These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
 Back to main menu
  Topic: 39 - Miscellaneous
LEO NumTopicsSummaryDate
1003

printPrint
38-Fee Splitting

39-Miscellaneous

[WITHDRAWN 9/16] A lawyer can represent clients referred by a financial advisor, and work with the financial advisor to prepare various forms that the client needs (the lawyer would separately charge fees for the lawyer's services, and not split fees with the financial advisor). However, the lawyer must avoid aiding the financial advisor in completing any forms, to the extent that such action constitutes the unauthorized practice of law.11/24/1987
1600

printPrint
28-Law Firm Staff

39-Miscellaneous

45-Law Firms - Miscellaneous

[WITHDRAWN 9/16] A lawyer should not open up a branch office to be staffed entirely by non-lawyers (with the lawyer expecting to visit the branch office two days each month), because a lawyer's supervision over non-lawyer staff "should be significant, rigorous and efficient."6/14/1994
1791

printPrint
39-Miscellaneous

A bankruptcy lawyer may "ethically use electronic forms of communication in working with clients so long as all necessary information is transmitted between the attorney and the client," because "there is no per se requirement that an attorney actually be in the physical presence of his client to provide competent legal services".12/22/2003
0966

printPrint
16-Lawyer's Personal Interests

34-Limiting Liability to Clients

39-Miscellaneous

58-Real Estate Lawyers

A law firm hired to advise on a real estate matter must disclose to the client that the law firm mistakenly failed to obtain an extension of time to file a tax return, even though the law firm was not hired to file the return. 9/30/1987
1673

printPrint
8-Bills and Fees

39-Miscellaneous

40-Trust Accounts

44-Conflicts - Miscellaneous

A lawyer attempting to locate former clients to whom trust money is owed may use some of the trust money to compensate an investigator aiding in the search, as long as the compensation is reasonable and explained to the located clients (hiring an investigator is not a necessary step, because "due diligence is all that is required of an attorney trying to locate a client"). 5/16/1996
1588

printPrint
3-Multiple Representations on the Same Matter

8-Bills and Fees

39-Miscellaneous

58-Real Estate Lawyers

A lawyer involved in arranging a real estate transaction has not violated the Code, because the lawyer did not attempt to represent both the buyer and the seller, and fully disclosed that the lawyer might receive a percentage of the purchase price as a fee. Canon 9 did not apply, because the "appearance of impropriety" language "applies only in the limited context of . . . former judges, former government attorneys, and attorneys' improper influence upon a tribunal, legislative body, or public official." 6/14/1994
1605

printPrint
4-Witness-Advocate Rule

39-Miscellaneous

A lawyer may continue to represent a wife while also testifying for the prosecution against the former husband on a perjury charge, because the testimony would not be in the client's case. The "appearance of impropriety" language of Canon 9 relates only to the "limited contexts of judges, former government attorneys, and a lawyer's exertion of improper influence upon a tribunal, legislative body, or public official." 7/21/1994
0279

printPrint
20-Government Official Conflicts

39-Miscellaneous

A lawyer may not give a gift to a public official for the official's performance of a public duty. 2/10/1976
ABA-352

printPrint
39-Miscellaneous

A lawyer may provide tax advice as long as the lawyer believes in good faith that it is warranted by existing law or by a good faith argument for an extension, modification or reversal of existing law. 7/7/1985
0599

printPrint
39-Miscellaneous

76-Trust and Estate Lawyers

A lawyer may use the firm's tax identification number to open an account when the beneficiary's tax identification number is unknown and the beneficiary is unavailable. 6/18/1984
0443

printPrint
31-Protecting and Disclosing Confidences and Secrets

39-Miscellaneous

A lawyer may write articles about published judicial decisions. 12/7/1981
1305

printPrint
14-Ownership of Files and Attorney Lien Issues

39-Miscellaneous

A lawyer need not maintain a clients' files indefinitely. Before destroying a file, the lawyer should offer to return any original documents or other client property, and should not destroy any documents the client might later need. The Bar apparently did not provide specific guidance on whether the documents should be shredded or incinerated. 11/21/1989
1737

printPrint
16-Lawyer's Personal Interests

39-Miscellaneous

A lawyer representing a capital murder defendant must comply with the client's decision not to present any mitigating evidence at the sentencing hearing, as long as the lawyer has fully advised the client of the consequences of such conduct and the client is "competent to make an informed, rational and stable choice regarding whether to fight the death penalty with mitigating evidence." [Rule 1.14 provides guidance to lawyers representing clients under a disability.]10/20/1999
ABA-360

printPrint
39-Miscellaneous

A lawyer who is licensed both in a jurisdiction that permits partnerships with non-lawyers and a jurisdiction that prohibits such an arrangement may practice in the former jurisdiction in such a partnership without risking discipline in the latter jurisdiction. 7/11/1991
1790

printPrint
14-Ownership of Files and Attorney Lien Issues

39-Miscellaneous

A lawyer who receives a copy of a probation officer's pre-sentence report must provide a copy of the report to the lawyer's client, unless disclosure is prohibited by law -- an issue outside the Committee's purview.1/5/2004
1771

printPrint
39-Miscellaneous

A lawyer whose client asks for legal advice about a transfer of assets from a wife to a husband that would amount to both a void and a voidable fraudulent conveyance may not assist the client in the transaction or advise the client to undertake the transaction if the transaction would constitute fraud but the lawyer could explain the legal consequences of the transaction. The Bar notes that the Rules contain a "unique" definition of fraud: "conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information."11/27/2002
ABA-404

printPrint
36-Withdrawal from Representations

39-Miscellaneous

43-Conflicts of Interest - Miscellaneous

A lawyer whose client has become incompetent may take protective action, including petitioning for the appointment of a guardian (although the lawyer may not represent a third party in seeking a guardian). The appointment of a guardian should be a last resort, and the lawyer may withdraw only if it will not prejudice the client. 8/2/1996
1762

printPrint
2-Adversity to Former Clients

6-Lawyers Paid by Third Party

18-Consent and Prospective Waivers

39-Miscellaneous

A mother who had an automobile accident in which her infant child was injured may not hire the same lawyer who represented her in a tort action against the other driver to also represent the child in the tort action, if there is a "non-frivolous claim" that could be filed against the mother in connection with the accident. Consent could cure this conflict, but the minor child cannot grant the consent, and the ability of the mother to grant the consent is a legal question beyond the Bar's purview. If there is no possible claim against the mother, then the mother can hire her lawyer to also represent the child, but must not direct or regulate the lawyer's professional judgment.2/4/2002
1413

printPrint
27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

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

printPrint
27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

A personal injury lawyer who signed an agreement under which a client gave a lien on any settlement proceeds to a treating doctor may not follow the client’s direction to ignore the provision and give the client all of the proceeds. The Virginia Supreme Court also recognizes that a client in this situation owes some duty to the third party with whom the client has contracted. The lawyer should segregate any disputed funds and interplead them into court if necessary. [This LEO overruled LEO 1413]. 6/26/2000
1598

printPrint
38-Fee Splitting

39-Miscellaneous

A town may charge lawyers a license fee based on legal fees generated, because the prohibition on sharing fees with a non-lawyer envisions consensual arrangements rather than an imposed tax. 6/14/1994
1636

printPrint
8-Bills and Fees

39-Miscellaneous

40-Trust Accounts

41-Non-Virginia Lawyers

A Virginia firm bills its clients for the firm's costs, as well as costs incurred by foreign law firms. The Virginia firm does not place the client reimbursement checks in its trust account, and sometimes reimburses the foreign law firms many months later.If the Virginia firm has already paid the foreign law firm for its costs, then the Virginia firm may place the client's reimbursement checks in its operating account. However, the reimbursement checks must be placed in the trust account if the foreign law firms have not yet been reimbursed. Likewise, the Virginia firm may not use the clients' reimbursement checks for other purposes, but instead has an ethical duty to immediately pay the foreign law firms. 4/19/1995
1584

printPrint
28-Law Firm Staff

39-Miscellaneous

45-Law Firms - Miscellaneous

A Virginia lawyer may enter into a partnership with a non-lawyer in the District of Columbia, because its ethics rules permit such partnerships (Virginia's DR 1-102(B) acts "as a conflicts of rules provision" allowing the more permissive DC rule to apply). Although the partnership (through a Virginia lawyer) may conduct activities in DC benefiting Virginia clients, it may not engage in the practice of law in Virginia, and the Virginia lawyer may not conduct any of the lawyer's practice in Virginia through the partnership. [Rule 8.5(a) now indicates that Virginia lawyers must comply with the Rules regardless of where they practice, and Rule 8.5(b) now provides a "choice of law" rule for lawyers licensed in more than one jurisdiction.] [Approved by the Supreme Court of Virginia 11/2/16].4/11/1994
ABA-441

printPrint
39-Miscellaneous

51-Government Attorneys

All lawyers, including public defenders representing indigent persons under court appointment or government contract, must provide competent and diligent representation. Because "a lawyer's primary ethical duty is owed to existing clients," the lawyer must decline to accept new cases if the lawyer cannot adequately handle those cases. Lawyers who receive cases from the court should ask the court not to assign new cases, or move to withdraw from cases. A public defender or law firm member facing this situation should work with a supervisor to avoid an excessive case load, and continue to advance up the "chain of command" as much as possible. Normally, a lawyer's supervisor's resolution of a case load issue will constitute a "reasonable resolution of an arguable question of professional duty" under Model Rule 5.2(b). If the supervisor's response is not reasonable, the lawyer should go up the chain of command or file a motion with the trial court. If the court refuses to allow the lawyer to withdraw, the lawyer must continue with the representation while "taking all steps reasonably feasible to insure that her client receives competent and diligent representation." Lawyers who supervise public defenders must monitor the public defenders' work load and make reasonable efforts to avoid excessive case loads.5/13/2006
1816

printPrint
39-Miscellaneous

48-Criminal Defense Lawyers

Although a criminal defense lawyer can follow a competent criminal client's desire not to fight the death penalty, a criminal defense lawyer representing a client who has attempted suicide and who has stated a desire to "commit suicide by state" by foregoing a defense (and, among other things, seeking a jury trial because a jury is more likely to sentence him to death) must treat the client as an "impaired" client under Rule 1.14. A forensic psychologist's conclusion that the client is competent to stand trial does not necessarily establish that the client is competent for Rule 1.14 purposes. The lawyer might engage in such steps as "seeking further evaluation of the client's mental state, seeking an appointment of a guardian, and/or going forth with a defense in spite of the client's directive to the contrary."8/17/2005
1227

printPrint
39-Miscellaneous

As long as it is legal, a lawyer may arrange for: adoptive parents to advertise for an adoptable child; the biological mother to receive payments for her medical and legal expenses.5/8/1989
1857

printPrint
27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

39-Miscellaneous

43-Conflicts of Interest - Miscellaneous

48-Criminal Defense Lawyers

Because of the inherent conflict, a criminal defense lawyer may not ethically advise a client to accept a plea agreement provision that "operates as a waiver of the client's right to claim ineffective assistance of counsel." Some states do not ever allow defense lawyers to advise clients about the issue, but here the defense lawyer was reacting to the prosecutor's proposed plea agreement. Prosecutors may not offer a plea agreement "containing a provision that has the intent and legal effect of waiving the defendant's right to claim ineffective assistance of counsel.7/21/2011
1594

printPrint
27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

51-Government Attorneys

Determining if a Commonwealth's Attorney's statements to a newspaper reporter about a pending case constitutes a danger of interfering with the fairness of a trial by jury raises a legal question beyond the Bar's jurisdiction. If a "finder of fact" ultimately determines that the statements did constitute such a danger, the "fact that the matter was not ultimately tried by a jury is not dispositive." [The Bar did not indicate how a finder of fact would be called upon to make such a determination.] [Rule 3.6(a) replaces the "clear and present danger" standard with a "substantial likelihood of interfering with the fairness of the trial by a jury" standard.]6/14/1994
0586

printPrint
8-Bills and Fees

25-Dealing with Unrepresented People

39-Miscellaneous

Even if the lawyer has approved the form of the letter, a lawyer may not allow the client to use the lawyer's letterhead and signature stamp to send collection demand letters. A lawyer may forward to the client any court-awarded attorneys' fees as long as they are a direct reimbursement for services rendered to the client. 6/14/1984
ABA-369

printPrint
39-Miscellaneous

Every sole practitioner should make arrangements for another lawyer to review his files if the sole practitioner dies. 12/7/1992
1669

printPrint
9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

39-Miscellaneous

44-Conflicts - Miscellaneous

48-Criminal Defense Lawyers

It is not per se improper for a part-time county attorney to also serve as a part-time assistant public defender, although a conflict (not curable by consent) would arise should the lawyer be asked to defend a criminal defendant: (1) if the county is an alleged victim; or (2) if the county attorney's office is responsible for prosecuting the crime (such as violations of building codes or local ordinances). The county attorney (also acting as a part-time public defender) does not face a conflict in advising the Board of Supervisors on such matters as law enforcement budgets, because the attorney is not a member of the governing body and therefore does not vote on the appropriations. Although such a dual role might create a "appearance of impropriety," such a standard "by itself is too vague a standard" to create a conflict.4/1/1996
ABA-462

printPrint
19-Judge Conflicts

39-Miscellaneous

Judges may participate in social networking sites, but must be cautious to avoid violating judicial ethics provisions, including those prohibiting, among other things: impropriety and the appearance of impropriety; ex parte communications with litigants; certain election activity; public or certain private statements about pending cases or public policy issues.2/21/2013
1010

printPrint
39-Miscellaneous

Lawyers handling black lung cases before a federal administrative body are not bound by the Virginia ethics rules requiring a court's permission because the administrative hearing is not considered a court proceeding. 1/12/1988
1830

printPrint
9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

29-Advancing Fees and Costs

39-Miscellaneous

Lawyers in a public defender's office may provide nominal gifts to indigent clients for the purchase of personal items or food, as long as such "occasional de minimus humanitarian gifts" do not affect the lawyer's independent judgment (such as when the lawyers are "trying to persuade some of these clients to accept plea agreements to which the clients are initially resistant.") The majority of states totally prohibit such "financial assistance" under Rule 1.8(e). Such minor gifts do not run afoul of Rule 1.8(a), because they are gifts and do not constitute "business transactions" with the client. Although the rules "do not directly regulate nonattorneys," lawyers cannot do indirectly through a staff person what they cannot do directly -- although in this case the lawyer's staff may likewise provide such nominal humanitarian gifts to indigent clients.9/7/2006
1761

printPrint
27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

44-Conflicts - Miscellaneous

66-Lawyers Acting as "Scriveners"

Legal services organization lawyers may give forms to pro se litigants without violating any prohibitions on “ghost-writing” as long as the lawyers do not assist the pro se` litigants in completing the forms; analogizing the situation to the distinction in the UPL analysis between providing forms and helping complete them. [Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote]. [overruled to the extent it is inconsistent with LEO 1874 (7/28/14), which explained that the ethics rules do not prohibit undisclosed assistance to a pro se litigant, but some courts forbid it]1/6/2002
1245

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.6/13/1989
1078

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.5/23/1988
1703

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.11/24/1997
1733

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.6/29/1999
1734

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.6/29/1999
1560

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.10/20/1993
1330

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.4/20/1990
1251

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.7/25/1989
1303

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.1/4/1990
1420

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.6/25/1991
1423

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.6/13/1991
1183

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.1/31/1989
1221

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.4/3/1989
1618

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.2/17/1995
1625

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.2/7/1995
1662

printPrint
39-Miscellaneous

No opinion was issued because the request was withdrawn.2/28/1996
ABA-364

printPrint
18-Consent and Prospective Waivers

39-Miscellaneous

43-Conflicts of Interest - Miscellaneous

Sexual relations with clients may violate the Model Rules and lawyers "would be well advised to refrain from such a relationship." The client's consent to such a relationship "will rarely be sufficient" to eliminate the ethical dangers, and a lawyer whose conduct has been challenged will be called upon to establish that the client consented after full disclosure and was not harmed by the relationship. 7/6/1992
0921

printPrint
39-Miscellaneous

The Eastern District of Virginia Local Rules have changed to designate the Virginia Code as the governing ethics rules (rather than the ABA Model Rules). [Rule 8.5 determines which state's disciplinary rule would apply to violations.]6/11/1987
1644

printPrint
39-Miscellaneous

40-Trust Accounts

58-Real Estate Lawyers

The LEO provides guidance to a real estate lawyer whose checks are not cashed: (1) the lawyer should follow the Uniform Disposition of Unclaimed Property Act (Va. Code § 55-210.1 et seq.); (2) a lawyer must "use whatever means are reasonable" to find people entitled to receive trust funds (this would "in almost all instances" include first class mail and -- "if the amount of money involved justified the cost" -- include checking with telephone information or postal records); (3) a lawyer may deduct from the funds held in trust reasonable costs incurred in attempting to locate the party, but may not deduct an attorney's fee; (4) the lawyer may not agree with the client in advance that the lawyer may keep unclaimed funds. 6/9/1995
1792

printPrint
28-Law Firm Staff

39-Miscellaneous

66-Lawyers Acting as "Scriveners"

The Virginia Supreme Court indicated in UPL 0p. 207 that non-lawyer social workers may assist small claims court litigants "with completion of the form document using language specifically dictated by the litigant," but would be engaged in the unauthorized practice of law if the social worker "selects the forms for the litigant or advises the litigant as to which forms are appropriate based on the litigant's particular case; or provide[s] any legal advice to the litigant." Based on this UPL opinion, the Bar explains that lawyers may not train social workers in undertaking any of the prohibited activities. The Bar notes the "critical distinction" between undertaking activities that require "knowledge of the law," and undertaking activities that amount to the unauthorized practice of law. Thus, lawyers may train social workers "on the law needed for performance of a job," but may not train social workers to engage in activities that amount to the practice of law. [Approved by the Supreme Court of Virginia 11/2/16].1/10/2006
1818

printPrint
14-Ownership of Files and Attorney Lien Issues

39-Miscellaneous

45-Law Firms - Miscellaneous

There is no per se prohibition on lawyers keeping all of their files in electronic form, but lawyers must: (1) retain paper documents that might be required (such as "testamentary documents, marriage certificates, or handwriting exemplars"); (2) recognize that although the rules "do not specify the form of file maintenance," a lawyer considering destroying a client's paper file "should review that file to make sure that any documents that may be of continued use or benefit to the client only if they are maintained in paper form are not destroyed."9/30/2005
ABA-346

printPrint
39-Miscellaneous

This Opinion provides guidelines for lawyers giving tax shelter opinions. 1/29/1982
1017

printPrint
39-Miscellaneous

This Opinion was withdrawn.12/21/1987
ABA-454

printPrint
27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

56-Duty to Advise the Court

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

Copyright 2000, Thomas E. Spahn