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: 28 - Law Firm Staff
LEO NumTopicsSummaryDate
1290

printPrint
28-Law Firm Staff

83-Solicitation

[WITHDRAWN 9/16] A law firm staff member may not solicit business for the firm even if the non-lawyer is to receive no additional compensation for the service (because the staff member would be compensated with a regular salary for recommending or securing employment for the law firm). A lawyer may never delegate in-person solicitation to a non-lawyer, even acting under the lawyer's supervision.10/25/1989
1600

printPrint
28-Law Firm Staff

39-Miscellaneous

45-Law Firms - Miscellaneous

[WITHDRAWN 9/16] A lawyer should not open up a branch office to be staffed entirely by non-lawyers (with the lawyer expecting to visit the branch office two days each month), because a lawyer's supervision over non-lawyer staff "should be significant, rigorous and efficient."6/14/1994
1869

printPrint
18-Consent and Prospective Waivers

28-Law Firm Staff

46-Confidentiality - Miscellaneous

49-Lawyers - Miscellaneous

A family court self-help center facilitator (a lawyer or a paralegal trained in family law who volunteers to assist unrepresented customers) does not establish an attorney-client relationship with such customers, if the Customer Agreement "has the pro se litigant understand and acknowledge that the limited assistance provided by the Facilitator does not create a lawyer-client relationship, that no legal advice is given, that information will not be kept confidential and that the Facilitator may provide assistance to adverse litigants." (footnote omitted). A lawyer merely providing legal information and not legal services does not fall under Rule 6.5's provision governing "short-term limited legal services." "Merely providing sample pleadings or forms to a pro se litigant is not the practice of law; however, the completion of a form pleading or legal document for the pro se litigant would be." (footnote omitted). Rule 6.5 does not address conflicts arising after a lawyer provides such a limited representation, so the lawyer may be precluded from other representations adverse to the client the lawyer had assisted. Paralegals may not engage in the "unsupervised preparation of pleadings or other legal documents," so lawyers may not train paralegals to provide such unsupervised services. Various resources can help lawyers distinguish between providing "legal information" and "legal advice." [Approved by the Supreme Court of Virginia 11/2/16].5/28/2013
1438

printPrint
16-Lawyer's Personal Interests

28-Law Firm Staff

38-Fee Splitting

45-Law Firms - Miscellaneous

50-Lawyer-Owned Businesses

A law firm may not share profits with an advertising agency unless its employees are bona fide and regular employees of the law firm. [Approved by the Supreme Court of Virginia 11/2/16].10/21/1991
0767

printPrint
28-Law Firm Staff

55-Firm Names and Letterhead

A law firm may pay legal assistants on a profit-sharing basis, and include legal assistants and other staff on the firm letterhead as long as they are properly identified. 1/17/1986
0806

printPrint
28-Law Firm Staff

42-Payments to Solicit Recommendations

A law firm may pay secretaries a bonus based on the firm's profitability. 6/25/1986
0225

printPrint
13-Marketing - Miscellaneous

28-Law Firm Staff

A law firm may place legal assistants' names on their offices as long as it does not create the impression that the legal assistants are lawyers. 5/21/1973
0358

printPrint
7-Family Conflicts

9-Government Lawyer Conflicts

28-Law Firm Staff

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm may represent clients being prosecuted for traffic or criminal cases even though the spouse of one of the firm's associates is an Assistant Commonwealth's Attorney. The same is true when a firm employs a paralegal whose spouse is the Commonwealth's Attorney. In both cases, the firm must advise its clients and the court of the relationships.3/10/1980
1668

printPrint
4-Witness-Advocate Rule

28-Law Firm Staff

76-Trust and Estate Lawyers

A law firm may represent the defendant beneficiaries in a will contest even though a lawyer at the firm prepared the will and non-lawyer employees witnessed the will, because: (1) the lawyer preparing the will was no longer at the firm, and the witness-advocate rule only applies if the lawyer/witness still practices at the firm; and (2) the witness-advocate rule does not apply when non-lawyer employees are called as witnesses. 2/28/1996
0349

printPrint
28-Law Firm Staff

85-Business Cards

A law firm's business manager and legal assistant may use business cards if their positions are clearly revealed on the card. 11/30/1979
0338

printPrint
28-Law Firm Staff

85-Business Cards

A law firm's non-lawyer employees may use business cards if the cards indicate their non-lawyer status. 10/8/1979
1190

printPrint
28-Law Firm Staff

78-Communicating with an Employee of a Corporate Adversary

A lawyer and a legal assistant may contact representatives of a potential adversary in a patent or trademark case because the lawyer has a duty to investigate any possible claim and it is not yet known whether any actual adversity exists.Legal assistants are bound by the Code when assisting lawyers with client matters. 1/4/1989
1504

printPrint
28-Law Firm Staff

79-Communicating with a Governmental Adversary

A lawyer and the lawyer's employee may seek information under the Freedom of Information Act from the state, even if the lawyer is representing a client adverse to the state. 12/14/1992
1500

printPrint
4-Witness-Advocate Rule

28-Law Firm Staff

A lawyer had a legal assistant interview a witness. When the witness told a different story at trial, the lawyer wanted to call the legal assistant to impeach the witness. The lawyer may call the legal assistant as a witness without withdrawing. 12/14/1992
1077

printPrint
16-Lawyer's Personal Interests

28-Law Firm Staff

A lawyer may arrange for a non-lawyer accountant to perform work for the lawyer's clients, as long as the accountant does not perform legal work and the client consents after full disclosure. 5/23/1988
1502

printPrint
20-Government Official Conflicts

28-Law Firm Staff

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer may continue to appear before the Virginia General Assembly (not on behalf of any particular client, but rather on behalf of certain positions) even though one of the lawyer's employees now serves in the Virginia General Assembly. The Bar apparently made this approval contingent on the lawyer not acting as a "lobbyist" as that term is statutorily defined. The lawyer may also serve as a part-time litigation assistant to an employee who is serving in the Virginia General Assembly, because the lawyer will not receive any fee or cost reimbursement from the state. 12/14/1992
1054

printPrint
9-Government Lawyer Conflicts

20-Government Official Conflicts

28-Law Firm Staff

48-Criminal Defense Lawyers

A lawyer may continue to represent criminal clients (but must act cautiously) if the lawyer's secretary was a part-time magistrate in the same jurisdiction.3/29/1988
0885

printPrint
28-Law Firm Staff

38-Fee Splitting

A lawyer may enter into a compensation plan with a non-lawyer employee as long as it complies with the ethics code. 3/11/1987
1501

printPrint
16-Lawyer's Personal Interests

28-Law Firm Staff

A lawyer may hire a former client to help organize and manage other similar cases for other clients, as long as the lawyer fully discloses these facts to the other clients.12/14/1992
0366

printPrint
28-Law Firm Staff

A lawyer may hire a police officer as an investigator. 4/23/1980
0745

printPrint
5-Lawyers Changing Jobs

28-Law Firm Staff

A lawyer may hire an opponent's secretary but must assure that the secretary complies with the Code. A lawyer may not induce a non-lawyer to undertake activities that would violate the Code if undertaken by a lawyer. 12/4/1985
0934

printPrint
28-Law Firm Staff

38-Fee Splitting

45-Law Firms - Miscellaneous

59-Disbarred and Suspended Lawyers

A lawyer may not: pay a lump sum to a disbarred lawyer to take over the practice; pay for the disbarred lawyer's yellow page advertisement; divide a contingent fee with the disbarred lawyer; employ the disbarred lawyer as a legal assistant on a set salary; and take over the disbarred lawyer's phone number and answer the telephone as "law offices." [To the extent it is inconsistent, this LEO was overruled by LEO 1218.]6/16/1987
0891

printPrint
4-Witness-Advocate Rule

24-Representation of or Adversity to Witnesses

28-Law Firm Staff

A lawyer may represent a client although a secretary in lawyer's firm will testify against the client, as long as the client consents. 4/1/1987
0793

printPrint
7-Family Conflicts

28-Law Firm Staff

A lawyer may represent a client when the lawyer's adversary is represented by a law firm employing the lawyer's fiancée as a secretary. If the lawyer feels that the relationship with the fiancée might affect the lawyer's judgment, the lawyer must make full disclosure to the client and obtain the client's consent. 5/27/1986
1258

printPrint
28-Law Firm Staff

31-Protecting and Disclosing Confidences and Secrets

A lawyer must be careful to prevent disclosure of confidential information when the lawyer's secretary is married to the head of a real estate agency and plans to become a real estate agent. 7/25/1989
0845

printPrint
7-Family Conflicts

19-Judge Conflicts

28-Law Firm Staff

A lawyer whose office administrator is married to a judge may appear before the judge, but may have to disclose these facts on the record. 2/27/1989
0247

printPrint
20-Government Official Conflicts

28-Law Firm Staff

A lawyer/legislator may employ a law firm assistant as a part-time legislative assistant to be paid with state funds. 8/19/1974
1800

printPrint
28-Law Firm Staff

A two-member law firm hiring a secretary who until the previous week was the only secretary at another two-member law firm representing a litigation adversary will not be disqualified from the case, as long as the new firm: warns the secretary not to reveal or use any client confidences acquired at the old firm; advises all lawyers and staff not to discuss the matter with the new secretary; screens the new secretary from the litigation matter (including the new firm's files on the matter). Although not mandating any specific steps, the Bar recommends that the new firm "develop a written policy statement" regarding such situations, and note the need for confidentiality "on the cover of the file in question." 10/8/2004
1584

printPrint
28-Law Firm Staff

39-Miscellaneous

45-Law Firms - Miscellaneous

A Virginia lawyer may enter into a partnership with a non-lawyer in the District of Columbia, because its ethics rules permit such partnerships (Virginia's DR 1-102(B) acts "as a conflicts of rules provision" allowing the more permissive DC rule to apply). Although the partnership (through a Virginia lawyer) may conduct activities in DC benefiting Virginia clients, it may not engage in the practice of law in Virginia, and the Virginia lawyer may not conduct any of the lawyer's practice in Virginia through the partnership. [Rule 8.5(a) now indicates that Virginia lawyers must comply with the Rules regardless of where they practice, and Rule 8.5(b) now provides a "choice of law" rule for lawyers licensed in more than one jurisdiction.] [Approved by the Supreme Court of Virginia 11/2/16].4/11/1994
0724

printPrint
28-Law Firm Staff

40-Trust Accounts

A Virginia lawyer who practices in a District of Columbia office may maintain a trust account in a Virginia bank, and may arrange for a non-lawyer to handle the account as long as the lawyer supervises the non-lawyer and is ultimately responsible for the account. [Rule 1.15 required that a law firm office use a trust account bank in the same jurisdiction; Rule 8.5 determines which state's disciplinary rule would apply to violations.]9/24/1985
1832

printPrint
18-Consent and Prospective Waivers

22-Interviews with Prospective Clients

28-Law Firm Staff

Although not bound by lawyers' ethics rules, law firms' secretaries must maintain the confidentiality of information they learn. Thus, a secretary who receives confidential information from a prospective client whom the law firm does not represent (because it wishes to or already does represent the prospective client's adversary) must maintain the confidentiality of that information. Lawyers in that firm can avoid disqualification from representing the adversary if the lawyers screen the secretary from the matters, instruct the secretary "that she cannot reveal to the lawyer any confidential information obtained from Ms. X [the prospective client]," and use another staff person to work on the matter. In addition, the law firm "should send a written communication to Ms. X or her lawyer that these measures have been taken." Such screens do not prevent imputed disqualification involving an individually disqualified lawyer, but can successfully avoid imputation of a non lawyer's individual disqualification. The firm may have to withdraw from representing the adversary if the screen is breached. The Bar "recommends that the firm train non lawyer support staff to minimize confidential information obtained from prospective clients before they can perform the necessary conflicts analysis."5/10/2007
1843

printPrint
28-Law Firm Staff

38-Fee Splitting

41-Non-Virginia Lawyers

Federal regulations governing "the specific practice of patent law before the USPTO" preempt the Virginia ethics rules, and thus allow a Virginia licensed lawyer on associate status to form a partnership with non-lawyer patent practitioners (as defined in the CFR) and share legal fees with non-lawyer registered patent agents.4/16/2008
0799

printPrint
28-Law Firm Staff

33-Office Sharing with Other Lawyers

It is not per se unethical for lawyers sharing office space and secretaries to represent adverse clients, but they must be careful. 5/27/1986
ABA-451

printPrint
8-Bills and Fees

28-Law Firm Staff

45-Law Firms - Miscellaneous

50-Lawyer-Owned Businesses

Lawyers may outsource "legal or non-legal support" services as long as they bear various ethics requirements in mind -- mentioning outsourcing to foreign lawyers as only one example of outsourcing, along with "the use of a local photocopy shop" to copy documents, retaining a "document management company" in litigation, using third party vendors "to provide and maintain a law firm's computer system" and reliance on a "legal research service" to conduct research. Lawyers arranging for such outsourcing must ultimately assure competent service by anyone assisting in the lawyer's work for the client. Lawyers' duties under ABA Model Rule 5.1 and 5.3 "apply regardless of whether the other lawyer or the nonlawyer is directly affiliated with the supervising lawyer's firm" -- despite the reference to "a firm" in ABA Model Rule 5.1 Comment [1]. Lawyers arranging for the outsourcing must adequately investigate the people who will be conducting the outsourced work (including even such issues of confidentiality as "recycling and refuse disposal procedures." Lawyers arranging for overseas outsourcing should assess such issues as: the foreign lawyers' legal training and dedication to "core ethical principles" similar to U.S. lawyers, the possibility of confidential materials being seized in "judicial or administrative proceeding" and other threats to confidentiality. Lawyers arranging for outsourcing may have to alert their clients, if the outsourcing services will be performed independently of the lawyer (referring to ABA LEO 356, which deals with temporary lawyers). Because "ordinarily" the lawyer will not exercise a "high degree of supervision and control" over the work that is being performed, the lawyer generally will have to provide notice to their clients. Lawyers providing confidential client information to a third party may do so only with the client's consent, and the "implied authorization" to reveal client confidences in performing legal services "does not extend to outside entities or to individuals over whom the firm lacks effective supervision and control." Lawyers must be very careful to assure confidentiality, and "[w]ritten confidentiality agreements are . . . strongly advisable in outsourcing relationships." In fulfilling their duty to "minimize the risk of potentially wrongful disclosure," lawyers arranging for the outsourcing "should verify that the outside service provider does not also do work for adversaries of their clients on the same or substantially related matters." In charging fees for the outsourced work, lawyers should comply with the standards articulated in ABA LEO 420. Lawyers may generally add a surcharge to the cost paid to those performing outsourced work (without notice to the client), as long as the total fee is reasonable. Lawyers deciding to pass the cost along to the client as a disbursement may not mark up the cost, but may only bill the client the actual cost "plus a reasonable allocation of associated overhead, such as the amount the lawyers spent on any office space, support staff, equipment, and supplies for the individuals under contract." In the case of outsourced services, the overhead cost may include "a reasonable allocation of the cost of supervising those services if not otherwise covered by the fees being charged for legal services." Lawyers arranging for outsourcing must avoid assisting anyone in the unauthorized practice of law, although generally there should be no UPL problem if lawyers performing the outsourced work assist the lawyers (who remain ultimately responsible for the work) and do not hold themselves out as being admitted in the jurisdiction.7/9/2008
1058

printPrint
28-Law Firm Staff

51-Government Attorneys

LEO 1046 determines whether a full-time Commonwealth's Attorney may prosecute an embezzlement that involves a store owned by an employee of the law firm where the Commonwealth's Attorney formerly practiced. [Under LEO 1046, the prosecution would be proper if the lawyer could rebut the presumption that the lawyer had acquired confidential information from the law firm employee.] [Rule 1.11(d) would allow this representation if the lawyer were never "personally and substantially" involved in the matter while in private practice.]3/18/1988
0326

printPrint
28-Law Firm Staff

55-Firm Names and Letterhead

The name of a legal assistant may appear on a law firm's outside door if the label properly identifies the person as a legal assistant. 6/19/1979
1792

printPrint
28-Law Firm Staff

39-Miscellaneous

66-Lawyers Acting as "Scriveners"

The Virginia Supreme Court indicated in UPL 0p. 207 that non-lawyer social workers may assist small claims court litigants "with completion of the form document using language specifically dictated by the litigant," but would be engaged in the unauthorized practice of law if the social worker "selects the forms for the litigant or advises the litigant as to which forms are appropriate based on the litigant's particular case; or provide[s] any legal advice to the litigant." Based on this UPL opinion, the Bar explains that lawyers may not train social workers in undertaking any of the prohibited activities. The Bar notes the "critical distinction" between undertaking activities that require "knowledge of the law," and undertaking activities that amount to the unauthorized practice of law. Thus, lawyers may train social workers "on the law needed for performance of a job," but may not train social workers to engage in activities that amount to the practice of law. [Approved by the Supreme Court of Virginia 11/2/16].1/10/2006

Copyright 2000, Thomas E. Spahn