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-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
1893

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18-Consent and Prospective Waivers

37-Settlements

43-Conflicts of Interest - Miscellaneous

49-Lawyers - Miscellaneous

67-Lawyers Acting as Guardians Ad Litem"

(Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" —because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad litem's appointment or judicial approval of an infant settlement — and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend."4/12/2023
505

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8-Bills and Fees

40-Trust Accounts

(The only “nonrefundable” fees are the “quite rare” retainers (often called “true retainers”) — which can be analogized to option contracts. Those: (1) require a lawyer to be available to provide services for a defined period (which will be separately billed at the time), and (2) must be taken into income immediately.<br>Otherwise, what many lawyers call “retainers” involve “lawyer taking] possession — but not ownership of funds to secure payment for the services the lawyer will render to the client in the future.” Those can include a “flat fee” or “fixed fee” — which must remain in trust until the lawyer performs the agreed-upon work (this sometimes involves “dividing the representation into segments”). Under the ABA Model Rules, those types of fees “cannot be nonrefundable.” Lawyers should use the term “advance” rather than “retainer” in these common circumstances — and “[e]xplain that the sum deposited will be applied to the balance owed for work on the matter, and how and when this will happen” -- such as monthly invoices, “dividing the representation into reasonable segments and providing for withdrawal of a reasonable portion of the deposited fee as the representation progresses, and the fee becomes partially earned.” All but a handful of states require such unearned advance fees to be placed in trust — a few states provide for such “nonrefundable” or “earned on receipt” fees (mentioning Washington, Oregon, Arizona, Florida and New York). Under ABA Model Rule 1.16(d), lawyers must refund any unearned fees when a representation ends (the calculation of which sometimes involves a court’s apportionment).5/5/2023
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
1893

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18-Consent and Prospective Waivers

32-Lawyers Acting in Other Roles (Miscellaneous)

37-Settlements

43-Conflicts of Interest - Miscellaneous

49-Lawyers - Miscellaneous

67-Lawyers Acting as Guardians Ad Litem"

Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" - because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad !item's appointment or judicial approval of an infant settlement - and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend."4/12/2023
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