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: 25 - Dealing with Unrepresented People
LEO NumTopicsSummaryDate
1464

printPrint
9-Government Lawyer Conflicts

25-Dealing with Unrepresented People

66-Lawyers Acting as "Scriveners"

A city attorney acting as a "scrivener" for citizens preparing proposed ordinances to be considered by a city council might be deemed to be acting as a lawyer for the group if the lawyer's services created the "expectation" of such a relationship in the minds of the citizens. [Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the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]. (reconsideration 2/9/93)2/9/1993
1814

printPrint
25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

A criminal defense lawyer may directly or through an agent engage in legal undisclosed recording of a telephone call with an unrepresented witness whom the lawyer worries might change his story and implicate the lawyer's client. Because such tape recording involves "a higher risk of the unrepresented party misunderstanding the lawyer or the lawyer's agent's role," the lawyer or the agent "must assure that the unrepresented third party is aware of the lawyer or agent's role" in order to comply with the Rule 4.3 provision governing a lawyer's communication with an unrepresented person. Although many states previously found a lawyer's participation even in lawful tape recording of telephone calls to be unethical, "more recently a number of states have reversed or significantly revised their opinions to allow undisclosed recording" (describing many of those states' approaches in a footnote). [overruling LEO 1217 and LEO 1438 to the extent they are inconsistent with LEO 1814].5/3/2011
1795

printPrint
25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

A criminal defense lawyer representing a client charged with felony unauthorized use of a vehicle did not act improperly in asking the defendant's mother (who was the victim of the crime) to speak to him before speaking to the Commonwealth Attorney, because "that statement alone merely requested preferential treatment" and "did not request that she not speak to the Commonwealth Attorney at all." The criminal defense lawyer's statement to the mother that she "did not have to speak to the Commonwealth Attorney" was not an unethical request not to provide information, but amounted to improper advice to an unrepresented party (although the interests of the defendant's mother were not clear, because she was both the defendant's mother and the victim of the crime). The criminal defense lawyer's statement to his client's father that the father did not have to appear in court and that the father's testimony was "essential to the Commonwealth's case" were not unethical requests to withhold information, but amounted to improper advice to an unrepresented party. The Bar explained that the defense lawyer might have avoided these prohibitions if he had confirmed that the parents' interests were not in conflict with his client's interests.6/30/2004
1192

printPrint
25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A defense lawyer may advise an unrepresented deposition witness that the witness is not required to answer a particular question. 2/12/1989
1401

printPrint
25-Dealing with Unrepresented People

58-Real Estate Lawyers

A lawyer for a buyer in a real estate transaction asked that the seller execute a power of attorney authorizing the lawyer to sign necessary documents. Such a request would be improper if the seller was represented, and would be proper if the seller was unrepresented only if there was full disclosure of the lawyer's adversarial role and the seller's right to hire separate counsel. 3/12/1991
0669

printPrint
3-Multiple Representations on the Same Matter

25-Dealing with Unrepresented People

73-Family Law Lawyers

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

printPrint
25-Dealing with Unrepresented People

73-Family Law Lawyers

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

printPrint
25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer in a divorce case may prepare an acceptance of service form to be signed by an unrepresented party as long as the signature involves an administerial function only. 5/10/1985
1127

printPrint
25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may assist a pro se litigant in preparing pleadings, although such assistance establishes an attorney-client relationship and the lawyer' help might have to be revealed under the rules of some courts. [overruled to the extent it is inconsistent with LEO 1874 (7/28/14), which explained that the ethics rules do not prohibit undisclosed assistance to a pro se litigant, but some courts forbid it]11/21/1988
1589

printPrint
25-Dealing with Unrepresented People

57-In-House Lawyers

71-Representing Corporations

78-Communicating with an Employee of a Corporate Adversary

A lawyer may communicate directly with a former employee of an adverse party unless the lawyer knows that the former employee is represented by counsel. A corporation's lawyer may not simply advise a former employee that the lawyer is representing the former employee individually and direct the former employee not to speak with opposing counsel. Former employees have the right to choose their own counsel, and until they have done so the corporation's lawyer must treat them as unrepresented parties with potentially adverse interests (and thus may only advise them to secure counsel). [Rule 3.4(g) allows a lawyer to request that former employees of a corporate client "refrain from voluntarily giving relevant information to another party" under certain circumstances.]4/11/1994
0396

printPrint
25-Dealing with Unrepresented People

A lawyer may engage in settlement negotiations with lay adjusters. 11/15/1980
0884

printPrint
25-Dealing with Unrepresented People

73-Family Law Lawyers

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

printPrint
25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer may not prepare pleadings for or provide samples of pleadings to an unrepresented party in a divorce proceeding. [This Legal Ethics Opinion was overruled to the extent that it is inconsistent with Va. Code § 20-99.1:1 and LEO 1112.]12/16/1983
0890

printPrint
25-Dealing with Unrepresented People

73-Family Law Lawyers

A lawyer may obtain an endorsement on a consent order from an unrepresented party in a divorce matter as long as the lawyer advises the party to secure counsel and that the lawyer represents a party with adverse interests. 8/1/1987
0876

printPrint
25-Dealing with Unrepresented People

A lawyer may prepare pleadings for an unrepresented party in a domestic dispute if the lawyer advises the party that the lawyer represents the client (who has adverse interests), and advises the party to obtain counsel. 2/2/1987
0644

printPrint
25-Dealing with Unrepresented People

A lawyer may prepare the acceptance of service of process notice for an adverse party as long as the document is limited to a simple administrative matter. 1/16/1985
1697

printPrint
25-Dealing with Unrepresented People

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may represent the husband in a domestic assault case although the lawyer's partner has been acquainted with the victim's family for many years and acquired confidences about the victim's family, because the family never sought or received legal advice from the partner and none of the discussions occurred in the lawyer's "professional capacity as a lawyer, to which an expectation of confidentiality might attach, as opposed to conversations between friends." The lawyer representing the husband may nevertheless withdraw as long as there would be no material prejudice to the husband and the lawyer receives court approval (if there was a pending case).6/24/1997
0336

printPrint
25-Dealing with Unrepresented People

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

58-Real Estate Lawyers

A lawyer named as trustee for the benefit of a non-represented seller must resign if the seller later requests the lawyer to do so. 9/20/1979
1436

printPrint
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
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
0494

printPrint
25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A plaintiff's lawyer may not advise a potential tort defendant that the defendant will be responsible for costs and that the defendant's credit could be impaired if the defendant does not pay the tort claim. 9/3/1982
1507

printPrint
4-Witness-Advocate Rule

24-Representation of or Adversity to Witnesses

25-Dealing with Unrepresented People

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A public defender was appointed to represent a criminal defendant, but the public defender's office was currently representing or formerly represented a number of witnesses. The Bar held that "continued representation of a new client is improper when it becomes necessary to challenge the credibility of a former client, even in an unrelated matter, if it requires the use of the former client's confidential information in order to zealously represent the current client." Because the public defender was apparently representing one of the current adverse witnesses, the continued representation of the defendant required the consent of the defendant and the witness. The Commonwealth's Attorney had discussed the case with the witnesses. The Bar held that the Commonwealth's Attorney may not approach a present client of defense counsel without notifying defense counsel, and may not provide any legal advice (such as recommending signing a waiver) to any unrepresented former client.The public defender may continue to represent the defendant even if it became necessary to call one of the same office's former lawyers as a witness because DR 5-102(A) applies only when the lawyer-witness is presently associated with the firm.3/1/1993
0238

printPrint
25-Dealing with Unrepresented People

58-Real Estate Lawyers

A real estate seller's lawyer may prepare a deed and deed of trust as long as the lawyer explains the lawyer's role to the buyer. 1/3/1974
0228

printPrint
9-Government Lawyer Conflicts

25-Dealing with Unrepresented People

A state highway department lawyer may prepare documents a private landowner may sign to sell land to the state as long as the lawyer identifies the lawyer's role and invites the landowner to hire a separate lawyer to review the documents. 9/20/1973
1344

printPrint
25-Dealing with Unrepresented People

54-Insurance Defense Lawyers

An insurance carrier's lawyer may prepare settlement documents to be executed by a decedent's personal representative, but must include with the papers a description of the nature of the lawyer's work and the fact that the lawyer had advised the unrepresented personal representative to seek independent counsel. [This LEO overrules inconsistent portions of LEO 1019.] 5/31/1990
1019

printPrint
25-Dealing with Unrepresented People

54-Insurance Defense Lawyers

An insurance company's lawyer may not prepare pleadings or other legal documents for unrepresented parties interested in settling personal injury claims. [This practice is probably acceptable as long as the lawyer does not provide any substantive advice or overreach.]1/11/1988
0586

printPrint
8-Bills and Fees

25-Dealing with Unrepresented People

39-Miscellaneous

Even if the lawyer has approved the form of the letter, a lawyer may not allow the client to use the lawyer's letterhead and signature stamp to send collection demand letters. A lawyer may forward to the client any court-awarded attorneys' fees as long as they are a direct reimbursement for services rendered to the client. 6/14/1984
0747

printPrint
6-Lawyers Paid by Third Party

25-Dealing with Unrepresented People

58-Real Estate Lawyers

In a real estate transaction, the seller's lawyer must advise the buyer that the lawyer represents only seller, even if the seller pays the buyer's closing costs. 12/4/1985
0260

printPrint
25-Dealing with Unrepresented People

75-Representing Estates and Executors

76-Trust and Estate Lawyers

It is not improper for a lawyer representing an executor-beneficiary to fail to advise another beneficiary whose interests "potentially" conflict with those of the executor-beneficiary to hire another lawyer, but the executor has a fiduciary duty to advise the other beneficiary to hire another lawyer. 5/16/1975
ABA-472

printPrint
23-Communicating with an Adversary - Miscellaneous

25-Dealing with Unrepresented People

77-Communicating with an Individual Adversary

Lawyers providing limited-scope representations should describe those limits in writing. Opposing counsel may communicate ex parte with such clients on matters outside the limited representation's scope. Such opposing counsel have no duty to ask third parties whether they are represented, but may not avoid the ex parte communication prohibition by "closing eyes to the obvious." Thus, opposing counsel dealing with a possibly unrepresented person who has filed a pleading likely to have been prepared by a lawyer should ask the person whether she is represented by a lawyer. Opposing counsel may not communicate with such a person unless the person indicates "that the representation has concluded" or unless the issue "to be discussed is clearly outside the scope of the limited-scope representation.11/30/2015
1112

printPrint
25-Dealing with Unrepresented People

73-Family Law Lawyers

LEOs 535 and 669 (regarding a lawyer preparing a waiver of notice for an unrepresented party in a domestic relations matter) are overruled by Va. Code § 20-99.1:1, although a lawyer may not provide any advice to an unrepresented party except to secure counsel. 9/1/1988
1156

printPrint
25-Dealing with Unrepresented People

44-Conflicts - Miscellaneous

Preparation of tax returns may constitute the practice of law if the lawyer is providing advice and legal skills. The lawyer may prepare the tax returns for a client and an unrepresented party if a lawyer discloses the lawyer's loyalty to the client.1/31/1989

Copyright 2000, Thomas E. Spahn