| LEO Num | Topics | Summary | Date |
1688
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| [WITHDRAWN] A client suing a former employer receives (from a former colleague at the company) a letter to the employer from its lawyer. The client gives a copy of the letter to the client's lawyer, who does not read it but instead seals it in an envelope. The client asks the lawyer to destroy the letter, because the client is worried that the former colleague will be punished if the letter is disclosed. The Bar holds that: the existence and contents of the letter constitute a client "secret"; the lawyer is not required to read the letter, because the "zealous representation" duty is outweighed by the client's instructions to destroy the letter; the lawyer is under no obligation to disclose the letter's existence because there is no "ongoing client crime or fraud involved;" the lawyer need not provide a copy of the letter to the employer (unless there is an outstanding discovery request, in which case the lawyer should object to the request but comply with any order to produce the letter); the lawyer need not withdraw from representing the client. [Although it may not change the result of this LEO, the word "zealous" does not appear in the Rule themselves.] | 12/9/1996 |
1005
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| A court-appointed lawyer has an ethical duty to file post-conviction motions requested by the client (unless they are ill-founded or the lawyer withdraws) because the Virginia statute governing court-appointed lawyers indicates that the duty of representation includes appeals. | 11/24/1987 |
0525
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| A court-appointed lawyer is not obligated to appeal a criminal conviction beyond the Supreme Court of Virginia, but must advise the client of deadlines and offer to make information available if the client wishes to appeal. | 9/13/1983 |
1530
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| A court-appointed lawyer representing a criminal in an appeal refused to file a motion the lawyer considers frivolous, and withdrew from the representation. Although normally a lawyer would have a duty to proceed with post-trial remedies (unless the lawyer may withdraw without prejudice), "that duty has been displaced by his ethical duty not to file unwarranted or frivolous motions." | 5/11/1993 |
0965
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| A court-appointed lawyer who is offered money by the client to sue the client's former lawyer (which apparently is a criminal act) may avoid violating the criminal law by advising the client of the implications of his offer and not accepting any money. Court-appointed lawyers should seek to withdraw only for compelling reasons, which do not include dislike of the subject matter. | 8/24/1987 |
1558
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| 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 |
1817
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| 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 |
1766
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| A former federal worker hired a lawyer on an hourly basis to pursue an administrative disability retirement benefit case, but later used another lawyer under a contingency arrangement. The client fired the second lawyer after successfully obtaining a lump sum payment and a lifetime monthly annuity from the government, but before all of the necessary paperwork was completed. The Bar indicates that the propriety of the lawyer's conduct depends on the facts. Even if the client agrees, a lawyer may not charge an unreasonable fee. A contingent fee arrangement is appropriate if there is an "actual risk of nonpayment and a res from which the fee can be paid." A client and lawyer may enter into a "mixed" contingent fee arrangement in which the lawyer combines an hourly rate with a percentage of the res if successful. A lawyer may sue a former client for unpaid fees, but may not seek a larger fee if the client challenges the original fee request (if there is no basis for the increase). A lawyer fired before completing a contingent fee case may only recover in quantum meruit (the Bar indicates that a trier of fact must determine if that general rule applies to this situation. | 9/25/2002 |
ABA-384
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| A lawyer against whom a disciplinary charge has been made does not necessarily have to withdraw from the representation that generated the complaint, and the lawyer may not withdraw without the client's consent if the client would be prejudiced by the withdrawal. | 7/5/1994 |
1631
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| A lawyer being paid by a serviceman's parents to represent him in a divorce matter nevertheless owes a duty to the serviceman instead of the parents. When the serviceman filed a bankruptcy petition that seems inconsistent with the lawyer's understanding of who is paying the lawyer's bill, the lawyer must attempt to communicate directly with the serviceman or his bankruptcy counsel to obtain the true facts. The lawyer need not withdraw yet, but depending on what the lawyer discovers may be obligated to withdraw from representing the client. If so, the lawyer must take reasonable steps "for the continued protection of client's interests." | 2/7/1995 |
0201
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| A lawyer may refuse to appeal the results of a competency hearing. | 11/12/1969 |
1697
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| A lawyer may represent the husband in a domestic assault case although the lawyer's partner has been acquainted with the victim's family for many years and acquired confidences about the victim's family, because the family never sought or received legal advice from the partner and none of the discussions occurred in the lawyer's "professional capacity as a lawyer, to which an expectation of confidentiality might attach, as opposed to conversations between friends." The lawyer representing the husband may nevertheless withdraw as long as there would be no material prejudice to the husband and the lawyer receives court approval (if there was a pending case). | 6/24/1997 |
0897
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| A lawyer may withdraw from a representation if the lawyer is unable to locate the client and the lawyer takes reasonable steps to protect the client's interests. | 4/1/1987 |
0908
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| A lawyer may withdraw from representing a client found mentally incompetent, even if the client wants to appeal the commitment order, as long as the lawyer believes that existing law supports the court's order, but the lawyer must prosecute the appeal if the court denies the withdrawal motion. [Rule 1.14 provides guidance to lawyers representing clients under a disability.] | 4/1/1987 |
0842
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| A lawyer may withdraw from representing a client who does not pay the lawyer's bills. | 9/23/1986 |
0721
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| A lawyer may withdraw from representing a client who reneges on a settlement offer that the lawyer had communicated to the opposing party. | 8/30/1985 |
1325
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| A lawyer may withdraw from representing a corporation which refuses to pay its bills, defames the lawyer and threatens the lawyer with physical danger. The lawyer may then sue the former client for past-due bills. [The lawyer requesting the opinion practices in another country. The choice of law issues are now governed by Rule 8.5 -- although the conclusion seems consistent with every state's ethics rules.] | 2/27/1990 |
0559
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| A lawyer may withdraw from representing a personal injury client before filing a lawsuit as long as the lawyer advises the client of: the withdrawal; the applicable statute of limitations; the necessity of the client hiring another lawyer; and the client's entitlement to the return of papers and property. (4/10/84) [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.] | 4/10/1984 |
0901
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| A lawyer must withdraw from a divorce matter when the lawyer was a party to a telephone conversation (involving both clients and both lawyers) about a settlement agreement over which the parties now disagree. | 3/11/1987 |
0336
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| A lawyer named as trustee for the benefit of a non-represented seller must resign if the seller later requests the lawyer to do so. | 9/20/1979 |
1878
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| 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 |
ABA-375
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| A lawyer representing a bank in an audit may not lie to the auditor but is not required to disclose problems the lawyer uncovers. If the client lies to the auditor in the lawyer's presence, the lawyer is not required to immediately conduct a "noisy withdrawal", but may ultimately be obligated to resign. If the lawyer learns that the client will be using the lawyer's work product to perpetrate a fraud, the lawyer must disassociate himself from the work product. | 8/6/1993 |
1731
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| A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing. | 6/29/1999 |
0435
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| A lawyer representing a prisoner pro bono who determines that the case is meritless and who seeks court permission to withdraw may not advise the court of the lawyer's conclusions about the case even if it means the court will not allow the lawyer to withdraw. | 11/3/1981 |
0261
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| A lawyer representing another lawyer in disciplinary proceedings may continue the representation even after being elected to Bar Council if the court has refused permission to withdraw from the representation. [This was overruled by the Disciplinary Rules.] | 6/5/1975 |
0986
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| A lawyer represents two criminal co-defendants. Just before trial, the Commonwealth's Attorney offers to plea bargain with one if that defendant will testify against the other. The lawyer drops the representation of the defendant receiving the offer. The lawyer later learns that the former client intends to testify against the continuing client and has also shared the lawyer's work product with the Commonwealth's Attorney. Although the continuing client insists that the lawyer continue the representation, the lawyer must withdraw. The Bar found nothing wrong with the Commonwealth's Attorney interviewing the former client (before the client has a new lawyer) and obtaining the former lawyer's work product from the former client. [This LEO was overruled by LEO 1702, which would prohibit the lawyer from obtaining or learning the substance of the work product.] | 10/27/1987 |
0305
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| A lawyer should withdraw from representing a client seeking to avoid service of process if the client does not follow the lawyer's advice to accept service of process. | 11/27/1978 |
1088
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| A lawyer unable to re-establish contact with a client whose claim is about to expire may not simply withdraw, but may file an action before the statute of limitations has run and simultaneously move to withdraw. | 6/8/1988 |
0872
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| A lawyer who cannot find a client whose claim is about to expire may file an action and simultaneously move to withdraw. | 2/2/1987 |
1173
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| A lawyer who has been unsuccessful in locating a former client whose claim is about to expire should file an action to prevent the statute of limitations from running and simultaneously move to withdraw. | 10/24/1988 |
ABA-366
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| A lawyer who knows or believes that the lawyer's services are being used to perpetrate a fraud must withdraw and may disaffirm documents the lawyer has prepared, even if such a "noisy withdrawal" might reveal client confidences. A lawyer would be obligated to take these steps even if the lawyer is fired before having the chance to withdraw. The lawyer may (but does not necessarily have to) withdraw -- without a "noisy withdrawal" -- if the lawyer's services have been used without the lawyer's knowledge to commit a fraud that is now completed. | 8/8/1992 |
1687
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| A lawyer who suspects that a client has committed fraud before the representation may "accept at face value" that the client's story is "bona fide" unless the lawyer "knows or, in the exercise of due diligence upon reasonable inquiry during the attorney/client relationship, the attorney should know of information to the contrary." Thus, the lawyer must maintain the client's confidences and secrets and has no duty to "confront the client and inquire directly about the client's prior conduct." However, nothing prohibits the lawyer from "investigating the matter further." If the lawyer "believes that the fraud is obvious" even though the lawyer never receives a confession from the client, the lawyer should "move to voluntarily withdraw" at a time "that does not materially prejudice the client." | 9/23/1996 |
ABA-404
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| A lawyer whose client has become incompetent may take protective action, including petitioning for the appointment of a guardian (although the lawyer may not represent a third party in seeking a guardian). The appointment of a guardian should be a last resort, and the lawyer may withdraw only if it will not prejudice the client. | 8/2/1996 |
0203
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| A legal aid lawyer may withdraw from representing a legal aid client if from the beginning the representation did not meet legal aid guidelines. | 2/3/1970 |
1785
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| A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests]. | 11/14/2003 |
1523
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| 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 |
487
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| ABA LEO 487 (6/18/19) (A successor lawyer replacing a contingent fee arrangement lawyer must advise the client of the former lawyer’s claim for fees against any recovery (under a quantum meruit standard, a termination amount specified in the previous contingent fee arrangement, or some other arrangement). Such a claim arises if a client fires the contingent fee lawyer without cause or the contingent lawyer justifiably withdraws. Those standards vary by state, but lawyers' justifiable withdrawal includes examples such as an “obligation to withdraw due to unforeseen conflict of interest . . . unanticipated costs and expenses of litigation . . . client refused to comply with discovery obligations.” The successor lawyer may include such an explanation of the predecessor lawyer's right to a fee in the new contingent fee arrangement or separately. Such successive representations do not implicate simultaneous representation provisions such as ABA Model Rule 1.5(e) fee division provision, including that Rule’s requirement that all counsel assume “joint responsibility” for the matter – which “entails financial and ethical responsibility for the representation as if the counsel were associated in a partnership." Although the client in this situation involving successive contingent fee representations “cannot be exposed to more than one contingent fee when switching attorneys,” ABA Model Rule 1.5(a) "supports the conclusion that client consent is required to divide the fee at the end of the case.” Thus “successor counsel may not disburse fees claimed by that [predecessor] counsel absent the client’s consent.” Successor counsel may or may not represent the client in dealing with predecessor counsel, which should be specified in the fee agreement. Among other things, successor counsel undertaking that task “cannot charge the client for work that only increases the successor counsel’s share of the contingent fee and does not increase the client’s recovery.” Given successor counsel’s interest “in a portion of the proceeds,” the arrangement must also include the client’s informed consent to that conflict. Both successor and predecessor counsel must protect client confidences, and predecessor counsel may not communicate directly with the former client “without successor counsel’s consent under Rule 4.2.” Successor counsel must hold in trust any disputed amounts. | 6/18/2019 |
0239
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| Except for compelling reasons, a lawyer may not refuse a judge's request to represent an indigent criminal defendant. | 3/22/1974 |
1044
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| Former partners of a disbarred lawyer may use an adjusting company that employs the disbarred lawyer as an adjuster as long as the disbarred lawyer does not practice law or hold himself or herself out as a lawyer. | 3/1/1988 |
0974
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| 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 |
0841
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| If the statute of limitations is about to run on a claim for a client whom the lawyer cannot find, the lawyer may file the action and simultaneously move to withdraw. | 10/9/1986 |
ABA-447
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| Lawyers may ethically participate in a "collaborative law process," which involves adverse parties and their lawyers "commit[ing] to work cooperatively to reach a settlement," and "structur[ing] a mutually acceptable written resolution of all issues without court involvement," which is then "submitted to the court as a final decree." The so-called "four-way" agreement normally includes a provision requiring the lawyers to withdraw from representing their clients if the collaborative effort fails. Such an agreement is an acceptable limitation on the scope of representation under Model Rule 1.2(c), and does not involve a non-waivable conflict. [as the Colorado Bar held in Colorado LEO 115]. (2/24/07)] | 8/9/2007 |
1886
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| Lawyers must report an impaired colleague if the colleague engages in sufficiently serious misconduct (under Rule 8.3), but also must "take precautionary measures before" a colleague's impairment reaches that level; such lawyers: (1) must "take reasonable steps to prevent the impaired from violating the Rules" (including considering whether the lawyer must withdraw from a representation under Rule 1.16); (2) may be able to "work around or accommodate" the impairment by reducing the impaired colleague's workload, arranging for a supervisor until the impairment dissipates, restrict the impaired colleague's scope of practice, etc.; (3) should suggest that the impaired colleague seek appropriate help. If the impaired colleague has committed sufficiently egregious misconduct that requires reporting under Rule 8.3, arranging for the impaired lawyer to participate with Lawyers Helping Lawyers does not eliminate the reporting obligation. [Approved by the Supreme Court of Virginia 12/15/16] | 12/15/2016 |
ABA-482
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| Lawyers who face or whose clients face the consequences of large-scale disasters such as hurricanes, floods, fires, etc.: (1) must comply with their communication duties, and therefore should maintain contact information for their clients and consider providing their own contact information to those clients; (2) if they continue to represent clients in the affected area, may be able to provide services outside their normal expertise, should evaluate in advance ways to assure that they will have the necessary client files and legal resources, keep track of litigation deadlines, take steps in advance to access trust funds and deal with affected financial institutions holding client or their own funds; (3) may have to withdraw from representations if they are unable to competently represent clients; (4) if they either permanently or temporarily re-locate to other jurisdictions, must comply with the multijurisdictional rules, other statutes and regulations of those jurisdictions; (5) must notify clients of the loss of "documents with intrinsic value" (such as executed wills, etc.), as well as other client or lawyer files that the lawyer cannot reconstruct after reasonable attempts to do so (to avoid such problems, lawyers should maintain copies of important documents in an off-site location," should consider returning all original documents and documents with intrinsic value created by the lawyer as a result of the representation to clients at the end of representation" and should also consider "including in fee agreements or engagement letters the understandings between the lawyer and the client about how the lawyer will handle documents once the representation has ended"); and (6) must avoid improper solicitation or other advertising in the wake of such disasters (remembering that they may solicit pro bono representations because those are not motivated by pecuniary gain). Out-of-state lawyers affected assisting clients in such affected areas must comply with the pertinent jurisdictions' multijurisdictional rules and other regulations. | 9/19/2018 |
1591
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| The Code permits a lawyer to withdraw from representing a client and to exert a common law possessory lien on funds being held in trust for the client. | 6/14/1994 |
ABA-481
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| 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 |
1690
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| This is a Compendium Opinion on a lawyer's obligation to surrender files to a client who has not paid the lawyer's fee. The Bar indicates that the "ethical mandate [to avoid prejudicing the client] virtually displaces the common law retaining lien" because the lien "almost invariably will cause (and is designed to cause) prejudice to the former client's interests." Therefore, "assertion of the lien is not ethically permissible . . . whenever doing so will materially prejudice the former client's interests."A lawyer may not charge a client for copying the files upon termination of the relationship even if the lawyer supplied the documents during the course of the representation. The Bar also rejects the notion that the client is entitled only to "finished work product," instead holding that "workproduct in every form should be surrendered if withholding it would materially prejudice the former client's interests." However, the Bar indicates that "more is required to establish prejudice with respect to lawyer workproduct than to client-provided papers." The Bar holds that a lawyer may not condition release of the documents on the client signing a receipt.The sort of "delivery" required by the Rules may include sending the documents to the client, making them available for pick-up or allowing the client access to the documents at the lawyer's office.Before destroying any old client files, the lawyer should search out "original documents of the client" and offer to return the documents after explaining their significance (if necessary). This procedure will be more effective if implemented soon after the representation ends rather than years later. The lawyer should be mindful of the ongoing duty of confidentiality in deciding how to destroy old files. [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.] | 6/5/1997 |
0514
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| When the court refuses permission to withdraw, a criminal defense lawyer may not withdraw from representing a client even if the client "specifically and unequivocally requested" that the lawyer withdraw. | 5/2/1983 |