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
1750

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

47-Lawyer Referral Services

55-Firm Names and Letterhead

82-Advertising

83-Solicitation

84-Direct Mail Marketing

86-Descriptions of Certification and Specialization

A compendium opinion on lawyer marketing reflects the 7/1/17 ethics rules changes. First, lawyers must disclose that their advertising includes actors rather than lawyers "when the language used implies otherwise" (as when actors "use first person references to themselves as lawyers"). Second, lawyers may use a phrase such as "no recovery, no fee" only when they have already decided that the "client's responsibility for advanced costs and expenses will be contingent on the outcome of the matter." Third, law firms may not include the name of a lawyer "not associated with the firm or a predecessor of the firm," and must "actually practice" under their advertised name. It is "potentially misleading" for lawyers to advertise "the use of a non-exclusive office space" if lawyers do not provide legal services there. Fourth, lawyers may not advertise that would-be clients "will have to consult an attorney" before speaking with an insurance company representative. Fifth, lawyers may advertise their participation in lawyer referral services, as long as the service is: "operated in the public interest; is open to all area lawyers who meet the services requirements; requires service members to pay malpractice insurance or otherwise ensure financial responsibility; has adopted procedures for admitting and removing lawyers; prohibits any fee-generated referral to any lawyers who have an ownership interest in the service. Among other things, such referral service membership advertising may not: falsely imply that membership is based on some objective "quality of services" assessment; state or imply that the services contain all eligible lawyers; falsely state or imply that a "substantial number" of lawyers participate in the service. Sixth, although advertising specific or cumulative case results no longer must be preceded by a specific disclaimer, such advertisements "can be misleading." For instance, it would be misleading to advertise a $1,000,000 verdict if the lawyer's client had turned down a $2,000,000 settlement offer before trial. Seventh, lawyers may not use such "extravagant or self-laudatory" advertisements such as "the best lawyers," "the most experienced," etc. Eighth, lawyers may not advertise or use client testimonials that cannot be "factually substantiated" – the same standard as the lawyers' own advertisements. Lawyers may use "soft endorsements" that describe lawyers' return of clients' phone calls, appearance of concern, etc. Ninth, lawyers may list their inclusion in publications such as The Best Lawyers In America, but if they are delisted they must accurately state the "year(s) or edition(s) in which the lawyer was listed." Tenth, lawyers may advertise as a "specialist" or "specializing in" certain areas, as long as they can establish its accuracy. Eleventh, lawyers may advertise using terms such as "expert" or "expertise" if they can factually substantiate the description.10/2/2019
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
488

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19-Judge Conflicts

Judges must disqualify themselves where "their impartiality might reasonably be questioned." ABA Model Code of Judicial Conduct 2.11(A), lists specific family relationships that automatically meet that standard, but that rule does not provide any guidance on other personal relationships with lawyers that would require their disqualification. Judges must "avoid even the appearance of impropriety in performing their duties," but "are presumed to be impartial." Possible grounds for disqualification is "evaluated against an objective reasonable person standard," and "judicial disqualification is the exception rather than the rule." Personal relationships that might or might not require disqualification can be separated into three categories: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. First, judges have no obligation to disclose their relationship with a party or lawyer who is an "acquaintance." These persons' "interactions outside of court are coincidental or relatively superficial." "[N]either the judge nor the lawyer seeks contact with the other, but they greet each other amicably and are cordial when their lives intersect." Second, judges should disclose (but have discretion to continue presiding over a case if a party objects to the judge's presiding) if one of the parties or lawyers meets the "friendship" standard. That relationship "implies a degree of affinity greater than being acquainted with a person; indeed, the term connotes some degree of mutual affection." Those meeting this standard might include former law colleagues who occasionally meet for a meal, or law school classmates who occasionally communicate with each other. A closer friendship exists if judges and parties or lawyers exchange holiday gifts, "regularly socialize together," regularly interact "because their children are close friends"; "vacation together"; etc. Depending on the degree of friendship, judges may or may not have to disqualify themselves. Third, judges may have to disqualify themselves they have a "close personal relationship" with a party or lawyer. Examples include a romantic involvement (or a desire for such an involvement), a cordial relationship with a divorced spouse, the judge's acting as a "godparent" of a lawyer's or party's child, or vice versa. Judges must disqualify themselves if they have a romantic relationship with a lawyer or party (or desire such a relationship). Judge should "disclose other intimate or close personal relationships" with a party or a lawyer, but have the discretion "to either continue to preside over the proceeding or disqualify himself or herself." In that situation, judges "should put the reasons for the judges' decision to remain on the case or to disqualify himself or herself on the record." Judges subject to possible disqualification "based on a friendship or close personal relationship with a lawyer or party" may seek the parties' waiver of disqualification. Such a waiver "must be put on the record of the proceeding."9/5/2019
489

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5-Lawyers Changing Jobs

12-Withdrawing Lawyers (Including Non-Compete Issues)

Law firms cannot restrict withdrawing lawyers from unilaterally notifying clients of their withdrawal "once the law firm has been notified or otherwise learns of the lawyer's intended departure." Law firms and withdrawing lawyers "should attempt to agree on a joint communication" to clients with whom the lawyer "has had significant contact" – which "would include a client identifying the departing lawyer, by name, as one of the attorneys representing the client," in contrast to a lawyer who "prepared one research memo on a client matter for another attorney in the firm but never spoke with the client or discussed legal issues with the client." If they cannot "promptly agree on the terms of a joint letter," the law firm "cannot prohibit the departing lawyer from soliciting firm clients." All unilateral or joint communications to clients must give them the choice of "remaining with the firm, going with the departing lawyer, or choosing another attorney." Both law firms and withdrawing lawyers must take reasonable steps to "coordinate to assure that all electronic and paper records for client matters are organized and up to date" – so the client will be protected if it goes with the withdrawing lawyer, stays with the firm or chooses some other law firm. Withdrawing lawyers must "return and/or delete all client confidential information in their possession," unless the client goes with the withdrawing lawyer or the information is necessary for conflicts clearance. Law firms may impose "a reasonable notification period for withdrawing lawyers," but may not impose a notification period that "would affect a client's choice of counsel or serve as a financial disincentive to a competitive departure." For instance, lawyers may not be held to comply with "a pre-established notice period" if all of the clients' files are updated, and the lawyer either "has agreed to cooperate post-departure in final billing" or "does not seek to represent firm clients in the future." Such notification periods are the same as an improper financial disincentive "to a competitive departure," and are "problematic" when imposed only on withdrawing lawyers who plan to compete with the firm while routinely waived otherwise. Lawyers complying with a notification period should not be deprived of "adequate firm resources" needed to serve clients. After lawyers withdraw, law firms "should set automatic email responses and voicemail messages for the departed lawyer's email and telephones, to provide notice of the lawyer's departure, and offer an alternative contact at the firm for inquiries." A "supervising lawyer" should also review incoming emails, voicemails, etc. "in accordance with client direction and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer." Firms and lawyers complying with a notification period should also "discuss and clarify" how to treat new client matters that come in during that period.12/4/2019
1872

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13-Marketing - Miscellaneous

45-Law Firms - Miscellaneous

53-Office Sharing with Non-Lawyers

82-Advertising

Lawyers relying on non-exclusive "executive office rental" space or similar space must: (1) "act competently to protect the confidentiality of clients' information"; (2) take reasonable steps to "supervise subordinate lawyers and nonlawyer assistants" that are not located with the lawyer; (3) avoid advertising such "non-exclusive office space or virtual law office" as "a location of the firm" unless it is an "office where the lawyer provides legal services."10/2/2019

Copyright 2000, Thomas E. Spahn