1425

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16-Lawyer's Personal Interests

86-Descriptions of Certification and Specialization

It is not per se unethical for a lawyer to advertise a specialty in a certain area as long as the advertisement does not indicate that the lawyer is a recognized or certified specialist. A lawyer may publish an article as long as it is accurate. 9/16/1991
1705

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8-Bills and Fees

16-Lawyer's Personal Interests

58-Real Estate Lawyers

Lawyers and clients may amend fee agreements as long as they do not involve "undue influence or coercion by the lawyer." A lawyer may enforce an amended fee agreement prepared after the client in extensive litigation over a cloud on a real estate title indicated that the client could not continue to finance the litigation as originally agreed and instead offered to pay an additional $25,000 upon successful completion of the litigation "in consideration of payment not being made as originally agreed." The change from an hourly-based contract to a contingent fee agreement was not improper because: the outcome was uncertain; the client could not continue to finance the litigation otherwise; and success would produce a "res" out of which to pay the fee. The extra $25,000 to be paid upon successful completion of the litigation was based on the lawyer's agreement to delay collection of the outstanding fees until the case ended. 11/21/1997
1358

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16-Lawyer's Personal Interests

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

Lawyers drafting a will or trust agreement must be very careful in naming themselves as executors or trustees. It is likely to be improper if the lawyer has not previously represented the client. At a minimum, the lawyer has a duty to advise the client of fees that would be charged by other executors or trustees. If the instrument requires that the estate or trust hire the lawyer's firm for legal services, the client must consent after full disclosure. If a lawyer acting as a fiduciary commits an act that could be disciplined had the relationship been that of an attorney and client, the lawyer-fiduciary may be disciplined by the Bar. 10/1/1990
1830

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

29-Advancing Fees and Costs

39-Miscellaneous

Lawyers in a public defender's office may provide nominal gifts to indigent clients for the purchase of personal items or food, as long as such "occasional de minimus humanitarian gifts" do not affect the lawyer's independent judgment (such as when the lawyers are "trying to persuade some of these clients to accept plea agreements to which the clients are initially resistant.") The majority of states totally prohibit such "financial assistance" under Rule 1.8(e). Such minor gifts do not run afoul of Rule 1.8(a), because they are gifts and do not constitute "business transactions" with the client. Although the rules "do not directly regulate nonattorneys," lawyers cannot do indirectly through a staff person what they cannot do directly -- although in this case the lawyer's staff may likewise provide such nominal humanitarian gifts to indigent clients.9/7/2006
ABA-418

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8-Bills and Fees

16-Lawyer's Personal Interests

Lawyers may accept stock in lieu of or in addition to a client's cash payment for services, but the following rules apply to such arrangements: the arrangements must satisfy the ethics standards for "business transactions" with clients [in Virginia, the requirements include a written explanation of the transaction and written client consent]; determining if the fee is "reasonable" focuses "only [on] the circumstances reasonably ascertainable at the time of the transaction"; the lawyer must fully explain the possible conflicts that might arise (such as diminution in client control of the corporation and ways in which the lawyer's personal interests in the stock value might affect the lawyer's professional judgment); the lawyer should describe the services to be rendered, and whether the stock acquisition is in the nature of an investment, a direct payment for services or a true "retainer" paid for the lawyer's availability; even though it is not required by the Model Rules, the lawyer should recommend that the client seek independent advice; if a corporation's main asset consists of a claim in litigation, the stock might be a prohibited "proprietary interest" in litigation; a lawyer's ownership of a client's stock does not create an inherent conflict of interests because both share an interest in the corporation's success; in the case of conflicts (as when a lawyer's ethical duty requires disclosure of adverse facts that will affect the stock price), the lawyer must subordinate any economic self-interest in favor of the ethics duty, and obtain the client's consent to be involved in rendering advice if there might be a material conflict; in the case of a severe conflict (as when the stock is the lawyer's major asset), the lawyer might be incapable of rendering legal advice; a lawyer-shareholder cannot challenge the client's termination of the lawyer.Some law firms have adopted policies about stock ownership in firm clients, such as: assuring that the percentage of stock ownership in a client is a non-material amount; requiring that a firm lawyer other than the main client contact decide any issues involving conflicts; transferring billing and supervisory responsibility to a lawyer with no stock ownership in the client. 7/7/2000
1368

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

66-Lawyers Acting as "Scriveners"

Lawyers may be shareholders of a corporation providing mediation and arbitration services, but the lawyers must comply with the ethics code. Among other things, a mediator "engaged by the parties as a scrivener of the agreement reached during the mediation process" is not engaged in the practice of law, but any services "beyond those of a scrivener" might constitute the practice of law [superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote].12/12/1990
1619

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5-Lawyers Changing Jobs

9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

51-Government Attorneys

One of two 50% shareholders in a professional corporation becomes a Commonwealth's Attorney. As long as the lawyer continues to own the stock, the lawyer may not prosecute defendants represented by the former firm (at least as to prosecutions begun after the lawyer left the firm). Consent would not cure this conflict, because the Commonwealth's Attorney is a "constitutional officer elected by the public." An Assistant Commonwealth's Attorney may prosecute such defendants, because DR 5-101(A) contains no vicarious disqualification provision. The firm may defend cases brought by the Commonwealth's Attorney's Office only if its clients consent after full disclosure. If the Commonwealth's Attorney learned confidences from any criminal defendant while at the former firm, a special prosecutor must prosecute the cases. 11/29/1994
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
1402

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

The Bar rescinded LEO 1138, which permitted a lawyer who owned stock in a title insurance company to receive consulting fees varying with the number of policies the lawyer's clients obtained through the company. [This LEO was further explained in LEO 1564.]10/21/1991
0772

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

71-Representing Corporations

There is no per se rule against a lawyer representing a company in which the lawyer owns stock. [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.]3/11/1986
1489

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8-Bills and Fees

16-Lawyer's Personal Interests

There is nothing per se improper with a lawyer borrowing money from a client, as long as there has been full and adequate disclosure, the transaction is not "unconscionable, unfair or inequitable when made" and "all doubts regarding the sufficiency of the disclosure [are] resolved in favor of the client." It would be improper for a lawyer to repay the loan by undisclosed credits applied to the client's bill. [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.]11/16/1992
1515

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8-Bills and Fees

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

83-Solicitation

This LEO outlines the principle governing a lawyer acting as executor or trustee: a pre-existing attorney-client relationship is not necessary, but is one factor showing the propriety of the lawyer's selection. The lawyer must fully disclose the fees that will be charged (preferably in writing) and "has a duty to suggest that the client investigate potential fees of others who might otherwise provide such services." A lawyer acting as executor or trustee may hire the lawyer's own law firm to represent him or her as long as there is full disclosure (including "the general compensation to be paid to the law firm") and consent (if the client is already dead, the beneficiaries can consent). A lawyer acting as a fiduciary is governed by the Code. A lawyer may solicit designation as a fiduciary as long as there is no overreaching or fraud. (Approved by the Supreme Court 2/1/94)2/1/1994
1665

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

Two indigent defendants were tried on capital murder charges in the same jurisdiction (but for unrelated crimes), and both were sentenced to death. The lawyer representing one of the defendants at trial was appointed to represent the other in habeas corpus proceedings, and vice versa. Thus, each lawyer would be asserting an "ineffective assistance of counsel" defense against the other, while defending similar charges. This created a conflict that could be cured by consent (although the "adequacy of disclosure to produce an informed consent imposes a substantial burden on counsel since an inadequate disclosure might itself become a basis for a claim of ineffective assistance of counsel"). If either of the lawyers withdrew, the other may continue because the conflict would disappear. 4/1/1996
0988

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16-Lawyer's Personal Interests

29-Advancing Fees and Costs

40-Trust Accounts

Unless the client agrees or a court orders, lawyers may not pay themselves out of escrow funds that were set aside for out-of-pocket costs incurred in litigation. 10/29/1987
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
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16-Lawyer's Personal Interests

Unless the client consents, a lawyer may not represent a client in a civil action against a debtor while pursuing a criminal action against the debtor on behalf of the law firm (because the lawyer's self-interest may conflict with the client's interests). 5/18/1989

Copyright 2000, Thomas E. Spahn