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: 31 - Protecting and Disclosing Confidences and Secrets
LEO NumTopicsSummaryDate
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[WITHDRAWN] A client suing a former employer receives (from a former colleague at the company) a letter to the employer from its lawyer.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
1642

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1-Adversity to Current Clients

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

A bar association wants to set up a question referral network under which lawyers from other firms will answer questions without obtaining specific confidential or secret information. The Bar holds that it is likely that the lawyer answering a question will acquire confidential or secret information, and that therefore the inquiring lawyer should obtain the client's consent before asking the questions.The Bar explains that "the anonymous hypothetical approach to consultation encounters difficulties as more details are revealed during the consultation, and seemingly innocuous information may be harmful to the client if revealed to others." Although no attorney-client relationship arises between the inquiring lawyer's client and the answering lawyer, a "special relationship" arises. The consultation "would give rise to a reasonable expectation of confidentiality," so the answering lawyer should arrange for a disclaimer making it clear that the lawyer need not maintain the information's secrecy. Although no attorney-client relationship arises, the answering lawyer may not be adverse to the inquiring lawyer's client without the client's consent. To avoid possible disqualification, the answering lawyer should perform a conflicts check before answering any questions. The inquiring lawyer may not reveal the client's identity to the answering lawyer without the client's consent. [Rule 1.6 Comment [7a] discusses such "mentor" communications.]6/9/1995
1074

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31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A client hires a lawyer to obtain a divorce from his second wife. The lawyer accidentally discovers that the client's first divorce took place after the client's second marriage. The client explained that he obtained his first divorce overseas, but later filed for a divorce in the United States to appease his second wife. The lawyer then notices that his client indicated on the second marriage license that he had not been previously married. The lawyer asked the client for more information, but the client has never responded. Instead, the client fires the lawyer.The lawyer advises the judge and the opposing lawyer of these facts, but is reluctant to withdraw without advising the Commissioner in Chancery. Since the client has not acknowledged any fraudulent conduct, fraud has not been "clearly established" and the lawyer cannot advise the Commissioner in Chancery. [Because the Bar found that the "clearly established" test under Rule 1.6 was not met, it is unclear why the Bar did not disapprove of the lawyer's disclosure to the judge and the opposing lawyer.] 5/20/1988
1355

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31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A client told a lawyer that the client would take criminal action against the client's adversary and also commit suicide if the client lost a case. If the lawyer "has determined that a reasonably prudent and competent lawyer would conclude that the client in fact intended to take such action should the conditions precedent [losing the case] take place," the lawyer had a duty to reveal the intentions. However, because the court hearing the case would be unable to prevent the crimes, it would be improper to reveal the client's intent to the court. 5/24/1990
0929

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A client's failure to appear on felony charges and intent to remain a fugitive (including a plan to leave the United States) constituted a "continuing wrong" -- which a lawyer had no duty to disclose.6/24/1987
1367

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31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A client's fraud on a third party is "clearly established" for purposes of the ethics rules (and thus triggers a lawyer's obligation to reveal the perpetration) only if the client has acknowledged the fraud to the lawyer. The lawyer "may not assume that any criminal charges brought against his client contrary to his client's statement present a clear indication of fraudulent activity on the part of his client." If the client states an intention to permit perjury, the lawyer should warn the client of the consequences and inform the client that the lawyer would have to reveal such criminal intention to the appropriate tribunal unless the intent was abandoned.A lawyer's duty to protect a client's confidences and secrets lasts beyond the representation and even the client's death. A "secret" may include information "which may be public or known to third parties."7/24/1990
1079

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31-Protecting and Disclosing Confidences and Secrets

A client's settlement with an insurance company required the client to reimburse the company should the client receive additional amounts in later settlements. When the client settled with another insurance company, the client prohibited the lawyer from disclosing the settlement to the company. Because the client has "perpetrated a fraud" upon the insurance company, the lawyer was free to reveal the fraud. 5/17/1988
1316

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31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A client's whereabouts is a secret that the lawyer should not disclose if the client wishes it to remain confidential, absent "a legal determination that your client intends to commit a crime or is fleeing from criminal prosecution." [This standard seems to contradict LEO 929, in which the Bar held that a lawyer may not reveal a client's "continuing wrong;" the Bar cites LEO 929 but does not reconcile it with this new holding.]1/19/1990
1496

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31-Protecting and Disclosing Confidences and Secrets

51-Government Attorneys

A Commonwealth's Attorney argued that defense counsel should be obligated to notify the prosecutor or court when a client subject to incarceration has exhausted or abandoned appellate rights. Because such a disclosure could hurt the client, the defense counsel was under no duty to make such a revelation. 10/19/1992
1186

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A court appointed lawyer represents a criminal defendant, against whom two offenses have been docketed for trial on the same date and time. The court arraigns only on one charge, and the court does not address the second charge. Even if the client had been in pretrial confinement because of the overlooked second criminal charge, the lawyer had a duty not to reveal the court's failure to address the second charge. Determining whether the lawyer must fill out a form (a standard "timesheet") that might reveal the court's mistake is a question of law beyond the Bar's jurisdiction, but the lawyer may not "enhance" the timesheet to present a misleading impression.2/13/1989
1573

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8-Bills and Fees

31-Protecting and Disclosing Confidences and Secrets

A court-appointed lawyer may engage a lay corporation as a billing agent in an arrangement under which the lawyer receives an immediate payment from the corporation minus a billing percentage (and the corporation arranges for ultimate reimbursement from the municipality, which sometimes takes months). The lawyer must preserve the client's confidences and secrets, and may provide the corporation only such limited information as it needs. 12/14/1993
0390

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31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A court-appointed lawyer must report the true financial status of a client -- "regardless of the source of his information." 8/25/1980
1400

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31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A criminal defense lawyer representing a client found guilty of a felony is under no duty to reveal that the sentencing document later signed by the judge erroneously stated that the defendant was found guilty only of a misdemeanor (assuming that the lawyer did not endorse the document or otherwise participate in drafting it). In fact, the lawyer was ethically obligated not to reveal the error because the revelation would damage the client. [Rule 3.3(a)(2) and Rule 4.1(b) might affect this analysis, because it prohibits a lawyer from knowingly failing to disclose a fact "when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client."]3/12/1991
1361

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4-Witness-Advocate Rule

31-Protecting and Disclosing Confidences and Secrets

35-Threatening Criminal and Disciplinary Action

56-Duty to Advise the Court

A defense lawyer learning that the plaintiff tried to bribe a witness must advise the tribunal of the potential crime and may also advise the Commonwealth's Attorney (the Bar did not decide if failure to report the crime would amount to misprision of a felony under Va. Code § 18.2-461). The lawyer may continue to represent the defendant in the civil case even though the lawyer might be a witness in the resulting criminal matter. Reporting the bribery would itself be unethical only if the lawyer was acting "solely for the purpose of obtaining an advantage in a civil matter."6/28/1990
1607

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31-Protecting and Disclosing Confidences and Secrets

A former employee hired a lawyer to assist in disclosing "irregular, and possibly illegal actions of his former employer" involving the company's knowing use of radioactive materials in consumer products. The former employee learned of this conduct inadvertently, and was not involved in the company's wrongful actions. When the former employee later decides not to disclose the company's wrongful conduct, the lawyer must follow the client's direction to keep the information confidential despite the public health risk, because none of the exceptions to the confidentiality rule apply. 9/16/1994
1638

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24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A law firm has occasionally represented (and is currently representing) a corporation, gaining "general knowledge of the scope and nature of the corporation's operations." The corporation's president has now been identified as an expert witness for the law firm's adversary in an unrelated matter.Although the firm has not represented the president personally, if "the law firm had any discussions with, or received any information from the president, such communications would give rise to an expectation of confidentiality unless it gave the president the disclosures and warnings required under the circumstances presented in LEO 1457" (since an expectation of confidentiality may arise even without a formal attorney-client relationship). For this reason, the law firm may continue to represent its client only if "it has gained no information from the president under any circumstances that would have indicated an expectation of confidentiality as discussed above, or if no such information thus gained can be of any use whatsoever to the current defendant so that the law firm will not need to use it, or if the president consents after full disclosure, or if the president was adequately warned that what he told the law firm would not be held in confidence because the law firm did not represent him or his interests."The Bar notes that the law firm has had occasion to acquire useful information about the company and the president's credibility, although the Bar only mentions that the firm "has gained general knowledge of the scope and operation of the corporation."The law firm must also obtain the consent of its other client to continue representing it in the unrelated case. [The Bar did not discuss the possibility of arranging for another counsel to cross-examine the expert.] 4/19/1995
1658

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13-Marketing - Miscellaneous

16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

38-Fee Splitting

50-Lawyer-Owned Businesses

53-Office Sharing with Non-Lawyers

A law firm may establish a non-legal consulting firm (to provide human resource advice) and share common directors, use similar logos and letterheads, share overhead expenses (such as secretarial support, library resources and lobby space), engage in joint marketing and refer clients to each other, as long as: the public would not be confused by any advertising; the joint marketing does not result in any misperceptions; the firms avoid sharing any confidential client information; the firms do not split fees or pay one another a referral fee; the firms advise their clients of other available referral options; the firms adopt "adequate conflicts screening procedures"; any lawyers involved in the consulting firm "comply at all times with applicable rules of the Code of Professional Responsibility, whether or not the attorney is acting in a professional capacity as a lawyer." 12/6/1995
1632

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13-Marketing - Miscellaneous

17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

42-Payments to Solicit Recommendations

50-Lawyer-Owned Businesses

A law firm may not pay a service fee to a so-called "lender service bureau" in return for obtaining legal work from the bureau. Because the bureau apparently is not engaging in fraud against a tribunal, however, the law firm is not obligated to disclose the bureau's operations to the proper authorities. If the law firm determines that the possible misconduct of lawyers holding an "ownership or management interest" in the bureau meets the proper standards, the misconduct would have to be reported. 2/7/1995
1407

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

A law firm represented a doctor in two malpractice cases. The doctor later appeared as an expert witness for plaintiff in a case defended by another of the firm's lawyers. The doctor denied ever having been a defendant in a malpractice action, but the defense lawyer learned from a partner that the firm had earlier represented the doctor on two occasions.The Bar ruled that this information was a "secret" (although it could be obtained from public records) because it was gained in a professional relationship. The Bar therefore prohibited the lawyer's continued representation of the client, because the lawyer could not effectively cross-examine the plaintiff's expert doctor (unless the doctor consented to disclosure of the confidential information). 3/12/1991
1609

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A law firm represents a property-owner wishing to sell the property and resist imposition of a lien on it. The firm receives a letter of intent to buy the property from an individual who is a judgment debtor of another firm client (and against whom the firm obtained the judgments and is attempting to collect them).Although the judgments against the individual are "available in the public record," the firm may not advise the property-owner of the judgments against the individual, and likewise may not advise its judgment-creditor client that the individual has offered to buy the property. Because the assets the individual might use to buy the property from one client might otherwise be used to satisfy the other client's judgments, the law firm had an irreconcilable conflict and would have to withdraw from both representations (without explanation, because the firm "may not reveal specifics to either client with regard to the nature of the conflict"). If the property-owner client sues the law firm, it may defend itself by revealing the conflict, but "only to the extent necessary to rebut any accusation . . . of the firm's wrongful conduct." 9/14/1994
1631

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6-Lawyers Paid by Third Party

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

73-Family Law Lawyers

A lawyer being paid by a serviceman's parents to represent him in a divorce matter nevertheless owes a duty to the serviceman instead of the parents. When the serviceman filed a bankruptcy petition that seems inconsistent with the lawyer's understanding of who is paying the lawyer's bill, the lawyer must attempt to communicate directly with the serviceman or his bankruptcy counsel to obtain the true facts. The lawyer need not withdraw yet, but depending on what the lawyer discovers may be obligated to withdraw from representing the client. If so, the lawyer must take reasonable steps "for the continued protection of client's interests." 2/7/1995
0730

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

A lawyer convinced the adversary to vacate a judgment on the grounds of improper service. The lawyer now "suspects" that service was effective and is also "convinced" that the client has no substantial defense on the claim. The lawyer has unsuccessfully attempted to contact the client about these matters. If the lawyer made representations to adverse counsel, the lawyer "may" now disclose these suspicions to adverse counsel. If the lawyer made representations to the court, the lawyer must disclose the suspicions. [The Bar did not explain how the lawyer's "suspicions" satisfy the "clearly established" standard.] 10/21/1985
1382

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16-Lawyer's Personal Interests

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer could work with a securities broker/ insurance agent in making presentations to potential clients, but must be careful to obtain the new client's consent to have the broker/agent present during any conversations protected by the attorney-client privilege. 9/13/1990
1840

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer for a purchaser would knowingly assist a client in committing fraud by helping a relocation company prepare misleading property conveyance documents (which fail to show in the chain of title the relocation company's purchase of the property from its client company's employee and its later sale to a third party -- which has the effect of avoiding the payment of recording fees and taxes). Although the purchaser's lawyer involved in this activity cannot reveal her client's past wrongdoing (except as permitted under Rule 1.6), "the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed." The purchaser's lawyer cannot continue with the closing, because it involves fraudulent conduct by the relocation company and its lawyer. The purchaser's lawyer must report the relocation company's lawyer's conduct (absent some mitigating circumstances), because it clearly involves an ethics violation and raises a "substantial question" as to the relocation company's lawyer's "fitness to practice law in other respects."9/25/2007
1378

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer formerly represented a divorce client in negotiating a separation and property agreement. The former client later declares bankruptcy, and the lawyer knows that the former client has failed to include property on his bankruptcy petition. The Bar held that the lawyer could reveal this fact because "it is information contained in the property settlement between the parties which was not created with any expectation of confidentiality and therefore does not constitute a secret." [This LEO was overruled by LEO 1643.] 10/1/1990
1428

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5-Lawyers Changing Jobs

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

A lawyer from a medical malpractice defense law firm wishes to join a plaintiff's firm. Absent the clients' consent, both the lawyer and the new firm would be barred from representing any plaintiffs in cases in which the lawyer "was actively participating" while in the defense firm. An ethics screen would not cure the conflict -- only the clients' consent would do. The lawyer may work on matters as long as the lawyer had not worked on the matters while at the defense firm and did not acquire any secrets or confidences that could now be used to the former clients' disadvantage. The lawyer should bear in mind the inability to use such confidences and secrets in light of the countervailing duty to represent new clients at the new firm. 2/22/1992
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
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
1451

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

A lawyer has an ethical duty to disclose a client's knowingly false statement in a deposition, even if: (1) the false testimony is irrelevant to the case's merits; (2) the client is willing to correct the testimony if the client testifies at trial; or (3) the case does not proceed to trial. [In LEO 1650, the Bar added a "materiality" element to this analysis.] 3/13/1992
0471

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31-Protecting and Disclosing Confidences and Secrets

A lawyer has no duty to advise a non-client who holds the first deed of trust that the deed's terms have been violated, although the lawyer must explain to the violator (if a client) the consequences of the violation. 9/20/1982
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
0705

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31-Protecting and Disclosing Confidences and Secrets

A lawyer has no obligation to report child abuse by a client's husband, unless the client's failure to disclose the alleged child abuse to a social service agency amounts to a crime. 6/26/1985
1629

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

54-Insurance Defense Lawyers

A lawyer has worked as an associate in a medical malpractice defense firm and as a non-lawyer claims consultant for an insurance company (assigning malpractice cases to defense lawyers). The lawyer has now joined a plaintiffs firm. The lawyer may not pursue malpractice cases against any doctor on behalf of whom the lawyer had been involved as a lawyer in previous medical malpractice cases.The matters would be "substantially related" because "both representations involve the same doctor whose professional competence is at issue in both suits," and "possession of confidential information may be imputed" to the lawyer because of "his having earlier participated in the defense of the doctor in a previous malpractice action." If the lawyer was "involved" in the defense of any co-defendants in the earlier malpractice actions, the lawyer would likewise be precluded from representing plaintiffs adverse to them. [The Bar did not explain what would entail such "involvement."]The lawyer may represent plaintiffs adverse to a doctor represented by the lawyer's former firm if the lawyer "did not work on the doctor's defense and did not receive any confidential information from the doctor." Because the lawyer did not establish an attorney-client relationship with the insurance company's insureds while administering claims, the lawyer may be adverse to doctors "whose claim was managed and administered" by the lawyer while employed by the insurance company (the Bar indicated that "the doctors' claim information would not constitute a confidence or secret" under the Code) [Because lawyers are bound by the Code even if they are not acting as lawyers, and because such claims information might be highly sensitive, this seems like too narrow a view.] 2/7/1995
1460

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer helping a legal services agency as part of a pro bono program represents a domestic relations client. The lawyer is approached by a client in a divorce matter, and learns that the client's spouse is being represented by the legal services agency. The lawyer may continue to represent the pro bono client and the paying divorce client because the matters are unrelated and therefore there will be no adversity between the clients. The fact that the same agency represents the spouse of the divorce client and also provides assistance to the lawyer in the representation of the domestic relations client does not create a conflict. However, the lawyer must be careful to avoid the sharing of any confidences. 4/13/1992
1615

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5-Lawyers Changing Jobs

12-Withdrawing Lawyers (Including Non-Compete Issues)

31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

71-Representing Corporations

A lawyer hired as a company's inside general counsel may not enter into a non-competition agreement with the company (under which the lawyer could not serve as any competitor's in-house counsel for a period of one year). The Bar notes that the lawyer must protect the former client's confidences and secrets if the lawyer begins to represent a competitor. 2/7/1995
1723

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18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

A lawyer hired by an insurance carrier to represent an insured "must represent the insured with undivided loyalty," and may not: (1) agree to an insurance carrier's restrictions on the lawyer's representation of the insured "absent full disclosure and consent of the client at the outset of the representation and absent a determination that the client's rights will not be materially impaired by restrictions" such as limitations on discovery and the use of experts and other third party vendors, and requirements for "pre-approval for time spent on research, travel and the taking and summarizing of depositions"; (2) submit detailed information to a firm selected by the insurance carrier to audit billing statements, without the insured client's consent after "full and adequate disclosure"; or (3) recommend that the client consent to such disclosure to the auditor if it would prejudice the client. 11/23/1998
1540

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

A lawyer improperly revealed a former client's confidences and secrets by providing a former client's litigation adversary with a complete historical bill detailing and describing services rendered to the former client. If the lawyer knowingly engaged in the disclosure, the breach would raise a substantial question as to the lawyer's fitness to practice law in other respects, and would have to be reported to the Bar. 8/12/1993
0952

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31-Protecting and Disclosing Confidences and Secrets

A lawyer is not obligated to advise an insurance company that the client has died if the lawyer is able to work with the administrator to settle the case within the range authorized by the client before the client's death, although the lawyer should advise the insurance company at the time settlement is reached that the client has died, that the settlement was within the amount authorized by the client and that the administrator has approved the settlement. [If the client's death would arguably affect the settlement, failing to disclose the death might violate Rule 3.3(a)(2) and Rule 4.1(b), which prohibits a lawyer from knowingly failing to disclose a fact if disclosure is necessary "to avoid assisting a criminal or fraudulent act by a client."] 7/31/1987
0386

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26-Fruits and Instrumentalities of Crimes

31-Protecting and Disclosing Confidences and Secrets

A lawyer is not obligated to disclose the location of a weapon the lawyer discovered during an investigation, as long as the lawyer did not remove or conceal the weapon. 8/29/1980
0376

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A lawyer is not obligated to report a non-client's fraud unless it involves a tribunal. 7/11/1980
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
1374

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13-Marketing - Miscellaneous

31-Protecting and Disclosing Confidences and Secrets

42-Payments to Solicit Recommendations

85-Business Cards

A lawyer may accept referrals from a mental health therapist as long as the lawyer maintains total loyalty to the client and does not reveal any client confidences without consent. The lawyer may also leave business cards at the therapist's office as long as they are truthful and the lawyer does not compensate the therapist. 9/13/1990
0560

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31-Protecting and Disclosing Confidences and Secrets

A lawyer may disclose to the "appropriate mental health authorities" a client's stated intent to leave Virginia and commit suicide (because suicide is a crime in many states). 4/10/1984
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
0906

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31-Protecting and Disclosing Confidences and Secrets

A lawyer may hire an outside agency to prepare magnetic tapes containing information that must be disclosed to the IRS. 4/1/1987
0818

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31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

A lawyer may identify clients with unclaimed trust funds because disclosure is required by law. 9/3/1986
0397

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31-Protecting and Disclosing Confidences and Secrets

82-Advertising

A lawyer may list former and present clients in an advertisement if the clients consent and may also refer to the lawyer's aviation law experience in the advertisements.11/13/1980
0364

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31-Protecting and Disclosing Confidences and Secrets

A lawyer may not advise a Commonwealth's Attorney of a client's commission of a crime unless the client consents. 2/28/1980
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
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
0678

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31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer may not foreclose on a deed of trust and sue for the deficiency in the transaction in which the lawyer was involved if doing so would reveal confidences or secrets of the client. 4/2/1985
1087

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31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer may not reveal a client's past criminal conduct.6/17/1988
0654

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3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer may not reveal any confidential information jointly obtained from a former corporate and individual clients who are now adverse to one another. 1/17/1985
1300

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

A lawyer may not reveal client confidences unless disclosure is compelled by a court after the lawyer challenges the subpoena in court. The duty to preserve confidences survives the representation. Here, the identity of a legal aid client is a confidence because its disclosure might embarrass the client. 11/16/1989
0404

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26-Fruits and Instrumentalities of Crimes

31-Protecting and Disclosing Confidences and Secrets

A lawyer may not reveal information about where a client hid a weapon. 2/27/1981
0378

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31-Protecting and Disclosing Confidences and Secrets

76-Trust and Estate Lawyers

A lawyer may not reveal the contents of or existence of a client's will. 7/15/1980
0348

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer may not withhold information from a former client, even if the lawyer now represents an entity adverse to the former client. The lawyer may not represent either the former client or the current client if there is a dispute between them. 12/4/1979
0421

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31-Protecting and Disclosing Confidences and Secrets

A lawyer may notify a client's hospital and physician that the client has obtained proceeds of a judgment as long as the client had previously authorized the lawyer to assure the hospital and doctor that they would be paid out of the proceeds (if the client did not provide such authorization, such notification would be improper). 8/14/1981
0946

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31-Protecting and Disclosing Confidences and Secrets

38-Fee Splitting

A lawyer may refer client to a collection agency as long as the lawyer preserves confidences and secrets and avoids the fee-splitting prohibitions. 6/25/1987
ABA-435

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

A lawyer may represent a client against an adversary insured by an insurance company that the lawyer represents in unrelated matters, unless the insurance company becomes a formal party because the lawyer's litigation client and the insurance company are economically rather than legally adverse. The lawyer might be prohibited from taking discovery of the insurance company client, depending upon the adverseness involved. The lawyer might be unable to represent the litigation client if the lawyer has protected information from the insurance company client that "would materially help the plaintiff in his claims against the insured defendant."12/8/2004
1180

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer may represent a wife in a divorce case even though the lawyer previously represented the husband in a land dispute. In the previous representation, the lawyer learned general financial information about the husband, including the value of the property and the husband's difficulty in paying attorneys' bills, but this information was of a general and a public nature and not a "confidence or secret." 12/9/1988
1697

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25-Dealing with Unrepresented People

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may represent the husband in a domestic assault case although the lawyer's partner has been acquainted with the victim's family for many years and acquired confidences about the victim's family, because the family never sought or received legal advice from the partner and none of the discussions occurred in the lawyer's "professional capacity as a lawyer, to which an expectation of confidentiality might attach, as opposed to conversations between friends." The lawyer representing the husband may nevertheless withdraw as long as there would be no material prejudice to the husband and the lawyer receives court approval (if there was a pending case).6/24/1997
1433

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

A lawyer may reveal privileged information to defend against charges of criminal conduct made by a former client, although "disclosure should be made only to the extent necessary to rebut any accusation by the former client." The Bar suggested that the lawyer should seek a judicial ruling on the propriety of disclosure.10/21/1991
1147

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18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may reveal to a current client that the lawyer formerly represented the client's adversary's lawyer in that lawyer's own divorce years earlier. The disclosure should not embarrass the former client/lawyer and must be made to the current client in order to obtain proper consent. 1/4/1989
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
0995

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8-Bills and Fees

16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

A lawyer may sue a former client for an unpaid legal bill, but may not write the former client's supervisor unless the revelation is necessary to determine the reasonableness of the fee. 11/12/1987
0322

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4-Witness-Advocate Rule

31-Protecting and Disclosing Confidences and Secrets

A lawyer may testify as a witness on behalf of a former client if the client requests it. 4/25/1979
0443

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31-Protecting and Disclosing Confidences and Secrets

39-Miscellaneous

A lawyer may write articles about published judicial decisions. 12/7/1981
1258

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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
1381

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

A lawyer must obtain a former client's consent before writing a book based loosely on a former representation that ended ten years earlier. 9/13/1990
0929

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A lawyer receiving a letter from a fugitive client indicating that the fugitive intends to leave the United States may not reveal the client's intent because it amounts to a "continuing wrong" rather than a future crime (which would have to be revealed).6/24/1987
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
1643

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8-Bills and Fees

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

73-Family Law Lawyers

A lawyer represented a client in a divorce. After the representation ended, the former client filed for bankruptcy. The former client listed the lawyer's bill as a debt, but failed to list assets that were included in the publicly filed divorce property settlement agreement. The Bar held that the existence of these assets could still be a secret "despite the fact that others share the same information or the information is a matter of public record." The lawyer may therefore only reveal the fraud on the bankruptcy court if the lawyer's duty of confidentiality was outweighed by some other duty. The lawyer had no such other duty here, because the fraud: (1) did not occur during the course of the attorney-client relationship; and (2) did not relate to the subject matter of the representation. Furthermore, the lawyer may not reveal the confidences "to establish the reasonableness of his fees" because the client did not dispute the fees. The lawyer therefore may not reveal the fraud on the bankruptcy court. As the Bar explained it, "the protection of client confidences and secrets is so fundamental to the attorney-client relationship that any exceptions to the bedrock principle must be strictly limited." 9/8/1995
1347

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer represented a corporation in settling a claim with an insurance company after the corporation's offices are burglarized. The lawyer later learned that corporate officers may have staged the burglary.The Bar held that a lawyer is permitted to reveal to a third party information which "clearly establishes" this the client has committed fraud. Likewise, a lawyer must reveal to a court information which "clearly establishes" that the client has committed fraud on the tribunal. The only information that "clearly establishes" the client's fraud is the client's acknowledgment to the lawyer that the client has committed a fraud. Even the arrest or conviction of the client "would not be relevant to the attorney's ethical duty" because the "only way" to "clearly establish" the fraud is by the "acknowledgment of the client." 6/28/1990
1596

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer represented a corporation's president in 1989 and 1990, until the president resigned. New managers now run the corporation. Because the lawyer no longer represents the corporation or any of its officers, the lawyer may now represent an employee in a defamation lawsuit against the corporation -- because (1) there is no relationship between the defamation action and the lawyer's earlier representation; and (2) the lawyer did not acquire any relevant confidences. "Attorney's familiarity with the Corporation's operations or the personalities of its management, without more, is not a disqualifying conflict of interest." The lawyer might have to withdraw if a "finder of fact" determines that "either the matters were substantially related or that [the lawyer] did in fact receive secrets and confidences of President or [the] Corporation." 6/14/1994
1296

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3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

76-Trust and Estate Lawyers

A lawyer represented a husband and wife in preparing a contract for joint wills. After the husband dies, the wife's daughter tells the lawyer that her mother destroyed the contract and intends to prepare a new will in defiance of the contract.Because the lawyer was not representing the wife when this alleged activity took place, any fraud had not occurred "during the course of the representation" and the lawyer was therefore not governed by the Disciplinary Rule permitting disclosure of fraud on third parties that occurred during the course of the representation. 10/25/1989
1484

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31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer represented a husband in a divorce case. The wife was having an affair with another man. This man's wife gave the lawyer correspondence indicating that her husband was sexually abusing children from an earlier relationship. The Bar indicated that whether or not the lawyer has a duty to reveal the letters to law enforcement officials "raises a legal question which is beyond the purview of the committee." 12/14/1992
1536

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

7-Family Conflicts

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

71-Representing Corporations

A lawyer represented an insurance company's insureds and also represented the company in coverage issues. The Bar affirmed that the insured is the client of an outside lawyer selected by the carrier to represent the insured (relying on LEO 598). Once the lawyer leaves the firm, the lawyer may represent plaintiffs against other insureds (because "there was no attorney-client relationship" between the lawyer and the insurance company) as long as the new representations are not the same or substantially related to the specific matters on which the lawyer represented the company's insureds at the lawyer's old firm. [The Bar's conclusion that there was "no attorney-client relationship" between the lawyer and the insurance company seems inconsistent with its earlier statement that the lawyer handled "coverage issues" for the insurance company.] The lawyer's "familiarity with the general operation of [the insurance company] does not constitute a confidence or secret." Although the lawyer's spouse is an insurance company employee with access to claim files, the lawyer will not be disqualified as long as the lawyer has not acquired any confidential information from the spouse. 6/22/1993
0719

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

A lawyer represented four clients in automobile accident case, but one of the clients ends the representation and hires another lawyer. One of the remaining clients later tells the lawyer that the former client was not injured in the accident and is attempting to defraud the carrier (thus reducing the compensation available to the three remaining clients). If the lawyer continues to represent the three clients, the lawyer must advise all of them of this possible fraud because the fraud "would deplete the fund from which your continuing clients might recover" (because the lawyer learned about the possible fraud after the representation of the claimant ended, the lawyer has no duty to keep the information secret). 8/30/1985
1362

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4-Witness-Advocate Rule

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer represented husband and wife in an action brought by a bank on a note. The husband testified that the wife signed his name on the note without his knowledge. The wife was indicted for forgery, but the case was dismissed when the husband testified at the criminal trial that the wife signed his name with his permission. The Bar held that the lawyer should not have put the husband on as a witness in the criminal trial without first determining which of the husband's statements was truthful, and rectifying any false testimony (because "the conflicting testimony offered by the husband at the civil and criminal indictment proceedings clearly indicates that he was not testifying truthfully on at least one occasion") [the Bar did not discuss the "clearly established" test.]If lawyers know that they may be called as witnesses, they may continue the representation until it is apparent that their testimony is or may be prejudicial to their clients. Here, the lawyer's testimony would be prejudicial because the lawyer would have to testify about the client's possible perjury.7/17/1990
ABA-375

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31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer representing a bank in an audit may not lie to the auditor but is not required to disclose problems the lawyer uncovers. If the client lies to the auditor in the lawyer's presence, the lawyer is not required to immediately conduct a "noisy withdrawal", but may ultimately be obligated to resign. If the lawyer learns that the client will be using the lawyer's work product to perpetrate a fraud, the lawyer must disassociate himself from the work product. 8/6/1993
1640

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8-Bills and Fees

31-Protecting and Disclosing Confidences and Secrets

A lawyer representing a claimant in a worker's compensation matter must negotiate a pro rata contribution to the lawyer's fee from each treating physician. Such fee negotiations do not give rise to the expectation of confidentiality, so the lawyer may be adverse to one of the treating physicians in a malpractice claim even if the lawyer negotiated a fee matter with that treating physician (as long as the malpractice claim was not discussed). 6/9/1995
1731

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

17-Fraud on the Tribunal

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing.6/29/1999
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
0570

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31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

A lawyer representing a mentally disabled client may petition for appointment of a committee, but is not obligated to do so. A lawyer must advise a client that the lawyer has received an affidavit, even if the affiant has asked that the client not be advised of its contents. Rule 1.14 provides guidance to lawyers representing clients under a disability.]4/20/1984
1270

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31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer representing a personal injury plaintiff who has just settled a case learned from the client that the client was being held in jail "under an assumed name." Because the lawyer was not representing the former client in the criminal matter, the lawyer has an ethical duty not to reveal the former client's true identity unless the lawyer has "a legal duty to reveal the client's double identity or [is] in possession of insurance funds which you believe were fraudulently obtained."9/27/1989
0435

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31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer representing a prisoner pro bono who determines that the case is meritless and who seeks court permission to withdraw may not advise the court of the lawyer's conclusions about the case even if it means the court will not allow the lawyer to withdraw. 11/3/1981
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
1468

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

73-Family Law Lawyers

A lawyer representing the ex-wife of another lawyer in a divorce case found irregularities in the other lawyer's trust accounts. The ex-wife asked the lawyer to keep the irregularities secret, because revealing them could jeopardize the ex-wife's support payments. Although generally trust account violations must be reported, in this case the lawyer would violate the duty of confidentiality if the disclosed the husband's trust account irregularities to the Bar (the court had already been advised of the irregularities, and had placed all the information under seal). [The Bar did not discuss the circumstances under which the court had been advised of the trust irregularities.] [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.]12/14/1992
1882

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer representing two clients in unrelated criminal matters who learns from one client that the client would like to cooperate with the prosecutor and offer to testify against the other client the lawyer is representing (in an unrelated criminal matter) faces an incurable conflict, because: (1) the lawyer cannot advise the client who wants to cooperate, because it would be adverse to the lawyer's other client; and (2) the lawyer cannot obtain that other client's consent to the adversity, because the first client's interests in cooperating is a client confidence that cannot be disclosed without consent. The conflict would be incurable even if the prosecutor disclaimed any interest in using information obtained from the cooperating client, because the lawyer still could not advise the cooperating client adverse to the other client (and could not obtain the other client's consent, because the first client's interest in cooperating is a client confidence).7/23/2015
1457

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3-Multiple Representations on the Same Matter

15-Representing Other Entities - Miscellaneous

24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

A lawyer represents a condominium board. During the deposition preparation of one board member (the board's former president), the lawyer learns that the president exceeded the president's authority and contributed to the injury of which plaintiff complains. The lawyer must advise the former president to seek independent counsel. The lawyer may not continue to prepare the former president for the deposition because the former president and the condominium board have conflicting interests which cannot be cured by consent. The lawyer may not tell the condominium board what the former president has told the lawyer, unless the lawyer had earlier advised the former president that the lawyer represented the condominium board and not the president, and that any information divulged during the deposition preparation would be shared with the board. Although the lawyer had no attorney-client relationship with the former president, absent such disclaimer the meeting "created an expectation of confidentiality which must be protected by the attorney." The opinion seems to indicate that the lawyer may also find it nearly impossible to continue representing the condominium board, because the lawyer cannot both represent the condominium board and protect the confidences of the former president. [Rule 1.13 provides guidance for lawyers who represent organizations and face this situation. The litigation in this opinion was pending in D.C. so under Rule 8.5 the D.C. court's ethics rules would now govern this situation.]4/13/1992
0265

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31-Protecting and Disclosing Confidences and Secrets

A lawyer should advise a client to report a tax refund to the trustee in bankruptcy. 5/27/1975
1095

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8-Bills and Fees

31-Protecting and Disclosing Confidences and Secrets

A lawyer suing a former client for a fee is free to answer discovery about the lawyer's fees and services. 6/14/1988
1684

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

68-Lawyers Acting as Mediators

A lawyer who acted as a mediator between an investor and a brokerage firm and who acquired confidential information about the brokerage firm's "internal rules and operations" may not later represent another investor in a lawsuit against the firm (even though the second investor's claims involve different securities and a different registered representative, the information the lawyer learned as a mediator was relevant to the second investor's case).The Code applies to the lawyer acting as a mediator. Although "mere familiarity with a corporation's workings or personality of its representatives is not enough" to disqualify the lawyer from being adverse to a former client, here "the mediator learned information about the internal rules and operations of the Firm having a bearing on the quality of the Firm's supervision of its agents." This means that the matters are "substantially related," and the lawyer/ mediator may not use such confidential information against a former client just as a lawyer could not use it against a former client the lawyer represented as an advocate. Although the brokerage firm may consent to the adversity, "the committee cautions attorneys from relying heavily on client consent because there are circumstances in which the consent may be withdrawn at a later time." [Rule 2.11 governs a lawyer's role as mediator.] [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.]7/8/1996
ABA-398

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31-Protecting and Disclosing Confidences and Secrets

A lawyer who allows a computer maintenance company access to the lawyer's files must ensure that the company establishes reasonable procedures to protect the confidentiality of the information in the files, and would be "well-advised" to secure the company's written assurance of confidentiality. 10/27/1995
ABA-412

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer who has "actual knowledge" that a client has violated a court order governing the transfer of assets (based either on "a communication by the client to the lawyer or on other information coming to the lawyer's attention that the lawyer reasonably believes to be reliable") must first review all statements the lawyer made to the court about the matter, and correct any representations the lawyer now knows to be untrue. The lawyer must also review the client's statements to the court, and take appropriate "remedial measures," which may include disclosure of the client's previous misstatements or withdrawal from the representation. If neither the lawyer nor the client has made false statements to the court, the lawyer must consider whether the continued appearance on the client's behalf amounts to assisting the client's fraud on the court. For instance, if a court order required the client to report certain transactions that the client did not report, the lawyers' continued appearance on behalf of the client "reasonably would be viewed as a continuing representation to the court that the client is in compliance with an order prohibiting disposition of assets." The same would be true if the client disposed of an asset that was the subject matter of litigation. On the other hand, the lawyer's continued representation would not violate the ethics rules if the client had disposed of a small amount of money but otherwise had adequate resources to satisfy a judgment. A lawyer who withdraws because he or she knows that the client "intends to make a false statement to the court or believes that her continued representation of the client would assist the client in a fraud on the court" may not disclose the false statement to successor counsel or the court unless the client consents. Although a lawyer must "take reasonable remedial measures" upon learning of a client's past perjury, a lawyer who withdraws from the representation before a client commits perjury may not disclose the client's intent. 9/9/1998
0272

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer who has represented a corporation may answer a government agency's questions about the lawyer's purchase of stock in the corporation. 10/27/1975
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
0761

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20-Government Official Conflicts

30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

A lawyer who is a member of a local governing body may disclose clients' identity if required by law. 1/19/1986
0555

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31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

63-Lawyers Acting as Corporate Officers or Directors

71-Representing Corporations

A lawyer who is acting as counsel, shareholder, officer and director of a corporation must maintain as confidential any information the lawyer has obtained from a fellow stockholder, director and officer because the conversation was with the lawyer as counsel for the corporation. [The lawyer would be free to reveal the information to the corporation's management.] 4/10/1984
0833

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

A lawyer who is asked to file a false certificate with the state is obligated to report the client's crime unless the client agrees not to file the certificate. 10/9/1986
ABA-366

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31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer who knows or believes that the lawyer's services are being used to perpetrate a fraud must withdraw and may disaffirm documents the lawyer has prepared, even if such a "noisy withdrawal" might reveal client confidences. A lawyer would be obligated to take these steps even if the lawyer is fired before having the chance to withdraw. The lawyer may (but does not necessarily have to) withdraw -- without a "noisy withdrawal" -- if the lawyer's services have been used without the lawyer's knowledge to commit a fraud that is now completed. 8/8/1992
0629

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22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer who learns confidences during a professional discussion at a social engagement may not reveal the contents without the client's consent. 11/13/1984
0293

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31-Protecting and Disclosing Confidences and Secrets

A lawyer who learns that a factual assumption underlying a settlement is incorrect must advise the other party to the settlement. 7/19/1978
1811

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

75-Representing Estates and Executors

76-Trust and Estate Lawyers

A lawyer who previously represented a co-executor of an estate must follow the former client's directions and refuse to provide documents to the other co-executor's lawyer, despite an agreement among the co-executors that they would share financial information; although lawyers may disclose client confidences to comply with a "law or a court order," the co-executors contract is not "law"; any dispute about the contract should be handled by the lawyer currently representing the co-executor.4/25/2005
1681

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer who represents a lender in closing residential loans (often at the recommendation of the builder) may not represent a borrower in litigation against the builder, because: (1) the lawyer is administering settlement funds on behalf of other borrowers that the client could use to satisfy the client's claim against the builder; and (2) the lawyer is privy to confidential information about funds owed to or to be disbursed to the builder. Once the lawyer stops representing the borrower in the action against the builder, the lawyer may continue to handle other closings on behalf of other borrowers. 5/16/1996
ABA-395

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31-Protecting and Disclosing Confidences and Secrets

A lawyer who represents one member of a defense "consortium" may not later be adverse to another member of the consortium without the client's consent (because the use of confidential information may put the former client at risk). The lawyer may have a fiduciary duty to other members of the consortium that would require the lawyer's disqualification in later cases, but has no ethical duty because they were not clients. 7/24/1995
1687

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer who suspects that a client has committed fraud before the representation may "accept at face value" that the client's story is "bona fide" unless the lawyer "knows or, in the exercise of due diligence upon reasonable inquiry during the attorney/client relationship, the attorney should know of information to the contrary." Thus, the lawyer must maintain the client's confidences and secrets and has no duty to "confront the client and inquire directly about the client's prior conduct." However, nothing prohibits the lawyer from "investigating the matter further." If the lawyer "believes that the fraud is obvious" even though the lawyer never receives a confession from the client, the lawyer should "move to voluntarily withdraw" at a time "that does not materially prejudice the client." 9/23/1996
1601

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9-Government Lawyer Conflicts

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

A lawyer working at a state institution of higher learning may enter into an employment contract under which the lawyer must disclose to the administration information that the lawyer has obtained from those seeking legal advice. Although an "expectation of confidentiality" may arise in situations in which no attorney-client relationship exists, the lawyer may resolve any problems by issuing "a disclaimer to colleagues or students indicating that no attorney/client relationship will be formed and any information received will not be treated as secret or confidential." 7/18/1994
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
1207

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31-Protecting and Disclosing Confidences and Secrets

A lawyer's duty to protect a client's secrets and confidences survives the client's death. However, a lawyer may reveal a deceased client's confidences or secrets if "the lawyer reasonably believes, in the exercise of his own best judgment, that to do so would be in the best interest of the deceased client who would have wanted the information revealed if he were alive" [overruling any inconsistent portion of LEO 812). 5/2/1989
1307

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14-Ownership of Files and Attorney Lien Issues

31-Protecting and Disclosing Confidences and Secrets

A lawyer's files may be reviewed to determine if non-legal documents may be given to an institution (for historic archives) as long as the attorney-client privilege is not breached by having an outsider examine the files. 11/13/1989
1564

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer's ownership interest in a title insurance agency is not per se improper, but the lawyer must: follow all conflicts rules; completely separate the lawyer's law practice from any title insurance agency; and avoid any revelation of client confidences. The lawyer may not: be compensated by the title insurance agency based on the referrals of clients to the agency; receive a fixed salary unless it is related to the work performed for the agency; receive any interest earned on funds deposited in the agency's trust account; or arrange for the agency to pay for any law firm salaries, services or advertisements.It is per se improper for the lawyer to represent a party in a transaction if the lawyer "directly or indirectly performs the function of a Title Insurance Agent" for the transaction, or holds a license as a Title Insurance Agent. A lawyer may arrange for title insurance through the agency to one of the lawyer's clients only: with consent after full disclosure; and if the transaction is not "unconscionable, unfair or inequitable when made." The Bar indicates that "all doubts regarding the sufficiency of the disclosure must be resolved in favor of the client, and against the attorney." The disclosure should be in writing and accepted by the client in writing, and should include an explanation of the cost and the availability of alternatives. (Revised 2/15/95) [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]2/15/1995
1481

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7-Family Conflicts

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer's spouse worked in a crisis center, and received confidential information from a woman who called the crisis center. The spouse never revealed this information to the lawyer/spouse. The lawyer later began to represent (in a divorce case) the husband of the woman who had called the crisis center. Because the lawyer had not learned any of the confidences the spouse had acquired from the woman, and had never represented the woman, the lawyer may continue to represent the husband in the divorce matter. 8/24/1992
1633

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22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A non-lawyer legal aid employee obtains general financial information from applicants to determine if they meet the pro bono standards. If a potential client is referred to one of a group of lawyers handling pro bono cases, the attorney-client relationship exists between the client and the lawyer to whom the client is referred. The "intake interview by non-lawyer staff personnel to determine a person's eligibility for legal aid services" (without the furnishing of any legal advice) does not create an attorney-client relationship with the legal aid office. However, identifying data about a potential legal aid office client is a secret which cannot be disclosed without the potential client's consent. Also, in most circumstances "an initial consultation with an attorney creates an expectation of confidentiality even where no attorney-client relationship arises in other respects." However, different rules apply to legal aid offices, because "a more stringent application of the rules and disqualification would result in decreased access to legal services for the indigent." The Bar recommends that the legal aid intake specialist should obtain a written informed consent at the intake interview in which the prospective client acknowledges "that the limited information given will not be treated as confidential for purposes of enabling the legal aid office to screen for conflicts or to make referrals." 6/9/1995
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
1205

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9-Government Lawyer Conflicts

21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

A proposed FOIA amendment would require a member of a public body to certify that nothing improper was discussed. The lawyer representing the public body would have to reveal a false certification as a fraud upon a third party if the "fraud has been committed to dilute the citizenry's respect for the workings of government." Otherwise, the lawyer could not reveal a false certification.If one of the board members was a lawyer, that member could not sign a false certification. If the member did so, the county attorney discovering the falsity of the certification would have to report it to the professional authorities. It would be "rebuttably presumptive that a false certification by a presiding officer-member/attorney would reflect adversely on that lawyer's fitness to practice law" and would have to be reported to the Bar. 4/13/1989
1574

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12-Withdrawing Lawyers (Including Non-Compete Issues)

31-Protecting and Disclosing Confidences and Secrets

33-Office Sharing with Other Lawyers

A retired lawyer may retain an office in a prior law firm but must be careful not to obtain any confidences or secrets of the former firm's clients. 2/8/1994
1289

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31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

A settlement between an insurance company and a personal injury plaintiff included an amount to pay a bill that the plaintiff's lawyer later learned was accidentally issued by a hospital and which the client did not really owe. The lawyer asked if there was an obligation to advise the insurance company of the mistake. Because it was a mistake and not an attempt by the plaintiff to defraud the insurance company, the lawyer must keep the mistake secret. However, the lawyer must concede the mistake if the insurance company later discovers it. 10/23/1989
1453

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22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A university pre-paid student legal service office represents students in criminal matters only if the complaining witness or victim is a student and consents to the representation. The ethics rules permit contact with the student (who will be a witness and not a party to the criminal proceeding) and also permits making the representation of the student-defendant contingent on the witness' consent. Although no attorney-client relationship arises from the initial consultation between the office and the student-defendant, the meeting "created an expectation of confidentiality" that the lawyer must respect.3/24/1992
1650

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

After the plaintiff and defendant settled a case based at least in part on the plaintiff's expert's deposition testimony, lawyers for both sides learned that the expert lied about professional qualifications "that formed the basis of his expert opinion." The Bar reiterates that false deposition testimony is fraud on a tribunal. However, not every misrepresentation made by a witness in a deposition is a "fraud upon the tribunal" -- disclosure is required only "to prevent a judgment from being corrupted" by the "unlawful conduct." If the false testimony about the plaintiff's expert's qualifications are "material to the opinion rendered by such expert" and therefore "corrupts the opinion," the fraud must be revealed to the tribunal "regardless of whether the case proceeds to trial or is settled." [Rule 3.3(a)(2) and Rule 4.2(b) require a lawyer to disclose facts if disclosure is necessary to avoid assisting a client's criminal or fraudulent acts.]9/8/1995
0561

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31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

After winning a motion, a lawyer prepared a decree accidentally broader than the court's ruling. Because the lawyer had not intentionally mis-drafted the decree, the lawyer may now assert a res judicata defense based on the overbroad decree. The Bar held that the lawyer must concede the circumstances of the drafting should the adversary raise it. [Rule 4.1(b) might require disclosure of the mistake if the disclosure is necessary "to avoid assisting a criminal or fraudulent act by a client."]4/10/1984
ABA-456

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

Although most courts hold that a criminal defendant's claim of "ineffective assistance of counsel" waives the attorney client privilege, it does not relieve the defendant's lawyer of the ethics duty of confidentiality. If the court overrules a privilege claim, the defendant's lawyer "must provide [the information sought] or seek appellate review." In analyzing possible exceptions to the ethics duty of confidentiality, the lawyer might rely on the self defense exception under which "the lawyer may disclose information relating to the representation insofar as necessary to dissuade a prosecuting, regulatory or disciplinary authority from initiating proceedings against the lawyer or others in the lawyer's firm, and need not wait until charges or claims are filed before invoking the self defense exception." The lawyer may rely on that exception only if the charges "imminently" threaten the lawyer with "serious consequences," and only to the extent that disclosure is necessary. Given the narrowness of the self defense exception, "it is highly unlikely that a disclosure in response to a prosecution request, prior to a court supervised response by way of testimony or otherwise, will be justifiable."7/14/2010
1613

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

An associate who worked on an antitrust case for three months before leaving a firm had obtained information from the client's co-defendants. Although there was no attorney-client relationship between the lawyer and the co-defendants, the information the associate gained from the co-defendants "is also construed to be protected as a secret of the client/defendant since it was gained in the professional relationship, was apparently intended by the client to remain confidential, and ... the interests of the co-defendants is parallel to the interest of the client/defendant." The Bar held that the associate would have to keep this information secret.In discussing whether the associate could now work for a governmental agency in an arguably related antitrust matter, the Bar noted that the Bar "would find not substantially related any anti-trust enforcement which did not involve either the same relevant facts necessary to prove a violation, the same parties (the same co-defendants), or the same subject matter (anti-trust)."The rule prohibiting adversity to a former client on the same or substantially related matters has no time limit. Because there was no attorney-client relationship between the associate and the co-defendants, the Bar held that the imputed disqualification rules possibly applicable to the government agency are "inapposite." [The Bar did not indicate whether the former associate could be involved in substantially related anti-trust enforcement matters with the former client's consent only, or whether the associate must also obtain the co-defendants' consents.] 1/13/1995
0598

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6-Lawyers Paid by Third Party

15-Representing Other Entities - Miscellaneous

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

57-In-House Lawyers

An in-house lawyer for an insurance company may represent an insured, but must remember that the insured is the client. Among other things, the insured's lawyer may not reveal information acquired from the insured that would allow the carrier to deny coverage. [Approved by the Supreme Court 3/8/85, effective 6/1/85.]6/1/1985
0983

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31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

71-Representing Corporations

An in-house lawyer learns that a corporation has filed a false prospectus. The lawyer did not participate in preparing or disseminating the prospectus, and has now resigned from the in-house position. The lawyer may now reveal the fraudulent activity. The lawyer also has a duty to advise the corporation of the possible consequences of continuing its fraudulent activity, urge the corporation not to issue the prospectus and advise the corporation that the lawyer will reveal its conduct unless the corporation abandons its "criminal intentions." [Rule 1.13 provides guidance for lawyers in this situation.]10/27/1987
1272

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15-Representing Other Entities - Miscellaneous

31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

An in-house lawyer may not reveal a client's filing of a misleading certificate related to government contract work unless the filing was illegal or fraud is "clearly established." 10/3/1989
0834

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7-Family Conflicts

8-Bills and Fees

16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

As long as the client consents, a lawyer may refer clients to the lawyer's spouse (a financial planner). The lawyer may not disclose the clients' identity to the spouse without the clients' consent. A lawyer may employ a collection agency to help collect past-due fees, but should not disclose any more information than the agency would need to collect the fee.9/23/1986
1336

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

As long as the client consents, and it would not prejudice the client, a lawyer may write an article about a case that is currently pending on appeal (it is unlikely the publication of an article in a professional journal would improperly affect any jury that might hear the case on remand). 5/8/1990
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
1664

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14-Ownership of Files and Attorney Lien Issues

31-Protecting and Disclosing Confidences and Secrets

Because a lawyer's duty to maintain confidences and secrets survives the client's death, a lawyer may not provide a former client's historically significant files to a university without either obtaining the client's consent or determining that the files contain no confidences or secrets; a lawyer may give limited information to an outside agency if it is necessary for the lawyer to perform the lawyer's job, but the lawyer must be careful in selecting the agency and instruct the agency that the information must be kept confidential; information is no longer confidential once it becomes a matter of public record unless it is a "secret"; "an implied (though not formal) attorney-client relationship can arise whenever a lawyer receives confidences or secrets from a person who had an expectation of confidentiality even if no representation resulted." 2/9/1995
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
1859

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

48-Criminal Defense Lawyers

Criminal defense lawyers whose clients have claimed ineffective assistance of counsel may not disclose client confidences to defend themselves immediately upon the filing of the habeas petition, because it is "unlikely that it is reasonably necessary for the lawyer to disclose confidential information at the time the petition is filed, when the court has not made a determination whether the petition is legally and procedurally sufficient." The lawyer would be justified in disclosing confidential information under the Rule 1.6 self defense exception "under judicial supervision at a formal proceeding, after a full determination of what information should be revealed."6/6/2012
0488

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

Even after withdrawing as counsel, a lawyer may not reveal information learned from the client that would exonerate another suspect and implicate the client. 9/3/1982
ABA-424

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31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

Former in-house lawyers may sue their former employers/clients, even if the lawyer claims retaliatory discharge based on adherence to ethics obligations, but: may only disclose information “to the extent necessary to establish her claim against her employer”; must affirmatively seek to avoid unnecessary disclosure by using such procedures as in-camera review, sealing of the record, proceeding without disclosing the parties’ names, etc. 9/22/2001
0542

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

If a client does not abandon an intent to commit perjury, the lawyer must reveal it. The lawyer should reveal the client's intent to the court, not the Commonwealth's Attorney. 3/1/1984
1284

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31-Protecting and Disclosing Confidences and Secrets

In certain circumstances, a client's identity may be a confidence that the lawyer must keep secret. 10/19/1989
1682

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9-Government Lawyer Conflicts

20-Government Official Conflicts

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

51-Government Attorneys

It is not per se impermissible for a Commonwealth's Attorney or criminal defense lawyer to participate on a Community Criminal Justice Board, which develops and evaluates community corrections programs (but does not make any findings or recommendations in individual cases), as long as the lawyers do not reveal client confidences, do not seek any special advantages for themselves or their clients, and do not advise their clients that they can improperly influence any Board members.5/16/1996
ABA-453

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

43-Conflicts of Interest - Miscellaneous

45-Law Firms - Miscellaneous

57-In-House Lawyers

Law firms' in house ethics counsel: may disclose and receive client confidences to and from other firm lawyers, because "unless a client has expressly instructed that information be confined to specific lawyers within the firm, the lawyer handling the matter does not violate the duty of confidentiality by consulting within the firm about the client's matter."; may but is not required to disclose to clients that the lawyer has discussed with other firm lawyers ethics issues involving that client; does not face a per se conflict in discussing with other firm lawyers possible conflicts of interest involving the client, but may face a conflict if the communications involve protecting the interests of the law firm or its lawyers rather than the client; should explain to the firm lawyer requesting advice whether the in house ethics counsel represents the law firm, the individual lawyer or both; must comply with Rule 1.13's requirement to disclose any wrongdoing up the law firm's chain of command; should consider a possible duty to disclose a colleague's unethical conduct, recognizing that "reporting under this rule is required only when the conduct in question is egregious and 'of a type that a self-regulating profession must vigorously endeavor to prevent.'"; should remember that any duty of disclosure is trumped by the duty of confidentiality to clients (either the law firm or the individual lawyer); recognize that he might have to withdraw from representing the law firm and the individual lawyer if they disagree about whether he should report wrongdoing; realize that other lawyers in the firm may have a duty to report a colleague's wrongdoing, because they do not have an attorney-client relationship with the law firm or the individual lawyer (but may have a duty of confidentiality to firm clients whose information is involved).10/17/2008
ABA-413

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers may ethically communicate client confidences using unencryped e-mail sent over the Internet, but should discuss with their clients different ways of communicating client confidences that are "so highly sensitive that extraordinary measures to protect the transmission are warranted." 3/10/1999
1846

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31-Protecting and Disclosing Confidences and Secrets

47-Lawyer Referral Services

50-Lawyer-Owned Businesses

Lawyers may not join a lead-sharing organization in which membership "is often dependent on the number of leads a member passes," because: such "reciprocal" referrals amounts to a "quid pro quo payment for services" in violation of the prohibition on providing something of value in return for a referral (and possibly in violation of § 54.1-3939's and § 54.1-3941's ban on "running and capping," as explained in a 12/7/10 letter from Virginia's Attorney General); such participation puts the client's interest at risk because the lawyer "may be obligated to refer a client to a particular member specialist when a non-member specialist may be better suited to meet the client's needs"; the lawyer faces a personal conflict of interest because the lawyer may not feel free "to choose the most appropriate specialty provider for a client"; "[t]he mere disclosure of a client's name and specific need in certain circumstances may be enough to violate the Rule without consent of the client." A lawyer may own an interest in a company that is such a lead-sharing organization "as long as the lawyer is not a member." Lawyers may also engage in voluntary referrals to other lawyers and professionals, but may not join "a hypothetical organization which bases membership on the commitment to provide referrals." (2/2/09; revised 12/29/10)12/29/2010
0474

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31-Protecting and Disclosing Confidences and Secrets

Lawyers may properly engage in a "lawyer-to-lawyer program" in which less experienced lawyers receive advice from more experienced lawyers. (9/20/82) [Rule 1.6 Comment [7a] governs such "mentor" conversations.]9/20/1982
ABA-455

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5-Lawyers Changing Jobs

31-Protecting and Disclosing Confidences and Secrets

Lawyers moving from one firm to another and law firms that hire them cannot rely on any specific rule allowing the exchange of information about clients necessary for a conflicts analysis, but may exchange such otherwise protected information -- although the disclosure "should be no greater than reasonably necessary to accomplish the purpose of detection and resolution of conflicts of interest." The exception in Rule 1.6 for disclosure "impliedly authorized" to represent a client does not apply, because the disclosures by the moving lawyer and the hiring law firm do not serve the client's interests. The exception in Rule 1.6 for disclosures necessary to "comply with other law" does not apply, because the exception refers to law, not ethics rules. Although client consent would resolve any issue, obtaining the consent normally is impractical. However, the ethics rules are "rules of reason," and the recent rule change allowing the screening of lateral hires to avoid imputed disqualification highlights the permissibility of basic conflicts data disclosure that necessarily precedes such a lateral hire. In some situations, neither the moving lawyer nor the firm can disclose privileged information when the disclosure would "prejudice a client or former client" -- as with a planned hostile takeover, contemplated divorce, etc. In other situations, it will quickly become apparent that conflicts will prevent the firm from hiring the moving lawyer -- such as situations in which there are "numerous existing matters" involving conflicts, or the law firm and the potential lateral hire "regularly represent commonly antagonistic groups." Thus, "conflicts information normally should not be disclosed when conversations concerning potential employment are initiated, but only after substantive discussions have taken place." If checking for conflicts will require a "fact intensive analysis of information beyond just the persons and issues involved in a representation" (as when analyzing the "substantial relationship" between a current and former representation, the law firm might be able to analyze conflicts by obtaining information other than from the moving lawyer. If not, the moving lawyer must seek the client's consent to disclose such detailed information, or rely on the new Rule 1.10 provision permitting screening of lateral hires to avoid imputed disqualification. The law firm receiving any confidential information as part of the conflicts analysis should limit use of the information "to the detection and resolution of conflicts of interest, and dissemination of conflicts information should be restricted to those persons assigned to or involved in the conflicts analysis with respect to a particular lawyer."10/8/2009
1872

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31-Protecting and Disclosing Confidences and Secrets

45-Law Firms - Miscellaneous

53-Office Sharing with Non-Lawyers

82-Advertising

Lawyers must be mindful of their confidentiality, supervision and marketing responsibilities, among other things, if they practice "virtually," or if they combine a virtual practice with an "executive office suite" for meetings and other activities requiring a physical office. Lawyers sharing a space with nonlawyers must take reasonable steps to protect client confidences. Lawyers must also take reasonable steps to protect their clients' confidential information when dealing with technology, including examining "the third party provider's use of technology and terms of service" before using such provider's cloud computing or other services (lawyers unable to assess these factors on their own "will have to consult with someone qualified to make that determination"). Lawyer might also have an obligation to explain to their clients the risk of using certain methods of communication and storage. A lawyer not physically present with colleagues and staff must nevertheless comply with the normal duties of supervising subordinate lawyers and nonlawyers. Lawyers may not use misleading marketing by listing as an office a place where the lawyer does not actually practice (analyzing the situation using such factors as the frequency with which the lawyer uses the space, whether nonlawyers also use the space, signage, etc.). Under the current Virginia regulations (which are the subject of proposed amendments), lawyers admitted by motion to practice in Virginia must maintain an office where they can see clients (which does not include a "virtual office or shared occupancy arrangements").3/29/2013
ABA-473

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers receiving a subpoena or other compulsory process calling for the disclosure of client confidential or privileged communications or documents: (1) must notify or make reasonable steps to notify current or former clients of the subpoena; (2) must consult with available clients about whether to challenge the demand or appeal (but may withdraw if such an appeal is beyond the retention scope or is a new matter the lawyer does not wish to handle); (3) must consult with available clients about fees if the original retainer letter does not require clients' payments in that situation -- although lawyers "may be required to challenge the initial demand" even without a fee agreement; (4) "should" resist disclosure on behalf of unavailable clients, but may comply with a court order overruling any objections (in that situation, lawyers may seek to withdraw or file a later quantum meruit action for fees); (5) need not appeal on behalf of unavailable clients a court order requiring disclosure; (6) must in all circumstances only disclose client confidential or privileged information or communications "to the extent reasonably necessary" (which may require lawyers to seek protective orders or other arrangements.2/17/2016
1757

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5-Lawyers Changing Jobs

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

Legal aid society lawyers who are involved in client intake and advice must maintain the confidentiality of what they have learned. “It is irrelevant whether or not an attorney-client relationship ensued” as a result of any client intake interviews, and it is also “irrelevant whether or not the attorneys actually remember” the confidential information imparted to them. When the lawyers move to another legal aid society, their former employer must provide access to the files of clients they formerly represented. It is also necessary for the lawyers to obtain information about their previous work so that they can perform conflicts checks at their new employer. 5/17/2001
0859

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31-Protecting and Disclosing Confidences and Secrets

Student Legal Services may provide client information (justifying the reasonableness of fees) to an outside auditor if required by university rules, but the auditor should be advised to maintain the confidentiality of the information. 12/15/1986
0928

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31-Protecting and Disclosing Confidences and Secrets

The ethical duty of confidentiality continues after a client's death, and the lawyer may not turn over the client's files to an institution. 6/11/1987
0812

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31-Protecting and Disclosing Confidences and Secrets

The lawyer's duty of confidentiality lasts beyond the end of the representation. 7/25/1986
1712

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5-Lawyers Changing Jobs

8-Bills and Fees

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

38-Fee Splitting

45-Law Firms - Miscellaneous

This is a comprehensive opinion dealing with temporary lawyers ("lawyer temps"). A lawyer temp is treated like a lateral hire for conflicts purposes (although lawyer temps who are not given "broad access to client files and client communications" could more easily argue that they had not obtained confidences from firm clients for which they had not directly worked). As with lateral hires, screening lawyer temps does not cure conflicts. Lawyer temps may reveal the identity of other clients for which they have worked unless the clients request otherwise or the disclosure would be embarrassing or detrimental to the former clients.Paying a staffing agency (which in turn pays the lawyer temp) does not amount to fee-splitting because the agency has no attorney-client relationship with the client and is not practicing law (the New York Bar took a different approach, suggesting that the client separately pay the lawyer temp and agency). If a firm lawyer closely supervises the lawyer temp, the hiring of lawyer temps need not be disclosed to the client. A lawyer must inform the client before assigning work to a lawyer other than one designated by the client.Because "a law firm's mark-up of or surcharge on actual costs paid the staffing agency is a fee," the firm must disclose it to the client if "payment made to the staffing agency is billed to the client as a disbursement, or cost advanced on the client's behalf." On the other hand, the firm "may simply bill the client for services rendered in an amount reflecting its charge for the Lawyer Temp's time and services" without disclosing the firm's cost, just as firms bill a client at a certain rate for associates without disclosing their salaries. In that case, the "spread" between the salary and the fees generated "is a function of the cost of doing business including fixed and variable overhead expenses, as well as a component for profit."Because the relationship between a lawyer temp and a client is a traditional attorney-client relationship, the agency "must not attempt to limit or in any way control the amount of time a lawyer may spend on a particular matter, nor attempt to control the types of legal matters which the Lawyer Temp may handle." Agencies may not assign lawyer temps to jobs for which they are not competent.7/22/1998
ABA-349

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31-Protecting and Disclosing Confidences and Secrets

This Opinion withdrew earlier Opinions about confidentiality duties. 5/7/1984
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
1493

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24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

While working for the government, a lawyer used an expert. The expert has now appeared adverse to the lawyer's current client. The lawyer could reveal "his impressions about the expert witness's strengths, weaknesses, or work habits" because the matters were unrelated and because such "subjective assessments" did not constitute a secret of the lawyer's former client. 10/19/1992

Copyright 2000, Thomas E. Spahn