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: 27 - Litigation Tactics (Including Misrepresentations, Tape Recordings)
LEO NumTopicsSummaryDate
ABA-367

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1-Adversity to Current Clients

24-Representation of or Adversity to Witnesses

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

"The Committee concludes that a lawyer's examining the lawyer's client as an adverse witness, or conducting third party discovery of a client, will ordinarily present a conflict of interest that is disqualifying absent consent of one or both of the clients involved (depending . . . on the nature and degree of the conflict)." A witness would be considered a current client for conflicts purposes "if there is a continuing relationship between lawyer and client, even if the lawyer is not on a retainer, and even if no active matters are being handled." A lawyer in that situation could face a conflict if the lawyer has "specific confidential information relevant to the cross-examination," or even if the lawyer only has general information -- "to the extent a lawyer's general familiarity with how a client's mind works is relevant and useful information, it may also be disqualifying information within the contemplation of Rule 1.8(b), which generally prohibits a lawyer from using information relating to the representation of a client to the disadvantage of the client unless the client consents after consultation." In a situation where the lawyer is called upon to cross-examine a doctor client who is acting as the adversary's expert witness, "there will almost inescapably be a direct adverseness," thus requiring the doctor's consent to handle the cross-examination. "In some instances, a sufficient solution may be to provide for other counsel, also representing the litigation counsel, to deal with the client-witness: where local counsel as well as principal counsel are involved in a litigation, the disqualication applying to one of these will not ordinarily affect the other. In other circumstances, a satisfactory solution may be the retention of another lawyer solely for the purpose of examining the principal lawyer's client."10/16/1992
1252

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

"Unless the attorney has received prior express or implied authorization from the client to reject [settlement] offers below a predetermined threshold of acceptability," a lawyer must pass all settlement offers along to a client, even if the lawyer believes them to be "absurd." 9/27/1989
1688

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

[WITHDRAWN] A client suing a former employer receives (from a former colleague at the company) a letter to the employer from its lawyer. The client gives a copy of the letter to the client's lawyer, who does not read it but instead seals it in an envelope. The client asks the lawyer to destroy the letter, because the client is worried that the former colleague will be punished if the letter is disclosed. The Bar holds that: the existence and contents of the letter constitute a client "secret"; the lawyer is not required to read the letter, because the "zealous representation" duty is outweighed by the client's instructions to destroy the letter; the lawyer is under no obligation to disclose the letter's existence because there is no "ongoing client crime or fraud involved;" the lawyer need not provide a copy of the letter to the employer (unless there is an outstanding discovery request, in which case the lawyer should object to the request but comply with any order to produce the letter); the lawyer need not withdraw from representing the client. [Although it may not change the result of this LEO, the word "zealous" does not appear in the Rule themselves.]12/9/1996
1470

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A bank had a claim against a company based on a bank customer's allegations. The bank's lawyer asked whether the lawyer could advise the company's lawyer that the customer's allegations were true, even though they were mere allegations and had not yet been proven at trial. The Bar held that the bank's lawyer could not state with certainty that the customer's allegations were true, because they had not yet been proven at trial.8/24/1992
0278

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A client's wife stole a document from the client's employer to use in a lawsuit. As long as the client's lawyer was not involved in the theft, the lawyer may continue to represent the client and use the document. [LEO 1702 would require the lawyer to return the stolen document.]1/29/1976
1854

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney cannot offer a plea agreement to a criminal defendant based on the testimony of a witness whose identity the Commonwealth Attorney insists that the defense lawyer refrain from sharing with the criminal client (because the ethics rules prohibit lawyers from requesting anyone other than clients and certain specified others to refrain from voluntarily providing information to an adversary). On the other hand, the Commonwealth's Attorney may offer a plea agreement based on a "nameless confidential informant." In discussing the defense lawyer's duties, the Bar explains that the defendant's lawyer might be able to withhold the confidential witness's identity and involvement if the defense lawyer "believes that the defendant has enough relevant information about the pertinent facts to make an informed decision" about accepting the plea agreement.10/5/2010
0848

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

77-Communicating with an Individual Adversary

A Commonwealth's Attorney may not arrange for a criminal suspect to tape record telephone conversations with an uncharged suspect. A Commonwealth's Attorney may not communicate with an uncharged suspect through another suspect, without the uncharged suspect's lawyer's consent. [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.]10/9/1986
0416

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

A Commonwealth's Attorney may not send letters congratulating jurors or grand jurors for doing a good job. 5/21/1981
1635

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21-Reporting Another Lawyer's Unethical Conduct

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

57-In-House Lawyers

63-Lawyers Acting as Corporate Officers or Directors

A company officer (who is also a lawyer) tape records a telephone conversation the officer has with a terminated corporate employee. Because the Code provision prohibiting lawyers from engaging in misrepresentation is "not specifically applicable to activities undertaken in an attorney-client relationship," the lawyer's tape recording was improper even if the officer were acting only as a corporate officer and not as the corporate lawyer.After citing the familiar list of factors for determining whether a lawyer's misconduct must be reported, the Bar concludes that the tape recording without consent "may raise a substantial question" as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. The Bar cautions that the reporting lawyer must be "vigilant" in avoiding such reporting "solely to obtain an advantage in a civil matter." [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]2/7/1995
1530

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

48-Criminal Defense Lawyers

A court-appointed lawyer representing a criminal in an appeal refused to file a motion the lawyer considers frivolous, and withdrew from the representation. Although normally a lawyer would have a duty to proceed with post-trial remedies (unless the lawyer may withdraw without prejudice), "that duty has been displaced by his ethical duty not to file unwarranted or frivolous motions."5/11/1993
0965

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

A court-appointed lawyer who is offered money by the client to sue the client's former lawyer (which apparently is a criminal act) may avoid violating the criminal law by advising the client of the implications of his offer and not accepting any money. Court-appointed lawyers should seek to withdraw only for compelling reasons, which do not include dislike of the subject matter. 8/24/1987
1814

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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
0547

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

A criminal defense lawyer may seek a settlement in exchange for dismissing criminal charges.3/1/1984
1795

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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

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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
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
1879

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

A government lawyer acting as "an administrative prosecutor before a regulatory agency or board": (1) is not governed by Rule 8.3, because that rule applies to criminal prosecutions and not to administrative proceedings; (2) is governed by Rule 3.1, and therefore "should not proceed unless there is a non-frivolous basis for doing so."1/15/2015
0972

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A law firm should have advised the tribunal before obtaining a judgment against a debtor who had paid the amount due in full after being served and before the hearing date. 9/30/1987
1678

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

80-Communicating with an Adversary's Expert

A lawyer (acting directly or through an expert witness) may not "advise the other party's expert witness not to testify," although the lawyer has no duty to take any measures in response to the lawyer's expert acting independently in convincing the opposing expert not to testify (unless the "tampering" is a "fraud on the tribunal" or the lawyer hired the expert "merely to harass or maliciously injure plaintiff by subverting plaintiff's employment" of an expert, which did not occur here). 9/5/1996
1071

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

54-Insurance Defense Lawyers

A lawyer for a worker's compensation insurer may propose to the lawyer for the worker that the insurer would not intervene in the action the worker had filed against the defendant if the worker agreed to pay the workers' compensation lien without taking any attorneys' fees. 5/31/1988
ABA-397

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

37-Settlements

A lawyer has a duty to inform opposing counsel of the client's death in the midst of settlement negotiations (silence is "tantamount to making a false statement of material fact"). 9/18/1995
1552

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer has acted improperly in arranging for the issuance of a deposition subpoena without sending a deposition notice, then releasing the witness from the deposition after interviewing the witness ex parte. 10/20/1993
1222

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer has advised a client to enter into an agreement under which the client will not reveal the client's wife's lover's criminal drug use. The Bar held that if the lawyer's conduct constituted misprision of a felony, the lawyer would be violating the Rules. 6/5/1989
1445

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer has an ethical duty to investigate the facts of a complaint before lodging the complaint with a regulatory agency. 1/6/1992
0486

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer has no duty to advise the court that its opinion may be based on a factual error as long as neither the lawyer nor the client misrepresented any facts and the court did not recite any erroneous facts in its opinion. 11/8/1982
1477

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A lawyer learned that a client's answers to interrogatories were incorrect, and required updating under Supreme Court Rules. The client wanted to settle the case before amending the answers, because the amendment could adversely affect the settlement value. The lawyer may not attempt to settle the case before amending the answers, because they were signed under oath and the lawyer now knew that they were inaccurate. Such a settlement would be "fraudulently induced," whether the lawyer "verbally reaffirmed the incorrect answers or simply remained silent as to their inaccuracy during the negotiations process." [Rule 3.3(a)(2) and Rule 4.1(b) require a lawyer to disclose facts if disclosure is necessary to avoid assisting a client's criminal or fraudulent acts.]8/24/1992
1121

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may accept a representation for the sole purpose of writing a creditor demand letter, but may not threaten litigation when the lawyer knows that the client has hired the lawyer solely to write a demand letter. 9/1/1988
0224

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may appeal an adverse lower court judgment even if the appeal itself has the effect of defeating the intent of the judgment, as long as the appeal has merit. 4/27/1973
0449

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8-Bills and Fees

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may arrange for a medical expert to provide technical assistance on a contingent fee basis, because the ban on contingent fee arrangements applies to expert witnesses, not consultants. 4/13/1982
1127

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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
1749

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

78-Communicating with an Employee of a Corporate Adversary

A lawyer may communicate ex parte with former employees of a corporate adversary, but may not inquire into matters known or "reasonably apprehended" to be confidential or privileged. Under Rule 3.4(f), the corporation’s lawyer "may request that the former employee not communicate with opposing counsel."3/21/2001
ABA-402

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may compensate a non-expert witness for time spent in attending a deposition or trial, meeting with the lawyer to prepare for providing testimony and reviewing documents, as long as the fee is reasonable and the payment is not "being made for the substance or efficacy of the witness's testimony." Determining the reasonableness of the fee is easy when the witness loses hourly wages or a professional fee, but becomes more difficult "where the witness has not sustained any direct loss of income" (if, for instance, the client is retired or unemployed). 8/2/1996
1076

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

80-Communicating with an Adversary's Expert

A lawyer may contact an adversary's expert witness, although "courtesy" would suggest that the lawyer advise the adversary's counsel. The Bar also indicated that a lawyer receiving "selected items" from an opponent's file from "some unknown third party" was not obligated to return the materials and could read and use them for the client's benefit (the Bar noted that "out of professional courtesy you should inform the opposing counsel that you have received these materials.") [LEO 1702 would require the lawyer to return the materials without reading them.]5/17/1988
0249

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

40-Trust Accounts

A lawyer may demand a written assurance from opposing counsel that money will be placed in escrow. 10/2/1974
1047

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

38-Fee Splitting

A lawyer may engage a medical consulting firm that receives compensation on a contingent fee basis as long as the lawyer does not share any portion of a fee with a consulting firm and as long as no payments to any expert witness the consulting firm might provide are contingent on the outcome of the case in which the expert testifies. 3/8/1988
1224

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer may ethically file an action asserting a cause of action which had previously been dismissed in a similar case by the same court. The lawyer may ethically refrain from telling the court of the earlier action, but must answer honestly if the court asks about prior rulings. Furthermore, the earlier decision was being appealed, so the lawyer could be making a good faith argument for an extension, modification or reversal of existing law. [Rule 3.3(a)(3) would require disclosure if the earlier decision was "controlling legal authority."]3/9/1989
0491

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

A lawyer may file an action even after the statute of limitations has run, because the statute of limitations is an affirmative defense which is effective only if raised. 9/3/1982
0630

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may move to disqualify a hearing officer. 12/3/1984
ABA-387

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer may not advise an adversary that the statute of limitations has run on the lawyer's client's claim (because the running is a client confidence). The lawyer may file a time-barred action (because the statute of limitations is an affirmative defense), unless the jurisdiction prohibits such a filing. 9/26/1994
0948

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not ask a doctor to alter medical records even though a lawsuit has not been filed, because the medical records are likely to be relevant evidence if a case is filed. 6/18/1987
1215

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer may not disclose to the court or the prosecutor that the court had granted a continuance at the prosecutor's request and set the lawyer's client's first degree murder trial one day after the expiration of the time during which the prosecution could proceed. The lawyer's client's case was originally set for trial within the permissible time limit, but the prosecution later sought to rearrange trial dates of various co-defendants, and had arranged for a trial on a day that the lawyer had earlier advised the court he was available. "You were not consulted before the request for the continuance, nor have you consented to the continuance of this case. You allege that the time limitation for the prosecution of this felony will expire on February 8, 1989, one day before the case is set for trial pursuant to § 19.2-243 of the Code of Virginia.". "It is the opinion of the Committee that since you have no legal obligation to reveal the expiration of the limitations period, you may not reveal it to the detriment of your client."1/31/1989
1327

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not file a civil action hoping to seek a default judgment against a debtor when the lawyer knows that the debt has been discharged in bankruptcy, because such a claim would be unwarranted.2/27/1990
0743

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not include false information in interrogatories. 11/18/1985
0651

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

78-Communicating with an Employee of a Corporate Adversary

A lawyer may not obtain information or documents from a former employee of opposing counsel, or review an opposing counsel's file inadvertently left in the lawyer's office if the lawyer's conduct is "deliberately wrongful" or involves dishonesty, fraud, deceit or misrepresentation. [This LEO was overruled by LEO 1702, which would require the lawyer to refrain from reviewing this material.]1/14/1985
1404

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not pay a process server to prevent service of papers on the lawyer's client, because it is a deliberately wrongful act that serves to delay and interfere with the judicial process. 3/12/1991
0768

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not prepare false interrogatory answers. 3/11/1986
0732

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not send a collection letter indicating that the debtor's personal property will be levied upon and sold when no claim has yet been filed, because such a statement would be a misrepresentation. 10/21/1985
1103

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not send a warrant in debt directly to a debtor that implies that the warrant in debt had been filed in court and that judgment would be obtained on a return date that was stated on the warrant, because the warrant would be misleading. 6/29/1988
0417

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not send letters to jurors thanking them for their work. 5/21/1981
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
0587

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

29-Advancing Fees and Costs

A lawyer may pay witnesses for the reasonable value of time they have expended, as long as the payment is not an inducement to testify and is not contingent on the outcome of the case; and the lawyer's client remains ultimately responsible for the bill. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]6/14/1984
ABA-422

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may record a telephone conversation without the consent of the other party to the conversation, as long as the recording does not violate state law and the lawyer does not lie to the other party to the conversation; “it is inadvisable for lawyers to surreptitiously record telephone conversations with their clients”.6/24/2001
1233

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

35-Threatening Criminal and Disciplinary Action

A lawyer may set a deadline for an adversary to settle a matter before filing a lawsuit that will include a claim for punitive damages, but may not bring a criminal action solely to gain an advantage in a civil matter. (The Bar has no jurisdiction to determine whether the lawyer would commit the common law crime of misprision of a felony by not reporting the adversary's criminal conduct). 5/8/1989
1736

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24-Representation of or Adversity to Witnesses

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

A lawyer may threaten to seek "appropriate legal action" against a nonparty witness for defamation of the lawyer's client if the lawyer has a "well-founded belief that the threatened legal action is warranted," but may not engage in such a tactic if the "threatened legal action is without legal basis in law or fact, and the threatened suit is made merely to harass and intimidate the witness, or influence the witness not to come forward with truthful and relevant information." 10/20/1999
0194

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

A lawyer must advise a court if it lacks jurisdiction over a matter in which the lawyer is involved. 7/30/1968
1314

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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
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-368

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A lawyer receiving materials that appear privileged or otherwise confidential should not examine the materials and should instead return them. [withdrawn in ABA LEO 437 10/1/2005]11/10/1992
ABA-382

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer receiving privileged or confidential materials from someone who may not be authorized to reveal them should not review the materials but may keep them until a court rules on their disposition. 7/5/1994
0839

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

73-Family Law Lawyers

A lawyer represented a wife interested in starting a divorce action against her husband. The wife advised the lawyer that she has called a new boyfriend from her home telephone. The lawyer advised the client to destroy the telephone bills and call the boyfriend from another telephone, since any proof of adultery would hurt the wife's position in the planned divorce action. The Bar indicated that the lawyer's advice did not amount to an ethical violation. [The lawyer almost surely could not advise the client to destroy the telephone bills if it is foreseeable that the bills would be relevant evidence in the planned divorce action.] 10/9/1986
1084

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer representing a husband in a divorce case may not prepare two decrees that might induce federal officials to believe that the wife continues to remain eligible for federal payments, because preparation of the decrees would be misleading. In addition, the lawyer would be violating the ethics rules if the client has a duty to provide full information to federal authorities. 6/14/1988
1141

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer representing a widow in a medical malpractice/wrongful death action may use files taken by the widow from the treating physician's office. The files are not "fruits of a crime" but the lawyer should advise the widow to return the original of the file. The lawyer could keep and use a copy of it. [This LEO was overruled by LEO 1702.]10/17/1988
ABA-459

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A lawyer representing an employee who might communicate with the lawyer using the employer's email system should warn the employee that the employer's policy might allow it to access such communications. Lawyers ordinarily should take the same step if they represent clients using library or hotel computers, or using a home computer that can be accessed by adverse family members. This disclosure duty arises "once the lawyer has reason to believe that there is a significant risk" that the client might communicate through means that third parties can access.8/4/2011
0920

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A lawyer representing an employer in appealing the award of unemployment compensation to three company employees sees one of the employees outside the Virginia Employment Commission office while preparing for a hearing on another employee's unemployment benefits. That employee tells the lawyer that he intends to be a witness at his colleague's hearing. The employee preparing for his hearing knows that his colleague is present, but represents himself pro se at the hearing and indicates at the end that he has no other evidence to present. When the VEC rules in favor of the company, the losing employee hires a lawyer, who asks for the hearing to be re opened, arguing that the company's lawyer should have disclosed the availability as a witness of the other employee whom the lawyer saw outside the hearing room. The Bar holds that the lawyer was not obligated to tell the Virginia Employment Commission about the unhelpful witness, and in fact had a duty not to make this disclosure because it would have hurt the lawyer's client (the company).6/11/1987
0287

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

76-Trust and Estate Lawyers

A lawyer representing an estate's administrator is not obligated to disclose the administrator's embezzlement if the stolen money is to be repaid. [It would seem inevitable that the lawyer would eventually have to reveal the embezzlement or else assist in the filing of a fraudulent accounting or other document.] 1/30/1978
0305

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

A lawyer should withdraw from representing a client seeking to avoid service of process if the client does not follow the lawyer's advice to accept service of process. 11/27/1978
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
1432

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer who had agreed to obtain books and records from a corporation but who had instead non-suited the case had not fulfilled the agreed-upon obligation, and may have a duty to refile the action to prevent the statute of limitations from running. 9/17/1991
0412

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer who inadvertently contacted three veniremen while conducting a jury survey did not violate the Code because the lawyer did not act with knowledge of their membership on the venire. 5/21/1981
1583

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer who inadvertently receives an original court document (relating to the client's criminal conviction) must immediately return the document to the court.4/11/1994
0308

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

A lawyer whose clients have received bad checks may send letters threatening to sue unless the client receives payment plus a reasonable service charge. 12/12/1978
1787

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A lawyer's duty to protect a client's confidences (which includes both information protected by the attorney-client privilege and by the work product doctrine) justifies an arrangement under which an unrepresented expert witness retained by the lawyer agrees to: (1) advise the lawyer if the expert receives a document request or subpoena seeking the production of protected information that the lawyer has given the expert witness; and (2) delay responding to such discovery until the court can rule on a motion to quash or a motion for a protective order.12/22/2003
1338

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21-Reporting Another Lawyer's Unethical Conduct

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

A lawyer's groundless accusations of unethical conduct solely to gain an advantage in a civil matter could themselves be unethical. 4/20/1990
1214

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer's loud, angry and offensive criticisms of an adversary and threats to file lawsuits would violate the ethics rules if they were made purely for the purpose of harassment or malicious injury. 3/10/1989
1397

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer's repeated miscertification on a certificate of service violates the ethics rules even if negligent. A single instance of an intentional miscertification also violates the ethics rules. 1/14/1991
1413

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

A personal injury client entered into an agreement under which any verdict or settlement proceeds would be used to cover medical bills, but the client later instructed the lawyer to give all of the settlement proceeds to the client (who kept them). The Bar indicated that the situation raised only a legal question, and did not implicate Canon 9, which deals only with preserving a client's funds (not a third party's funds). [This Opinion was overruled in LEO 1747]. 1/10/1992
1747

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

A personal injury lawyer who signed an agreement under which a client gave a lien on any settlement proceeds to a treating doctor may not follow the client’s direction to ignore the provision and give the client all of the proceeds. The Virginia Supreme Court also recognizes that a client in this situation owes some duty to the third party with whom the client has contracted. The lawyer should segregate any disputed funds and interplead them into court if necessary. [This LEO overruled LEO 1413]. 6/26/2000
0924

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A plaintiff's lawyer learning that a witness on whose testimony the lawyer's client's case depends has lied during a deposition may not "negotiate a settlement on behalf of [the] client using, by implication or otherwise" the false deposition statement. As long as the lawyer asserts only facts known to be true, the lawyer "need not disclose to counsel for defendant the witness's admission of fabrication unless subsequent discovery makes further denial impossible." [The Bar did not discuss the lawyer's possible duty to reveal the perjured testimony to the tribunal.] 6/11/1987
0494

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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
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
1871

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A plaintiff's lawyer reviewing a defendant's document production who finds an obviously protected memorandum prepared by defendant's lawyer (summarizing his witness interviews) must comply with Supreme Court Rule 4:1(b)(6)(ii) and, to the extent that rule does not trump it, Virginia LEO 1702 (11/24/97). That Supreme Court rule allows a producing party to make a post-production privilege or work product claim, which requires the receiving party to sequester or destroy the protected document, and take "reasonable steps" to retrieve any information that has already been disseminated to others. Virginia LEO 1702 "concludes that when a lawyer inadvertently receives confidential information, he is ethically obliged to return that information to the lawyer from whom the information was received, or to otherwise follow the sending lawyer's instructions, even if those instructions are to destroy the document." Here, the plaintiff's lawyer "should have promptly notified defendant's lawyer of his possession of the memo, in accord with LEO 1702, and then either sequestered or destroyed his copy of the memo pending a judicial determination of whether he could use the document." In contrast, the "requirements of LEO 1702 fully apply. . . . [o]utside of the discovery process, [and thus presumably do not permit sequestration rather than return or destruction]." [Virginia LEO 1702 (11/24/97) involved an errant fax, which "was immediately recognized by a member of [the receiving lawyer's staff]" as a protected document. The LEO indicated that "boilerplate" notices on fax cover pages did not put the receiving lawyer on notice of the protected status of the fax, and that "[i]n some cases it may not be apparent without reading the document received that it is confidential or was transmitted inadvertently." The LEO explained that the receiving lawyer's duty to notify the sending lawyer of the error and to follow the sending lawyer's instruction is triggered "once the receiving lawyer discovers that he has a confidential document inadvertently transmitted by opposing counsel or opposing counsel's client."]7/24/2013
0846

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A prosecutor or government lawyer should not subpoena a lawyer in a criminal case or proceeding (including a grand jury proceeding) without court approval. (This rule was adopted by the Virginia Supreme Court on June 15, 1987, effective September 1, 1987).9/1/1987
1495

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

A Virginia lawyer may not ask a court to issue an unenforceable subpoena duces tecum addressed to a North Carolina resident, and may not request a show cause based on failure to comply. This conduct would violate the rule prohibiting a lawyer from engaging in dishonest conduct. 11/5/1992
1702

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Adopting the reasoning of ABA LEO 368, the Bar concludes that a lawyer receiving "inadvertently transmitted confidential documents from opposing counsel or opposing counsel's client" must return the documents. Although prohibiting a lawyer from reading an inadvertently transmitted document based on "boilerplate" notices on fax cover pages would "violate reality," once the lawyer recognizes a document as confidential, the lawyer "has an ethical duty to notify opposing counsel, to honor opposing counsel's instructions about disposition of the document, and not to use the document in contravention of opposing counsel's instructions." Although some cases adopt a "doctrinaire rule that even an inadvertent transmission of confidential documents causes a loss of attorney-client privilege and permits the receiving lawyer to use the documents," the "rules of evidence do not . . . displace ethical standards governing lawyers.The Bar also endorses the approach of ABA LEO 382, which indicates that a lawyer may decline to return (and instead seek judicial guidance about) a privileged and confidential document the lawyer receives from someone other than the document's owner (such as a disgruntled employee, possible "whistleblower," etc.) -- explaining that the different approach reflects the inherently different situation from that addressed in ABA LEO 368, because the third party's transmission of the document was not inadvertent (although it might have been unauthorized), and because the document might reflect criminal conduct by its owner, or should have been already disclosed by the owner to the lawyer.11/24/1997
1802

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

After describing the Virginia Bar's long history of addressing lawyers' ability to advise clients to tape record conversations (including a discussion of Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E. 2nd 597 (1989)), the Bar holds that lawyers would not violate the ethics rules by advising their clients about the clients' ability to tape record conversations in two scenarios: (1) a client seeking evidence of a father's sexual abuse of the client, which the father has admitted during previous telephone calls with the client (overruling the Bar's holding in Virginia LEO 1448 (1/6/92), which held that such a lawyer could not advise the client to tape record conversations with her father); (2) a corporate employee's effort to prove sexual harassment by a co worker, which could be captured by the employee's wearing of a recording device at work. In both of these situations, the Bar held that "[t]he proposed undisclosed recording is not only lawful, but could very well be the only means by which the client may obtain relevant evidence." 1/6/92) [Overruling Virginia LEO 1448 and effectively overruling Virginia LEO 1324; effectively expanding Virginia LEO 1738]9/29/2010
ABA-466

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23-Communicating with an Adversary - Miscellaneous

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

Although the line between "properly investigating jurors and improperly communicating with them" is "increasingly blurred," lawyers may (and in some states must) engage in a "passive review" of jurors' electronic social media (which is similar to "driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer's jury-selection decisions"). An electronically sent electronic source media ("ESM") feature notifying a juror that a lawyer has conducted such a search is not a prohibited "communication" to the juror (instead it "is akin to a neighbor's recognizing a lawyer's car driving down the juror's street and telling the juror that the lawyer had been seen driving down the street"). In contrast, lawyers may not send an "access request" to a juror, because that would be a prohibited communication ("akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past"). Trial judges can "dispel any juror misperception that a lawyer is acting improperly" when conducting such a search by discussing with jurors "the likely practice of trial lawyers reviewing jurors' ESM." Lawyers learning through a search of jurors' ESM that a juror has engaged in "criminal or fraudulent conduct related to the proceeding" must take remedial action, including reporting the misconduct to the court. The Ethics 2000 Commission apparently intended to expand the disclosure duty to such a person's "improper conduct," but Model Rule 3.3(b) is still limited to "criminal or fraudulent" conduct. Lawyers' disclosure duty upon learning of a juror's misconduct such as improper communications during jury service "will depend on the lawyer's assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes."4/24/2014
1580

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9-Government Lawyer Conflicts

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

An Assistant Attorney General may ethically argue that a prior case decision should control a hearing panel's decision even if the Assistant Attorney General knows that the earlier decision "does not reflect that it was the product of a settlement agreement and not the product of a panel opinion." 3/9/1994
1786

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Analyzing a series of hypotheticals in which a lawyer receives documents about an adversary that might be useful, the Bar explains that: lawyers may not direct clients to obtain evidence via a method that the lawyers themselves may not engage in; determining whether lawyers must return documents that their clients have removed from the client’s employer’s office depends on a number of factors, including the client’s authorization to handle the documents and the absence or presence of privileged communications in the documents; although the ABA has changed the Model Rules to replace a “return unread” policy with a notice requirement in the case of inadvertent transmission of privileged communications, Virginia has not changed its rules -- so under LEO 1702 lawyers should return unread an adversary’s privileged documents given to the lawyer by clients, even if the client “had the documents as part of his employment”; lawyers are not required to notify the opposing party of such receipt of privileged documents if a whistleblower statute permits the lawyer to refrain from providing notice; an additional exception to the “return unread and provide notice" rule applies if the client/employee made a copy of the employer’s documents rather than took originals; LEO 1702 applies only to documents containing privileged communications of an adversary -- thus, lawyers may review and use such documents as long as the lawyer has not obtained the documents through the use of methods “that violate the legal rights of a third person under Rule 4.4"; determining whether Rule 4.4 would prohibit the lawyer’s use of the documents “depends on whether the documents are originals or copies, whether any litigation is foreseen, how the employee acquired the materials, and their relevancy to the potential litigation”; lawyers should remember that stolen documents might amount to “fruits or instrumentalities of a crime” and thus have to be turned over to law enforcement authorities; all of these rules would not prohibit government lawyers from engaging in the collection of documents that is “part of the lawful operation” of a U.S. Attorney’s investigation.12/10/2004
1549

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

As long as it violates no court rule, a lawyer may contact jurors after their term has expired to determine if they considered extraneous factors in reaching an earlier verdict. Preventing such contact would preclude a lawyer from determining if "the verdict might be subject to legal challenge." The Bar affirmed its earlier LEOs prohibiting a lawyer from sending thank-you letters to members of the jury, because they could be seen as attempting to influence jurors' actions in future jury service. 8/12/1993
ABA-442

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

As long as the receiving lawyer did not obtain an electronic document in an improper manner, the lawyer may ethically examine the document's metadata, including even using "more thorough or extraordinary investigative measures" that might "permit the retrieval of imbedded information that the provider of electronic documents either did not know existed, or thought was deleted." The opinion does not analyze whether the transmission of such metadata is "inadvertent," but at most such an inadvertent transmission would require the receiving lawyer to notify the sending lawyer of the metadata's receipt. Lawyers "sending or producing" electronic documents can take steps to avoid transmitting metadata (through new means such as scrubbing software, or more traditional means such as faxing the document). Lawyers can also negotiate confidentiality agreements or protective orders allowing the client "to 'pull back,' or prevent the introduction of evidence based upon, the document that contains that imbedded information or the information itself."8/5/2006
1036

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

As long as there was a basis for the threatened action, a lawyer may send another lawyer a letter threatening to hold the lawyer personally liable for any damages caused by publication of notice of a trustee's sale. 2/15/1988
0722

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Assuming that it does not involve a crime, a lawyer may advise a client that the client has no duty to cooperate in a service of civil process and may take a vacation or refuse to answer his door. 8/30/1985
ABA-446

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

32-Lawyers Acting in Other Roles (Miscellaneous)

56-Duty to Advise the Court

Because "the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of litigation," a lawyer "may provide legal assistance to litigants appearing before tribunals "pro se" and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance." The Committee does not share the concern raised by some that pro se litigants "are the beneficiaries of special treatment" and that pro se litigants' pleadings "are held to less stringent standards than formal pleadings drafted by lawyers." As one commentator has noted, a court recognizing a higher quality of pro se litigants' pleadings simply refrains from applying any "liberality in construction," because "liberality is, by definition, only necessary where pleadings are obscure." A lawyer failing to disclose assistance to a pro se litigant does not violate Model Rule 8.4(c) because the lawyer is not making any statement to the forum. A lawyer might be obligated by Model Rules 1.2 and 1.6 not to disclose such assistance. A lawyer who does not sign a pleading is not assuming any responsibility for the pleading. Lawyers' obligations to disclose such assistance may be governed by a jurisdiction's law or tribunal rule. [superseding ABA Informal Opinion 1414]5/5/2007
1857

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

39-Miscellaneous

43-Conflicts of Interest - Miscellaneous

48-Criminal Defense Lawyers

Because of the inherent conflict, a criminal defense lawyer may not ethically advise a client to accept a plea agreement provision that "operates as a waiver of the client's right to claim ineffective assistance of counsel." Some states do not ever allow defense lawyers to advise clients about the issue, but here the defense lawyer was reacting to the prosecutor's proposed plea agreement. Prosecutors may not offer a plea agreement "containing a provision that has the intent and legal effect of waiving the defendant's right to claim ineffective assistance of counsel.7/21/2011
ABA-437

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

Citing February 2002 ABA Model Rules changes, the ABA withdraws ABA LEO 368, and holds that ABA Model Rule 4.4(b) governing the conduct of lawyers who receive inadvertently transmitted privileged communications from a third party "only obligates the receiving lawyer to notify the sender of the inadvertent transmission promptly. The rule does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer."10/1/2005
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
1726

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Defense counsel in a workers' compensation proceeding may prepare a doctor's medical report on the hospital's letterhead as long as "the content of the lawyer-composed medical report . . . honestly . . . capture[s] the testimony that the physician wishes to present (as opposed to lawyer-created testimony that the lawyer wishes to present irrespective of the physician's own testimony) and [is] reviewed, adopted and signed by the physician voluntarily." [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].12/10/1998
ABA-460

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Despite some case law to the contrary, a lawyer's Rule 4.4(b) duty to advise the sender if the lawyer receives "inadvertently sent" documents does not arise if the lawyer's client gives the lawyer documents the client has retrieved "from a public or private place where [the document] is stored or left." A document is "inadvertently sent" when it is "accidentally transmitted to an unintended recipient, as occurs when an e mail or letter is misaddressed or when a document is accidentally attached to an e mail or accidentally included among other documents produced in discovery." For example, a lawyer representing an employer does not have such a disclosure duty if the employer retrieves and gives the lawyer privileged emails between an employee and the employee's lawyer that are stored on the employer's computer system. Such lawyers might face some duty or even punishment under civil procedure rules or court decisions, but the ethics rules "do not independently impose an ethical duty to notify opposing counsel" in such situations. In fact, the employer client's possession of such employee documents is a confidence that the employer's lawyer must keep, absent some other duty or discretion to disclose it. If there is no law requiring such disclosure, the employer client must decide whether to disclose its possession of such documents although "it often will be in an employer client's best interest to give notice and obtain a judicial ruling" on the admissibility of the employee's privileged communications before the employer's lawyer reviews the documents.8/4/2011
1594

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

51-Government Attorneys

Determining if a Commonwealth's Attorney's statements to a newspaper reporter about a pending case constitutes a danger of interfering with the fairness of a trial by jury raises a legal question beyond the Bar's jurisdiction. If a "finder of fact" ultimately determines that the statements did constitute such a danger, the "fact that the matter was not ultimately tried by a jury is not dispositive." [The Bar did not indicate how a finder of fact would be called upon to make such a determination.] [Rule 3.6(a) replaces the "clear and present danger" standard with a "substantial likelihood of interfering with the fairness of the trial by a jury" standard.]6/14/1994
1542

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Determining if a prosecutor's public statements about the brutality of a murder violate the Code's prohibition on extrajudicial statements is a legal matter beyond the purview of the Bar. [Rule 3.6(a) now governs such statements.]9/2/1993
1324

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Even if it is not illegal, a lawyer cannot tape record conversations without the other party's consent, or assist the client in doing so. A lawyer may use such a recording made by the client before the client retained the lawyer, and must keep the client's activity confidential [overruling LEO 1217.] [Effectively overruled in Virginia LEO 1802]2/27/1990
1448

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21-Reporting Another Lawyer's Unethical Conduct

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Even if non-consensual tape recordings are not illegal, a lawyer may not participate in such tapings or advise a client to do so. "Advising one's client to initiate a conversation under possibly false pretenses and to secretly record such conversation is improper deceptive conduct" that must be reported to the Bar. [Overruled in Virginia LEO 1802]1/6/1992
1049

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

If a lawyer has a legal duty to turn over the personal effects of a client's step-daughter who has charged the client with rape, then the lawyer would violate an ethical duty by failing to do so. 3/2/1988
1476

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1-Adversity to Current Clients

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

54-Insurance Defense Lawyers

56-Duty to Advise the Court

In an employment case, a lawyer may argue in the Circuit Court that the plaintiff's exclusive remedy was under the Worker's Compensation Act and at the same time argue to the Commission that the matter should be addressed by the Circuit Court. The lawyer's duty to diligently represent the client outweighed any "credibility problem" the lawyer's inconsistent positions might create, as long as "the validity of the rule [of law] is subject to legitimate dispute." The Bar analogized the inconsistent arguments to the filing of pleadings in the alternative. [This LEO was effectively overruled by Va. Code § 65.2-706.1 and Va. Code § 8.01-420.5.] 8/24/1992
1874

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

66-Lawyers Acting as "Scriveners"

Lawyers assisting members of a pre-paid legal services plan do not have to disclose their role in preparing pleadings that will be filed by pro se litigants, because "absent a court rule or law to the contrary, there is no ethical obligation to notify the court of the lawyer’s assistance to the pro se litigant." After reviewing ABA and other states' legal ethics opinions, "[t]he Committee concludes that there is not a provision in the Rules of Professional Conduct that prohibits undisclosed assistance to a pro se litigant as long as the lawyer does not do so in a manner that violates a rule of conduct that otherwise would apply to the lawyer’s conduct." Lawyers should nevertheless familiarize themselves with courts' policies about ghostwriting "lawyers are now on notice, because of Laremont-Lopez [Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1077-78 (E.D. Va. 1997)] and other federal court cases, that 'ghostwriting' may be forbidden in some courts, and should take heed, even if such conduct does not violate any specific standing rule of court." [overruling inconsistent portions of LEOs 1127, 1592, 1761 and 1803]7/28/2014
0982

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

58-Real Estate Lawyers

Lawyers may not assert that they are real estate noteholders when they do not physically possess the notes (even if they are certain that the notes have been paid), since it would be a misrepresentation. 10/14/1987
1738

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Lawyers may secretly record telephone conversations in which they are participants, as long as the recordings are legal and are made in connection with criminal or housing discrimination investigations, or involve "threatened or actual criminal activity when the lawyer is a victim of such threat." The Bar "recognizes that there may be other factual situations where such recordings would be ethical," but will address those in response to specific questions. [Effectively expanded in Virginia LEO 1802] [Virginia LEO 1814 erroneously referred to Virginia LEO 1438 rather than 1738].4/13/2000
1765

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Lawyers working for a federal intelligence agency may ethically perform such undercover work as use of "alias identities" and non-consensual tape recordings. 6/13/2003
1761

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

44-Conflicts - Miscellaneous

66-Lawyers Acting as "Scriveners"

Legal services organization lawyers may give forms to pro se litigants without violating any prohibitions on “ghost-writing” as long as the lawyers do not assist the pro se` litigants in completing the forms; analogizing the situation to the distinction in the UPL analysis between providing forms and helping complete them. [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]. [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]1/6/2002
1768

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

77-Communicating with an Individual Adversary

Nothing in the general provisions governing lawyer communications or the specific provisions governing prosecutors’ statements prohibits a prosecutor from stating in open court before a criminal defendant and the defendant’s lawyer that the defendant will face a jury trial under certain circumstances (in that jurisdiction, it is "commonly known" that juries impose longer sentences than judges).11/26/2002
ABA-439

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

48-Criminal Defense Lawyers

68-Lawyers Acting as Mediators

Parties and their lawyers often make statements in negotiations that are "less than entirely forthcoming," such as: "understate[ing] their willingness to make concessions to resolve the dispute"; "insist[ing] that it will not agree to resolve a dispute for less than $200, when, in reality, it is willing to accept as little as $150 to put an end to the matter"; overstating confidence in obtaining alternative sources of supply, etc. These statements are considered "posturing" or "puffing," and "must be distinguished from false statements of material fact." For instance, the employer in labor negotiation cannot advise the union negotiator that certain benefits will cost $100 per employee when the lawyer knows that the benefits will only cost $20 per employee. Similarly, a litigant cannot state that documentary evidence will be submitted at trial in support of a defense if the lawyer knows that the documents do not exist. Prosecutors and criminal defense lawyers cannot state that they are aware of an eye witness if that is not true. Lawyers must be careful not to convert statements of position into "false factual representations." For instance, a lawyer can state "that the client does not wish to settle for more than $50," but could not state that a corporation's board has "formally disapproved any settlement in excess of $50" if that were not true. The general Model Rule 8.4(c) ban on dishonest conduct cannot be read to prohibit any misrepresentation, "regardless of the lawyer's state of mind or the triviality of the false statement in question" (or else it would render Model Rule 4.1 superfluous). State bars have punished lawyers for engaging in such misrepresentation as lying about insurance coverage limits, or settling a case without disclosing that lawyer's client has died. In contrast, "statements regarding negotiating goals or willingness to compromise, whether in a civil or criminal context, ordinarily are not considered statements of material fact." The same rules apply to caucused mediation as to other forms of negotiation. A lawyer-mediator is subject to ABA Model Rule 8.4's general prohibition on deceptions, but not to ABA Model Rule 4.1 -- which applies to lawyers' conduct "in the course of representing a client."4/12/2006
1876

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23-Communicating with an Adversary - Miscellaneous

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

Prosecutors aware that non-citizen defendants without court-appointed counsel in a court which does not conduct plea colloquies may not offer a plea deal in exchange for a guilty plea without advising the defendant to obtain legal advice or request that the court conduct a colloquy.3/19/2015
1862

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

Prosecutors learning of exculpatory evidence must comply both with the Brady standard [Brady v. Maryland, 373 U.S. 83 (1963)] and with Rule 3.8(d). Thus, a prosecutor "may not withhold the evidence merely because his legal obligations pursuant to Brady have not yet been triggered." Among other things, the ethical "duty of timely disclosure of exculpatory evidence requires earlier disclosure than the Brady standard, which is necessarily retrospective, requires." Prosecutors must obtain a court order relieving them of the ethical duty to disclose exculpatory evidence if they believe that such disclosure "may jeopardize the investigation or a witness." Even if a prosecutor does not have a duty under Rule 3.8(d) to advise a defendant of a primary witness's death or unavailability, the prosecutor "may not make a false statement about the availability of the witness . . . either to the opposing lawyer during negotiations or to the court when the plea is entered." [The Opinion does not address the ethical implications of a prosecutor's silence in either scenario.]7/23/2012
1741

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24-Representation of or Adversity to Witnesses

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

77-Communicating with an Individual Adversary

Prosecutors may inform witnesses that they may be contacted by private investigators hired by the defense and explain "that they have the right to speak or not to speak with an investigator working for the defense" (although the prosecutor should not make any additional comments or criticize the investigators' tactics). 4/13/2000
ABA-469

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

49-Lawyers - Miscellaneous

51-Government Attorneys

Prosecutors who allow private debt collection companies to use their stationery to explicitly or implicitly threaten prosecution of delinquent debtors violate: (1) ABA Model Rule 8.4(c)'s anti-deception provision; (2) ABA Model Rule 5.5(a)'s prohibition on assisting nonlawyer's unauthorized practice of law, because such conduct necessarily involves nonlawyers analyzing whether a crime has been committed and a prosecution would be justified.11/12/2014
1350

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Since Virginia Supreme Court Rules do not require that a copy of a praecipe requesting a witness subpoena be served on counsel of record (and assuming no local rules or pre-trial order require such service), a lawyer was not obligated to send a praecipe to opposing counsel. 5/24/1990
1217

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

The Bar declines to say whether it is unethical for a lawyer to tape record telephone conversations with opposing counsel. (4/19/89) [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [The Bar also dealt with this issue in LEO 1765, in which it overruled any inconsistent holdings in LEO 1217.] [Overruled in Virginia LEO 1814 (5/3/11), which allows a lawyer to engage in or have an agent engage in lawful undisclosed tape recording, as long as they comply with Rule 4.3 by disclosing their role at the time.]4/19/1989
ABA-386

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

The Model Rules prohibit a lawyer from citing an unpublished opinion if the court has a specific rule prohibiting such a reference. 8/6/1994
1622

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

Two lawyers represent a defendant in circuit court felony charges and in connection with district court capiases for failure to appear. The lawyers appear before the district court on the capias matter, and do not advise the court of the simultaneous felony charges in circuit court. One of the lawyers later obtains dismissal of the felony charges in circuit court on double jeopardy grounds. It is not per se improper for the defendant's lawyers to have failed to reveal to the district court that their client was also the subject of felony charges in the circuit court. However, a lawyer may not make an "affirmative representation which is untrue." The lawyers violated this rule by telling the district court judge that the capiases were matters "between defendant and the Court." Furthermore, the lawyer's conduct "falls short of the aspirational exhortations contained in EC 7-33, in that they failed to be aboveboard with the judges in both district court and circuit court." 2/17/1995
ABA-454

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

56-Duty to Advise the Court

Under Rule 3.8(d), a prosecutor must disclose all evidence or "information" known to the prosecutor that tends to "mitigate the guilt of the accused or mitigate the offense." Significantly, "Rule 3.8(d) is more demanding than the constitutional case law" -- because it requires the disclosure of evidence or information "without regard to the anticipated impact of the evidence or information on a trial's outcome." The disclosure obligation covers "information" as well as evidence. Furthermore, "[n]othing in the rule suggests a de minimis exception to the prosecutor's disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant's guilt, or that the favorable evidence is highly unreliable." The disclosure obligation covers evidence and information "known" to the prosecutor, and does not require the prosecutor to conduct an investigation or review files to look for such information. The disclosure duty cannot be avoided by the defendant's consent to forego such disclosure, because "[a] defendant's consent does not absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept or rely on the defendant's consent."7/8/2009
ABA-370

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

Unless the client consents, a lawyer may not reveal to a judge the limits of his settlement authority or advice to the client regarding settlement. The judge may not require the disclosure of such information. A lawyer may not lie in response to a direct question about his settlement authority, although "a certain amount of posturing or puffery in settlement negotiations may be an acceptable convention between opposing counsel." 2/5/1993
1264

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Unless the client has given the lawyer authority to immediately reject settlement offers below a certain limit, a lawyer is obligated to pass along to the client every settlement offer -- "not just ones that the lawyer believes are in the client's best interests." 9/21/1989
1845

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Virginia State Bar staff lawyers may direct and supervise nonlawyer bar investigators, outside investigators, or volunteers who "engage in covert investigative techniques in the investigation of the unauthorized practice of law in any case in which no other reasonable alternative is available to obtain information against the person engaging in the unauthorized practice of law." Specifically, they may undertake a covert investigation of a paralegal's reported preparation of wills and powers of attorney without a lawyer's direct supervision (which would amount to a criminal act). The Bar worried that "because of the absence of witnesses who can testify or produce substantive evidence," the Bar might not be able to undertake enforcement actions against the paralegal. The Bar proposed to direct a nonlawyer to contact the paralegal "under the pretext of wanting a will and/or POA prepared, collect and pay for these services, and report back the results." Lawyers directing and supervising such a covert operation would not violate Virginia Rule 8.4(c), because such behavior would not reflect adversely on "the lawyer's fitness to practice law." Virginia's unique Comment [1] to its Rule 5.3 specifically approves "traditionally permissible activity" such as law enforcement investigations and housing discrimination tests. Earlier LEO opinions have also recognized a "law enforcement" exception to Rule 8.4(c)'s general prohibition on deception.6/19/2009
1700

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5-Lawyers Changing Jobs

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

73-Family Law Lawyers

Whether a lawyer may represent a wife in a child support reduction proceeding when one of the lawyer's former partners represented the husband in the original child support proceeding depends on whether the lawyer "participated in the representation of the husband while employed at the former firm or whether [the lawyer] acquired confidences and secrets relative to husband's case" (the Bar did not have enough facts to reach a conclusion).A lawyer's failure to notify an adversary of an action seeking to transfer venue and failure to check for available dates before filing a notice of hearing is conduct "governed by the applicable Rules of Court, local rules, custom and professional courtesy, but not the Code of Professional Responsibility," unless the lawyer is disregarding a standing rule or if the lawyer intentionally or is habitually violating an established rule.A lawyer's service of a subpoena duces tecum outside Virginia "may" violate the ethics code if the lawyer knows that the subpoena is not enforceable, if the documents served on the individual "threaten contempt for non-compliance" and if the subject of the subpoena has not accepted service. 6/24/1997
ABA-440

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Withdrawing ABA LEO 382, because it is inconsistent with Model Rule 4.4(b), which "requires only that a lawyer who receives a document relating to the representation of the lawyer's client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. The Rule does not require refraining from reviewing the materials or abiding by instructions of the sender." Moreover, if a lawyer receives the document through some intentional act of another rather than through inadvertence, the receiving lawyer "is not required to notify another party or that party's lawyer."5/13/2006

Copyright 2000, Thomas E. Spahn