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
1878

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6-Lawyers Paid by Third Party

16-Lawyer's Personal Interests

36-Withdrawal from Representations

A lawyer replacing another lawyer who had been discharged "without cause from representation in a contingent fee matter" must advise the client of the discharged lawyer's possible lien — to which the discharged lawyer will be entitled on a quantum meruit basis. Among other things, such a replacement lawyer must advise the new client that she may be responsible for "combined fees in excess of the contingent fee" arranged with the now-discharged lawyer. The replacement lawyer should also include in a "proposed contingent fee agreement with the client" several provisions, including: the Virginia law "regarding perfection of attorneys' liens and quantum meruit awards available to attorneys discharged without cause;" the possibility of the client's possible obligation to pay both the discharged lawyer and the replacement lawyer; and "who bears the expense (legal fees and court costs, if any) of determining predecessor counsel's fee entitlement, to include the cost of adjudicating the validity and amount of any claimed lien, through an interpleader action or otherwise." It may be appropriate for the client to receive legal advice about these issues from a lawyer other than the replacement lawyer. Fee contracts are not treated in the same way as other contracts, because they "stand on a different footing" given lawyers' duties to their clients. The replacement lawyer may represent the client in negotiations with or litigation against the discharged lawyer, "but at no additional charge to the client" (if such negotiations will not increase client's recovery in the case, but instead only increase the replacement lawyer's contingent fee share). If the replacement lawyer's representation "is materially limited by a concurrent conflict of interest [because the replacement lawyer has a personal interest in such a negotiation], the client's informed consent must be obtained pursuant to [Virginia] Rule 1.7(b)."5/17/2021
497

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1-Adversity to Current Clients

2-Adversity to Former Clients

18-Consent and Prospective Waivers

Analyzing ABA Model Rules’ 1.8’s and 1.9’s “material adverse” standard; noting that ABA Model Rule 1.7 contains a different standard: “directly adverse;” acknowledging that those two standards are different; “While material adverseness is present when a current client and former client are directly adverse, material adverseness also can be present where direct adverseness is not.”; attempting to define the “material” standard; “However, ‘material adverseness’ does not reach situations in which the representation of a current client is simply harmful to a former client’s economic or financial interests, without some specific tangible direct harm.”; providing examples of “material adverseness:” (1) in the same matter or in a “substantially related matter” in which the lawyer had represented the former client, “being on the opposite side of the ‘v’” from a former client in litigation or “across the table, so to speak, from a former client and negotiating against that former client in transactional matters”; (2) “When a lawyer represents a current client challenging the lawyer’s own prior work done for a former client on the same or a substantially related matter, the situation creates a materially adverse conflict.”; (3) examining a former client on the same or substantially related matter, maybe even “where no information from the prior representation will be used;” (pointing to ABA LEO 367 (10/1/92) for the suggestion that “a lawyer may avoid the potential conflict altogether by having the current client retain separate counsel to examine the former client, and screen the lawyer with the conflict from participating in the examination of the former client or sharing with separate counsel any information from the prior representation;” explaining that a lawyer may proceed despite a conflict if the former client consents, but warning that a lawyer must obtain an explicit consent if she wants to use the former client’s confidential information; “Informed consent to waive a conflict under Rule 1.9(a) will not, however, waive the lawyer’s obligation to maintain the confidentiality of all information learned during the prior representation. To allow the use or disclosure of information protected by Rule 1.6, the former client also must provide informed consent pursuant to Rule 1.6(a).”; summarizing as follows: “‘Material adverseness’ may exist when the former client is not a party or a witness in the current matter if the former client can identify some specific material legal, financial, or other identifiable concrete detriment that would be caused by the current representation. However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client’s interests suffices.”2/10/2021
498

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45-Law Firms - Miscellaneous

46-Confidentiality - Miscellaneous

Providing guidance for lawyers’ virtual practice, defined as follows: “This opinion defines and addresses virtual practice broadly, as technologically enabled law practice beyond the traditional brick-and-mortar law firm. A lawyer’s virtual practice often occurs when a lawyer at home or on-the-go is working from a location outside the office, but a lawyer’s practice may be entirely virtual because there is no requirement in the Model Rules that a lawyer have a brick-and-mortar office.”; addressing: (1) competence, diligence and communication; (2) confidentiality; (3) supervision; also providing advice about “virtual practice technologies”: (1) “Hard/Software Systems”; (2) “Accessing Client Files and Data; (3)”Virtual meeting platforms and video conferencing” (including the following advice: “Access to accounts and meetings should be only through strong passwords, and the lawyer should explore whether the platform offers higher tiers of security for business/enterprises (over the free or consumer platform variants). Likewise, any recordings or transcripts should be secured. If the platform will be recording conversations with the client, it is inadvisable to do so without client consent, but lawyers should consult the professional conduct rules, ethics opinions, and laws of the applicable jurisdictions. Lastly, any client-related meetings or information should not be overheard or seen by others in the household, office, or other remote location, or by other third parties who are not assisting with the representation, to avoid jeopardizing the attorney-client privilege and violating the ethical duty of confidentiality.’; (4) “Virtual Document and Data Exchange Platforms”; (5) “Smart Speakers, Virtual Assistants, and Other Listening - Enabled Devices” (including the following advice: “Unless the technology is assisting the lawyer’s law practice, the lawyer should disable the listening capability of devices or services such as smart speakers, virtual assistants, and other listening-enabled devices while communicating about client matters. Otherwise, the lawyer is exposing the client’s and other sensitive information to unnecessary and unauthorized third parties and increasing the risk of hacking.% also providing advice about lawyers’ supervision duties over their subordinates/assistants and their vendors; concluding with a reminder that: (1) “lawyers practicing virtually must make sure the trust accounting rules, which vary significantly across states, are followed;” (2) “lawyers still need to make and maintain a plan to process the paper mail, to docket correspondence and communications, and to direct or redirect clients, prospective clients, or other important individuals who might attempt to contact the lawyer at the lawyer’s current or previous brick-and-mortar office.”; and (3) “[i]f a lawyer will not be available at a physical office address, there should be signage (and/or online instructions) that the lawyer is available by appointment only and/or that the posted address is for mail deliveries only. Finally, although e-filing systems have lessened this concern, litigators must still be able to file and receive pleadings and other court documents.”3/10/2021

Copyright 2000, Thomas E. Spahn