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. 
 
 Back to main menu
  Topic: 18 - Consent and Prospective Waivers
LEO NumTopicsSummaryDate
ABA-450

printPrint
3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

54-Insurance Defense Lawyers

"When a lawyer represents multiple clients in the same or related matters, the obligation of confidentiality to each sometimes may conflict with the obligation of disclosure to each." Lawyers hired by an insurance company to represent both an insured employer and an employee must explain at the beginning of the representation whom the lawyer represents (which is based on state law). If there is a chance of adversity in this type of joint representation, "[a]n advance waiver from the carrier or employer, permitting the lawyer to continue representing the insured in the event conflicts arise, may well be appropriate." The lawyer faces a dilemma if he learns confidential information from one client that will cause that client damage if disclosed to the other client. "Absent an express agreement among the lawyer and the clients that satisfies the 'informed consent' standard of Rule 1.6(a), the Committee believes that whenever information related to the representation of a client may be harmful to the client in the hands of another client or a third person, the lawyer is prohibited by Rule 1.6 from revealing that information to any person, including the other client and the third person, unless disclosure is permitted under an exception to Rule 1.6." It is "highly doubtful" that consents provided by the jointly represented clients "before the lawyer understands the facts giving rise to the conflict" will satisfy the "informed consent" standards. Absent a valid consent, a lawyer must withdraw from representing the other client if the lawyer cannot make the disclosure to the client, and cannot fulfill his other obligations without such a disclosure. In the case of a lawyer hired by an insurance company to represent an insured, "[t]he lawyer may not reveal the information gained by the lawyer from either the employee or the witness, or use it to the benefit of the insurance company, when the revelation might result in denial of insurance protection to the employee." "Lawyers routinely have multiple clients with unrelated matters, and may not share the information of one client with other clients. The difference when the lawyer represents multiple clients on the same or a related matter is that the lawyer has a duty to communicate with all of the clients about that matter. Each client is entitled to the benefit of Rule 1.6 with respect to information relating to that client's representation, and a lawyer whose representation of multiple clients is not prohibited by Rule 1.7 is bound to protect the information of each client from disclosure, whether to other clients or otherwise." The insured's normal duty to cooperate with the insurance company does not undermine the lawyer's duty to protect the insured's information from disclosure to the insurance company, if disclosure would harm the insured. A lawyer hired by an insurance company to represent both an employer and an employee must obtain the employee's consent to disclose information that might allow the employer to seek to avoid liability for the employee's actions (the employee's failure to consent to the disclosure would bar the lawyer from seeking the employer's consent to forego such a defense). A lawyer facing this dilemma may have to withdraw from representing all of the clients, but "[t]he lawyer may be able to continue representing the insured, the 'primary' client in most jurisdictions, depending in part on whether that topic has been clarified in advance."4/9/2008
1144

printPrint
18-Consent and Prospective Waivers

A client's knowledge of the client's lawyer's representation of another client does not constitute a waiver of any conflict. 12/2/1988
1266

printPrint
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
1796

printPrint
1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

A criminal defense lawyer acted improperly in representing two criminal defendants in separate cases, knowing that one defendant's defense to a fire arms charge was based on his acquisition of a gun to protect himself from the other defendant. The Bar concluded that "the adverse affect [sic] of these simultaneous representations was too clear to have reasonably been believed otherwise." Although consent could not have cured the conflict, the Bar also noted that the lawyer had not obtained consent after full disclosure.3/31/2004
1558

printPrint
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
1869

printPrint
18-Consent and Prospective Waivers

28-Law Firm Staff

46-Confidentiality - Miscellaneous

49-Lawyers - Miscellaneous

A family court self-help center facilitator (a lawyer or a paralegal trained in family law who volunteers to assist unrepresented customers) does not establish an attorney-client relationship with such customers, if the Customer Agreement "has the pro se litigant understand and acknowledge that the limited assistance provided by the Facilitator does not create a lawyer-client relationship, that no legal advice is given, that information will not be kept confidential and that the Facilitator may provide assistance to adverse litigants." (footnote omitted). A lawyer merely providing legal information and not legal services does not fall under Rule 6.5's provision governing "short-term limited legal services." "Merely providing sample pleadings or forms to a pro se litigant is not the practice of law; however, the completion of a form pleading or legal document for the pro se litigant would be." (footnote omitted). Rule 6.5 does not address conflicts arising after a lawyer provides such a limited representation, so the lawyer may be precluded from other representations adverse to the client the lawyer had assisted. Paralegals may not engage in the "unsupervised preparation of pleadings or other legal documents," so lawyers may not train paralegals to provide such unsupervised services. Various resources can help lawyers distinguish between providing "legal information" and "legal advice." [Approved by the Supreme Court of Virginia 11/2/16].5/28/2013
1371

printPrint
10-Former Government Lawyer Conflicts

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

A former Assistant Commonwealth's Attorney may represent a criminal defendant on appeal if the lawyer had no substantial responsibility over the case while in the Commonwealth's Attorney's office (the former Assistant Commonwealth's Attorney had nothing to do with the case, never saw the file, never heard of the case and had no knowledge of the case).On the other hand, a former Assistant Commonwealth's Attorney is per se prohibited from defending a criminal defendant if the lawyer prosecuted the defendant on a separate earlier drug charge while a public employee. Consent would not cure this problem "because of a need for the heightened sensitivity of public perception regarding the private practice of a public employee."10/1/1990
1875

printPrint
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
1671

printPrint
3-Multiple Representations on the Same Matter

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

24-Representation of or Adversity to Witnesses

51-Government Attorneys

A lawyer acting as both Commonwealth's Attorney and city attorney obtains an indictment against a builder in a building inspection dispute. One of the lawyer's assistants interviews the building's owner to obtain information for the criminal prosecution. The owner sues the builder and the city's building inspector in a civil lawsuit.The lawyer faces a conflict in prosecuting the builder while advising the building inspector and representing the city's interests in the civil litigation (because the lawyer "likely would have discovered the facts and circumstances surrounding the builder's dealings with the building inspector which would likely be adverse to the defense of the building inspector and the interests of the City"). This conflict was not curable by consent, because it was "not obvious" that the lawyer could play both roles.The lawyer's resignation as City Attorney does not remove the conflict, since the lawyer still owes duty to the former clients (the city and building inspector).One of the lawyer's assistants may continue to represent the city upon becoming full-time City Attorney even though the assistant had interviewed the building's owner in connection with the criminal prosecution of the builder. The interview "did not create an attorney-client relationship nor expectation of confidentiality" and therefore does not bar this lawyer from being adverse to the owner in the civil litigation (the bar noted that "victims of crimes are not clients of prosecutors"). [Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.]4/1/1996
1428

printPrint
5-Lawyers Changing Jobs

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

A lawyer from a medical malpractice defense law firm wishes to join a plaintiff's firm. Absent the clients' consent, both the lawyer and the new firm would be barred from representing any plaintiffs in cases in which the lawyer "was actively participating" while in the defense firm. An ethics screen would not cure the conflict -- only the clients' consent would do. The lawyer may work on matters as long as the lawyer had not worked on the matters while at the defense firm and did not acquire any secrets or confidences that could now be used to the former clients' disadvantage. The lawyer should bear in mind the inability to use such confidences and secrets in light of the countervailing duty to represent new clients at the new firm. 2/22/1992
1723

printPrint
18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

A lawyer hired by an insurance carrier to represent an insured "must represent the insured with undivided loyalty," and may not: (1) agree to an insurance carrier's restrictions on the lawyer's representation of the insured "absent full disclosure and consent of the client at the outset of the representation and absent a determination that the client's rights will not be materially impaired by restrictions" such as limitations on discovery and the use of experts and other third party vendors, and requirements for "pre-approval for time spent on research, travel and the taking and summarizing of depositions"; (2) submit detailed information to a firm selected by the insurance carrier to audit billing statements, without the insured client's consent after "full and adequate disclosure"; or (3) recommend that the client consent to such disclosure to the auditor if it would prejudice the client. 11/23/1998
1810

printPrint
18-Consent and Prospective Waivers

67-Lawyers Acting as Guardians Ad Litem"

A lawyer may act as a guardian ad litem for a child even though the lawyer previously practiced in the same law firm as another lawyer now representing the husband in a custody dispute in which the lawyer serves as the child's guardian ad litem, because the lawyer acting as guardian ad litem "did no work on the matter and learned no information about it" while the lawyer was at that firm; although the lawyer did not need consent to proceed, any possibly required consent would have to come from the court rather than from the wife/mother.12/10/2004
0608

printPrint
7-Family Conflicts

18-Consent and Prospective Waivers

67-Lawyers Acting as Guardians Ad Litem"

A lawyer may act as a guardian ad litem in a mental health commitment hearing even if the lawyer's wife is the supervisor of a social worker-witness and even if the ward is not capable of giving informed consent. 9/14/1984
0957

printPrint
3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

67-Lawyers Acting as Guardians Ad Litem"

A lawyer may not continue representing the former executive director of the Department of Social Services in a wrongful discharge action against the Department while also acting as a guardian ad litem for a child whose custody is in dispute because of alleged illegal actions by the former executive director. Although consent might cure this conflict, the lawyer cannot obtain consent from the child. 8/2/1987
1147

printPrint
18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may reveal to a current client that the lawyer formerly represented the client's adversary's lawyer in that lawyer's own divorce years earlier. The disclosure should not embarrass the former client/lawyer and must be made to the current client in order to obtain proper consent. 1/4/1989
1314

printPrint
18-Consent and Prospective Waivers

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer must make full disclosure to the client before suggesting that the client sign a blanket authorization for medical, psychological and psychiatric evaluations. 2/15/1990
1408

printPrint
1-Adversity to Current Clients

18-Consent and Prospective Waivers

71-Representing Corporations

A lawyer represented a borrower in an action brought by a bank's real estate loan division. One of the lawyers' partners was later hired by the bank's commercial finance division in unrelated litigation. The commercial finance division consented, recognizing that the two divisions of the bank act independently.The Bar held that there were "inherent dangers" in these two representations despite the bank's indication that the subdivisions are distinct from each other. Because both divisions "are part of the same entity managed under the same supervisory scheme," there was a danger of "misuse of the client's information." The Bar held that the simultaneous representation was improper and could not be cured by consent (because it was not "obvious" that the lawyer could adequately serve both clients). [The Bar's conclusion that consent would not cure this conflict would almost surely be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard.]5/13/1991
1652

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer represented a client in contempt proceedings in which the client seeks arrearages from her ex-husband under a property settlement agreement. The ex-husband later hires the same lawyer to represent him on unrelated matters. Both the original client and the ex-husband sign waivers of conflicts. Five years later, the ex-husband hires the lawyer to represent him on criminal and traffic charges, and he and the original client again sign waiver forms. However, the ex-husband now objects to the lawyer's continued representation of the original client in seeking the arrearages.Because the lawyer's representation of the ex-husband ended in 1992, the ex-husband is a former client of the lawyer. A lawyer may be adverse to a former client unless the matters are the same or "substantially related" or unless the lawyer gained confidential information that can now be used against the former client. In discussing the "substantially related" standard, the Bar used the following terms: "involve either the same facts . . . the same parties . . . or the same subject matter;" "essentially the same, arise from substantially the same facts, or are by-products of the same transaction;" "entail virtually a congruence of issues or a patently clear relationship in subject matter." The Bar concluded that the lawyer's representation of the ex-husband is not "substantially related" to the lawyer's representation of the original client.The Bar could not determine if the lawyer would have learned pertinent confidences from the ex-husband, because the "ex-husband's earnings, employment, ability to earn, assets, use of earnings, lifestyle and life" could be material to the original client's contempt proceedings.The Bar acknowledged that both the original client and ex-husband had consented on two specific occasions to the simultaneous representations, but held that "it is doubtful that [the lawyer's] consent from ex-husband, as well as Client, cured [his] conflict of interest in his simultaneous representation of both." The Bar indicated that "in any event, consent is not a contractual obligation and a client under certain circumstances may withdraw the consent." The Bar held that the lawyer had "an incurable conflict" and must withdraw from the representation of the original client. [The Bar overruled as "overbroad" its initial Opinion that client consent may be withdrawn at any time.]7/8/1996
1061

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

A lawyer represented a client in successfully obtaining a certificate of need for a facility. Two years later, the lawyer represented another client in filing for a certificate of need for the same type of facility nearby. At the same time, the first client (although not represented by the same lawyer) sought a certificate of need for a facility that would compete with the second client's proposed facility.The Bar held that the lawyer had no conflict, because (1) the lawyer's former and current representations are not substantially related; and (2) the lawyer claims not to have acquired any confidential information from the first client. The Bar added that the first client had not consented to the lawyer's representation, even though it knowingly acquiesced in it for over five months before objecting [this LEO was reaffirmed in LEO 1065.] 3/31/1988
1731

printPrint
1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

17-Fraud on the Tribunal

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing.6/29/1999
1815

printPrint
1-Adversity to Current Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

A lawyer representing a locality has appeared as counsel of record for the Board of Zoning Appeals ("BZA") in an appeal to the Circuit Court by a land use applicant who lost before the BZA. In a totally unrelated matter involving different land and different issues, the lawyer has now been asked by a zoning administrator to represent him in an appeal of a BZA decision to the Circuit Court (in which the petition will name the BZA as a defendant). In contrast to Virginia LEO 1785 (which involved a lawyer representing multiple clients on the same zoning variance), this situation involves multiple representations on different matters. The lawyer's direct adversity to the BZA (which is a client in the other matter) triggers Rule 1.7(a)(1), and there is thus no need to analyze whether the lawyer's representation will be "materially limited" under Rule 1.7(a)(2) which "must always be decided on a case-by-case basis, with a context driven analysis rather than a bright line rule". Before proceeding in direct adversity to his client the BZA, the lawyer must 1) "reasonably believe" that he can provide "competent and diligent representation to each affected client" (which uses an objective "disinterested attorney" standard under Comment 10); (2) determine that the representation is not prohibited by law; (3) assure himself that he is not representing adversaries in the same proceeding; and (4) memorialize the client’s consent in writing (the Bar explains that "obtaining a client's signature to acknowledge the consent is advisable in most instances," but a lawyer may meet that requirement if the lawyer "merely makes a note to file regarding what transpired").The lawyer had "commented" on the merits of the second matter, but the lawyer does not believe that the BZA "considered the comments to be legal advice." The Bar warns that LEO 1785 would apply if the BZA "reasonably considered" the lawyer's comment to be legal advice (explaining that the lawyer had the responsibility to explain his role at the hearing, and "expressly communicate to the BZA that he was not appearing before them as their legal advisor" if he was not).1/10/2006
1304

printPrint
3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

73-Family Law Lawyers

A lawyer representing an ex-wife in a custody matter may not also represent the ex-wife and child in a criminal matter (because the custody dispute relates to the mother's lack of parental supervision). It is not obvious that the lawyer could adequately represent both the ex-wife and the child, and consent is impossible because the minor child could not consent.11/21/1989
1547

printPrint
3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

25-Dealing with Unrepresented People

76-Trust and Estate Lawyers

77-Communicating with an Individual Adversary

A lawyer representing the administrator of a decedent's estate (who is also a potential wrongful death beneficiary) may not also represent other purported relatives, because the administrator and the other purported relatives take differing positions on the decedent's paternity. The conflict cannot be cured by disclosure and consent. The lawyer representing the defendant may contact the purported relatives ex parte because they are not currently represented by counsel. The defendant's lawyer may not give any advice "other than the advice to secure counsel," and "may not state or imply that he is disinterested in the matter." 8/12/1993
1505

printPrint
3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

71-Representing Corporations

A lawyer represents both a corporation and its chairman (who is sued in both individual and fiduciary capacities). On appeal, the plaintiff raised issues outside the record that hurt the chairman. The chairman wants the lawyer to correct the statements, but the lawyer refuses to do so because it might hurt the corporation. Because there is an actual conflict between the corporation and the chairman, the lawyer must withdraw from representing both. Because it is obvious that the lawyer may not adequately represent the interests of the corporation and the chairman, consent would not cure the conflict. [The Bar's conclusion that consent would not cure this conflict almost surely would be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard.]12/14/1992
1684

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

68-Lawyers Acting as Mediators

A lawyer who acted as a mediator between an investor and a brokerage firm and who acquired confidential information about the brokerage firm's "internal rules and operations" may not later represent another investor in a lawsuit against the firm (even though the second investor's claims involve different securities and a different registered representative, the information the lawyer learned as a mediator was relevant to the second investor's case).The Code applies to the lawyer acting as a mediator. Although "mere familiarity with a corporation's workings or personality of its representatives is not enough" to disqualify the lawyer from being adverse to a former client, here "the mediator learned information about the internal rules and operations of the Firm having a bearing on the quality of the Firm's supervision of its agents." This means that the matters are "substantially related," and the lawyer/ mediator may not use such confidential information against a former client just as a lawyer could not use it against a former client the lawyer represented as an advocate. Although the brokerage firm may consent to the adversity, "the committee cautions attorneys from relying heavily on client consent because there are circumstances in which the consent may be withdrawn at a later time." [Rule 2.11 governs a lawyer's role as mediator.] [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.]7/8/1996
1759

printPrint
7-Family Conflicts

11-"Of Counsel" Relationship

18-Consent and Prospective Waivers

50-Lawyer-Owned Businesses

68-Lawyers Acting as Mediators

73-Family Law Lawyers

A lawyer who owns a mediation company is "of counsel" to a law firm in which his/her spouse is a partner. After mediation of a domestic dispute, one of the parties asks an associate in the law firm to file for divorce on behalf of that party. The Bar holds that lawyers/mediators may not represent either party after they handle a mediation, even with the clients' consent (overruling earlier LEOs 1684, 590, 544 and 511). Because this specific disqualification applies only to the lawyer/mediator, an associate in the firm would not be disqualified based on the mediator's disqualification. However, the lawyer/mediator's duty of confidentiality arising from the mediation also disqualifies that lawyer, and is imputed to the firm to which the lawyer/mediator is "of counsel" (although client consent can cure this conflict). If there were no connection between the lawyer/mediator and the law firm, lawyers practicing in the firm would not be disqualified from representing the party in the divorce as a result of the spousal relationship to the mediator. [Rule 1.10 now imputes the individual's disqualification to the entire law firm, as explained in Virginia LEO 1826.]2/4/2002
1459

printPrint
5-Lawyers Changing Jobs

18-Consent and Prospective Waivers

38-Fee Splitting

A lawyer who worked on plaintiffs' litigation moved to a defense firm. The lawyer may continue to share in the former firm's income from cases completed before the lawyer joined the new firm. The new firm would not be disqualified as long as the clients consented to the lawyer's receipt of those fees. The lawyer may not share in income earned by the former firm on cases completed after the lawyer left the firm because the lawyer could not assume responsibility for the client's case (a prerequisite to the fee-splitting the lawyer seeks). [Although the summary seems confused in discussing the lawyer's earlier clients and which consents would be required, it explicitly states that a firm's unilateral imposition of an ethics screen does not cure a conflict -- only informed consent can cure a conflict.] [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.]4/28/1992
1564

printPrint
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
1762

printPrint
2-Adversity to Former Clients

6-Lawyers Paid by Third Party

18-Consent and Prospective Waivers

39-Miscellaneous

A mother who had an automobile accident in which her infant child was injured may not hire the same lawyer who represented her in a tort action against the other driver to also represent the child in the tort action, if there is a "non-frivolous claim" that could be filed against the mother in connection with the accident. Consent could cure this conflict, but the minor child cannot grant the consent, and the ability of the mother to grant the consent is a legal question beyond the Bar's purview. If there is no possible claim against the mother, then the mother can hire her lawyer to also represent the child, but must not direct or regulate the lawyer's professional judgment.2/4/2002
1785

printPrint
1-Adversity to Current Clients

2-Adversity to Former Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests].11/14/2003
1523

printPrint
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
0786

printPrint
3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

A widow and her minor children have a potential interest in a partition suit. The widow's claim has been challenged because she allegedly deserted her husband (the deceased beneficiary). A lawyer may not represent both the widow and the children, because there is a potential adversity between them. The children are not capable of giving consent, so the lawyer may not represent the widow. However, if the widow consents, the lawyer may represent the children. 5/27/1986
1561

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

76-Trust and Estate Lawyers

A wife is injured in a car accident in which her husband is killed. A lawyer represents her in suing the husband's estate for negligence, and the case is settled. One year later, the wife (now administratrix of her husband's estate) sues a third party, claiming that it negligently caused the accident. The lawyer's current representation of the wife against the third party does not violate the Code because the wife "is in a position to waive any conflict both as administratrix of the estate and on her own behalf." 12/14/1993
1002

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

After both clients consented, a lawyer began representing a personal injury plaintiff and continued representing a hospital in an unrelated collection case against the plaintiff. The hospital was advised of the plaintiff's personal injury action at that time. When the personal injury plaintiff discharged the lawyer, the lawyer may not continue representing the hospital because the lawyer had learned of a possible source of payment (a personal injury judgment) through representation of the personal injury client. [The Bar did not acknowledge that the hospital was advised of the possible source of payment when the lawyer arranged consents.] 12/9/1987
1832

printPrint
18-Consent and Prospective Waivers

22-Interviews with Prospective Clients

28-Law Firm Staff

Although not bound by lawyers' ethics rules, law firms' secretaries must maintain the confidentiality of information they learn. Thus, a secretary who receives confidential information from a prospective client whom the law firm does not represent (because it wishes to or already does represent the prospective client's adversary) must maintain the confidentiality of that information. Lawyers in that firm can avoid disqualification from representing the adversary if the lawyers screen the secretary from the matters, instruct the secretary "that she cannot reveal to the lawyer any confidential information obtained from Ms. X [the prospective client]," and use another staff person to work on the matter. In addition, the law firm "should send a written communication to Ms. X or her lawyer that these measures have been taken." Such screens do not prevent imputed disqualification involving an individually disqualified lawyer, but can successfully avoid imputation of a non lawyer's individual disqualification. The firm may have to withdraw from representing the adversary if the screen is breached. The Bar "recommends that the firm train non lawyer support staff to minimize confidential information obtained from prospective clients before they can perform the necessary conflicts analysis."5/10/2007
ABA-432

printPrint
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
0401

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

As long as all clients consent, a lawyer may represent a plaintiff in a civil action although one of the lawyer's partners represented the same defendant in criminal charges arising from the same matter. If the defendant is not represented by counsel, fully informed consent may not be obtainable.1/19/1981
1637

printPrint
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
0679

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

64-Lawyers Acting as Deed of Trust Trustees

As long as the client consents, and after receiving the advice to seek independent counsel, a lawyer representing the maker of a note may have his client execute an agreement by which the client "waives any objection" to the lawyer also acting as trustee and later proceeding against him under the terms of the deed of trust. [This LEO was vacated to the extent that it is inconsistent with LEO 824; see also LEO 815.] 4/5/1985
ABA-415

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

57-In-House Lawyers

Former in-house lawyers may not take representations materially and directly adverse to their former employers (absent consent): (1) if they "personally represented" their former employer in the same or substantially related matter (some courts indicate that the matter must be "identical" or "essentially the same" as the previous matter); or (2) if they acquired material confidential information about their former employer ("general knowledge of the strategies, policies, or personnel of the former employer is not sufficient by itself" to disqualify the lawyer; a de minimus standard might apply if the in-house lawyer only addressed legal questions on the periphery of a matter); "general supervisory responsibility such as that exercised by the head of a legal department" ordinarily does not disqualify an in-house lawyer; sophisticated companies may grant prospective consents in these circumstances. 9/8/1999
ABA-372

printPrint
18-Consent and Prospective Waivers

If the client consents after full disclosure, a lawyer may obtain a prospective waiver (such a waiver would be effective to cover the use of confidential information only if the consent explicitly covers such a possibility). [Withdrawn in ABA LEO 436 (5/11/05), which explains that recent changes to the ABA Model Rules allow prospective consent "to a wider range of future conflicts" than under the older version of the Model Rules discussed in ABA LEO 372]. (4/16/93) [Withdrawn in ABA LEO 436; also withdrawn in ABA LEO 437.]4/16/1993
1806

printPrint
2-Adversity to Former Clients

18-Consent and Prospective Waivers

In addressing a situation in which a lawyer who represented three clients 19 years ago in buying real estate now practices with a lawyer representing a client in litigation involving the real estate adverse to the other partner's three former clients (who are now acting as trustees), the Bar explains that: there is no "statue of limitations" for adversity to a former client, and the mere lapse of time or the lawyer's lack of memory about previous work does not relieve lawyers from determining if they may be adverse to former clients; the Bar's previous guidance under the old Code about the meaning of the "substantial relationship" test governing adversity to former clients applies under the new Rules (although the Bar has not adopted a specific test, it has pointed to such factors as the same facts, parties and subject matter, and quoted court decisions using terms such as "essentially the same," "arising from substantially the same facts," the byproducts of the same transaction," "entail virtually a congruence of issues or a patently clear relationship in subject matter"); the fact that the individual former clients now own the land as trustees is irrelevant, because they are the same people regardless of the role they are playing; the fact that the two lawyers were not practicing together 19 years ago does not matter, because any lawyer's individual disqualification caused by the current adversity would be imputed firm wide; the lawyers' "lack of familiarity with the file," or lack of memory about the old representation is irrelevant; the absence of any response from the trustees to the law firm's request for consent does not allow the firm to proceed, because a former client whose request is necessary must provide "actual" consent after full disclosure there is no "constructive consent" based on the client's silence; the lawyer's receipt of any "confidential information" during the earlier representation might itself cause an imputed disqualification of the firm, if the information "would be pertinent" in the current adversity to the former clients. 9/20/2004
1193

printPrint
18-Consent and Prospective Waivers

44-Conflicts - Miscellaneous

73-Family Law Lawyers

It is not per se improper for a legal aid office to undertake a limited representation of a divorce client as long as the client fully understands and consents to the limited representation (which would not include any litigation or support, custody or property issues). The Bar warns that the disclosure and consent must be carefully addressed because the legal aid client may feel that the client has no choice but to agree to the limitation. 2/13/1989
1669

printPrint
9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

39-Miscellaneous

44-Conflicts - Miscellaneous

48-Criminal Defense Lawyers

It is not per se improper for a part-time county attorney to also serve as a part-time assistant public defender, although a conflict (not curable by consent) would arise should the lawyer be asked to defend a criminal defendant: (1) if the county is an alleged victim; or (2) if the county attorney's office is responsible for prosecuting the crime (such as violations of building codes or local ordinances). The county attorney (also acting as a part-time public defender) does not face a conflict in advising the Board of Supervisors on such matters as law enforcement budgets, because the attorney is not a member of the governing body and therefore does not vote on the appropriations. Although such a dual role might create a "appearance of impropriety," such a standard "by itself is too vague a standard" to create a conflict.4/1/1996
ABA-426

printPrint
18-Consent and Prospective Waivers

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

75-Representing Estates and Executors

76-Trust and Estate Lawyers

Lawyers may act as personal representatives or trustees under documents the lawyer prepares, but: must obtain a written consent if the lawyer's judgment would be significantly impaired; must advise the client about how the lawyer's compensation will be calculated and whether it is subject to some limits or court approval. Lawyers may also hire their own firms to perform legal work in the administration of the trust or estate, in which case the lawyers generally represent themselves, and not the beneficiaries or the trust or estate as an entity. Even with consent, a lawyer serving as a fiduciary may not take positions adverse to the interests of a beneficiary or the entity. Lawyers acting as fiduciaries generally should not represent beneficiaries in unrelated matters.5/31/2002
1725

printPrint
1-Adversity to Current Clients

18-Consent and Prospective Waivers

67-Lawyers Acting as Guardians Ad Litem"

Lawyers who serve as guardians ad litem must follow the ethics rules "whether or not an attorney-client relationship exists" with the children, and therefore must obtain consent if they will simultaneously be representing the Department for Social Services on some matters and acting as guardians ad litem on other unrelated matters. The lawyers need consent because "even where the legal matters are dissimilar, the simultaneous representation of adverse clients is improper unless the clients consent and waive the conflict." Because the children are incapable of giving consent, a court must grant the consent. 4/20/1999
1619

printPrint
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
ABA-436

printPrint
18-Consent and Prospective Waivers

Recent changes to Model Rule 1.7 (and especially Comment [22]) allow "effective informed consent to a wider range of future conflicts" than under the early Model Rules. Because ABA LEO 372 (4/16/93) is "no longer consistent with the Model Rules," the ABA withdraws that opinion. Open-ended prospective consents are likely to be valid if (for instance) the client "has had the opportunity to be represented by independent counsel in relation to such consent and the consent is limited to matters not substantially related to the subject of the prior representation." Such consents do not authorize the lawyer to "reveal or use confidential client information" absent an additional explicit consent. The client's consent must be confirmed in writing under Model Rule 1.7(b)(4).5/11/2005
ABA-364

printPrint
18-Consent and Prospective Waivers

39-Miscellaneous

43-Conflicts of Interest - Miscellaneous

Sexual relations with clients may violate the Model Rules and lawyers "would be well advised to refrain from such a relationship." The client's consent to such a relationship "will rarely be sufficient" to eliminate the ethical dangers, and a lawyer whose conduct has been challenged will be called upon to establish that the client consented after full disclosure and was not harmed by the relationship. 7/6/1992
1767

printPrint
1-Adversity to Current Clients

2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

The Commonwealth's Attorney's Office may not prosecute defendants being represented by lawyers at a firm which is representing the Office in collection matters (consent is unavailable, because the client in the criminal cases is the Commonwealth, "which is unable to provide consent"). It would be unreasonable for defense attorneys to believe that their representation of criminal defendants would not be affected by the attorneys' representation of the Office (because the work provides a source of income to the defense attorney). Criminal defense lawyers would not be able to handle collection cases against their former clients without the former clients' consent (which seems "at best, unlikely"), yet the law does not allow the collection lawyer to subcontract cases involving the lawyer's former criminal clients. All of these disqualifications would be imputed to the entire law firm and the Office. The law establishing the collection procedures does not trump the ethics Rules.9/25/2002
1712

printPrint
5-Lawyers Changing Jobs

8-Bills and Fees

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

38-Fee Splitting

45-Law Firms - Miscellaneous

This is a comprehensive opinion dealing with temporary lawyers ("lawyer temps"). A lawyer temp is treated like a lateral hire for conflicts purposes (although lawyer temps who are not given "broad access to client files and client communications" could more easily argue that they had not obtained confidences from firm clients for which they had not directly worked). As with lateral hires, screening lawyer temps does not cure conflicts. Lawyer temps may reveal the identity of other clients for which they have worked unless the clients request otherwise or the disclosure would be embarrassing or detrimental to the former clients.Paying a staffing agency (which in turn pays the lawyer temp) does not amount to fee-splitting because the agency has no attorney-client relationship with the client and is not practicing law (the New York Bar took a different approach, suggesting that the client separately pay the lawyer temp and agency). If a firm lawyer closely supervises the lawyer temp, the hiring of lawyer temps need not be disclosed to the client. A lawyer must inform the client before assigning work to a lawyer other than one designated by the client.Because "a law firm's mark-up of or surcharge on actual costs paid the staffing agency is a fee," the firm must disclose it to the client if "payment made to the staffing agency is billed to the client as a disbursement, or cost advanced on the client's behalf." On the other hand, the firm "may simply bill the client for services rendered in an amount reflecting its charge for the Lawyer Temp's time and services" without disclosing the firm's cost, just as firms bill a client at a certain rate for associates without disclosing their salaries. In that case, the "spread" between the salary and the fees generated "is a function of the cost of doing business including fixed and variable overhead expenses, as well as a component for profit."Because the relationship between a lawyer temp and a client is a traditional attorney-client relationship, the agency "must not attempt to limit or in any way control the amount of time a lawyer may spend on a particular matter, nor attempt to control the types of legal matters which the Lawyer Temp may handle." Agencies may not assign lawyer temps to jobs for which they are not competent.7/22/1998
1515

printPrint
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
1746

printPrint
10-Former Government Lawyer Conflicts

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

This opinion addresses numerous scenarios involving a former Commonwealth’s Attorney’s ability to represent clients who have or have had some involvement in the criminal justice system during or after the time that the Commonwealth's Attorney held office. New Rule 1.11 differs from the earlier ethics Code in three respects: it applies to government lawyers who participated “personally and substantially” in a matter rather than those who had “substantial responsibility;” it applies to government lawyers who played such a role “in connection with a matter” rather than “in a matter;” and it requires curative consent from the new client in addition to the former government employer. The Bar finds that in some of the scenarios, the “former proceeding and the new proceeding share the same parties and some of the same significant facts,” thus triggering Rule 1.11. In determining if a government lawyer’s involvement was “personal and substantial,” the Bar indicated that “consideration should be given to whether his involvement was of such a degree as to provide the opportunity for that potential risk [“of abuse of a public position for the benefit of a private client”].” Government lawyers must also consider whether the “receipt of confidential information” creates a conflict. Although in a private setting consent could cure a conflict created by the receipt of confidential information, here “the former client is the Commonwealth; thus such consent is not available.”8/30/2000
1665

printPrint
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
1354

printPrint
18-Consent and Prospective Waivers

22-Interviews with Prospective Clients

Two passengers and a driver interviewed a lawyer about representing them in an action against the other driver in an accident. However, the lawyer eventually determined that the two passengers should sue their driver. The lawyer told them that the lawyer could represent the two passengers against the driver only if the driver consented. The driver gave oral consent but later refused to provide written consent. The lawyer could not represent the two passengers, because the driver had essentially refused to confirm her oral consent (although oral consent is permissible, the Bar implied that a refusal to immediately sign a written confirmation essentially nullified the consent). [The summary of the LEO incorrectly states that "consent may be withdrawn by a former client at any time."] 5/24/1990

Copyright 2000, Thomas E. Spahn