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
ABA-478

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19-Judge Conflicts

Judges may independently research background information and may "judicially notice" facts under court rules, but may not independently investigate material facts involved in their adjudicative function. "The key inquiry here is whether the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing through the adversary process." "[E]ven general subject-area research is not permissible . . . if the judge is acquiring information to make an adjudicative decision of material fact." Judges may not investigate through online research (or otherwise) information about jurors or parties, but may investigate lawyers -- unless the investigation "is done to affect the judge's weighing or considering adjudicative facts."12/8/2017
ABA-480

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers blogging, tweeting, and otherwise engaging in public commentary through social media or otherwise must comply with the ABA Model Rules' confidentiality duties – which extend beyond the attorney-client privilege and include all information relating to a representation, even if it is in a public document or generally known. Lawyers may violate this rule even if they communicate in a "hypothetical" – if "there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical" (because both the client's identity and the situation deserve confidentiality protection.3/6/2018
1750

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47-Lawyer Referral Services

82-Advertising

85-Business Cards

This compendium opinion (initially issued on 3/20/01, and revised on 4/4/06, 12/18/08 and 4/20/18 [in light of 2017 Virginia Rules changes]) provides guidelines about lawyer advertising: advertisements using actors to portray lawyers or employees must disclose "that the actor is not truly an employee or member of the firm;" advertisements may not use terms such as "no recovery, no fee"; "we guarantee to win, or you don't pay"; "we are paid only if you collect"; "no charge unless we win" and must explain that litigation expenses and court costs would be payable regardless of outcome (because the public "generally may not distinguish the differences between the terms 'fee' and 'costs'"); lawyers may use a corporate trade or fictitious name for their firm as long as they practice under that name (and use the name on signage, letterheads, business cards, etc.) and the name is not misleading; it is “potentially misleading” for lawyers to advertise their “use of a non-exclusive office space, including an executive office rental,” if the lawyer does not actually provide legal services there (quoting Virginia LEO 1872’s warning that lawyers may not list such space to mislead prospective clients about the law practice’s geographic diversity or resources); advertisements may not indicate that automobile accident victims "will have to consult an attorney"; lawyers participating in lawyer referral services must comply with all ethics rules and earlier LEOs, and may not falsely state or imply that the lawyer's inclusion on a referral list is based on quality, that the referral list includes all lawyers or law firms eligible for the list on some objective criteria, or that there are many lawyers participating in the service in a certain geographic area; after the 2017 Rules change eliminating the disclaimer obligation when lawyers advertise specific or cumulative case results, it “can be misleading” for lawyers to advertise “specific case results” depending on the circumstances (for instance, a lawyer advertising that she obtained a $1 million verdict after refusing a $2 million settlement offer would have to explain those additional facts); advertisements may not use statements such as "the best lawyers" or "the most experienced" because they “cannot be factually substantiated”; clients' testimonials may not make claims that lawyers could not themselves make, but may include such "soft endorsements" as "the lawyer always returned phone calls” and “the attorney always appeared concerned"; lawyers may state that an A.V. Martindale-Hubbell rating represents its "highest rating"; lawyers may state that they are included in publications such as "The Best Lawyers in America," but must describe the years they were included in such publications if they are ever delisted, may not include any reference to such lists if the lists are "not based upon objective criteria or a legitimate peer review process" or are "available to any lawyer who is willing to pay a fee," must not parlay inclusion on such a list into a claim that "I am the best lawyer in America," and may not "impute any such endorsement to others in the law firm not so recognized"; lawyers may not use the word "specialist" or "specialize" if such terms are false or misleading; lawyers may claim to be “certified as a specialist,” as long as the claim is not false or misleading, and they identify the organization that “purportedly conferred the certification” (which “must undertake some bona fide evaluation” rather than awarding certificates to any lawyers who pay a fee or joins the organization); lawyers may not use the word "expert" or "expertise" if "the claim cannot be factually substantiated"].4/20/2018
ABA-479

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31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Under ABA Model Rule 1.9, lawyers may not disclose former clients' protected client information unless the rules permit it, and may not "use" such information to the former clients' disadvantage unless the rules permit it -- or unless the information has become "generally known." Information is not "generally known" simply because it is publicly available, is discussed in open court, is in court records, or is otherwise a matter of public record. Instead, information is "generally known" if "through traditional media sources" or "through publication on internet web sites; or through social media" the information is: (1) "widely recognized by members of the public in the relevant geographic area"; or (2) "widely recognized in the former client's industry, profession, or trade without being widely recognized by the public."12/15/2017
1887

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21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

Unlike supervisory lawyers (whose duties to supervise and to report other lawyers' misconduct was addressed in Virginia LEO 1886 (12/15/16)), lawyers not playing a supervisory role are governed only by Rule 8.3's reporting obligation – which is sometimes triggered by Rule 1.16's requirement that lawyers withdraw from representing clients if their "physical or mental condition materially impairs" their ability to represent a client. This reporting obligation arises only if the other lawyer violates an ethics rule, so "a lawyer's impairment, on its own, does not necessarily violate the RPCs at all." This means that lawyers without a supervisory role have no duty to "proactively address the impairment of other lawyers." However, lawyers must report another lawyer whose "material impairment" requires the other lawyer's withdrawal from a representation under Rule 1.16. Although the reporting obligation remains subject to lawyers' confidentiality duty, "in many cases a report may be accomplished without disclosing information that would be embarrassing or detrimental to the firm's clients." Lawyers must also remember that "reporting a lawyer's impairment to both the Bar and to LHL [Lawyers Helping Lawyers] is important, and each report serves different purposes."6/28/2017

Copyright 2000, Thomas E. Spahn