| LEO Num | Topics | Summary | Date |
1893
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| (Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" —because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad litem's appointment or judicial approval of an infant settlement — and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |
1854
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| A Commonwealth's Attorney cannot offer a plea agreement to a criminal defendant based on the testimony of a witness whose identity the Commonwealth Attorney insists that the defense lawyer refrain from sharing with the criminal client (because the ethics rules prohibit lawyers from requesting anyone other than clients and certain specified others to refrain from voluntarily providing information to an adversary). On the other hand, the Commonwealth's Attorney may offer a plea agreement based on a "nameless confidential informant." In discussing the defense lawyer's duties, the Bar explains that the defendant's lawyer might be able to withhold the confidential witness's identity and involvement if the defense lawyer "believes that the defendant has enough relevant information about the pertinent facts to make an informed decision" about accepting the plea agreement. | 10/5/2010 |
1894
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| A lawyer faces several conflicts issues if she jointly represents multiple children who might have been abused at a childcare center, especially if there is only a limited insurance fund to pay all of the claimant clients. As “next friend” of each child, a parent can consent to such a joint representation. If there is only a limited fund available to settle all of the case, the settlement must comply with Rule 1.8(g)’s “aggregate settlement” rule - including a unanimous agreement among all the clients about “how the settlement is allocated and what amount shall be distributed to each.” In such an “aggregate settlement” situation, the lawyer may not participate in such an aggregate settlement if even one client disagrees with the settlement. To obtain court approval of the settlement, a guardian ad litem (GAL) must be appointed for the minor children. Such GALs are subject to the Virginia ethics rules “as they would be in any other case, except when the special duties of a GAL conflict with such rules.” If there is a limited fund for an aggregate settlement, the GAL must agree with that arrangement. A GAL “must be appointed to waive the lawyer’s conflict in representing multiple children.” A single GAL may represent all of the minor children, because a court has “[t]he final decision as to the division of the settlement proceeds or recovery.” A GAL must also be appointed if the efforts fail and litigation begins. | 4/20/2022 |
ABA-397
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| A lawyer has a duty to inform opposing counsel of the client's death in the midst of settlement negotiations (silence is "tantamount to making a false statement of material fact"). | 9/18/1995 |
1858
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| A lawyer representing an insurance company cannot "draft, propose or participate in," and a personal injury plaintiff's lawyer cannot agree to, a settlement provision requiring the plaintiff's lawyer "to agree to indemnify the insurer against liens in the event that they are not paid from the settlement proceeds or the plaintiff." Citing several other states' ethics opinions, the Bar held that such a provision amounts to "improper financial assistance to the client," and creates a conflict of interest between the plaintiff and the plaintiff's lawyer (who "cannot reasonably be expected to provide an objective evaluation" of the settlement because it involves the lawyer's possible personal liability). Under the trust account rules, the plaintiff's lawyer must protect any third party's claim on the settlement proceeds when the lawyer possesses the proceeds. However, the lawyer does not have any duty, and cannot assume any duty, to pay the client's debts if the lawyer disburses the settlement proceeds and the client fails to pay those debts. | 7/27/2011 |
0649
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| 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 |
ABA-438
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| ABA Model Rule 1.8(g) provides specific rules for aggregate settlements. Such settlements are not defined in the Model Rules, but do not include certified class actions or derivative actions. Aggregate settlements occur "when two or more clients who are represented by the same lawyer together resolve their claims or defenses or pleas," even if all of the lawyer's clients do not face criminal charges, have the same claims or defenses, or "participate in the matter's resolution." Aggregate settlements may arise in connection with a joint representation in the same matter, but "they also may arise in separate cases" -- as with "claims for breach of warranties against a home builder brought by several home purchasers represented by the same lawyer, even though each claim is filed as a separate law suit and arises with respect to a different home, a different breach, and even a different subdivision." Similarly, aggregate settlements may "take a variety of forms." For instance, "a settlement offer may consist of a sum of money offered to or demanded by multiple clients with or without specifying the amount to be paid to or by each client," when "a claimant makes an offer to settle a claim for damages with two or more defendants," or when "a prosecutor accepts pleas from two or more criminal defendants as part of one agreement." Model Rule 1.8(g) "deters lawyers from favoring one client over another in settlement negotiations by requiring that lawyers reveal to all clients information relevant to the proposed settlement." Among other things, lawyers may not enter into agreements "that allow[] for a settlement based upon a 'majority vote' of the clients" the lawyer represents. "[B]est practices would include the details of the necessary disclosures in . . . writings signed by the clients." Information required to be disclosed under Model Rule 1.8(g) might be protected by Model Rule 1.6, which requires the clients' consent for disclosure to the other clients. "The best practice would be to obtain this consent at the outset of representation if possible, or at least to alert the clients that disclosure of confidential information might be necessary in order to effectuate an aggregate settlement or aggregated agreement." Lawyers should also advise their clients "of the risk that if the offer or demand requires the consent of all commonly represented litigants, the failure of one or a few members of the group to consent to the settlement may result in the withdrawal of the offer or demand." | 2/10/2006 |
ABA-381
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| 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 |
1788
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| Addressing a 25-year old agreement by three plaintiffs' law firms not to represent asbestos plaintiffs in lawsuits against a large manufacturer (except for workers' compensation claims), the Bar holds that: (1) it will not decide whether the restriction "broadly" restricts a lawyer's right to practice law, because that is a fact-intensive decision involving a number of factors; and (2) the three law firms' requirement that all future partners and associates sign a copy of the agreement violates the prohibition on lawyers entering into partnership or employment agreements that restrict their right to practice law (although the Bar declines to decide whether the restrictions are "void and of no effect," because that is a question of law). | 2/17/2004 |
0781
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| An insurance company's lawyer may tender offers to co-plaintiffs conditioned on both accepting the offer. The co-plaintiffs' lawyer must be careful to abide by DR 5-107. | 4/22/1986 |
1069
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| As long as both clients consent after full disclosure, a lawyer representing two employees may structure a proposed settlement in any way the lawyer deems appropriate. | 4/18/1988 |
1857
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| Because of the inherent conflict, a criminal defense lawyer may not ethically advise a client to accept a plea agreement provision that "operates as a waiver of the client's right to claim ineffective assistance of counsel." Some states do not ever allow defense lawyers to advise clients about the issue, but here the defense lawyer was reacting to the prosecutor's proposed plea agreement. Prosecutors may not offer a plea agreement "containing a provision that has the intent and legal effect of waiving the defendant's right to claim ineffective assistance of counsel. | 7/21/2011 |
1715
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| 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 |
1893
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| Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" - because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad !item's appointment or judicial approval of an infant settlement - and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |
ABA-439
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| Parties and their lawyers often make statements in negotiations that are "less than entirely forthcoming," such as: "understate[ing] their willingness to make concessions to resolve the dispute"; "insist[ing] that it will not agree to resolve a dispute for less than $200, when, in reality, it is willing to accept as little as $150 to put an end to the matter"; overstating confidence in obtaining alternative sources of supply, etc. These statements are considered "posturing" or "puffing," and "must be distinguished from false statements of material fact." For instance, the employer in labor negotiation cannot advise the union negotiator that certain benefits will cost $100 per employee when the lawyer knows that the benefits will only cost $20 per employee. Similarly, a litigant cannot state that documentary evidence will be submitted at trial in support of a defense if the lawyer knows that the documents do not exist. Prosecutors and criminal defense lawyers cannot state that they are aware of an eye witness if that is not true. Lawyers must be careful not to convert statements of position into "false factual representations." For instance, a lawyer can state "that the client does not wish to settle for more than $50," but could not state that a corporation's board has "formally disapproved any settlement in excess of $50" if that were not true. The general Model Rule 8.4(c) ban on dishonest conduct cannot be read to prohibit any misrepresentation, "regardless of the lawyer's state of mind or the triviality of the false statement in question" (or else it would render Model Rule 4.1 superfluous). State bars have punished lawyers for engaging in such misrepresentation as lying about insurance coverage limits, or settling a case without disclosing that lawyer's client has died. In contrast, "statements regarding negotiating goals or willingness to compromise, whether in a civil or criminal context, ordinarily are not considered statements of material fact." The same rules apply to caucused mediation as to other forms of negotiation. A lawyer-mediator is subject to ABA Model Rule 8.4's general prohibition on deceptions, but not to ABA Model Rule 4.1 -- which applies to lawyers' conduct "in the course of representing a client." | 4/12/2006 |
ABA-371
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| 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 |
ABA-394
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| The prohibition on a lawyer's participating in offering or making an agreement limiting his right to practice applies to government lawyers too. | 7/24/1995 |