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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LEO NumTopicsSummaryDate
486

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25-Dealing with Unrepresented People

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

51-Government Attorneys

ABA LEO 486 (5/9/19) (Because under the ABA Model Rules a prosecutor must be a “minister of justice and not simply . . . an advocate,” prosecutors have several ethical obligations when negotiating misdemeanor plea bargains with unrepresented defendants (criticizing some jurisdictions for negotiation methods “inconsistent with the duties set forth in the Rules of Professional Conduct”). Prosecutors must comply with various ABA Model Rule 3.8 duties, which sometimes “exceed the requirements of statutory and constitutional law.” Among other things, prosecutors: “may not negotiate pleas without first making an independent assessment of the relevant facts and law for each charge”; must take reasonable steps to assure that the accuseds have the right to counsel (noting that a prosecutor “may not make a plea offer or seek a waiver of the right to counsel before complying with Rule 3.8(b)”); must avoid accuseds' waiver of their important pretrial rights (explaining that it is improper for prosecutors to ask unrepresented accuseds if they wish to waive right to counsel or accept a plea “if it is clear from the circumstances that the accused does not understand the consequences of acceding to the request”). Prosecutors also have duties under ABA Model Rules 4.1 and 4.3; explaining among other things that “if the prosecutor knows the consequence of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during the plea negotiation.”)5/9/2019
487

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8-Bills and Fees

14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

38-Fee Splitting

40-Trust Accounts

ABA LEO 487 (6/18/19) (A successor lawyer replacing a contingent fee arrangement lawyer must advise the client of the former lawyer’s claim for fees against any recovery (under a quantum meruit standard, a termination amount specified in the previous contingent fee arrangement, or some other arrangement). Such a claim arises if a client fires the contingent fee lawyer without cause or the contingent lawyer justifiably withdraws. Those standards vary by state, but lawyers' justifiable withdrawal includes examples such as an “obligation to withdraw due to unforeseen conflict of interest . . . unanticipated costs and expenses of litigation . . . client refused to comply with discovery obligations.” The successor lawyer may include such an explanation of the predecessor lawyer's right to a fee in the new contingent fee arrangement or separately. Such successive representations do not implicate simultaneous representation provisions such as ABA Model Rule 1.5(e) fee division provision, including that Rule’s requirement that all counsel assume “joint responsibility” for the matter – which “entails financial and ethical responsibility for the representation as if the counsel were associated in a partnership." Although the client in this situation involving successive contingent fee representations “cannot be exposed to more than one contingent fee when switching attorneys,” ABA Model Rule 1.5(a) "supports the conclusion that client consent is required to divide the fee at the end of the case.” Thus “successor counsel may not disburse fees claimed by that [predecessor] counsel absent the client’s consent.” Successor counsel may or may not represent the client in dealing with predecessor counsel, which should be specified in the fee agreement. Among other things, successor counsel undertaking that task “cannot charge the client for work that only increases the successor counsel’s share of the contingent fee and does not increase the client’s recovery.” Given successor counsel’s interest “in a portion of the proceeds,” the arrangement must also include the client’s informed consent to that conflict. Both successor and predecessor counsel must protect client confidences, and predecessor counsel may not communicate directly with the former client “without successor counsel’s consent under Rule 4.2.” Successor counsel must hold in trust any disputed amounts.6/18/2019

Copyright 2000, Thomas E. Spahn