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: 48 - Criminal Defense Lawyers
LEO NumTopicsSummaryDate
0862

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48-Criminal Defense Lawyers

84-Direct Mail Marketing

[WITHDRAWN 9/16] A lawyer may send letters to criminal defendants indicating the primary areas of the lawyer's practice, but may not indicate in the letter that "I am sure you will find that my fees are substantially lower than the normal rates of this community" because it would not be a verifiable statement.12/23/1986
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
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
0574

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33-Office Sharing with Other Lawyers

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney and a criminal defense lawyer (who defends cases prosecuted by the Commonwealth's Attorney) may share library expenses as long as they are not in any other way affiliated, there is no other financial relationship between them and the library is not physically connected to either office.5/10/1984
1854

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney cannot offer a plea agreement to a criminal defendant based on the testimony of a witness whose identity the Commonwealth Attorney insists that the defense lawyer refrain from sharing with the criminal client (because the ethics rules prohibit lawyers from requesting anyone other than clients and certain specified others to refrain from voluntarily providing information to an adversary). On the other hand, the Commonwealth's Attorney may offer a plea agreement based on a "nameless confidential informant." In discussing the defense lawyer's duties, the Bar explains that the defendant's lawyer might be able to withhold the confidential witness's identity and involvement if the defense lawyer "believes that the defendant has enough relevant information about the pertinent facts to make an informed decision" about accepting the plea agreement.10/5/2010
0188

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney may not defend criminal cases in any court in which the Commonwealth Attorney prosecutes, but may do so in other courts depending on the proximity to courts in which the Commonwealth Attorney practices, the nature of the crime, the identity of the defendants and witnesses. A county, city or town attorney may not defend criminal cases involving ordinances from that jurisdiction, even if the lawyer has no responsibility for prosecuting violations of the ordinances. Such a lawyer may defend criminal cases in the jurisdiction's courts as long as: (1) the jurisdiction's ordinances are not involved and; the lawyer does not appear before the same jury panel in which the lawyer has prosecuted a matter.6/17/1982
1203

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney may not hire a private lawyer to represent the Commonwealth in collection cases if the lawyer will be representing criminal defendants in prosecutions by the Commonwealth's Attorney. The disqualification would extend to the entire firm.4/3/1989
1271

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney, who also has a private practice, may not represent clients against whom there may be charges of criminal misconduct, even if the clients consent. "[T]he Commonwealth's Attorney must be sensitive to the public perception regarding part-time private practice of a public officer."11/21/1989
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
0525

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36-Withdrawal from Representations

48-Criminal Defense Lawyers

A court-appointed lawyer is not obligated to appeal a criminal conviction beyond the Supreme Court of Virginia, but must advise the client of deadlines and offer to make information available if the client wishes to appeal.9/13/1983
1418

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14-Ownership of Files and Attorney Lien Issues

48-Criminal Defense Lawyers

A court-appointed lawyer represented a criminal defendant. The lawyer sent the defendant copies of all pleadings and correspondence, and also kept a diary during the representation. The client later charged ineffective assistance of counsel, and sought copies of all pleadings and correspondence, as well as the lawyer's diary. The lawyer must provide copies of the entire file, including the diary (unless it contained information relating to other representations). The lawyer could not condition release of the documents on payment for copying charges. The Bar declined to determine whether the original or a copy of the documents must be surrendered, deeming it a legal question. [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]5/14/1991
1530

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

48-Criminal Defense Lawyers

A court-appointed lawyer representing a criminal in an appeal refused to file a motion the lawyer considers frivolous, and withdrew from the representation. Although normally a lawyer would have a duty to proceed with post-trial remedies (unless the lawyer may withdraw without prejudice), "that duty has been displaced by his ethical duty not to file unwarranted or frivolous motions."5/11/1993
1796

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

A criminal defense lawyer acted improperly in representing two criminal defendants in separate cases, knowing that one defendant's defense to a fire arms charge was based on his acquisition of a gun to protect himself from the other defendant. The Bar concluded that "the adverse affect [sic] of these simultaneous representations was too clear to have reasonably been believed otherwise." Although consent could not have cured the conflict, the Bar also noted that the lawyer had not obtained consent after full disclosure.3/31/2004
1558

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

36-Withdrawal from Representations

48-Criminal Defense Lawyers

A criminal defense lawyer learning that the client claims that the lawyer pressured the client into a plea of guilty against the client's wishes has a conflict with the client that cannot be cured with consent. The lawyer should move to withdraw, but "would be bound to continue the representation" if the court denies the motion. Until the lawyer withdraws, the lawyer must fully protect the client and therefore (presumably) may have to advise the client about the possibility of withdrawing the guilty plea. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.]10/20/1993
0733

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3-Multiple Representations on the Same Matter

48-Criminal Defense Lawyers

A criminal defense lawyer may also represent a party in a related civil action.4/3/1986
1814

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25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

A criminal defense lawyer may directly or through an agent engage in legal undisclosed recording of a telephone call with an unrepresented witness whom the lawyer worries might change his story and implicate the lawyer's client. Because such tape recording involves "a higher risk of the unrepresented party misunderstanding the lawyer or the lawyer's agent's role," the lawyer or the agent "must assure that the unrepresented third party is aware of the lawyer or agent's role" in order to comply with the Rule 4.3 provision governing a lawyer's communication with an unrepresented person. Although many states previously found a lawyer's participation even in lawful tape recording of telephone calls to be unethical, "more recently a number of states have reversed or significantly revised their opinions to allow undisclosed recording" (describing many of those states' approaches in a footnote). [overruling LEO 1217 and LEO 1438 to the extent they are inconsistent with LEO 1814].5/3/2011
1578

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9-Government Lawyer Conflicts

33-Office Sharing with Other Lawyers

48-Criminal Defense Lawyers

51-Government Attorneys

A criminal defense lawyer may lease space to a Commonwealth's Attorney's office as long as the space has a separate entrance and there would be no public access to the Commonwealth's Attorney's office (because there is no chance of any sharing of confidential information as there was in LEO 1416).2/8/1994
1343

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16-Lawyer's Personal Interests

48-Criminal Defense Lawyers

50-Lawyer-Owned Businesses

A criminal defense lawyer may not represent a criminal defendant for whom the lawyer's bail bond business has written a bond. Such a representation is per se unethical regardless of disclosure and consent.5/8/1990
0547

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

A criminal defense lawyer may seek a settlement in exchange for dismissing criminal charges.3/1/1984
0787

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30-Disclosing Confidences Under Court Order

48-Criminal Defense Lawyers

A criminal defense lawyer must testify if a motion to quash is denied and the court orders the lawyer's testimony.4/14/1986
1795

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25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

A criminal defense lawyer representing a client charged with felony unauthorized use of a vehicle did not act improperly in asking the defendant's mother (who was the victim of the crime) to speak to him before speaking to the Commonwealth Attorney, because "that statement alone merely requested preferential treatment" and "did not request that she not speak to the Commonwealth Attorney at all." The criminal defense lawyer's statement to the mother that she "did not have to speak to the Commonwealth Attorney" was not an unethical request not to provide information, but amounted to improper advice to an unrepresented party (although the interests of the defendant's mother were not clear, because she was both the defendant's mother and the victim of the crime). The criminal defense lawyer's statement to his client's father that the father did not have to appear in court and that the father's testimony was "essential to the Commonwealth's case" were not unethical requests to withhold information, but amounted to improper advice to an unrepresented party. The Bar explained that the defense lawyer might have avoided these prohibitions if he had confirmed that the parents' interests were not in conflict with his client's interests.6/30/2004
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
1823

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17-Fraud on the Tribunal

48-Criminal Defense Lawyers

A criminal defense lawyer who has been unable to contact her client despite efforts to do so, but who assumed that the client would not want a jury trial because juries have "imposed lengthy sentences in similar cases," violates the rule governing the parameters of her authority by indicating to the court that she wished the matter to be set as a bench trial (without informing the court or the prosecutor that she had not spoken with her client). Because there is a "common understanding by the criminal bar that a client can only waive the constitutional right to a jury trial through voluntary, intelligent consent," the criminal lawyer’s statement to the court that "she wishes to have the client's case set for bench trial" amounted to a knowing falsehood -- even though "on its face and with no context, the statement does not seem to be false or involve misrepresentation" (although there would be no falsehood in the unlikely event that the criminal lawyer was "completely ignorant of the requirement that the client must provide voluntary, intelligent consent.")1/10/2006
1817

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16-Lawyer's Personal Interests

34-Limiting Liability to Clients

36-Withdrawal from Representations

48-Criminal Defense Lawyers

A criminal defense lawyer who has failed to properly perfect an appeal must (under the duty to communicate material facts) "notify the client of the dismissal of the appeal, the reasons for the dismissal and what rights or recourse the client has under those circumstances" (which "would include advising the client of the right to file a petition for a writ of habeas corpus alleging ineffective assistance of counsel; or a claim for legal malpractice based upon the lawyer's act or omission"). Although this situation obviously involves the lawyer's own interests (which might otherwise prevent the lawyer from proceeding on the client's behalf), new legislation requires the lawyer to assist the client in preparing and filing an affidavit explaining the lawyer's error. To the extent that this new statute requires a continuing representation (thus trumping the ethics rules), it overrules the holdings of Virginia LEO 1122 and 1558.8/17/2005
1679

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A criminal defense lawyer who represented one of four co-defendants in a criminal case may not join the firm of a lawyer who represents one of the other co-defendants, unless the client consents, because the two co-defendants are adverse (the first client will testify for the Commonwealth against the lawyer's new client).5/16/1996
1371

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10-Former Government Lawyer Conflicts

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

A former Assistant Commonwealth's Attorney may represent a criminal defendant on appeal if the lawyer had no substantial responsibility over the case while in the Commonwealth's Attorney's office (the former Assistant Commonwealth's Attorney had nothing to do with the case, never saw the file, never heard of the case and had no knowledge of the case).On the other hand, a former Assistant Commonwealth's Attorney is per se prohibited from defending a criminal defendant if the lawyer prosecuted the defendant on a separate earlier drug charge while a public employee. Consent would not cure this problem "because of a need for the heightened sensitivity of public perception regarding the private practice of a public employee."10/1/1990
1506

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12-Withdrawing Lawyers (Including Non-Compete Issues)

48-Criminal Defense Lawyers

A law firm fired an associate and decided to discontinue practicing in the areas in which the associate had concentrated (including criminal defense work). The firm wrote all of the associate's former clients, and referred them to another law firm (even if the client asked, the firm did not provide the former associate's new address). The Bar held that the clients should have been informed of all choices, including hiring the former associate. The firm acted improperly in requiring that the clients contact the firm instead of the associate, and refusing to provide the associate's new address. The law firm should also have provided the associate with a list of client names and addresses.2/17/1993
0303

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5-Lawyers Changing Jobs

10-Former Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm hiring a former Assistant Commonwealth's Attorney may defend criminal cases that arose while the lawyer was in public service, as long as the lawyer had no involvement in the cases while in public service. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.]11/2/1978
1250

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10-Former Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm may not represent criminal defendants after hiring a former Assistant Commonwealth's Attorney who had been assigned to prosecute or had some minor involvement involving the prosecution of the defendants, even though the Commonwealth's Attorney did not recall any of the facts, did not recall any discussions about the case and had not made any court appearances on behalf of the Commonwealth. The Bar held that the Commonwealth's Attorney had sufficient responsibility to trigger DR 9-101(B). Given the appearance of impropriety, consent from the client would not cure the conflict. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.]7/25/1989
0358

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7-Family Conflicts

9-Government Lawyer Conflicts

28-Law Firm Staff

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm may represent clients being prosecuted for traffic or criminal cases even though the spouse of one of the firm's associates is an Assistant Commonwealth's Attorney. The same is true when a firm employs a paralegal whose spouse is the Commonwealth's Attorney. In both cases, the firm must advise its clients and the court of the relationships.3/10/1980
1539

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4-Witness-Advocate Rule

48-Criminal Defense Lawyers

A lawyer in a criminal case must withdraw after overhearing and participating in conversations about the client with the arresting officer and another police officer, because the client's and police officers' stories differ and the lawyer would have to testify about the conversation.6/22/1993
0782

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35-Threatening Criminal and Disciplinary Action

48-Criminal Defense Lawyers

51-Government Attorneys

73-Family Law Lawyers

A lawyer in a divorce case may properly advise the client to start criminal proceedings against the spouse for taking personal property if the facts show that the criminal case was not initiated solely to gain an advantage in the civil divorce case, and the Commonwealth's Attorney did not act improperly in prosecuting.4/22/1986
1363

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22-Interviews with Prospective Clients

48-Criminal Defense Lawyers

A lawyer interviewing potential co-defendants in a criminal matter might learn confidential information from one that would preclude the representation of another. The Bar held that even if the first potential client consented, the lawyer could not represent the other criminal defendant because of the possible use of the first prospective client's confidences against the prospective client.6/13/1990
1748

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8-Bills and Fees

48-Criminal Defense Lawyers

A lawyer may charge a contingent fee for representing a criminal defendant in a civil forfeiture proceeding seeking to recover seized property because: the proceeding is civil rather than criminal; it “involves a res out of which a contingent fee could be paid;” and the outcome is uncertain.8/28/2000
1054

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9-Government Lawyer Conflicts

20-Government Official Conflicts

28-Law Firm Staff

48-Criminal Defense Lawyers

A lawyer may continue to represent criminal clients (but must act cautiously) if the lawyer's secretary was a part-time magistrate in the same jurisdiction.3/29/1988
1055

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

58-Real Estate Lawyers

A lawyer may continue to represent criminal clients (but must act cautiously) if the lawyer's secretary was a part-time magistrate in the same jurisdiction.3/16/1988
0304

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

71-Representing Corporations

A lawyer may defend a corporate client in a criminal matter although the lawyer had previously represented a corporate officer who is a forced witness (after receiving immunity) in the matter, as long as the witness' credibility will not be challenged and both the corporate client and officer-witness consent.11/2/1978
0391

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3-Multiple Representations on the Same Matter

48-Criminal Defense Lawyers

A lawyer may not continue to represent three criminal co-defendants charged with the same crimes when two of the co-defendants had made incriminating statements against the third.9/23/1980
0232

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

A lawyer may not defend one party to a three-car accident when the party's interests are "potentially adverse" to another driver the lawyer had previously defended on criminal charges arising from the accident. [The Bar did not discuss the possibility of consent, or acknowledge the differing standards between civil negligence and criminal negligence.]1/2/1974
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
0242

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8-Bills and Fees

48-Criminal Defense Lawyers

A lawyer may not handle a criminal appeal on a contingent fee basis.4/10/1974
1122

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16-Lawyer's Personal Interests

48-Criminal Defense Lawyers

A lawyer may not represent a client in a criminal appeal when one of the grounds for appeal is the lawyer's own ineffective assistance to the client. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.]9/7/1988
0472

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44-Conflicts - Miscellaneous

48-Criminal Defense Lawyers

A lawyer may not represent a criminal defendant conditioned on the client's agreement not to plead guilty or offer testimony, but must instead advise the client of the advantages and disadvantages of any government offer.9/20/1982
0307

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3-Multiple Representations on the Same Matter

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A lawyer may not represent two criminal co-defendants when there is a dispute between them about their roles in the alleged crime. The lawyer may not represent either defendant if the other is to be a witness in the criminal action.1/17/1979
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
0185

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7-Family Conflicts

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A lawyer may practice criminal law in the jurisdiction where the lawyer's spouse is an Assistant Commonwealth's Attorney, as long as the clients consent and the spouse has had no contact with the matter at issue. [Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.]10/31/1980
1254

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16-Lawyer's Personal Interests

48-Criminal Defense Lawyers

50-Lawyer-Owned Businesses

A lawyer may refer clients to a bail bond business the lawyer partially owns if there is full disclosure. [LEO 1343 indicates that the lawyer may not represent the criminal in the matter on which the bonding company has supplied the bond.] [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.]7/25/1989
0250

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24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A lawyer may represent a group of policemen in salary discussions with a city while at the same time maintaining a criminal practice in which some of the individual policemen would be witnesses, as long as the policemen and the criminal defendants consent after full disclosure.5/21/1974
0916

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3-Multiple Representations on the Same Matter

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A lawyer may represent an alleged criminal and (in unrelated matters), the alleged criminals' victim and a witness against the criminal as long as all clients consent.5/8/1987
0506

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17-Fraud on the Tribunal

48-Criminal Defense Lawyers

A lawyer must advise the court of a criminal defendant client's perjury.3/30/1983
0350

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17-Fraud on the Tribunal

48-Criminal Defense Lawyers

A lawyer must inform the court of a client's true identity and past criminal record if the client has committed a fraud upon the court.12/18/1979
1652

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer represented a client in contempt proceedings in which the client seeks arrearages from her ex-husband under a property settlement agreement. The ex-husband later hires the same lawyer to represent him on unrelated matters. Both the original client and the ex-husband sign waivers of conflicts. Five years later, the ex-husband hires the lawyer to represent him on criminal and traffic charges, and he and the original client again sign waiver forms. However, the ex-husband now objects to the lawyer's continued representation of the original client in seeking the arrearages.Because the lawyer's representation of the ex-husband ended in 1992, the ex-husband is a former client of the lawyer. A lawyer may be adverse to a former client unless the matters are the same or "substantially related" or unless the lawyer gained confidential information that can now be used against the former client. In discussing the "substantially related" standard, the Bar used the following terms: "involve either the same facts . . . the same parties . . . or the same subject matter;" "essentially the same, arise from substantially the same facts, or are by-products of the same transaction;" "entail virtually a congruence of issues or a patently clear relationship in subject matter." The Bar concluded that the lawyer's representation of the ex-husband is not "substantially related" to the lawyer's representation of the original client.The Bar could not determine if the lawyer would have learned pertinent confidences from the ex-husband, because the "ex-husband's earnings, employment, ability to earn, assets, use of earnings, lifestyle and life" could be material to the original client's contempt proceedings.The Bar acknowledged that both the original client and ex-husband had consented on two specific occasions to the simultaneous representations, but held that "it is doubtful that [the lawyer's] consent from ex-husband, as well as Client, cured [his] conflict of interest in his simultaneous representation of both." The Bar indicated that "in any event, consent is not a contractual obligation and a client under certain circumstances may withdraw the consent." The Bar held that the lawyer had "an incurable conflict" and must withdraw from the representation of the original client. [The Bar overruled as "overbroad" its initial Opinion that client consent may be withdrawn at any time.]7/8/1996
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
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
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
1202

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26-Fruits and Instrumentalities of Crimes

48-Criminal Defense Lawyers

A lawyer representing alleged drug dealers discovers cash that the clients claim is unrelated to their criminal activity. If the lawyer is "convinced that this recently discovered money is not a fruit of a crime," the lawyer has no duty to reveal it.2/22/1989
1304

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3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

73-Family Law Lawyers

A lawyer representing an ex-wife in a custody matter may not also represent the ex-wife and child in a criminal matter (because the custody dispute relates to the mother's lack of parental supervision). It is not obvious that the lawyer could adequately represent both the ex-wife and the child, and consent is impossible because the minor child could not consent.11/21/1989
0703

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3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

48-Criminal Defense Lawyers

A lawyer representing one of two criminal defendants being tried separately can testify at the other defendant's trial about a conversation in which the lawyer participated.5/24/1985
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
1427

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

58-Real Estate Lawyers

A lawyer represents two clients in a real estate matter. One of the clients is indicted on criminal charges, and wants to retain the lawyer on that matter. The other client is an alleged co-conspirator. The lawyer may not represent the criminal defendant if the criminal matter is related to the real estate matter.9/16/1991
0986

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

36-Withdrawal from Representations

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A lawyer represents two criminal co-defendants. Just before trial, the Commonwealth's Attorney offers to plea bargain with one if that defendant will testify against the other. The lawyer drops the representation of the defendant receiving the offer. The lawyer later learns that the former client intends to testify against the continuing client and has also shared the lawyer's work product with the Commonwealth's Attorney. Although the continuing client insists that the lawyer continue the representation, the lawyer must withdraw. The Bar found nothing wrong with the Commonwealth's Attorney interviewing the former client (before the client has a new lawyer) and obtaining the former lawyer's work product from the former client. [This LEO was overruled by LEO 1702, which would prohibit the lawyer from obtaining or learning the substance of the work product.]10/27/1987
1319

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

A lawyer waiting to be sworn in as Commonwealth's Attorney should not undertake criminal defense work if the cases are likely to remain uncompleted at the time the lawyer takes office.2/27/1990
0319

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20-Government Official Conflicts

48-Criminal Defense Lawyers

A lawyer who acts as a magistrate may not practice criminal law in the same jurisdiction.3/27/1979
0998

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A lawyer who formerly represented a criminal defendant cannot represent another defendant against whom the former client will be a witness, unless the first client consents. The interest of the two clients are adverse, and the lawyer formerly represented the witness on a substantially related matter.12/9/1987
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
0696

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7-Family Conflicts

9-Government Lawyer Conflicts

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

51-Government Attorneys

A part-time Assistant Commonwealth's Attorney may not continue representing a client in a civil matter after criminal charges are brought, even if the lawyer is not involved in the criminal prosecution. The lawyer's spouse and law partners are also disqualified. The part-time Assistant Commonwealth's Attorney or that lawyer's spouse or law partner may represent a civil client as long as there are no proceedings or investigations pending.5/10/1985
0846

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A prosecutor or government lawyer should not subpoena a lawyer in a criminal case or proceeding (including a grand jury proceeding) without court approval. (This rule was adopted by the Virginia Supreme Court on June 15, 1987, effective September 1, 1987).9/1/1987
1507

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4-Witness-Advocate Rule

24-Representation of or Adversity to Witnesses

25-Dealing with Unrepresented People

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A public defender was appointed to represent a criminal defendant, but the public defender's office was currently representing or formerly represented a number of witnesses. The Bar held that "continued representation of a new client is improper when it becomes necessary to challenge the credibility of a former client, even in an unrelated matter, if it requires the use of the former client's confidential information in order to zealously represent the current client." Because the public defender was apparently representing one of the current adverse witnesses, the continued representation of the defendant required the consent of the defendant and the witness. The Commonwealth's Attorney had discussed the case with the witnesses. The Bar held that the Commonwealth's Attorney may not approach a present client of defense counsel without notifying defense counsel, and may not provide any legal advice (such as recommending signing a waiver) to any unrepresented former client.The public defender may continue to represent the defendant even if it became necessary to call one of the same office's former lawyers as a witness because DR 5-102(A) applies only when the lawyer-witness is presently associated with the firm.3/1/1993
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
ABA-438

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37-Settlements

43-Conflicts of Interest - Miscellaneous

48-Criminal Defense Lawyers

ABA Model Rule 1.8(g) provides specific rules for aggregate settlements. Such settlements are not defined in the Model Rules, but do not include certified class actions or derivative actions. Aggregate settlements occur "when two or more clients who are represented by the same lawyer together resolve their claims or defenses or pleas," even if all of the lawyer's clients do not face criminal charges, have the same claims or defenses, or "participate in the matter's resolution." Aggregate settlements may arise in connection with a joint representation in the same matter, but "they also may arise in separate cases" -- as with "claims for breach of warranties against a home builder brought by several home purchasers represented by the same lawyer, even though each claim is filed as a separate law suit and arises with respect to a different home, a different breach, and even a different subdivision." Similarly, aggregate settlements may "take a variety of forms." For instance, "a settlement offer may consist of a sum of money offered to or demanded by multiple clients with or without specifying the amount to be paid to or by each client," when "a claimant makes an offer to settle a claim for damages with two or more defendants," or when "a prosecutor accepts pleas from two or more criminal defendants as part of one agreement." Model Rule 1.8(g) "deters lawyers from favoring one client over another in settlement negotiations by requiring that lawyers reveal to all clients information relevant to the proposed settlement." Among other things, lawyers may not enter into agreements "that allow[] for a settlement based upon a 'majority vote' of the clients" the lawyer represents. "[B]est practices would include the details of the necessary disclosures in . . . writings signed by the clients." Information required to be disclosed under Model Rule 1.8(g) might be protected by Model Rule 1.6, which requires the clients' consent for disclosure to the other clients. "The best practice would be to obtain this consent at the outset of representation if possible, or at least to alert the clients that disclosure of confidential information might be necessary in order to effectuate an aggregate settlement or aggregated agreement." Lawyers should also advise their clients "of the risk that if the offer or demand requires the consent of all commonly represented litigants, the failure of one or a few members of the group to consent to the settlement may result in the withdrawal of the offer or demand."2/10/2006
1816

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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
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
1383

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney acts as trustee. If a lawyer in a civil case is deemed to be representing the trustee, the lawyer may not also represent criminal defendants being prosecuted by the Assistant Commonwealth's Attorney. It would also be improper for the Assistant Commonwealth's Attorney to prosecute cases in that circumstance.11/15/1990
0236

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1-Adversity to Current Clients

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney may not represent any private party in criminal matters before a court in which the lawyer practices.1/3/1974
0673

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7-Family Conflicts

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney's spouse may not be involved in private litigation related to criminal matters in which the Assistant Commonwealth's Attorney has been involved.3/15/1985
1213

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

An assistant part-time prosecutor may defend criminal cases only in other jurisdictions and where there is no danger of public perception that the lawyer is exploiting a position to defend criminal clients. The Bar pointed to the following factors: the distance from the place where the prosecutor has official duties; the nature of the crime; the identity of the defendant; and the identity of the witnesses.1/17/1989
0401

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

As long as all clients consent, a lawyer may represent a plaintiff in a civil action although one of the lawyer's partners represented the same defendant in criminal charges arising from the same matter. If the defendant is not represented by counsel, fully informed consent may not be obtainable.1/19/1981
0688

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

As long as both clients consent, a lawyer may represent a criminal defendant even though the lawyer previously represented another criminal defendant who has exculpatory evidence but refuses to provide it.5/22/1985
1864

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14-Ownership of Files and Attorney Lien Issues

48-Criminal Defense Lawyers

As long as their clients consent after full disclosure, criminal defense lawyers may enter into an agreement with prosecutors under which defense lawyers may "share and show the contents" of exculpatory evidence (such as the "identities and locations of cooperating witnesses and graphic photographs of the victims") but not provide the evidence to their clients to keep. The criminal defense lawyers may also agree to return such exculpatory evidence to the prosecutors "prior to the conclusion of [their] representation of the defendant." However, because "any materials that are in the lawyer's file at the conclusion of the representation must be provided" to the client, criminal defense lawyers should plan for the possibility that the representation might be "terminated unexpectedly" with the exculpatory evidence still in the lawyers' possession and thus available to the clients. To avoid this issue, criminal defense lawyers "should seek informed consent, preferably in writing, from [their] client before agreeing to this restriction on the client's access to information upon termination of the representation." Absent such an agreement, criminal defense lawyers "should not accept 'sensitive materials' that would be subject to" the clients' demand for entitlement to access when the representation ends.10/24/2012
1857

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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
1880

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48-Criminal Defense Lawyers

Court-appointed criminal defense lawyers must follow the process outlined in Anders v. California, 386, U.S. 738 (1967), which Virginia has codified in Rule 5(a):12 -- requiring such lawyers to file a petition for appeal even if it is based on frivolous grounds after the client entered a guilty plea.7/23/2015
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
0239

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36-Withdrawal from Representations

48-Criminal Defense Lawyers

Except for compelling reasons, a lawyer may not refuse a judge's request to represent an indigent criminal defendant.3/22/1974
0518

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3-Multiple Representations on the Same Matter

48-Criminal Defense Lawyers

If the client consents, a lawyer may represent an indigent person in criminal cases even though the lawyer also represents the county and the county's law enforcement officers.5/2/1983
1009

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

If the defendant consents, a lawyer may represent a criminal defendant even if a witness against the defendant is the lawyer's former client (on an unrelated matter) and the lawyer and the witness had a short conversation about the criminal matter (during which the lawyer did not gain any confidential information that could be used to his client's advantage or the witness's disadvantage).12/9/1987
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
1669

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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
1426

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3-Multiple Representations on the Same Matter

48-Criminal Defense Lawyers

It is per se improper for a lawyer to represent the criminal defendant, the victim and the victim's mother (the defendant's wife). Because it is not "obvious" that the lawyer may adequately represent the interests of all of these clients, the conflict cannot be cured by consent. Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.]9/16/1991
1416

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9-Government Lawyer Conflicts

33-Office Sharing with Other Lawyers

48-Criminal Defense Lawyers

51-Government Attorneys

It would be unethical for a lawyer to represent criminal defendants being prosecuted before a Commonwealth's Attorney when the lawyer leases office space to the Commonwealth's Attorney and shares a common waiting room, receptionist and law library with the Commonwealth's Attorney.5/13/1991
1740

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29-Advancing Fees and Costs

48-Criminal Defense Lawyers

50-Lawyer-Owned Businesses

Lawyers may guarantee a de minimis appeal bond as long as the client remains ultimately liable for the expense. A criminal defense lawyer may not represent a defendant for whom the lawyer's bail bond business posted a bond.4/13/2000
1268

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9-Government Lawyer Conflicts

20-Government Official Conflicts

48-Criminal Defense Lawyers

Neither a prosecutor nor a practicing criminal defense lawyer may serve on an adjudicatory board that may pass on the matter on which the lawyers had been involved, but may sit on policy-making bodies.10/3/1989
1768

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

77-Communicating with an Individual Adversary

Nothing in the general provisions governing lawyer communications or the specific provisions governing prosecutors’ statements prohibits a prosecutor from stating in open court before a criminal defendant and the defendant’s lawyer that the defendant will face a jury trial under certain circumstances (in that jurisdiction, it is "commonly known" that juries impose longer sentences than judges).11/26/2002
ABA-439

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

48-Criminal Defense Lawyers

68-Lawyers Acting as Mediators

Parties and their lawyers often make statements in negotiations that are "less than entirely forthcoming," such as: "understate[ing] their willingness to make concessions to resolve the dispute"; "insist[ing] that it will not agree to resolve a dispute for less than $200, when, in reality, it is willing to accept as little as $150 to put an end to the matter"; overstating confidence in obtaining alternative sources of supply, etc. These statements are considered "posturing" or "puffing," and "must be distinguished from false statements of material fact." For instance, the employer in labor negotiation cannot advise the union negotiator that certain benefits will cost $100 per employee when the lawyer knows that the benefits will only cost $20 per employee. Similarly, a litigant cannot state that documentary evidence will be submitted at trial in support of a defense if the lawyer knows that the documents do not exist. Prosecutors and criminal defense lawyers cannot state that they are aware of an eye witness if that is not true. Lawyers must be careful not to convert statements of position into "false factual representations." For instance, a lawyer can state "that the client does not wish to settle for more than $50," but could not state that a corporation's board has "formally disapproved any settlement in excess of $50" if that were not true. The general Model Rule 8.4(c) ban on dishonest conduct cannot be read to prohibit any misrepresentation, "regardless of the lawyer's state of mind or the triviality of the false statement in question" (or else it would render Model Rule 4.1 superfluous). State bars have punished lawyers for engaging in such misrepresentation as lying about insurance coverage limits, or settling a case without disclosing that lawyer's client has died. In contrast, "statements regarding negotiating goals or willingness to compromise, whether in a civil or criminal context, ordinarily are not considered statements of material fact." The same rules apply to caucused mediation as to other forms of negotiation. A lawyer-mediator is subject to ABA Model Rule 8.4's general prohibition on deceptions, but not to ABA Model Rule 4.1 -- which applies to lawyers' conduct "in the course of representing a client."4/12/2006
1548

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19-Judge Conflicts

48-Criminal Defense Lawyers

The Bar declines to indicate whether a lawyer may contract to collect unpaid fines and costs in criminal cases when one of the lawyer's partners is a substitute judge in the same jurisdiction, because the Bar cannot interpret the rules of judicial ethics.8/12/1993
1217

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

The Bar declines to say whether it is unethical for a lawyer to tape record telephone conversations with opposing counsel. (4/19/89) [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [The Bar also dealt with this issue in LEO 1765, in which it overruled any inconsistent holdings in LEO 1217.] [Overruled in Virginia LEO 1814 (5/3/11), which allows a lawyer to engage in or have an agent engage in lawful undisclosed tape recording, as long as they comply with Rule 4.3 by disclosing their role at the time.]4/19/1989
1046

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

51-Government Attorneys

The chief complaining witness in a criminal matter is represented by the former firm of the Commonwealth's Attorney. The Commonwealth's Attorney may continue to prosecute the defendant if the Commonwealth's Attorney was not involved in representing the witness and had not acquired any confidential information from the witness.3/1/1988
1575

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48-Criminal Defense Lawyers

The Committee declines to render an opinion involving multiple representation of criminal codefendants because the matter is being litigated.2/8/1994
1767

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1-Adversity to Current Clients

2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

The Commonwealth's Attorney's Office may not prosecute defendants being represented by lawyers at a firm which is representing the Office in collection matters (consent is unavailable, because the client in the criminal cases is the Commonwealth, "which is unable to provide consent"). It would be unreasonable for defense attorneys to believe that their representation of criminal defendants would not be affected by the attorneys' representation of the Office (because the work provides a source of income to the defense attorney). Criminal defense lawyers would not be able to handle collection cases against their former clients without the former clients' consent (which seems "at best, unlikely"), yet the law does not allow the collection lawyer to subcontract cases involving the lawyer's former criminal clients. All of these disqualifications would be imputed to the entire law firm and the Office. The law establishing the collection procedures does not trump the ethics Rules.9/25/2002
1867

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48-Criminal Defense Lawyers

51-Government Attorneys

The ethics rules do not ban per se agreements between a prosecutor and a criminal defendant to dismiss criminal charges in return for the defendant releasing the prosecutor from possible civil liability. However, prosecutors "should not require release dismissal agreements as a matter of course in dismissing criminal charges," and such agreements "will be subject to intense legal and ethical scrutiny." Among other things, a prosecutor may not seek such a release if the possible civil claim is unrelated to the criminal charge, and must dismiss any criminal charges not supported by probable cause.11/15/2012
0684

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

The partners of a part-time Assistant Commonwealth's Attorney may defend criminal cases as long as the Assistant Commonwealth's Attorney has no contact or responsibility for the cases.4/10/1985
0674

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

The partners of a part-time Commonwealth's Attorney may defend criminal cases in nearby jurisdictions. Disqualification of the part-time Commonwealth's Attorney requires disqualification of the entire firm.3/22/1985
ABA-396

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48-Criminal Defense Lawyers

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

The rule prohibiting a lawyer from knowingly communicating with a represented adverse party: applies in the civil and criminal context; cannot be waived by the client; prohibits the lawyer from ignoring evidence that the other party is represented (the lawyer may want to contact a person's previous lawyer to confirm that the representation has ended); does not prohibit communications unrelated to the subject of the representation (a lawyer cannot prohibit all ex parte communications between the client and other lawyers by claiming that the lawyer represents the client "for all purposes"); prohibits communications with corporate employees "with managerial responsibilities," who "may legally bind the organization with respect to the matter in question," or "whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization"; prohibits such communication even if the represented person initiates the communication; does not prohibit contact with former officers or employees; allows communication with a person who claims no longer to be represented only if the lawyer has "reasonable assurance" that the representation has ended; prohibits the lawyer from directing an agent to communicate in violation of the rule; permits communications "authorized by law" (meaning that the communications were approved by a statutory authority).7/28/1995
1746

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10-Former Government Lawyer Conflicts

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

This opinion addresses numerous scenarios involving a former Commonwealth’s Attorney’s ability to represent clients who have or have had some involvement in the criminal justice system during or after the time that the Commonwealth's Attorney held office. New Rule 1.11 differs from the earlier ethics Code in three respects: it applies to government lawyers who participated “personally and substantially” in a matter rather than those who had “substantial responsibility;” it applies to government lawyers who played such a role “in connection with a matter” rather than “in a matter;” and it requires curative consent from the new client in addition to the former government employer. The Bar finds that in some of the scenarios, the “former proceeding and the new proceeding share the same parties and some of the same significant facts,” thus triggering Rule 1.11. In determining if a government lawyer’s involvement was “personal and substantial,” the Bar indicated that “consideration should be given to whether his involvement was of such a degree as to provide the opportunity for that potential risk [“of abuse of a public position for the benefit of a private client”].” Government lawyers must also consider whether the “receipt of confidential information” creates a conflict. Although in a private setting consent could cure a conflict created by the receipt of confidential information, here “the former client is the Commonwealth; thus such consent is not available.”8/30/2000
1208

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

To avoid the appearance of impropriety, a law firm may not represent the Commonwealth's Attorney and also defend criminal cases being prosecuted by the Commonwealth's Attorney. An ethics screen within the Commonwealth's Attorney's office would not avoid this disqualification.3/28/1989
1136

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4-Witness-Advocate Rule

48-Criminal Defense Lawyers

Two lawyers represent clients in criminal matters. There is a dispute with the IRS about the extent of the immunity the clients have been given. The lawyers must withdraw as counsel if they testify at any pretrial hearings about the scope of the immunity, because the Virginia Code "does not provide a distinction between testifying on pre-trial issues and testifying at the trial" (the Bar had insufficient information about possible substantial hardship on the clients should the lawyers withdraw).9/9/1988
0514

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36-Withdrawal from Representations

48-Criminal Defense Lawyers

When the court refuses permission to withdraw, a criminal defense lawyer may not withdraw from representing a client even if the client "specifically and unequivocally requested" that the lawyer withdraw.5/2/1983

Copyright 2000, Thomas E. Spahn