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
Virginia-1889

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

49-Lawyers - Miscellaneous

73-Family Law Lawyers

A court-appointed lawyer has no duty to represent a parent in appealing an adverse termination of a parental rights order unless the parent has "at some stage in the proceeding" directed or requested the lawyer to appeal the adverse ruling. A lawyer must consult with the parent about filing such an appeal, but may not file the appeal if the lawyer has been unable to contact the parent and receive instructions.11/8/2018
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
ABA-484

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8-Bills and Fees

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

38-Fee Splitting

40-Trust Accounts

Clients who on their own or on their lawyers' advice arrange for a finance company, broker or bank [referred to in this LEO summary as "finance company"] to finance their legal fees may use one of several arrangements in which such finance companies provide money to the clients or directly to the lawyers, with various fees or charges deducted from such payments or paid by the lawyers. Lawyers participating in such financing arrangements: (1) must fully explain to their clients the lawyers' relationship with the finance companies (including whether the lawyer represents them); how the money arrangements will work; the finance companies' communications to the lawyers about the money flow; "the cost and benefits of the transaction to the client"; the lawyers' payment terms; whether the proceeds will go to the client; "whether the lawyer will charge a higher fee" resulting from the finance arrangement; the lawyers' confidentiality duty when dealing with the finance companies; the effect of the financing arrangement on clients' rights in any later disputes with the lawyers; "any other factor that the lawyer knows or reasonably should know to be material to the financing of the representation"; (2) may limit the representations' scope under Rule 1.2 so that the clients must make such arrangements; (3) "may wish to advise the client" that the finance company will not affect the lawyers' judgment (although such a lawyer "generally has no obligation to inform the client" of the lawyers' professional independence because "unlike litigation funding or financing, a legal fee lender in the scenarios described . . . has no direct financial interest in the outcome of the matter, and therefore no incentive to attempt to influence the lawyer's advice, strategy, or tactics"); (4) must assure that the fee is reasonable, including any fee that is increased by the finance arrangement, and must inform the clients of any higher fee resulting from the arrangement; (5) must deposit the flat fee loan proceeds as the pertinent state rules require (noting that some states permit lawyers to treat flat fees as earned upon receipt and therefore place them in operating accounts, while other states consider such flat fees advance payments that must be held in trust), and under either approach must refund any unearned funds if the representation ends before the lawyer has completed the work; (6) may reveal client confidential information to the funding company only as permitted by ABA Model Rule 1.6; (7) must consider any ABA Model Rule 1.7(a)(2) "material limitation" conflicts, such as conflicts between clients' interest and the lawyers' interest in being paid, or if the lawyers represent the finance company (lawyers may avoid such conflicts by not advising clients about such payment option to use, or may obtain clients' informed consent to the representation despite such a "material limitation" conflict; (8) must deal with any conflicts that could arise if the lawyers had previously represented the finance companies. Any finance companies' charges, deductions when paying the clients or the lawyers, etc. do not constitute fee sharing, but rather are "basically an administrative fee" similar to credit card companies' "merchant fee." Any such fee financing arrangements made with an entity in which lawyers have "an ownership or other financial interest" trigger lawyers' disclosure and consent requirements under ABA Model Rule 1.8.11/27/2018
Virginia-1885

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8-Bills and Fees

38-Fee Splitting

40-Trust Accounts

42-Payments to Solicit Recommendations

47-Lawyer Referral Services

82-Advertising

Lawyers violate some ethics rules but not other ethics rules if they participate in a for-profit attorney-client matching service ("ACMS") under which the ACMS: advertises "without the lawyers input" fees for limited scope services to be provided by the lawyer; collects the fee, deposit it in the lawyers' operating account after the lawyer completes the work; withdraws a "marketing fee" which is set by the ACMS and based on the legal fee. Such an arrangement: (1) would violate the ethics rules governing limited scope representations, unless the lawyer and the client agree on the limitation rather than simply allowing the ACMS to define the scope in advance; (2) might involve an unreasonable fixed fee, unless the lawyer conducts "an independent assessment" of the advertised fee's relationship to the work; (3) would violate lawyers' ability to safeguard the unearned fixed fee; because the fee initially goes to the ACMS (a lay entity) and not to a trust account, and therefore could be vulnerable to the ACMS's creditors, cannot be refunded if that would be required, etc.; (4) would violate the fee-split rule because there is a "direct linkage" between the lawyer's fee and the ACMS's entitlement to compensation (in contrast to advertising fees which are not based on the legal fee amount); would violate the prohibition on lawyers giving lawyers or nonlawyers "anything of value" to recommend the lawyer (because the ACMS's marketing fee is not a legitimate advertising expense, but instead is "a sum tethered directly to her receipt, and the amount, of a legal fee paid by a client".11/8/2018

Copyright 2000, Thomas E. Spahn