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
495

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41-Non-Virginia Lawyers

A lawyer’s “physical presence in the local jurisdiction [where she is physically located while representing clients in other jurisdictions] is incidental; it is not for the practice of law” – as long as the lawyer “is for all intents and purposes invisible as a lawyer to a local jurisdiction with the lawyer is physically located, but not licensed.” Thus, such a lawyer does not violate ABA Model Rule 5.5 as long as she does not hold out to the public that she is authorized to practice in that jurisdiction, and does not practice that jurisdiction’s law. Although a jurisdiction might consider that conduct to be the unauthorized practice of law, and has an interest in ensuring that such a lawyer is “competent,” such a “local jurisdiction has no real interest in prohibiting a lawyer from practicing the law of a jurisdiction in which that lawyer is licensed and therefore qualified to represent clients in that jurisdiction.” Among the various ABA Model Rule 5.5 provisions allowing lawyers to practice in a jurisdiction where they are not licensed, lawyers can rely on ABA Model Rule 5.5 (c)(4)’s provision permitting “temporary” practice under specified conditions where they are not licensed – and “[Now long that temporary period lasts could vary significantly based on the need to address the pandemic.”12/16/2020
493

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21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

49-Lawyers - Miscellaneous

ABA Model Rule 8.4(g) prohibits conduct “that the lawyer knows or reasonably should know is” “harassment or discrimination on the basis of” specifically identifiable attributes, “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The prohibition applies to all “conduct related to the practice of law.” ABA Model Rule 8.4(g) thus applies “in non-litigation matters or at law firm social events or bar association functions” (although “Rule 8.4(g) does not regulate conduct unconnected to the practice of law, as do some other rules of professional conduct”). ABA Model Rule 8.4(g) “prohibits other conduct that is not covered by other law;” and might involve “a single instance of a lawyer” engaging in the prohibited conduct. “[T]he most common violations will likely involve conduct that is intentionally discriminatory or harassing.” “The existence of the requisite harm is assessed using a standard of objective reasonableness.” ABA Model Rule 8.4(g) specifically excludes from its prohibition “[l]egitimate advice or advocacy consistent with [the ABA Model Rules].” The following acts would not violate ABA Model Rule 8.4(g): (1) a First Amendment challenge to “a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities;” (2) a CLE program speaker “express[ing] the view” criticizing “a race-conscious process in admitting African-American students to highly ranked colleges and universities;” (3) a lawyer’s membership in “a religious organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.” The CLE speaker scenario does not violate ABA Model Rule 8.4(g), because “even a controversial [point of view] cannot reasonably be understood as harassment or discrimination contemplated by [ABA Model] Rule 8.4(g)” – and “[t]he fact that others may find a lawyer’s expression of social or political views to be inaccurate, offensive, or upsetting is not the type of ‘harm’ required for a violation.” The following acts would violate ABA Model Rule 8.4(g): (4) an adjunct professor/lawyer “supervising a law student in a law school clinic” making “repeated comments about the student’s appearance and also making unwelcome, nonconsensual physical contact of a sexual nature with the student” (which involves “conduct related to the practice of law,” although the “conduct . . . may not necessarily fall directly within the context of the representation of a client”); (5) law firm lawyers stating during a planning session or “an orientation program for newly-hired associates to familiarize them with firm policies and procedures” stating that lawyers should “never trust a Muslim lawyer” or “represent a Muslim client” (“[b]ecause the remarks were made within the law firm setting, they were ‘related to the practice of law”). In sum, ABA Model Rule 8.4(g) “does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation.” (which “must necessarily be judged, in context, from an objectively reasonable perspective”).7/15/2020
494

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16-Lawyer's Personal Interests

An ABA Model Rule 1.7 (a)(2) “material limitation” conflict might arise because of a personal relationship between opposing lawyers. Some relationships would not trigger such a conflict, but (for example) “A lawyer’s independent judgment is likely to be materially limited if due to the personal relationship with opposing counsel the lawyer would refrain from filing a well-founded motion for sanctions against opposing counsel.” Lawyers assessing possible conflicts must consider “the lawyer’s role in the matter,” must avoid unintentionally disclosing protected client confidential information (for example, “if papers relating to the representation are left in view or telephone conversations are overheard”), and must withdraw if such a personal relationship prevents the lawyer from providing “competent and diligent representation to the client.” Such “personal interest conflicts ordinarily are not imputed.” There are three levels of personal relationships. First, lawyers “who cohabit in an intimate relationship should be treated similarly to married couples for conflicts purpose” - disclosing the relationship to their clients and proceeding only if “each client gets informed consent confirmed in writing.” The “prudent course” would be for lawyers to follow the same course if they “are in some type of intimate relationship, but are not exclusive, engaged to be married or cohabiting.” Second, the analysis triggered by friendship “turns on the closeness of the friendship.” Opposing lawyers “should” follow the same course if they are “close” friends who exchange holiday gifts, “regularly socialize together,” “routinely spend time at each other’s homes,” “vacation together with their families,” “share a mentor - protégé relationship developed while colleagues,” “share confidences and intimate details of their lives.” Lawyers might be required to disclose to affected clients (but “will not ordinarily require consent” from those clients) if they once practiced together, “periodically meet for a meal when their busy schedules permit,” “try to meet when one is in the other’s hometown,” were law school classmates and “stay in touch through occasional calls or correspondence, but not regularly see one another.” Opposing lawyers usually do not need to disclose to their clients if they “may see each other at [“places of worship, professional or civil organization” gatherings], but “without feeling a close personal bond.”7/29/2020
1890

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23-Communicating with an Adversary - Miscellaneous

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

In a compendium opinion, analyzing Virginia Rule 4.2’s prohibition on ex parte communications with a represented person. (1) The prohibition applies even if the represented person initiates the communication (the lawyer receiving such a communication must end it immediately, but not “instantaneously” themselves – pointing to the Zauq case). (2) The prohibition only applies to the “matter” in which the person is represented by a lawyer. Although the “matter” might be transactional or other non-litigation matter, ex parte communications are permissible even if the communication involves facts that also relate to the matter in which the person is represented” (such as a lawyer communicating ex parte about a civil matter with a person who is “represented in a related criminal matter”). (3) The prohibition only applies if the communicating lawyer has “actual knowledge” that the person is represented in the matter. Thus, a lawyer may communicate ex parte for the “sole purpose” of determining if the person is represented in the matter. (4) The Rule applies to lawyers representing themselves. (5) Lawyers may not “use” a client to “circumvent Rule 4.2.” For instance, a lawyer may not “tell[] the client or third party what to say or ‘script[]’ the communication with the represented adversary.” (6) Lawyers similarly may not use an investigator or third party to communicate directly with a represented person. (7) “[P]rosecutors, government agents, and informants may communicate with represented criminal suspects in a non-custodial setting up until indictment, information or when the represented person’s Sixth Amendment right to counsel would attach.” (8) Lawyers may freely communicate ex parte with represented corporations’ former employer or agent even if they were off limits while employed. However, in that and all settings, lawyers may not intrude into the corporation’s privilege protection during such otherwise permissible ex parte communications. (9) Lawyers communicating ex parte with represented corporations’ employees: are permitted to do so under Virginia Rule 4.2 even though the corporation has a “general counsel”; and may freely communicate with the corporation’s in-house lawyers without outside lawyers’ consent. (10) Because insurance companies generally are not named party in liability cases against their insureds, lawyers representing insureds’ adversaries generally may communicate ex parte with insurance company employees (although whether or not an attorney-client relationship exists between defense counsel and the insurer is a legal issue beyond the Committee’s purview). (11) Lawyers may freely communicate with a represented person who seeks a “second opinion” or “advice of a general nature” about the matter. (12) The “authorized by law” exception is basically undefined, but generally permits ex parte communications during depositions, and permits lawyers to send contractually required notice provisions to represented persons. (13) Lawyers generally cannot point to “reasonable excuses or justification” for bypassing Virginia Rule 4.2’s prohibition even if, for example, the plaintiff’s lawyer believes that an insurance defense lawyer has not advised an underinsured client about his “right to hire personal counsel.”1/6/2021
1850

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8-Bills and Fees

28-Law Firm Staff

45-Law Firms - Miscellaneous

Lawyers frequently outsource legal and non-legal support services to lawyers and non-lawyers. Examples include “reproduction of materials, database creation, conducting legal research, case and litigation management, drafting legal memoranda or briefs, reviewing discovery materials, conducting patent searches, and drafting contracts” (but do not include a scenario in which a lawyer “is working under the direct supervision of lawyers in the firm and has full access to information about the firms clients, and therefore is associated with the firm”). Lawyers who engage in such outsourcing must comply with four duties. First, such lawyers must “exercise due diligence in the selection of lawyers or non-lawyers,” must take reasonable steps to assure that they comply with the lawyers’ ethical rules, must review their work “on an ongoing basis,” and must “remain ultimately responsible for [their] conduct and work product.” Lawyers arranging for overseas outsourcing “should” enter into a written agreement confirming these steps. Second, lawyers who hire “a temporary lawyer to work on a client’s matter” must advise the client. Similarly, such lawyers “must obtain informed consent from the client if the lawyer is outsourcing legal work to lawyer or non-lawyer who is not associated with or working under the direct supervision of a lawyer in the firm that the client retained, even if no confidential information is being shared outside of the firm.” Third, lawyers “must secure the client’s consent in advance” if they will share “confidential client information” to a lawyer or non-lawyer who is not “associated with the firm nor directly supervised” by a firm lawyer. Lawyers should obtain written confidentiality agreements, and “should also ask the nonlawyer whether he or she is performing services for any parties adverse to the lawyer’s client.” Fourth, lawyers charging clients for outsourced work as a disbursement must disclose any mark-up. Under ABA LEO 379 (12/6/93), lawyers need not disclose any mark-up or staffing agency fee if they outsource to lawyers or non- lawyers working “under the direct supervision of the lawyer such that they are considered ‘associated’ with the firm.”1/6/2021
491

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26-Fruits and Instrumentalities of Crimes

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

48-Criminal Defense Lawyers

56-Duty to Advise the Court

Lawyers have a duty under ABA Model Rule 1.1, 1.3, 1.4, 1.13, 8.4 and 1.16 "to inquire further to avoid assisting" clients' wrongful conduct if the lawyer "has knowledge of facts that create a high probability that a client is seeking the lawyer's services in a transaction to further criminal or fraudulent activity." "Failure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard" of ABA Model Rule 1.2(d). The "Committee rejects the view that the actual knowledge standard of [ABA Model] Rule 1.2(d) relieves the lawyer of a duty to inquire further where the lawyer is aware of facts creating a high probability that the representation would further a crime or fraud." If a client "refuses to provide information or asks the lawyer not to evaluate the legality of a transaction the lawyer should explain to the client that the lawyer cannot undertake the representation unless an appropriate inquiry is made."4/29/2020
496

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16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers tempted to respond to “online criticism and negative reviews” must remember their confidentiality duty – which even covers “information in the public record.” The only likely applicable exception in ABA Model Rule 1.6 (b)(5) applies “in a controversy between the lawyer and the client.” Even if “an online posting rose to the level of a controversy between lawyer and the client, a public response is not reasonably necessary or contemplated...in order for the lawyer to establish a claim or defense.” Lawyers may: (1) “request that the host of the website or search engine remove the post” (without revealing any protective client confidential information, but “staging] that the post is not accurate or that the lawyer has not represented the poster if that is the case”); (2) “give serious consideration to not responding to negative online reviews” to avoid generating more online activity that might increase search result visibility; (2) “respond with a request to take the conversation offline and to attempt to satisfy the person;” (3) post a disclaimer of representation if the poster is not a client or former client; (4) be careful not to disclose client confidences if the poster has a relationship to the representation, remembering that “[e]ven a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information,” (5) respond to a negative post as follows: “[p]rofessional obligations do not allow me to respond as I would wish.”1/13/2021
492

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22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

Under ABA Model Rule 1.18, a lawyer who has received "significantly harmful" information from a prospective client may not (absent consent) represent that prospective client's adversary if the lawyer is not hired — although under some circumstances that lawyer's colleagues might be able to screen that lawyer and represent the adversary. The term "significantly harmful" does not include "information that causes embarrassment or inconvenience," but includes "information relating to '[c]ivil or criminal liability.'" Examples of "significantly harmful" information include: "views on various settlement issues including price and timing;" "personal accounts of each relevant event [and the prospective client's] strategic thinking concerning how to manage the situation;" an outline of "potential claims;" "specifics as to amount of money needed to settle the case;" "the underlying facts and legal theories about [a] proposed lawsuit;" "'sensitive personal information' in a divorce case;" "premature possession of the prospective client's financial information;" "knowledge of 'settlement position;'" "a 'prospective client's personal thoughts and impressions regarding the facts of the case and possible litigation strategies;'" "'the possible terms and structure of a proposed bid' by one corporation to acquire another."6/9/2020

Copyright 2000, Thomas E. Spahn