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: 32 - Lawyers Acting in Other Roles (Miscellaneous)
LEO NumTopicsSummaryDate
1514

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5-Lawyers Changing Jobs

32-Lawyers Acting in Other Roles (Miscellaneous)

59-Disbarred and Suspended Lawyers

A collection lawyer disbarred for reasons other than misconduct involving clients may not perform clerk-like work for former clients even if under the direct supervision of a lawyer in another firm. The former lawyer may perform clerk-like work for those who were not former clients. 4/12/1993
0925

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32-Lawyers Acting in Other Roles (Miscellaneous)

A corporate supervisor who maintains a private law practice may properly represent an employee in a personal legal matter and later (as supervisor) give the employee a negative evaluation and recommend that the employee be fired. 6/11/1987
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
0284

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2-Adversity to Former Clients

32-Lawyers Acting in Other Roles (Miscellaneous)

A law firm may represent a client being sued by a former client unless it had acquired material confidential information from the previous client or its judgment would otherwise be impaired. The firm is not disqualified because one of its lawyers served as a member of the Board of Directors of the former client "several years" earlier. 12/20/1977
1137

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A law firm may represent the plaintiff although a member of the firm is a general partner in the partnership that includes the defendant as a limited partner (the plaintiff had consented). There appeared to be no attorney-client relationship between the law firm and the defendant. 10/13/1988
1053

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5-Lawyers Changing Jobs

16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A law firm represented a city in a case brought by a developer. The law firm has discovered that one of its new lawyers is a shareholder of the developer (although not its lawyer). The new lawyer attended a board meeting at which the developer voted to sue the city, but there was no discussion of the merits of the case. The new lawyer claims to have no knowledge that could assist the city's defense. The city has consented to the firm's continued representation of it. The firm may continue to represent the city even if the developer objects, because its new lawyer had never represented the developer. 3/8/1988
1579

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32-Lawyers Acting in Other Roles (Miscellaneous)

40-Trust Accounts

A lawyer acting as a fiduciary must comply with the Canon 9 rules, although the application of IOLTA raises a legal issue. 4/11/1994
0385

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32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer acting as a guardian ad litem: may not accept compensation from a lawyer representing one of the adverse parties; may not accept compensation from an award granted in a separate matter; and is not obligated to appeal an adverse ruling. 8/20/1980
1474

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4-Witness-Advocate Rule

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer acting as a mechanics' lien agent would have to be a witness in litigation involving the mechanics lien, and therefore could not act as an advocate. DR 5-101(B) does "not include any provision for a cure by consent of the parties." 10/19/1992
0370

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32-Lawyers Acting in Other Roles (Miscellaneous)

76-Trust and Estate Lawyers

A lawyer acting as an estate's executor may be adverse to the residuary legatee of the estate on an unrelated matter.4/4/1979
1442

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32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer acting in a fiduciary capacity as a "lender's agent" is bound by the ethical rules that would govern if the lawyer were acting as a lawyer. 11/27/1991
1184

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32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer has been asked to sign an affidavit as an expert witness on behalf of defendants, although the lawyer had earlier acted as an expert witness for plaintiffs in the same case (on a separate issue). The Bar declines to state whether acting as an expert witness creates an attorney-client relationship. 11/23/1988
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
1099

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

72-Representing Partnerships

A lawyer is a general partner in a partnership with three limited partners. The lawyer has filed an action against the three limited partners. The Bar declines to say whether it is proper for the lawyer to file a lawsuit against the limited partners while retaining the status of a general partner. 7/11/1988
1105

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2-Adversity to Former Clients

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer may act as a consultant for the Department of Energy on policy matters despite having formerly represented clients before FERC on regulatory matters. There is no substantial relationship between the representation, and the present employment is not adverse to the former clients. 7/14/1988
1317

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32-Lawyers Acting in Other Roles (Miscellaneous)

53-Office Sharing with Non-Lawyers

A lawyer may conduct a legal practice out of a non-legal business office if there is a proper separation of the two functions and the public is not misled. The lawyer may provide non-legal services to clients with consent after full disclosure. 1/18/1990
1502

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20-Government Official Conflicts

28-Law Firm Staff

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer may continue to appear before the Virginia General Assembly (not on behalf of any particular client, but rather on behalf of certain positions) even though one of the lawyer's employees now serves in the Virginia General Assembly. The Bar apparently made this approval contingent on the lawyer not acting as a "lobbyist" as that term is statutorily defined. The lawyer may also serve as a part-time litigation assistant to an employee who is serving in the Virginia General Assembly, because the lawyer will not receive any fee or cost reimbursement from the state. 12/14/1992
0257

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5-Lawyers Changing Jobs

32-Lawyers Acting in Other Roles (Miscellaneous)

76-Trust and Estate Lawyers

A lawyer may not represent estate beneficiaries objecting to a final accounting by an executor-lawyer with whom the lawyer had previously been associated (while the other lawyer was acting as executor). 1/6/1975
0523

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4-Witness-Advocate Rule

32-Lawyers Acting in Other Roles (Miscellaneous)

78-Communicating with an Employee of a Corporate Adversary

A lawyer may not send pleadings to the Board of Directors of an adversary's client, even if the lawyer believes that the Board has been misinformed. A lawyer whose partner serves as an escheator may not represent a landowner whose property may be involved, because the partner may be called as a witness. 8/1/1983
0359

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3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer may represent both the noteholder and act as trustee under a deed of trust if the maker consents [This LEO was vacated by LEO 824.] 3/10/1980
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
0336

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25-Dealing with Unrepresented People

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

58-Real Estate Lawyers

A lawyer named as trustee for the benefit of a non-represented seller must resign if the seller later requests the lawyer to do so. 9/20/1979
1365

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32-Lawyers Acting in Other Roles (Miscellaneous)

59-Disbarred and Suspended Lawyers

A lawyer represented a client until the lawyer's license was revoked. The former lawyer then worked as a counselor at a hospital. While the former lawyer was working at the hospital, the former client's spouse was admitted. The former lawyer did not act as the spouse's counselor at the hospital. When the former lawyer's license was reinstated, the lawyer was approached by the client to represent the client in a dispute with the spouse.Because the former lawyer was not acting in a legal capacity while at the hospital, there could be no attorney-client relationship established with the spouse who was a patient at the hospital. However, a lawyer's independent professional judgment might be affected by duties of another profession to keep confidences. Furthermore, violation of another profession's duties might amount to a violation of a lawyer's ethical duties. 7/31/1990
0382

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32-Lawyers Acting in Other Roles (Miscellaneous)

73-Family Law Lawyers

A lawyer representing a plaintiff in a divorce case may not also serve as a notary public before whom a deposition is taken. 7/27/1980
0372

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3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

58-Real Estate Lawyers

A lawyer representing a purchaser in a real estate transaction may act as joint escrow agent if the purchaser and seller consent. 5/15/1980
1487

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32-Lawyers Acting in Other Roles (Miscellaneous)

34-Limiting Liability to Clients

76-Trust and Estate Lawyers

A lawyer representing the executor of an estate sought a general release from the widow. The Bar needed more facts before determining whether an attorney-client relationship existed between the lawyer and the widow. If it did, a general release would be per se improper. Because the lawyer was acting as a fiduciary even if not as a lawyer, "such a general release is not a good practice and does not follow the spirit of the Disciplinary Rule." 11/16/1992
1037

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

72-Representing Partnerships

A lawyer represents a limited partnership suing a city on a zoning matter. One of the five general partners later joins the law firm representing the city. The general partner has conveyed the partnership interest to a trust, and the city's law firm has erected an ethics screen around the former general partner. Although the general partner was involved in "legal discussions involving strategy, settlement and the conduct of the suit" before leaving the limited partnership, there was no ethical violation because there had been no attorney-client relationship between the partner and the limited partnership. 3/8/1988
0466

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32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer serving as escrow agent may receive the income from investments made as payment for services as escrow agent, as long as the client consents. 9/20/1982
0269

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20-Government Official Conflicts

32-Lawyers Acting in Other Roles (Miscellaneous)

76-Trust and Estate Lawyers

A lawyer who acted as Commissioner in Chancery in overseeing an estate may not then file an action on behalf of the beneficiaries of the estate. 9/15/1975
1612

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

A lawyer who also sells insurance may represent plaintiffs against insurance companies or their insureds for which the lawyer has written insurance policies, as long as the client consents. In fact, the lawyer may pursue such cases even if the lawyer wrote the policy for the defendant insured. [The Bar did not discuss the possibility that as an insurance agent the lawyer might have acquired confidential information about the defendant.]9/21/1994
1819

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32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

A lawyer who co-owns (with other non-lawyers) a lobbying firm must comply with certain ethics rules (such as the prohibition on criminal or wrongful conduct), although not rules that apply only when a lawyer is "representing a client," such as the ex parte contact rule. This lawyer's references to his expertise as a lawyer, etc. could create confusion about whether he is providing legal advice lawyers providing such services have "an affirmative duty to clarify the boundaries of the business relationship," including whether any legal services are included. Lawyers not clarifying their role could find themselves bound by the confidentiality and conflicts rules governing lawyers representing clients although a lawyer providing legal services through a lobbying firm could be guilty of a misdemeanor for unauthorized practice of law. If this lawyer was simultaneously engaged in a law practice, the lawyer's "responsibilities to . . . a third person" (client of the lobbying firm) might prevent the lawyer from representing clients adverse to lobbying firm clients (a disqualification which would be imputed to all lawyers in the lawyer's law firm). The ethics rules governing conflicts do not apply to a lawyer/lobbyist's pure lobbying work. For instance, a lawyer who is acting only as a lobbyist can lobby against a former lobbying client for whom the lawyer previously lobbied. If the lawyer must follow the conflicts rules because a lobbying client reasonably believes that the lawyer is supplying legal advice (and thus must comply with the conflicts rules), the individual lawyer's disqualification would not be imputed to the entire lobbying firm (because it is not a law firm).9/19/2005
0863

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4-Witness-Advocate Rule

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who has acted as an escheator may not later represent a party in litigation over property sold in the estate sale, because there is a "strong possibility" that the lawyer would be a witness. 4/1/1987
1379

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29-Advancing Fees and Costs

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who has persuaded a finance company to loan funds to the lawyer's personal injury client may supervise the client's execution of the documents and return them to the finance company. Although the lawyer does not have an attorney-client relationship with the lender (having performed only "ministerial tasks"), the lawyer may have contractual obligations to the lender. 11/30/1990
0627

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32-Lawyers Acting in Other Roles (Miscellaneous)

58-Real Estate Lawyers

A lawyer who is a full time real estate broker may represent the broker but may not represent other parties to the transaction. 11/13/1984
0987

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who is a member of a local human rights committee at a treatment center may represent two patients in the center as long as the matters are unrelated to the lawyer's membership on the committee. 10/29/1987
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
1163

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who is also a CPA may perform both legal and accounting services as long as the client consents after full disclosure. [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.]11/16/1988
0309

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32-Lawyers Acting in Other Roles (Miscellaneous)

76-Trust and Estate Lawyers

A lawyer who receives a deed that is part of an estate holds the deed as a fiduciary and may not return it to the party who gave the lawyer the deed. 12/12/1978
0575

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32-Lawyers Acting in Other Roles (Miscellaneous)

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer who represents and is a member of the board of an adoption agency which located a child and performed a home study may not now represent the adopting parents. 5/10/1984
0670

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20-Government Official Conflicts

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who serves as a Commissioner in Chancery or a U.S. Bankruptcy Court trustee may represent clients before the court. 3/15/1985
0430

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13-Marketing - Miscellaneous

16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer/stockbroker may send out announcements describing both roles, but must advise clients that the attorney-client privilege would not cover communications if the lawyer is acting as a stockbroker. 10/16/1981
1482

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32-Lawyers Acting in Other Roles (Miscellaneous)

Acting as a lawyer and escrow agent is not per se unethical. 10/19/1992
1634

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

An accounting firm whose principal is a lawyer-accountant prepared joint returns for a client and the client's spouse. The couple has now separated. Because the Code applies when the lawyer is "functioning in the dual capacity as an attorney and an accountant," the former spouse is considered a former client, and the lawyer may not be adverse to the former spouse without consent. 2/22/1995
1742

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32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

As indicated in earlier Opinions, a lawyer representing a real estate purchaser cannot impose fees on the seller absent an agreement or some forewarning. A lawyer designated in a real estate contract as settlement agent may not comply with a title company’s instructions that would involve the title company preparing documents and undertaking other activities that would constitute the unauthorized practice of law (a lawyer who owns a title company may perform legal work for a client, but may not undertake the same activities if working on behalf of the title company -- because “only an attorney engaged in private practice specifically retained by the seller may undertake legal representation of the seller).” [Approved by the Supreme Court of Virginia 11/2/16].6/26/2000
0313

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2-Adversity to Former Clients

32-Lawyers Acting in Other Roles (Miscellaneous)

71-Representing Corporations

As long as both clients consent, a lawyer may represent a corporation in an action brought by another corporation the lawyer has previously represented and for whom a partner serves as registered agent. 4/4/1979
0563

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6-Lawyers Paid by Third Party

32-Lawyers Acting in Other Roles (Miscellaneous)

As long as the client consents, a lawyer acting as a financial adviser may receive a fee from the third party who markets the investments. 4/10/1984
0932

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

As long as the guardians, heirs and the court approve, a lawyer may act as a committee for an incompetent although the lawyer is a residual legatee of and may exercise a power of attorney for the incompetent. 6/11/1987
0235

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3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

As long as they do not represent the banks as advocates or counsel, members of the same firm may serve as directors of competing banks. 1/3/1974
ABA-446

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

32-Lawyers Acting in Other Roles (Miscellaneous)

56-Duty to Advise the Court

Because "the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of litigation," a lawyer "may provide legal assistance to litigants appearing before tribunals "pro se" and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance." The Committee does not share the concern raised by some that pro se litigants "are the beneficiaries of special treatment" and that pro se litigants' pleadings "are held to less stringent standards than formal pleadings drafted by lawyers." As one commentator has noted, a court recognizing a higher quality of pro se litigants' pleadings simply refrains from applying any "liberality in construction," because "liberality is, by definition, only necessary where pleadings are obscure." A lawyer failing to disclose assistance to a pro se litigant does not violate Model Rule 8.4(c) because the lawyer is not making any statement to the forum. A lawyer might be obligated by Model Rules 1.2 and 1.6 not to disclose such assistance. A lawyer who does not sign a pleading is not assuming any responsibility for the pleading. Lawyers' obligations to disclose such assistance may be governed by a jurisdiction's law or tribunal rule. [superseding ABA Informal Opinion 1414]5/5/2007
0258

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16-Lawyer's Personal Interests

32-Lawyers Acting in Other Roles (Miscellaneous)

76-Trust and Estate Lawyers

It is not per se improper for a lawyer to be named as executor in a will the lawyer prepares for a client. 2/11/1975
1884

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20-Government Official Conflicts

32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

Lawyers in a law firm or in a consulting firm that the law firm owns "may not represent clients or otherwise lobby before the General Assembly" or any other public body on which lawyer's colleague sits – even if that colleague recuses herself. This prohibition applies to all lawyers in the law firm and the consulting firm, and also extends to non-lawyers in the consulting firm, "regardless of whether the lawyers have any managerial or supervisory authority over the non-lawyer employees."9/30/2016
ABA-447

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32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

68-Lawyers Acting as Mediators

Lawyers may ethically participate in a "collaborative law process," which involves adverse parties and their lawyers "commit[ing] to work cooperatively to reach a settlement," and "structur[ing] a mutually acceptable written resolution of all issues without court involvement," which is then "submitted to the court as a final decree." The so-called "four-way" agreement normally includes a provision requiring the lawyers to withdraw from representing their clients if the collaborative effort fails. Such an agreement is an acceptable limitation on the scope of representation under Model Rule 1.2(c), and does not involve a non-waivable conflict. [as the Colorado Bar held in Colorado LEO 115]. (2/24/07)]8/9/2007
0210

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3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

Partners of the same firm may act as directors and lawyers of competing banks (although the firm could not represent either bank if the banks' legal interests conflict). 2/19/1971
1392

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32-Lawyers Acting in Other Roles (Miscellaneous)

49-Lawyers - Miscellaneous

54-Insurance Defense Lawyers

Plaintiff or defense lawyers may serve on Medical Malpractice Review Panels as long as they are not representing the claimant or the defendant, or are otherwise involved in actual facts before the panel. 1/14/1991

Copyright 2000, Thomas E. Spahn