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: 46 - Confidentiality - Miscellaneous
LEO NumTopicsSummaryDate
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
1869

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18-Consent and Prospective Waivers

28-Law Firm Staff

46-Confidentiality - Miscellaneous

49-Lawyers - Miscellaneous

A family court self-help center facilitator (a lawyer or a paralegal trained in family law who volunteers to assist unrepresented customers) does not establish an attorney-client relationship with such customers, if the Customer Agreement "has the pro se litigant understand and acknowledge that the limited assistance provided by the Facilitator does not create a lawyer-client relationship, that no legal advice is given, that information will not be kept confidential and that the Facilitator may provide assistance to adverse litigants." (footnote omitted). A lawyer merely providing legal information and not legal services does not fall under Rule 6.5's provision governing "short-term limited legal services." "Merely providing sample pleadings or forms to a pro se litigant is not the practice of law; however, the completion of a form pleading or legal document for the pro se litigant would be." (footnote omitted). Rule 6.5 does not address conflicts arising after a lawyer provides such a limited representation, so the lawyer may be precluded from other representations adverse to the client the lawyer had assisted. Paralegals may not engage in the "unsupervised preparation of pleadings or other legal documents," so lawyers may not train paralegals to provide such unsupervised services. Various resources can help lawyers distinguish between providing "legal information" and "legal advice." [Approved by the Supreme Court of Virginia 11/2/16].5/28/2013
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
0377

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46-Confidentiality - Miscellaneous

A lawyer is not obligated to report a notary public's criminal conviction to the appropriate authorities.7/15/1980
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-477

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Because communication technology, its accompanying risks and the ethics rules have changed since ABA LEO 413 (3/10/99), lawyers must take the following steps when communicating with their clients using new technology: comply with the ABA Model Rules 2012 "technology amendments"; assess what "reasonable efforts" a lawyer must make when protecting client confidentiality (which "is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors"); consider using encryption for sensitive client communications, although "the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication"; recognize that for "certain highly sensitive information" lawyers might have to "avoid" the use of electronic methods or any technology to communicate with the client altogether"; understand the nature of threats to client confidentiality, including how client information is transmitted, stored -- and the vulnerability of security at "[e]ach access point"; understand and use reasonable "electronic security measures"; recognize that "'deleted' data may be subject to recovery," so it may be necessary to "consider whether certain data should ever be stored in an unencrypted environment, or electronically transmitted at all"; carefully label client confidential information; train lawyers and non-lawyers in the use and risk of electronic communications and storage; undertake reasonable due diligence on communication technology vendors; inform clients about the risks of communicating sensitive information; comply with clients' requirements for special protective measures.5/11/2017
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
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
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
ABA-476

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8-Bills and Fees

30-Disclosing Confidences Under Court Order

46-Confidentiality - Miscellaneous

Lawyers seeking to withdraw as counsel of record because they are not being paid must "err on the side of non-disclosure" of their grounds for seeking withdrawal. Courts "have differed widely" as to information they require before considering such a withdrawal motion, and should work with lawyers to minimize the required disclosure. Lawyers "could": (1) seek withdrawal without disclosing any client confidences; (2) if unsuccessful, respond to courts' insistence for some additional information by requesting an in camera or under seal process; and (3) publicly disclose client confidences only if the court orders such disclosure.12/19/2016

Copyright 2000, Thomas E. Spahn