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 504

5-Lawyers Changing Jobs

21-Reporting Another Lawyer's Unethical Conduct

43-Conflicts of Interest - Miscellaneous

44-Conflicts - Miscellaneous

45-Law Firms - Miscellaneous

(ABA Model Rule 8.5(b)(2) provides a “safe harbor” for lawyers reasonably believing that they are complying with the ethics rules where their conduct has its “predominant affect” (other than where their conduct occurred). Several factors affect this analysis, including: the location of lawyer’s office and admission, the client, opposing party, relevant third parties, and the transaction; which jurisdiction’s substantive law applies; which jurisdiction has the “greatest interest in the lawyer’s conduct.” ABA Model Rule 8.5 cmt. [5] lawyer-client agreements defining the pertinent jurisdiction “may be considered.” Some examples: (1) a fee agreement between a lawyer and a client who reside in the same state will be judged under the ethics rules of the state where they both reside (and will prepare for anticipated litigation), not in another state where the litigation will later occur; (2) a lawyer admitted in a state that allows fee-sharing with non-lawyer firm colleagues may share fees generated by the lawyer’s participation in litigation pending in a state that does not allow such sharing (although the lawyer litigating in that other state must follow that state’s ethics rules in dealing with the tribunal, and in dealing with the opposing party and counsel) in that litigation; (3) a lawyer whose office is in a state that requires client consent before reporting another lawyer’s ethics violation must report a predecessor lawyer’s litigation-related ethics violation if the tribunal’s jurisdiction’s ethics rules do not require the client’s consent (even if the lawyer and the misbehaving prior counsel are licensed in or reside in the state requiring client consent — because the misconduct was “in connection with a matter pending before a tribunal” in the state requiring such reporting even absent client consent); (4) a lawyer licensed both in a state that requires disclosure of a client’s intent to potentially harm someone and a state that does not require such reporting must report a client’s threat to harm a transactional counterparty in a state that requires such disclosure; (5) a law firm will be governed by the hiring imputation rules (and self-help screen possibility) of the host jurisdiction of litigation if “the imputed conflict of interest affects a pending lawsuit,” but if the possible imputation “involves a transaction matter” the applicable rules will come from the jurisdiction where the vulnerable law firm colleague practices -- although “the location of the subject of the transaction” might supply the ethics rule; the vulnerable colleague would be “prudent” to follow the most restrictive rule and obtain the necessary consents before the firm hires the lateral, although the vulnerable colleague may not be ethically disciplined if she complies with the ethics rules of the jurisdiction where she “reasonably believes the predominant effect” will occur)

Copyright 2000, Thomas E. Spahn