| LEO Num | Topics | Summary | Date |
0536
 Print
|
| A civil rights defense lawyer may raise the issue of attorneys' fees in settlement discussions, and the plaintiff's lawyer may negotiate a fee as part of a settlement as long as the client consents. | 12/7/1983 |
0541
Print
|
| A collection lawyer may be paid from attorneys' fee awards as long as the lawyer reimburses any award greater than the lawyer's bill. | 2/25/1984 |
1266
Print
|
| A Commonwealth's Attorney has represented UMW strikers and has expressed public sympathy with them. The Commonwealth's Attorney also personally has an interest in a non-union coal mine. The Commonwealth's Attorney may not prosecute striking miners because of this personal interest in the matter. Also, the lawyer's earlier representation of the miners is substantially related to the possible prosecution. Consent would be impossible, because there is no identifiable public client from whom consent could be obtained. The Bar stated that "a lawyer and, in particular, one who is engaged in representing the public rather than individual clients, must be keenly aware of the admonitions within the Code of Professional Responsibility to avoid even the appearance of an impropriety; he must not place himself in a situation where his loyalties are or may be perceived as being divided." | 6/14/1989 |
0789
Print
|
| A Commonwealth's Attorney may not prosecute defendants whose lawyer represents the Commonwealth's Attorney in unrelated personal matters. | 4/22/1986 |
1465
Print
|
| A Commonwealth's Attorney who is a member of a homeowner's association may provide information to the homeowner's association about trespassers on common property owned by the association, because the Commonwealth's Attorney's personal interest creates only a de minimis conflict. | 6/9/1992 |
1558
Print
|
| A criminal defense lawyer learning that the client claims that the lawyer pressured the client into a plea of guilty against the client's wishes has a conflict with the client that cannot be cured with consent. The lawyer should move to withdraw, but "would be bound to continue the representation" if the court denies the motion. Until the lawyer withdraws, the lawyer must fully protect the client and therefore (presumably) may have to advise the client about the possibility of withdrawing the guilty plea. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.] | 10/20/1993 |
1343
Print
|
| A criminal defense lawyer may not represent a criminal defendant for whom the lawyer's bail bond business has written a bond. Such a representation is per se unethical regardless of disclosure and consent. | 5/8/1990 |
1817
Print
|
| A criminal defense lawyer who has failed to properly perfect an appeal must (under the duty to communicate material facts) "notify the client of the dismissal of the appeal, the reasons for the dismissal and what rights or recourse the client has under those circumstances" (which "would include advising the client of the right to file a petition for a writ of habeas corpus alleging ineffective assistance of counsel; or a claim for legal malpractice based upon the lawyer's act or omission"). Although this situation obviously involves the lawyer's own interests (which might otherwise prevent the lawyer from proceeding on the client's behalf), new legislation requires the lawyer to assist the client in preparing and filing an affidavit explaining the lawyer's error. To the extent that this new statute requires a continuing representation (thus trumping the ethics rules), it overrules the holdings of Virginia LEO 1122 and 1558. | 8/17/2005 |
1390
Print
|
| A divorce client grants a deed of trust on the marital home to a lawyer to secure the payment of attorneys' fees. Because the divorce has not been concluded and the spouses are quarreling over their interests in the house, this arrangement impermissibly gives the lawyer a proprietary interest in the divorce action and may not be cured by consent. | 3/12/1991 |
1875
Print
|
| A government lawyer who will personally be subjected to a sequestration furlough (1) may not represent the agency in defending the sequestration furloughs, because "there is a conflict between the lawyer's personal interest in not being furloughed and the agency's interest in upholding the furloughs. . . . [T]he conflict may not be waived because the lawyer cannot reasonably believe that he will be able to provide competent and diligent representation to the agency in light of the nature and strength of his personal interest in the matter."; (2) may represent the agency in unrelated matters, with the agency's consent. These answers would be the same even if the lawyer retained private counsel to challenge his personal furlough. If the lawyer's employment with the agency ends, he may challenge his furlough (the Bar noted that the agency was willing to consent to his undertaking such a challenge while at the agency, so "it is manifestly unfair and illogical that the lawyer would be ethically precluded from pursuing his furlough challenge after the representation of the client has ended, solely on the basis that the agency will not consent.") | 7/24/2013 |
0966
Print
|
| A law firm hired to advise on a real estate matter must disclose to the client that the law firm mistakenly failed to obtain an extension of time to file a tax return, even though the law firm was not hired to file the return. | 9/30/1987 |
1658
Print
|
| A law firm may establish a non-legal consulting firm (to provide human resource advice) and share common directors, use similar logos and letterheads, share overhead expenses (such as secretarial support, library resources and lobby space), engage in joint marketing and refer clients to each other, as long as: the public would not be confused by any advertising; the joint marketing does not result in any misperceptions; the firms avoid sharing any confidential client information; the firms do not split fees or pay one another a referral fee; the firms advise their clients of other available referral options; the firms adopt "adequate conflicts screening procedures"; any lawyers involved in the consulting firm "comply at all times with applicable rules of the Code of Professional Responsibility, whether or not the attorney is acting in a professional capacity as a lawyer." | 12/6/1995 |
1083
Print
|
| A law firm may form and invest in a non-legal services subsidiary (which the firm would also represent). There is nothing per se improper about this action, but the law firm must be cautious. | 11/3/1988 |
1131
Print
|
| A law firm may invest in a realty corporation and continue to represent clients of the corporation if the clients consent after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 9/1/1988 |
1438
Print
|
| A law firm may not share profits with an advertising agency unless its employees are bona fide and regular employees of the law firm. [Approved by the Supreme Court of Virginia 11/2/16]. | 10/21/1991 |
1137
Print
|
| A law firm may represent the plaintiff although a member of the firm is a general partner in the partnership that includes the defendant as a limited partner (the plaintiff had consented). There appeared to be no attorney-client relationship between the law firm and the defendant. | 10/13/1988 |
0914
Print
|
| A law firm may sell a computer software package under an agreement in which the law firm maintains the exclusive right to use the software for a certain period of time. | 4/30/1987 |
1198
Print
|
| A law firm may use a court reporting service in which it has an ownership interest as long as the client consents after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 2/22/1989 |
1053
Print
|
| A law firm represented a city in a case brought by a developer. The law firm has discovered that one of its new lawyers is a shareholder of the developer (although not its lawyer). The new lawyer attended a board meeting at which the developer voted to sue the city, but there was no discussion of the merits of the case. The new lawyer claims to have no knowledge that could assist the city's defense. The city has consented to the firm's continued representation of it. The firm may continue to represent the city even if the developer objects, because its new lawyer had never represented the developer. | 3/8/1988 |
1283
Print
|
| A law firm's policy of routinely omitting self-proving clauses from wills it prepares is inconsistent with the requirement to vigorously represent clients. | 9/21/1989 |
1041
Print
|
| A lawyer and a non-lawyer friend entered into a partnership to purchase vacation property. The friend raised some questions, and the lawyer assured the friend that things could be worked out later. A dispute later arose between them. The lawyer should have made an adequate disclosure of the potential adversity, and advised the friend to retain another lawyer. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 2/19/1988 |
1587
Print
|
| A lawyer became an investor in and vice-president of a company, although the lawyer did not represent the company. The lawyer later resigned as an officer and director, but remained a shareholder. Because the lawyer never represented the company and "never received the benefit of any proprietary information" from the company or its other principal, the Code did not apply to the lawyer's proposal to directly compete with the company. | 4/11/1994 |
1382
Print
|
| A lawyer could work with a securities broker/ insurance agent in making presentations to potential clients, but must be careful to obtain the new client's consent to have the broker/agent present during any conversations protected by the attorney-client privilege. | 9/13/1990 |
0869
Print
|
| A lawyer employed by a law firm may also be employed as a part-time life insurance agent. | 12/19/1986 |
0775
Print
|
| A lawyer employed by an insurance carrier must make full disclosure of the employment status on business cards, letterheads, office signs and other public representations. | 4/3/1986 |
0473
Print
|
| A lawyer having a relationship with a finance company may refer a client to the company, but only after full disclosure. The lawyer may not refer the debtor to the company if the lawyer represented the creditor. | 9/20/1982 |
1099
Print
|
| A lawyer is a general partner in a partnership with three limited partners. The lawyer has filed an action against the three limited partners. The Bar declines to say whether it is proper for the lawyer to file a lawsuit against the limited partners while retaining the status of a general partner. | 7/11/1988 |
0571
Print
|
| A lawyer is not per se prohibited from writing a testamentary document in which the lawyer or a member of the family is a beneficiary, as long as the lawyer is related to the donor. However, the lawyer must be careful to exercise independent professional judgment. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.] | 4/20/1984 |
0980
Print
|
| A lawyer living in a neighborhood requiring membership in a homeowners association (and who thus has personal interests at stake) may represent the association if everyone consents. | 10/12/1987 |
1581
Print
|
| A lawyer may accept a fee or commission for referring clients to a company which buys notes and other forms of commercial paper secured by real estate, as long as there is full disclosure and consent and the lawyer does not represent the client in connection with the company's purchase of the note. | 2/8/1994 |
0810
Print
|
| A lawyer may accept a gift from a pro bono client. | 6/25/1986 |
1593
Print
|
| A lawyer may accept compensation in the form of corporate stock for legal services as long as: "he feels his independent professional judgment will not be affected by his status as a stockholder;" the client consents after full disclosure; and the transaction "is not unconscionable, unfair or inequitable when made." [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 4/11/1994 |
1077
Print
|
| A lawyer may arrange for a non-lawyer accountant to perform work for the lawyer's clients, as long as the accountant does not perform legal work and the client consents after full disclosure. | 5/23/1988 |
1152
Print
|
| A lawyer may arrange for title insurance for a client through a company of which the lawyer is part owner, as long as the client consents. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 11/16/1988 |
0558
Print
|
| A lawyer may engage in a "barter" arrangement in which the lawyer renders services in return for other goods, as long as: the lawyer does not share legal fees (in cash or in kind) with any non-lawyers; the client consents; the legal fees are reasonable; and the lawyer keeps the legal fees in a trust account (or segregated in the case of goods) until the fees are earned. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 4/10/1984 |
1501
Print
|
| A lawyer may hire a former client to help organize and manage other similar cases for other clients, as long as the lawyer fully discloses these facts to the other clients. | 12/14/1992 |
1097
Print
|
| A lawyer may issue title binders on behalf of a client as long as the client consents after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 7/11/1988 |
0584
Print
|
| A lawyer may maintain a personal non-legal bank account entitled "Trust Account." | 5/28/1984 |
0367
Print
|
| A lawyer may not ethically establish a trust account at a particular bank under an arrangement in which the lawyer receives payment for placing the account there. | 4/23/1980 |
1441
Print
|
| A lawyer may not loan money to a corporation that extends credit to the lawyer's personal injury clients. | 1/6/1992 |
1534
Print
|
| A lawyer may not prepare a trust for a godparent (not a blood relative) under which the lawyer is an ultimate beneficiary, even if the lawyer and the godmother "maintained a mother/daughter-like relationship for nearly thirty years." However, it is not per se improper for the lawyer to serve as executor or trustee. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.] | 8/12/1993 |
1100
Print
|
| A lawyer may not prepare an instrument giving the lawyer or a member of the lawyer's family any gift from a client, unless the lawyer is the client's relative. If the client wishes to have a lawyer select charities to whom the client's bequest should be distributed, the client should use a trust. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.] | 7/11/1988 |
1550
Print
|
| A lawyer may not prospectively limit liability to a client, but may secure a release from the client for "specific completed acts" in exchange for consideration if the client consents after full disclosure, is "first advised to seek independent counsel as to whether to sign such an agreement" and if the transaction was not "unconscionable, unfair or inequitable when made."The Bar reaffirmed the ethical propriety of arbitration provisions in retainer agreements covering any malpractice claims as long as the client consents after full disclosure and "is advised to seek independent counsel in regard to the advisability of such a provision." | 10/20/1993 |
1122
Print
|
| A lawyer may not represent a client in a criminal appeal when one of the grounds for appeal is the lawyer's own ineffective assistance to the client. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.] | 9/7/1988 |
1512
Print
|
| A lawyer may notarize documents prepared by a partner (the Bar declines to indicate whether the lawyer or the partner may witness a will the lawyer prepares). | 5/28/1993 |
1072
Print
|
| A lawyer may obtain title insurance for clients through a company in which the lawyer has an interest as long as the client consents after full disclosure. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 5/31/1988 |
0591
Print
|
| A lawyer may offer the services of a title insurance agency in which the lawyer is a shareholder as long as there is full disclosure. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 7/5/1984 |
1045
Print
|
| A lawyer may personally market a prepaid legal services program as long as it is properly licensed. | 3/2/1988 |
1318
Print
|
| A lawyer may practice law and operate a consulting firm out of the same office as long as the activities are kept separate and clients consent after full disclosure. The lawyer may send out one bill for both services as long as the bill fully discloses the separate services. | 2/1/1990 |
0411
Print
|
| A lawyer may provide free will-writing services to members of a religious organization. The services will create an attorney-client relationship in which the lawyer owes a duty solely to the non-paying client. Although not unethical in every case, it probably would be improper for the lawyer to be named as trustee or executor in such a will. | 4/6/1981 |
0274
Print
|
| A lawyer may purchase accounts receivable from a trustee in bankruptcy and then collect them. | 12/3/1975 |
0489
Print
|
| A lawyer may receive an originator's fee from a bank for sending clients to the bank, as long as the client consents after full disclosure. | 9/3/1982 |
1254
Print
|
| A lawyer may refer clients to a bail bond business the lawyer partially owns if there is full disclosure. [LEO 1343 indicates that the lawyer may not represent the criminal in the matter on which the bonding company has supplied the bond.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 7/25/1989 |
1027
Print
|
| A lawyer may represent a business in which the lawyer has a personal or financial interest as long as the lawyer's judgment will not be affected and the client consents after full disclosure. | 2/1/1988 |
1521
Print
|
| A lawyer may represent a developer in litigation in which an employee of a title company (of which the lawyer is part-owner) may have to testify, because the witness-advocate rule applies only when a lawyer must testify. | 5/11/1993 |
1535
Print
|
| A lawyer may represent a home builder in an action brought by a home buyer even though the buyer had paid a settlement or closing fee to the title corporation of which the lawyer was president. [The Bar indicated that the lawyer did not have an attorney-client relationship with the home buyer, although both the Opinion itself and the summary indicate that the lawyer "represented" the home buyer.] | 6/2/1993 |
0811
Print
|
| A lawyer may represent an estate administrator even if the lawyer's firm is a creditor of the estate, as long as the administrator consents. | 6/25/1986 |
1444
Print
|
| A lawyer may represent someone adverse to a former client who did not pay the lawyer, as long as the "matters are not related and no secrets or confidences were obtained" by the lawyer. The lawyer must obtain the new client's consent before representing the client in the bankruptcy proceeding of the former client, because the lawyer (who is also a creditor of the bankrupt estate) has a personal interest adverse to the client. | 1/6/1992 |
1433
Print
|
| A lawyer may reveal privileged information to defend against charges of criminal conduct made by a former client, although "disclosure should be made only to the extent necessary to rebut any accusation by the former client." The Bar suggested that the lawyer should seek a judicial ruling on the propriety of disclosure. | 10/21/1991 |
0995
Print
|
| A lawyer may sue a former client for an unpaid legal bill, but may not write the former client's supervisor unless the revelation is necessary to determine the reasonableness of the fee. | 11/12/1987 |
0498
Print
|
| A lawyer may take a promissory note from a client as evidence of a fee as long as the amount and terms are reasonable; the lawyer may assign or discount the note if the client consents; the lawyer must place in the trust account any amounts paid before the fee is earned. | 2/15/1983 |
0193
Print
|
| A lawyer may use firm letterhead in soliciting support for a public office that must be held by a lawyer. | 9/28/1965 |
1345
Print
|
| A lawyer may use the lawyer's spouse as a court reporter if there is disclosure and consent. The disclosure must include a description of the fees received by the spouse. Another lawyer in the firm could use the spouse as a court reporter without disclosure and consent. Any lawyer in the firm could use another reporter at the spouse's reporting company without disclosure and consent unless the spouse is an owner of the reporting company. | 5/18/1990 |
1381
Print
|
| A lawyer must obtain a former client's consent before writing a book based loosely on a former representation that ended ten years earlier. | 9/13/1990 |
1653
Print
|
| A lawyer presented two hypotheticals in which a divorce client unable to pay a lawyer's bills might assign proceeds of the sale of the client's domicile. The Bar held that such arrangements improperly give the lawyer a proprietary interest in a cause of action and are barred unless: "the final order or decree has been entered, conclusively adjudicating all issues with respect to the use, possession, division and sale of such property;" the client consents after full disclosure; the transaction is fair and reasonable ("giving consideration to the client's sophistication, ability to pay, and feasibility of other methods of fee payment"); and the "client is advised that he or she may seek independent counsel to review the transaction and is afforded an opportunity to do so, if the client so elects." [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 9/21/1995 |
ABA-354
Print
|
| A lawyer recommending that a client employ a medical-legal consulting firm must take steps to comply with all ethical requirements. | 11/7/1987 |
1509
Print
|
| A lawyer relying on a title insurance agency to search title must fully disclose (before closing) any fees paid to the agency. | 2/3/1993 |
1878
Print
|
| 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 |
1737
Print
|
| A lawyer representing a capital murder defendant must comply with the client's decision not to present any mitigating evidence at the sentencing hearing, as long as the lawyer has fully advised the client of the consequences of such conduct and the client is "competent to make an informed, rational and stable choice regarding whether to fight the death penalty with mitigating evidence." [Rule 1.14 provides guidance to lawyers representing clients under a disability.] | 10/20/1999 |
1436
Print
|
| A lawyer representing a lender who sends documents to the borrower for signature should advise the borrower that the lawyer is representing the lender. Because the lawyer should not give any legal advice to non-clients, the lawyer is not required to advise the borrower of the opportunity to purchase title insurance. If the lawyer is to represent the borrower and lender, the lawyer must advise the borrower (and obtain the borrower's consent) if the lawyer serves on the lender's board of directors. If the lawyer represents both the borrower and lender, the lawyer should advise the borrower about the availability of title insurance. | 11/1/1991 |
0340
Print
|
| A lawyer representing an estate may purchase an estate asset if all interested parties consent. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 11/2/1979 |
ABA-406
Print
|
| A lawyer representing another lawyer may also represent a client adverse to the other lawyer's client unless the representation of the client may be "materially limited" by the relationship between the lawyers. Determining whether such a material limit exists depends on such factors as: the importance and sensitivity of the matters; the size of the fee; any similarity between the representations; whether the representations will "cause either or both of [the lawyers] to temper advocacy on behalf of their opposing third-party clients." If the representation meets this standard, the lawyer may proceed (if at all) only with consent, although even curative consent would be unavailable if the lawyer could not make full disclosure because of other client confidences. Even if not required, it might be prudent to disclose the lawyers' relationship. Any non-curable conflict would disqualify the representing lawyer's entire firm, but representation of a lawyer in a purely personal matter would not result in disqualification of the represented lawyer's entire firm. | 4/19/1997 |
1068
Print
|
| A lawyer representing himself or herself may not settle a case in return for the defendant's promise to refer clients to the lawyer, because the lawyer would be giving something of value in exchange for a recommendation. | 4/11/1988 |
0746
Print
|
| A lawyer represents a client in arbitrated claims against three other parties. One of the parties later sues the client and the lawyer in state court on grounds involving the arbitration. As long as the client consents, the lawyer may continue to represent the client in the arbitration despite the lawyer's role as defendant in the state court action. Because the lawyer's testimony "may be critical" to the client's defense in the action, the lawyer must withdraw as counsel in the state court proceeding. | 12/30/1985 |
1037
Print
|
| A lawyer represents a limited partnership suing a city on a zoning matter. One of the five general partners later joins the law firm representing the city. The general partner has conveyed the partnership interest to a trust, and the city's law firm has erected an ethics screen around the former general partner. Although the general partner was involved in "legal discussions involving strategy, settlement and the conduct of the suit" before leaving the limited partnership, there was no ethical violation because there had been no attorney-client relationship between the partner and the limited partnership. | 3/8/1988 |
0814
Print
|
| A lawyer represents the lawyer's aunt in a dispute regarding real estate. The lawyer is interested in purchasing the real estate personally, and therefore must either terminate the representation of the aunt or make full disclosure and obtain her consent. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 7/25/1986 |
1462
Print
|
| A lawyer violates the ethics rules by writing a letter to the court, a witness and opposing counsel providing the lawyer's personal view of the facts and opinions as to the merits of the case "if the information could not be presented in court." | 6/22/1992 |
1612
Print
|
| A lawyer who also sells insurance may represent plaintiffs against insurance companies or their insureds for which the lawyer has written insurance policies, as long as the client consents. In fact, the lawyer may pursue such cases even if the lawyer wrote the policy for the defendant insured. [The Bar did not discuss the possibility that as an insurance agent the lawyer might have acquired confidential information about the defendant.] | 9/21/1994 |
0272
Print
|
| A lawyer who has represented a corporation may answer a government agency's questions about the lawyer's purchase of stock in the corporation. | 10/27/1975 |
0987
Print
|
| A lawyer who is a member of a local human rights committee at a treatment center may represent two patients in the center as long as the matters are unrelated to the lawyer's membership on the committee. | 10/29/1987 |
1163
Print
|
| A lawyer who is also a CPA may perform both legal and accounting services as long as the client consents after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 11/16/1988 |
0302
Print
|
| A lawyer who is also a partner in a real estate firm may represent a real estate seller and/or purchaser after full disclosure and consent. | 9/23/1978 |
1498
Print
|
| A lawyer who is named as a co-defendant may act as an advocate for the client and a witness and advocate for himself or herself, unless the lawyer's testimony would be prejudicial to the client. [It is surprising that the Bar did not find a conflict here, because the lawyer's interests would seem likely to conflict with the client's interests.] | 12/14/1992 |
0886
Print
|
| A lawyer who owns an interest in a title insurance company may purchase insurance from the company for the lawyer's clients as long as they consent. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 4/1/1987 |
0578
Print
|
| A lawyer who purchased a note may sue on the note, even though the Bar had "grave reservation" about the propriety of the lawyer preparing agreements in which the lawyer had a financial interest. | 5/31/1984 |
0577
Print
|
| A lawyer who represents a cable television franchisee may accept as legal fees a proprietary interest in the franchise as long as the client consents. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 4/30/1984 |
1351
Print
|
| A lawyer who represents both the buyer and seller in a real estate transaction and who fails to find several judgments against the seller may not, without the seller's consent, purchase the judgments at a discount and then enforce them against the seller, because the lawyer may not be adverse to a former client in a debt collection (other than for legal fees) without the former client's consent. | 5/24/1990 |
1311
Print
|
| A lawyer wishes to sell insurance to other law firms representing a clients' adversaries. The clients must consent to this arrangement. | 11/21/1989 |
1564
Print
|
| A lawyer's ownership interest in a title insurance agency is not per se improper, but the lawyer must: follow all conflicts rules; completely separate the lawyer's law practice from any title insurance agency; and avoid any revelation of client confidences. The lawyer may not: be compensated by the title insurance agency based on the referrals of clients to the agency; receive a fixed salary unless it is related to the work performed for the agency; receive any interest earned on funds deposited in the agency's trust account; or arrange for the agency to pay for any law firm salaries, services or advertisements.It is per se improper for the lawyer to represent a party in a transaction if the lawyer "directly or indirectly performs the function of a Title Insurance Agent" for the transaction, or holds a license as a Title Insurance Agent. A lawyer may arrange for title insurance through the agency to one of the lawyer's clients only: with consent after full disclosure; and if the transaction is not "unconscionable, unfair or inequitable when made." The Bar indicates that "all doubts regarding the sufficiency of the disclosure must be resolved in favor of the client, and against the attorney." The disclosure should be in writing and accepted by the client in writing, and should include an explanation of the cost and the availability of alternatives. (Revised 2/15/95) [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 2/15/1995 |
0450
Print
|
| A lawyer/landlord may rent space to an insurance claims adjuster and provide secretarial services to the adjusting business. | 4/13/1982 |
0430
Print
|
| A lawyer/stockbroker may send out announcements describing both roles, but must advise clients that the attorney-client privilege would not cover communications if the lawyer is acting as a stockbroker. | 10/16/1981 |
1523
Print
|
| A plaintiff in a dog bite case hired a lawyer who is a "casual acquaintance" of the defendant. The lawyer's casual relationship with the defendant is a "personal interest" that may create a conflict. The "impact of such personal interests may be measured along a continuum, with the least significant interests representing only a de minimus conflict which does not require disclosure to or consent from the client." Here, any conflict was cured by the client's consent. The client also consented to the lawyer's limiting the representation to non-litigation matters only, with the understanding that the lawyer would withdraw from the case if litigation became necessary. | 5/11/1993 |
0649
Print
|
| A plaintiff's lawyer may not enter into settlement in which the lawyer agrees not to take similar cases against same defendant. [Rule 5.6(b) would permit such an agreement if a court or government agency approved it.] | 1/7/1985 |
1356
Print
|
| A professional corporation may establish a subsidiary for collections practice, as long as there is disclosure to prospective clients, and nothing in the law firm's or new professional corporation's name was misleading. | 1/22/1990 |
1417
Print
|
| A real estate lawyer has no duty to place trust money in a bank that will insure the entire amount, but may deposit money in a bank for which the lawyer acts as a director, shareholder and counsel if the client consents after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 5/14/1991 |
1405
Print
|
| A title insurance company owned by a lawyer and sharing office space with the lawyer's firm may not pay for the firm's salaries or advertisements. [This LEO was further explained in LEO 1564.] | 9/17/1991 |
ABA-381
Print
|
| ABA Model Rule 5.6(a) prohibits an offer or acceptance of an agreement "never to represent anyone against the corporation in the future" by: (1) an outside lawyer representing the corporation; or (2) an in-house lawyer employed by the corporation. Such agreements impermissibly "limit a lawyer's 'professional autonomy '" and "limit 'the freedom of clients to choose a lawyer.'"; "A lawyer may not ethically ask for nor may a lawyer agree to any further restriction [beyond that imposed by ABA Model Rule 1.9] unnecessarily compromising the strong policy in favor of providing the public with a free choice of counsel." | 5/9/1994 |
1257
Print
|
| Absent informed consent, a lawyer may not both represent a client and be pursuing criminal charges against the client for a bounced check. The Bar appears to state that in this situation that the lawyer's self-interest would necessarily interfere with the lawyer's independent judgment. | 7/25/1989 |
ABA-432
Print
|
| Although some states totally prohibit lawyers from posting bail bonds for their clients, such conduct is sometimes permissible as long as clients consent after full disclosure. Lawyers should recognize that: (1) there is a possibility of conflicts because someone posting a bail bond has a financial incentive to apprehend a fugitive client or otherwise assure that the client appears in court; (2) some states consider the posting of bail bonds to be a form of impermissible financial assistance to a client; and (3) obtaining the necessary consent from a client would be extremely difficult if the client were incarcerated. Posting such bail bonds is more likely to be permissible if there is an immaterial amount of money at stake, or if there is a family or friendship relationship between the lawyer and client. | 1/14/2004 |
1853
Print
|
| Although warning lawyers that initiating a sexual relationship with a client during the course of a representation will almost always be unethical for various reasons, the Bar declines to adopt a per se ban on such relationships. | 12/29/2009 |
494
Print
|
| 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 |
0714
Print
|
| An associate may bid on property in a public auction even though the associate's law firm represented the client in the partition suit that awarded the property to the client. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 8/20/1985 |
0342
Print
|
| An inventor/patent lawyer may participate as a member of an inventors club. | 11/8/1979 |
0634
Print
|
| As long as both the insurer and the former client-insured consent, a lawyer may represent the insurer in a subrogation claim even though the former client (the insured) has filed an ethics complaint against the lawyer on a related matter. | 12/19/1984 |
1647
Print
|
| As long as it does not violate some federal or state law, lawyers may own a title insurance agency with share ownership percentages based upon past premiums paid by each lawyer's client. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 12/15/1995 |
1129
Print
|
| As long as the client consents after full disclosure, a corporation's lawyer may represent the corporation in a breach of contract action even though the lawyer was to personally benefit under the contract that was breached. | 10/28/1988 |
0939
Print
|
| As long as the client consents after full disclosure, a lawyer may purchase title insurance from a company in which the lawyer has an interest. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 6/11/1987 |
1286
Print
|
| As long as the client consents after full disclosure, a small town lawyer may continue to represent a client even though the client's adversary is represented by a lawyer with whom the client's lawyer is currently associated on an unrelated matter. | 10/19/1989 |
1637
Print
|
| As long as the client consents, a law firm may continue to represent it even though the client is suing the firm for unrelated legal malpractice. "[A]n informed consent is a product of an adequate explanation of the nature, extent and implications of a conflict of interest, including the possible effect on the exercise of the lawyer's independent professional judgment on behalf of the client." The law firm must advise the client that one of its lawyers will cross-examine the client in the malpractice action. The firm may not reveal to its malpractice counsel any confidences or secrets it obtained from its client through a representation of the client in unrelated matters.Although "[c]onsent may be oral or written," written consent would be best here. "Significantly, client consent is not contractually binding; it may be withdrawn at any time." ([The Bar softened an equally broad statement in revised LEO 1652.] | 4/19/1995 |
0603
Print
|
| As long as the client consents, a law firm may obtain title insurance from a business in which the law firm or its members have a business interest. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 6/24/1985 |
0712
Print
|
| As long as the client consents, a law firm's client may use a title agency in which the law firm has an interest. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 8/30/1985 |
0834
Print
|
| As long as the client consents, a lawyer may refer clients to the lawyer's spouse (a financial planner). The lawyer may not disclose the clients' identity to the spouse without the clients' consent. A lawyer may employ a collection agency to help collect past-due fees, but should not disclose any more information than the agency would need to collect the fee. | 9/23/1986 |
0783
Print
|
| As long as the client consents, a real estate lawyer may buy property for which the lawyer was to be the closing attorney (the transaction fell apart when the buyer defaulted). [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 4/22/1986 |
1336
Print
|
| As long as the client consents, and it would not prejudice the client, a lawyer may write an article about a case that is currently pending on appeal (it is unlikely the publication of an article in a professional journal would improperly affect any jury that might hear the case on remand). | 5/8/1990 |
0932
Print
|
| As long as the guardians, heirs and the court approve, a lawyer may act as a committee for an incompetent although the lawyer is a residual legatee of and may exercise a power of attorney for the incompetent. | 6/11/1987 |
1479
Print
|
| As long as the personal injury client consented, a lawyer may represent the client in an action against a defendant insured by the same carrier that provides the lawyer with professional liability, health insurance disability and automobile insurance coverage. | 8/24/1992 |
0784
Print
|
| Assuming there has been full disclosure to the client, a lawyer may represent the plaintiff even though the lawyer is a third party defendant in another suit (involving the alleged malpractice of the lawyer's predecessor) [the Bar did not explicitly indicate that consent was required.] | 5/27/1986 |
ABA-484
Print
|
| Clients who on their own or on their lawyers' advice arrange for a finance company, broker or bank [referred to in this LEO summary as "finance company"] to finance their legal fees may use one of several arrangements in which such finance companies provide money to the clients or directly to the lawyers, with various fees or charges deducted from such payments or paid by the lawyers. Lawyers participating in such financing arrangements: (1) must fully explain to their clients the lawyers' relationship with the finance companies (including whether the lawyer represents them); how the money arrangements will work; the finance companies' communications to the lawyers about the money flow; "the cost and benefits of the transaction to the client"; the lawyers' payment terms; whether the proceeds will go to the client; "whether the lawyer will charge a higher fee" resulting from the finance arrangement; the lawyers' confidentiality duty when dealing with the finance companies; the effect of the financing arrangement on clients' rights in any later disputes with the lawyers; "any other factor that the lawyer knows or reasonably should know to be material to the financing of the representation"; (2) may limit the representations' scope under Rule 1.2 so that the clients must make such arrangements; (3) "may wish to advise the client" that the finance company will not affect the lawyers' judgment (although such a lawyer "generally has no obligation to inform the client" of the lawyers' professional independence because "unlike litigation funding or financing, a legal fee lender in the scenarios described . . . has no direct financial interest in the outcome of the matter, and therefore no incentive to attempt to influence the lawyer's advice, strategy, or tactics"); (4) must assure that the fee is reasonable, including any fee that is increased by the finance arrangement, and must inform the clients of any higher fee resulting from the arrangement; (5) must deposit the flat fee loan proceeds as the pertinent state rules require (noting that some states permit lawyers to treat flat fees as earned upon receipt and therefore place them in operating accounts, while other states consider such flat fees advance payments that must be held in trust), and under either approach must refund any unearned funds if the representation ends before the lawyer has completed the work; (6) may reveal client confidential information to the funding company only as permitted by ABA Model Rule 1.6; (7) must consider any ABA Model Rule 1.7(a)(2) "material limitation" conflicts, such as conflicts between clients' interest and the lawyers' interest in being paid, or if the lawyers represent the finance company (lawyers may avoid such conflicts by not advising clients about such payment option to use, or may obtain clients' informed consent to the representation despite such a "material limitation" conflict; (8) must deal with any conflicts that could arise if the lawyers had previously represented the finance companies. Any finance companies' charges, deductions when paying the clients or the lawyers, etc. do not constitute fee sharing, but rather are "basically an administrative fee" similar to credit card companies' "merchant fee." Any such fee financing arrangements made with an entity in which lawyers have "an ownership or other financial interest" trigger lawyers' disclosure and consent requirements under ABA Model Rule 1.8. | 11/27/2018 |
1715
Print
|
| Defendants in an employment discrimination case may arrange a settlement under which the plaintiff's lawyers will represent the defendants (thereby implicitly prohibiting the lawyers from representing other plaintiffs against the same defendants without their consent). Although such an arrangement could be seen as "merely a ruse" to circumvent the Code's ban on settlements that "broadly restrict" a lawyer's right to practice law, the lawyers here "have not represented any other clients adverse to defendants and do not have a present expectation of such representation in the future," and could "provide valuable advice to defendants" on employment discrimination law. Furthermore, the facts did not suggest that the defendants were trying to "buy off" plaintiff's counsel or "conflict out" plaintiff's counsel by hiring him or her.Determining if such a settlement agreement "broadly restricts" the lawyers' practice requires a factual determination, but a settlement agreement like this entered into by a large firm with many practice areas might survive, while the Code might prohibit a similar arrangement entered into by a small "boutique" firm giving up a substantial portion of its practice. Here, the settlement agreement did not completely restrict the lawyers' right to practice, since they could take cases against the defendants with consent. [Rule 5.6(b) would permit such a restriction if "approved by a tribunal or governmental entity."] | 2/24/1998 |
1799
Print
|
| Determining whether a business relationship such as a landlord/tenant relationship between a Commonwealth Attorney and a private lawyer prevents the private lawyer from defending cases handled by the Commonwealth Attorney (and which cannot be cured with consent because the Commonwealth Attorney cannot obtain consent from the Commonwealth) is a fact intensive matter. Here, the following facts triggered the prohibition: the Commonwealth Attorney and the private lawyer co- owned a building; were each responsible for the mortgage; the building houses the defendant lawyer's practice; and the Commonwealth Attorney is the co owner of the "computers, office equipment and furniture of the defense attorney's law practice." | 6/30/2004 |
1261
Print
|
| Even with consent, a Commonwealth's Attorney may not prosecute UMW member if the lawyer owned part of a coal company against which the UMW members are striking. The Bar stated that it "is cognizant of the need for a heightened sensitivity to public perception of ethical improprieties in the legal profession in general and in particular of one who is engaged in representing the public rather than individual clients. The government lawyer must not place himself in a situation where his loyalties are or may be perceived as being divided." | 5/24/1989 |
0690
Print
|
| Even with full disclosure, a lawyer may not execute title binders issued by an agency in which the lawyer is an officer, director or stockholder. [This LEO was further explained in LEO 1564.] | 5/10/1985 |
0974
Print
|
| If a lawyer is granted permission to withdraw as counsel, the lawyer may sue the former client for fees "should it be determined that a gross imposition has been made upon the lawyer's practice due to the client's failure to pay the fee" [The lawyer should be free to sue the former client for fees under normal contract rules; the "gross imposition" standard should apply only if the lawyer wants to sue a current client for unpaid fees.] | 10/9/1987 |
ABA-483
Print
|
| In addition to complying with the guidance in ABA LEO 477R (5/11/17) lawyers dealing with a databreach or cyberattack ("a data event where material client confidential information is misappropriated, destroyed, or otherwise compromised, or where a lawyer's ability to perform legal services for which the lawyer is hired is significantly impaired"): (1) must comply with their competence duty, including monitoring for databreaches (making "reasonable efforts," because not immediately detecting a databreach may not constitute an ethics violation); (2) "act reasonably and promptly to stop the breach and mitigate damage resulting from the breach" (and "should consider proactively developing an incident response plan"); (3) make "reasonable attempts to determine whether electronic files were accessed, and if so, which ones"; (4) comply with their confidentiality duty (although lawyers' competence in preserving client confidences "is not a strict liability standard and does not require the lawyer to be invulnerable or impenetrable"), including considering any implied authorization to disclose client confidences to law enforcement to the reasonably necessary to assist in "ending" the breach or recovering stolen information," in light of considerations such as the disclosure's harm to the client); (5) advise current clients about such databreach or cyberattack (whether or not client data deserves protection under Rule 1.15 – which remains an "open question"); (6) in responding to a databreach or cyberattack involving former clients' data, consider "reach[ing] agreement with clients before conclusion, or at the termination, of the relationship about how to handle the client's electronic information that is in the lawyer's possession" (noting that "the Committee is unwilling to require notice [of a databreach or cyberattack] to a former client as a matter of legal ethics in the absence of a black letter provision requiring such notice"); (7) consider their obligation to notify clients depending on the type of breach (for instance, lawyers need not alert their clients of a ransomware attack if "no information relating to the representation of a client was inaccessible for any material amount of time, or was not accessed by or disclosed to unauthorized persons"; (8) must comply with state and federal law if "personally identifiable information or others is compromised as a result of a data breach". | 10/17/2018 |
0825
Print
|
| It is not improper per se for a law firm to own and represent a non-legal corporate entity. | 10/9/1986 |
0258
Print
|
| It is not per se improper for a lawyer to be named as executor in a will the lawyer prepares for a client. | 2/11/1975 |
1016
Print
|
| It is not per se unethical for a lawyer and bookkeeper to set up a company that handles law firms' billings, but they must be careful not to violate the ethics rules. | 12/21/1987 |
1425
Print
|
| It is not per se unethical for a lawyer to advertise a specialty in a certain area as long as the advertisement does not indicate that the lawyer is a recognized or certified specialist. A lawyer may publish an article as long as it is accurate. | 9/16/1991 |
1705
Print
|
| Lawyers and clients may amend fee agreements as long as they do not involve "undue influence or coercion by the lawyer." A lawyer may enforce an amended fee agreement prepared after the client in extensive litigation over a cloud on a real estate title indicated that the client could not continue to finance the litigation as originally agreed and instead offered to pay an additional $25,000 upon successful completion of the litigation "in consideration of payment not being made as originally agreed." The change from an hourly-based contract to a contingent fee agreement was not improper because: the outcome was uncertain; the client could not continue to finance the litigation otherwise; and success would produce a "res" out of which to pay the fee. The extra $25,000 to be paid upon successful completion of the litigation was based on the lawyer's agreement to delay collection of the outstanding fees until the case ended. | 11/21/1997 |
1358
Print
|
| Lawyers drafting a will or trust agreement must be very careful in naming themselves as executors or trustees. It is likely to be improper if the lawyer has not previously represented the client. At a minimum, the lawyer has a duty to advise the client of fees that would be charged by other executors or trustees. If the instrument requires that the estate or trust hire the lawyer's firm for legal services, the client must consent after full disclosure. If a lawyer acting as a fiduciary commits an act that could be disciplined had the relationship been that of an attorney and client, the lawyer-fiduciary may be disciplined by the Bar. | 10/1/1990 |
1830
Print
|
| Lawyers in a public defender's office may provide nominal gifts to indigent clients for the purchase of personal items or food, as long as such "occasional de minimus humanitarian gifts" do not affect the lawyer's independent judgment (such as when the lawyers are "trying to persuade some of these clients to accept plea agreements to which the clients are initially resistant.") The majority of states totally prohibit such "financial assistance" under Rule 1.8(e). Such minor gifts do not run afoul of Rule 1.8(a), because they are gifts and do not constitute "business transactions" with the client. Although the rules "do not directly regulate nonattorneys," lawyers cannot do indirectly through a staff person what they cannot do directly -- although in this case the lawyer's staff may likewise provide such nominal humanitarian gifts to indigent clients. | 9/7/2006 |
ABA-418
Print
|
| Lawyers may accept stock in lieu of or in addition to a client's cash payment for services, but the following rules apply to such arrangements: the arrangements must satisfy the ethics standards for "business transactions" with clients [in Virginia, the requirements include a written explanation of the transaction and written client consent]; determining if the fee is "reasonable" focuses "only [on] the circumstances reasonably ascertainable at the time of the transaction"; the lawyer must fully explain the possible conflicts that might arise (such as diminution in client control of the corporation and ways in which the lawyer's personal interests in the stock value might affect the lawyer's professional judgment); the lawyer should describe the services to be rendered, and whether the stock acquisition is in the nature of an investment, a direct payment for services or a true "retainer" paid for the lawyer's availability; even though it is not required by the Model Rules, the lawyer should recommend that the client seek independent advice; if a corporation's main asset consists of a claim in litigation, the stock might be a prohibited "proprietary interest" in litigation; a lawyer's ownership of a client's stock does not create an inherent conflict of interests because both share an interest in the corporation's success; in the case of conflicts (as when a lawyer's ethical duty requires disclosure of adverse facts that will affect the stock price), the lawyer must subordinate any economic self-interest in favor of the ethics duty, and obtain the client's consent to be involved in rendering advice if there might be a material conflict; in the case of a severe conflict (as when the stock is the lawyer's major asset), the lawyer might be incapable of rendering legal advice; a lawyer-shareholder cannot challenge the client's termination of the lawyer.Some law firms have adopted policies about stock ownership in firm clients, such as: assuring that the percentage of stock ownership in a client is a non-material amount; requiring that a firm lawyer other than the main client contact decide any issues involving conflicts; transferring billing and supervisory responsibility to a lawyer with no stock ownership in the client. | 7/7/2000 |
1368
Print
|
| Lawyers may be shareholders of a corporation providing mediation and arbitration services, but the lawyers must comply with the ethics code. Among other things, a mediator "engaged by the parties as a scrivener of the agreement reached during the mediation process" is not engaged in the practice of law, but any services "beyond those of a scrivener" might constitute the practice of law [superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote]. | 12/12/1990 |
496
Print
|
| 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 |
1619
Print
|
| One of two 50% shareholders in a professional corporation becomes a Commonwealth's Attorney. As long as the lawyer continues to own the stock, the lawyer may not prosecute defendants represented by the former firm (at least as to prosecutions begun after the lawyer left the firm). Consent would not cure this conflict, because the Commonwealth's Attorney is a "constitutional officer elected by the public." An Assistant Commonwealth's Attorney may prosecute such defendants, because DR 5-101(A) contains no vicarious disqualification provision. The firm may defend cases brought by the Commonwealth's Attorney's Office only if its clients consent after full disclosure. If the Commonwealth's Attorney learned confidences from any criminal defendant while at the former firm, a special prosecutor must prosecute the cases. | 11/29/1994 |
ABA-371
Print
|
| Rule 5.6's limits on lawyers' agreements to limit their practice restrict what lawyers may offer or agree to in settlement agreements, despite "[t]he pressure to find creative solutions to mass tort litigation" (in an opinion presumably critical of the settlement agreement in mass tort litigation against Merck arising from the Vioxx crisis). "[A] lawyer cannot agree to refrain from representing present or future clients against a defendant pursuant to a settlement agreement on behalf of current clients even in the mass tort, global settlement context." "Certainly that situation is presented here where among the lawyer's present clients are (a) individuals who wish to accept the present settlement, (b) individuals who wish to go on the deferred docket and might be perfectly happy to accept the predetermined amount established in the proposed settlement at a later date, and (c) individuals who either now or, after being on the deferred docket a period of time, wish to have their claims individually adjudicated. There may also be a conflict simply among the lawyer's clients in category (c)." "Thus, we conclude that ... the lawyer may not proceed with the settlement on behalf of his present clients unless he resolves this conflict among them by seeking an appropriate waiver, if that is possible, or securing, with the clients' consent, alternative counsel for those whose interests differ from those who wish to pursue that portion of the global settlement which provides predetermined settlement amounts." | 4/16/1993 |
1576
Print
|
| The Bar declines to indicate whether a commissioner in chancery may order a lawyer to issue stock in the lawyer's law firm and give it to the lawyer's ex-spouse as part of a divorce settlement. | 2/8/1994 |
1402
Print
|
| The Bar rescinded LEO 1138, which permitted a lawyer who owned stock in a title insurance company to receive consulting fees varying with the number of policies the lawyer's clients obtained through the company. [This LEO was further explained in LEO 1564.] | 10/21/1991 |
ABA-481
Print
|
| The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case- and fact-specific inquiry. No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation. Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client. An attorney-client relationship ends when: the engagement letter specifies such a time, the lawyer or the client explicitly end the relationship, "when overt acts inconsistent with the continuation of the attorney-client relationship indicate that the relationship has ended," or "when it would be objectively unreasonably to continue to bind the parties to each other." An "episodic" client might be a continuing client in the absence of any ongoing matter if the client periodically engaged the lawyer, and the client "reasonably expects that the professional relationship will span any [such] intervals and that the lawyer will be available when the client next needs representation." | 4/17/2018 |
0772
Print
|
| There is no per se rule against a lawyer representing a company in which the lawyer owns stock. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 3/11/1986 |
1489
Print
|
| There is nothing per se improper with a lawyer borrowing money from a client, as long as there has been full and adequate disclosure, the transaction is not "unconscionable, unfair or inequitable when made" and "all doubts regarding the sufficiency of the disclosure [are] resolved in favor of the client." It would be improper for a lawyer to repay the loan by undisclosed credits applied to the client's bill. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 11/16/1992 |
1515
Print
|
| This LEO outlines the principle governing a lawyer acting as executor or trustee: a pre-existing attorney-client relationship is not necessary, but is one factor showing the propriety of the lawyer's selection. The lawyer must fully disclose the fees that will be charged (preferably in writing) and "has a duty to suggest that the client investigate potential fees of others who might otherwise provide such services." A lawyer acting as executor or trustee may hire the lawyer's own law firm to represent him or her as long as there is full disclosure (including "the general compensation to be paid to the law firm") and consent (if the client is already dead, the beneficiaries can consent). A lawyer acting as a fiduciary is governed by the Code. A lawyer may solicit designation as a fiduciary as long as there is no overreaching or fraud. (Approved by the Supreme Court 2/1/94) | 2/1/1994 |
1665
Print
|
| Two indigent defendants were tried on capital murder charges in the same jurisdiction (but for unrelated crimes), and both were sentenced to death. The lawyer representing one of the defendants at trial was appointed to represent the other in habeas corpus proceedings, and vice versa. Thus, each lawyer would be asserting an "ineffective assistance of counsel" defense against the other, while defending similar charges. This created a conflict that could be cured by consent (although the "adequacy of disclosure to produce an informed consent imposes a substantial burden on counsel since an inadequate disclosure might itself become a basis for a claim of ineffective assistance of counsel"). If either of the lawyers withdrew, the other may continue because the conflict would disappear. | 4/1/1996 |
0988
Print
|
| Unless the client agrees or a court orders, lawyers may not pay themselves out of escrow funds that were set aside for out-of-pocket costs incurred in litigation. | 10/29/1987 |
1188
Print
|
| Unless the client consents after full disclosure, a divorce lawyer may not accept an increase in compensation as part of a settlement agreement. | 1/26/1989 |
1230
Print
|
| Unless the client consents, a lawyer may not represent a client in a civil action against a debtor while pursuing a criminal action against the debtor on behalf of the law firm (because the lawyer's self-interest may conflict with the client's interests). | 5/18/1989 |