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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ABA-509

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10-Former Government Lawyer Conflicts

20-Government Official Conflicts

31-Protecting and Disclosing Confidences and Secrets

51-Government Attorneys

(ABA Model Rule 1.11(c) “protects against the misuse of ‘confidential government information’” acquired by a full-time or part-time government lawyer, by disqualifying the lawyer from representing private clients on whose behalf the lawyer could use such information to an adversary’s material disadvantage. Such “confidential government information” consists of information the government is “prohibited by law from disclosing,” “has a legal privilege not to disclose,” and which is “not otherwise available to the public.” This disqualification standard differs from the other information-based conflicts standards in several ways. First, the disqualification applies if the government lawyer acquired information from someone other than the private client’s adversary. Second, the disqualification standard applies however the lawyer acquired such disqualifying information as “a public officer or employee” (such as a police officer), even if the lawyer was not representing the government (so it applies to lawyers “serving as legislators, public executives, and other public officers who are not representing the government as legal counsel).” Third, the disqualifying information need not be protected by the normal Rule 1.6 confidentiality standard – for instance it includes information the lawyer heard from another public officer or employee. Fourth, the disqualification standard applies if the former government lawyer “could” use the information to the adversary’s “material disadvantage” (not just if the lawyer does so). Whether such information could be used in that way is “a question of fact” (as is whether such information is “publicly available” through routine discovery). The disqualification standard “applies equally to a full or part time lawyer who currently serves or formerly served as a government officer or employee,” and is “not consentable.” It also applies to lawyers currently working in the government as a lawyer or otherwise, while maintaining a private practice. The disqualification standard applies to any full-time or part-time current or former government lawyer representing a “private client” – which can “include[] public entities and officials whom the lawyer represents in private practice.” But the disqualification standard does not apply to a current government lawyer working in that role who represents “a government employee in the employee’s personal capacity.”)2/28/2024
ABA-508

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

(Failing to prepare a witness to testify “can constitute an ethics violation”; lawyers preparing witnesses to testify may: explain that the witness may say “I don’t recall” — if that is true; identify other witness’ expected testimony; “suggest choice of words that might be employed to make the witness’s meaning clear.”; advise the witness to “not volunteer[] information.” But lawyers may not engage in unethical “coaching,” which involves encouraging or suggesting witnesses to testify falsely. Lawyers may not “compensate a lay witness for the substance of their testimony or to condition such payment on the content of the witness’s testimony, even if that payment is for ‘truthful’ testimony.” During the witness’s testimony, lawyers may not signal to such witnesses, such as: “winking”; “kicking a deponent under the table,” so-called “speaking objections” intended to coach the witness. Courts also sometimes limit such discussions during deposition breaks. Misconduct might be easier when deposition or other testimony is taken remotely, so lawyers may consider “systematic precautions” in advance.)8/5/2023
ABA-507

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33-Office Sharing with Other Lawyers

(Lawyers who are not in the same law firm may share permanent or temporary office space. They must deal with a number of issues: (1) confidentiality (which may require office-sharing physical arrangements that avoid disclosure of or exposure to confidential information, refraining from leaving client files in conference rooms, kitchen areas, etc.); securing physical files and locking down computers; staff training); (2) clear and accurate communication about the relationship of the office-sharing colleagues (preparing separate business cards, buying accurate advertisements, training a common operator to answer with a salutation such as “Law Offices,” etc.); (3) conflicts of interest considerations (such as imputation of conflicts, which depend on “whether the lawyers are, or appear to the public or their clients as, “associated in a firm” — which is more likely among office-sharing lawyers “who do not protect the confidentiality of their respective clients, regularly consult with each other on matters, share staff who have access to client information, mislead the public about their identity and services, or otherwise fail to keep their practices separate.”); office-sharing lawyers may represent direct adversaries even in litigation after disclosure to clients of the office — sharing arrangement and client consent, staff screening, and assessment whether the pertinent state’s rules permit such adversity; consultation among the office-sharing lawyers (which does not automatically create “associated” status, but which should avoid disclosure of client identity or other protected information and which instead may involve hypotheticals, and which risk “material limitation” conflicts depending on the context of the shared information, as with Model Rule 1.18’s “prospective client” analysis).7/12/2023
ABA-510

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22-Interviews with Prospective Clients

(Under ABA Rule 1.18(c), a lawyer who has consulted with a prospective client can avoid her individual disqualification if she did not obtain any “significantly harmful” information from the prospective client (a standard addressed in ABA LEO 492 (6/9/20)). If the consulting lawyer faces individual disqualification because she has obtained such “significantly harmful” information, she can avoid her individual disqualification from being imputed to her whole law firm if she is screened, receives no part of the fee and provides written notice to the prospective client that the firm will represent the adversary. Notably, she must also have taken “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.” The consulting lawyer clearly must obtain information to check for conflicts (such as “the identity of other relevant parties, witnesses, and counsel”). It is also “necessary” for the lawyer to determine whether she can handle the matter competently, whether the client might be seeking to use the lawyer’s service to commit wrongdoing, whether the client has a meritorious claim or defense, etc. The consulting lawyer must also make a “business decision” about whether to represent the prospective client – focusing on time involved, likely fees, her interest in the matter, compliance with the firm’s “internal policy” about representing certain types of clients, etc. In contrast, such “necessary information” normally would not include facts about the representation that “might enable the lawyer to impress the prospective client” in an effort to land the business. Lawyers might have a business reason to “substantially investigate” a prospective client’s matter before accepting the representation, but it might not be “reasonably necessary” to do so – so she should recognize that a “free-flowing conversation” might result in an imputed disqualification, and consider “stopping [the] inquiry” after determining that her firm would not take the representation. The consulting lawyer might also be wise to decrease the likelihood of an imputed disqualification by “warn[ing] the prospective client that the lawyer has not yet agreed to take on the matter and that information should be limited only to what is necessary for the lawyer and client to determine whether to move forward with an engagement.”)3/20/2024
ABA-506

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28-Law Firm Staff

49-Lawyers - Miscellaneous

Lawyers may rely on non-lawyer "employees, agents, contractors, and vendors" to assist in "client intake tasks" under certain limited conditions -- as long as the pertinent jurisdiction does not consider their actions to be the unauthorized practice of law. Non-lawyers often engage in such intake tasks for nonprofit legal services organizations, for-profit law firms offering "limited scope online legal services," and for law firms handling "mass tort and class action representations." Although on its face ABA Model Rule 1.4(b) focuses on explaining the scope of a representation, bars also apply those duties to lawyers who communicate with prospective clients. Lawyers may "develop policies, train, and supervise" nonlawyers who engage in such actions as: obtaining "initial information about the matter"; "performing an initial conflict check"; determining if the would-be client seeks assistance "in an area of law germane to the lawyer's practice"; "answering general questions about fee agreement or process of representation"; and "obtaining the prospective client's signature on the fee agreement." But such prospective clients must be offered the opportunity to discuss fees and other pertinent issues with a lawyer, who does not relinquish her ABA Model Rule duties. Jurisdictions' unauthorized practice of law rules determine whether such non-lawyers may answer prospective clients' "specific questions." Non-lawyers may convey to a lawyer any questions that "would require the application of law to facts." Similarly, non-lawyers may provide "general information" about fees, but may not: provide advice about "what legal services the client should obtain"; negotiate fees or expenses; or offer "an interpretation of the rights and responsibilities set forth in the engagement agreement." Lawyers are ultimately responsible for making sure that their non-lawyer colleagues do not cross the line into the pertinent jurisdiction's impermissible unauthorized practice of law.6/7/2023
Virginia-1900

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17-Fraud on the Tribunal

23-Communicating with an Adversary - Miscellaneous

56-Duty to Advise the Court

Virginia LEO 1900 (1/4/24) (A lawyer must disclose her client’s death to opposing counsel “before any further substantive communication,” and must disclose her client’s death in a matter before a court “no later than the next communication with, or appearance before, the court.” Failure to make such a disclosure amounts to a continuing misrepresentation of the lawyer’s authority. Lawyers may properly wait to advise opposing counsel while determining if the deceased client’s estate’s representative (if any) decides how to proceed with the representation. The Bar overrules Virginia LEO 952 (7/31/87), and instead adopts the reasoning of the ABA LEO 97 (9/18/95).1/4/2024

Copyright 2000, Thomas E. Spahn