| LEO Num | Topics | Summary | Date |
ABA 504
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| (ABA Model Rule 8.5(b)(2) provides a “safe harbor” for lawyers reasonably believing that they are complying with the ethics rules where their conduct has its “predominant affect” (other than where their conduct occurred). Several factors affect this analysis, including: the location of lawyer’s office and admission, the client, opposing party, relevant third parties, and the transaction; which jurisdiction’s substantive law applies; which jurisdiction has the “greatest interest in the lawyer’s conduct.” ABA Model Rule 8.5 cmt. [5] lawyer-client agreements defining the pertinent jurisdiction “may be considered.” Some examples: (1) a fee agreement between a lawyer and a client who reside in the same state will be judged under the ethics rules of the state where they both reside (and will prepare for anticipated litigation), not in another state where the litigation will later occur; (2) a lawyer admitted in a state that allows fee-sharing with non-lawyer firm colleagues may share fees generated by the lawyer’s participation in litigation pending in a state that does not allow such sharing (although the lawyer litigating in that other state must follow that state’s ethics rules in dealing with the tribunal, and in dealing with the opposing party and counsel) in that litigation; (3) a lawyer whose office is in a state that requires client consent before reporting another lawyer’s ethics violation must report a predecessor lawyer’s litigation-related ethics violation if the tribunal’s jurisdiction’s ethics rules do not require the client’s consent (even if the lawyer and the misbehaving prior counsel are licensed in or reside in the state requiring client consent — because the misconduct was “in connection with a matter pending before a tribunal” in the state requiring such reporting even absent client consent); (4) a lawyer licensed both in a state that requires disclosure of a client’s intent to potentially harm someone and a state that does not require such reporting must report a client’s threat to harm a transactional counterparty in a state that requires such disclosure; (5) a law firm will be governed by the hiring imputation rules (and self-help screen possibility) of the host jurisdiction of litigation if “the imputed conflict of interest affects a pending lawsuit,” but if the possible imputation “involves a transaction matter” the applicable rules will come from the jurisdiction where the vulnerable law firm colleague practices -- although “the location of the subject of the transaction” might supply the ethics rule; the vulnerable colleague would be “prudent” to follow the most restrictive rule and obtain the necessary consents before the firm hires the lateral, although the vulnerable colleague may not be ethically disciplined if she complies with the ethics rules of the jurisdiction where she “reasonably believes the predominant effect” will occur) | 3/1/2023 |
1302
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| [DISAPPROVED by the Virginia Supreme Court 9/12/90] A law firm hiring a former Assistant County Attorney may avoid any imputation of the lawyer's individual disqualification by imposing a "Chinese Wall." | 1/4/1990 |
1571
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| A client hired a lawyer who was acting as an independent contractor/associate of a law firm. The retention letter required the client to reimburse the law firm on a quantum merit basis if the client chose to terminate the relationship, and also required the client to pay one-third of any settlement amount to the law firm if negotiations had begun before the relationship was terminated. The individual lawyer left the firm and continued to represent the client. The law firm asserted an attorney's lien on any settlement amount, but refused to provide an itemization of services when requested by the client. The Bar held that the law firm's refusal was improper, and raised a substantial question about its lawyer's fitness to practice law and therefore must be reported to the Bar. | 7/12/1994 |
1370
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| A client paid a retainer to a law firm that later dissolved. The client retained one of the withdrawing lawyers. The Bar held that the former firm must return the unused portion of the retainer. | 7/24/1990 |
1514
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| A collection lawyer disbarred for reasons other than misconduct involving clients may not perform clerk-like work for former clients even if under the direct supervision of a lawyer in another firm. The former lawyer may perform clerk-like work for those who were not former clients. | 4/12/1993 |
1043
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| A Commonwealth's Attorney should not prosecute a defendant who was a former client of the Commonwealth Attorney's former law firm on the same matter, although the Commonwealth's Attorney could rebut the inference of confidential knowledge by proving that the Commonwealth's Attorney did not work on the case while at the former firm. | 2/8/1988 |
1679
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| A criminal defense lawyer who represented one of four co-defendants in a criminal case may not join the firm of a lawyer who represents one of the other co-defendants, unless the client consents, because the two co-defendants are adverse (the first client will testify for the Commonwealth against the lawyer's new client). | 5/16/1996 |
1478
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| A federal judge's former law clerk may not work on a case that represented a re-filing of a matter on which the clerk worked, but the disqualification did not extend to the entire firm (DR 9-101 contains no imputed disqualification provision). Furthermore, the firm need not formally screen the clerk (this LEO overruled LEO 1334). [Rule 1.11(b) probably would require that the law clerk be screened.] | 8/24/1992 |
0240
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| A firm hiring a new lawyer may continue representation adverse to the clients of the lawyer's old firm if the lawyer did not personally work on the matters and the clients consent. [Under Rule 1.9(b), neither the new lawyer nor the new law firm will be disqualified if while at the old firm the lawyer neither participated in the same or substantially related matter nor acquired any material confidential information.] | 3/27/1974 |
1419
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| A former in-house lawyer who advised a corporation's subsidiary may not now be adverse to the subsidiary after leaving the company, even if the lawyer has no recollection of involvement in the pertinent matter and claims not to have any confidential information. | 6/25/1991 |
0303
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| A law firm hiring a former Assistant Commonwealth's Attorney may defend criminal cases that arose while the lawyer was in public service, as long as the lawyer had no involvement in the cases while in public service. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 11/2/1978 |
0290
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| A law firm may not represent a client against a county Board of Supervisors when the lawyer representing the county will be joining the firm through a merger, even though the county's lawyer will not be representing the county in the particular matter. | 1/9/1978 |
0345
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| A law firm may not represent a client in an indemnity action against a party formerly represented in the same matter by a new associate in the firm, unless the party consents. | 12/4/1979 |
1053
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| 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 |
0652
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| A law firm that is the product of a merger may not represent one of its predecessors in a malpractice action when one of its partners will have to testify as a witness. [Under Rule 3.7(c), this disqualification is not imputed to the lawyer's firm unless there is an actual conflict of interest.] | 1/16/1985 |
1430
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| A law firm wants to hire a local government attorney with whom the firm is working on behalf of the local government entity. It would be a per se ethical violation for the former government attorney to personally participate in matters on which the lawyer worked while a public employee, "although adverse representation is not involved." However, because Canon 9 has no imputed disqualification rule, the firm may continue to represent the entity as long as the new lawyer is not personally involved. If a former government lawyer intends to be adverse to a former client, the lawyer's personal disqualification would result in the firm's imputed disqualification under DR 5-105(E). [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 2/22/1992 |
1428
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| A lawyer from a medical malpractice defense law firm wishes to join a plaintiff's firm. Absent the clients' consent, both the lawyer and the new firm would be barred from representing any plaintiffs in cases in which the lawyer "was actively participating" while in the defense firm. An ethics screen would not cure the conflict -- only the clients' consent would do. The lawyer may work on matters as long as the lawyer had not worked on the matters while at the defense firm and did not acquire any secrets or confidences that could now be used to the former clients' disadvantage. The lawyer should bear in mind the inability to use such confidences and secrets in light of the countervailing duty to represent new clients at the new firm. | 2/22/1992 |
1629
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| A lawyer has worked as an associate in a medical malpractice defense firm and as a non-lawyer claims consultant for an insurance company (assigning malpractice cases to defense lawyers). The lawyer has now joined a plaintiffs firm. The lawyer may not pursue malpractice cases against any doctor on behalf of whom the lawyer had been involved as a lawyer in previous medical malpractice cases.The matters would be "substantially related" because "both representations involve the same doctor whose professional competence is at issue in both suits," and "possession of confidential information may be imputed" to the lawyer because of "his having earlier participated in the defense of the doctor in a previous malpractice action." If the lawyer was "involved" in the defense of any co-defendants in the earlier malpractice actions, the lawyer would likewise be precluded from representing plaintiffs adverse to them. [The Bar did not explain what would entail such "involvement."]The lawyer may represent plaintiffs adverse to a doctor represented by the lawyer's former firm if the lawyer "did not work on the doctor's defense and did not receive any confidential information from the doctor." Because the lawyer did not establish an attorney-client relationship with the insurance company's insureds while administering claims, the lawyer may be adverse to doctors "whose claim was managed and administered" by the lawyer while employed by the insurance company (the Bar indicated that "the doctors' claim information would not constitute a confidence or secret" under the Code) [Because lawyers are bound by the Code even if they are not acting as lawyers, and because such claims information might be highly sensitive, this seems like too narrow a view.] | 2/7/1995 |
1615
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| A lawyer hired as a company's inside general counsel may not enter into a non-competition agreement with the company (under which the lawyer could not serve as any competitor's in-house counsel for a period of one year). The Bar notes that the lawyer must protect the former client's confidences and secrets if the lawyer begins to represent a competitor. | 2/7/1995 |
0854
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| A lawyer in a new firm may represent a client even though the new firm has previously represented adversaries of the client, as long as the matters are not substantially related. | 10/9/1986 |
ABA-400
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| A lawyer interviewing for a job with the firm the lawyer is opposing in a matter must obtain the client's consent if the negotiations involve substantive discussions about experience, clients or business potential, or the terms of a possible association; the negotiating lawyer's conflict is not imputed to the rest of the firm, but the lawyer's colleagues may have their own conflict because of an interest in the negotiations; the firm with which the lawyer is negotiating faces a similar conflict. | 1/24/1996 |
0785
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| A lawyer leaving a firm that represents a corporation (but who did not work on corporation's matters) may represent a plaintiff against the corporation in a related matter, because the current representation is not adverse to the corporation. | 5/16/1986 |
0802
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| A lawyer may be a member of two law firms. | 5/27/1986 |
0745
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| A lawyer may hire an opponent's secretary but must assure that the secretary complies with the Code. A lawyer may not induce a non-lawyer to undertake activities that would violate the Code if undertaken by a lawyer. | 12/4/1985 |
0257
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| A lawyer may not represent estate beneficiaries objecting to a final accounting by an executor-lawyer with whom the lawyer had previously been associated (while the other lawyer was acting as executor). | 1/6/1975 |
0527
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| A lawyer may not represent the plaintiff in an accident case when a former partner in a now-dissolved firm investigated the accident, even if the lawyer may not have been privy to all of the facts uncovered by the investigation; the "partnership relationship imputes knowledge to the other partners". [Rule 1.9(b) analyzes a lawyer's actual knowledge rather than imputed knowledge when the lawyer moves to another firm.] | 9/13/1983 |
0320
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| A lawyer may represent a creditor against a corporation's note's endorser even though the corporation is represented by the lawyer's former partner (who was also acting as the corporation's lawyer while the two lawyers were partners) as long as the lawyer had no knowledge of the corporation's affairs. | 3/17/1978 |
1139
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| A lawyer may represent a husband in a divorce action although a partner (while in a different firm) represented the wife in an earlier divorce action against a previous husband, as long as further inquiry shows that there are no issues in the current divorce related to the previous divorce. | 10/18/1988 |
0764
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| A lawyer may represent a party in a child support matter even though the lawyer's former firm represented the client's adversary in the divorce proceeding (because the divorce representation had been concluded before the lawyer had joined the firm). | 1/29/1986 |
1536
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| A lawyer represented an insurance company's insureds and also represented the company in coverage issues. The Bar affirmed that the insured is the client of an outside lawyer selected by the carrier to represent the insured (relying on LEO 598). Once the lawyer leaves the firm, the lawyer may represent plaintiffs against other insureds (because "there was no attorney-client relationship" between the lawyer and the insurance company) as long as the new representations are not the same or substantially related to the specific matters on which the lawyer represented the company's insureds at the lawyer's old firm. [The Bar's conclusion that there was "no attorney-client relationship" between the lawyer and the insurance company seems inconsistent with its earlier statement that the lawyer handled "coverage issues" for the insurance company.] The lawyer's "familiarity with the general operation of [the insurance company] does not constitute a confidence or secret." Although the lawyer's spouse is an insurance company employee with access to claim files, the lawyer will not be disqualified as long as the lawyer has not acquired any confidential information from the spouse. | 6/22/1993 |
1085
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| A lawyer who left a firm may represent a client adverse to a company in which one of the lawyer's former partners was a shareholder, because the former partner never represented the firm, and the lawyer who left the firm had no relevant confidential information. | 5/20/1988 |
0744
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| A lawyer who represented both the buyer and seller in a real estate transaction may not initiate foreclosure proceedings as trustee. A lawyer with whom the lawyer later merged must likewise withdraw from representing the buyer or seller in their dispute. | 4/17/1986 |
0758
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| A lawyer who represents a client against whom a judgment was obtained may not later seek to enforce the judgment (unless the former client consents). If the lawyer joins a new firm, the entire firm is disqualified. | 1/13/1986 |
0940
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| A lawyer who worked on litigation may move to the adversary's law firm as long as the lawyer learned no confidential information about the matter while at the old firm, and all parties consent. | 6/11/1987 |
1459
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| A lawyer who worked on plaintiffs' litigation moved to a defense firm. The lawyer may continue to share in the former firm's income from cases completed before the lawyer joined the new firm. The new firm would not be disqualified as long as the clients consented to the lawyer's receipt of those fees. The lawyer may not share in income earned by the former firm on cases completed after the lawyer left the firm because the lawyer could not assume responsibility for the client's case (a prerequisite to the fee-splitting the lawyer seeks). [Although the summary seems confused in discussing the lawyer's earlier clients and which consents would be required, it explicitly states that a firm's unilateral imposition of an ethics screen does not cure a conflict -- only informed consent can cure a conflict.] [Rule 1.5(e) does not require that a lawyer sharing in fees also share responsibility, thus allowing "referral fees" if the client consents after full disclosure.] | 4/28/1992 |
1620
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| A lawyer works for 2 1/2 years representing a plaintiff in a contingent fee personal injury case. The client then discharges the lawyer and agrees to pay the lawyer on a "quantum meruit" basis. The client asks for a total of the fees owed, but the discharged lawyer wants to wait until settlement or trial. The lawyer must furnish the former client the "basis or rate" of the quantum meruit fee, but the Bar indicates that the timing of the disclosure is a matter of law beyond the Bar's jurisdiction. | 11/29/1994 |
ABA-468
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| Although ABA Model Rule 1.17 allows lawyers to sell their law firms as long as they "cease to engage in the practice of law," "it seems reasonable to conclude that the transition of pending or active client matters from a selling lawyer or firm to a purchasing lawyer or firm need not be immediate or abrupt." Lawyers may assist in the transition of "active client matters for a reasonable period of time after the closing of a sale," but "neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent only on the transition of matters." | 10/8/2014 |
1613
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| An associate who worked on an antitrust case for three months before leaving a firm had obtained information from the client's co-defendants. Although there was no attorney-client relationship between the lawyer and the co-defendants, the information the associate gained from the co-defendants "is also construed to be protected as a secret of the client/defendant since it was gained in the professional relationship, was apparently intended by the client to remain confidential, and ... the interests of the co-defendants is parallel to the interest of the client/defendant." The Bar held that the associate would have to keep this information secret.In discussing whether the associate could now work for a governmental agency in an arguably related antitrust matter, the Bar noted that the Bar "would find not substantially related any anti-trust enforcement which did not involve either the same relevant facts necessary to prove a violation, the same parties (the same co-defendants), or the same subject matter (anti-trust)."The rule prohibiting adversity to a former client on the same or substantially related matters has no time limit. Because there was no attorney-client relationship between the associate and the co-defendants, the Bar held that the imputed disqualification rules possibly applicable to the government agency are "inapposite." [The Bar did not indicate whether the former associate could be involved in substantially related anti-trust enforcement matters with the former client's consent only, or whether the associate must also obtain the co-defendants' consents.] | 1/13/1995 |
1399
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| An in-house lawyer performed some work for the corporation's subsidiary. After leaving that position, the lawyer was hired by a company adverse to the subsidiary. The lawyer may represent the company, because the matter was unrelated to the work the lawyer had performed for the subsidiary while employed by the parent, and the lawyer had learned no confidences or secrets. | 2/15/1991 |
0993
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| Even if the defendant refuses to consent, a lawyer leaving a firm to establish a separate practice may represent the plaintiff in an existing case against one of the old firm's clients (a defendant in the current case) if the lawyer was not involved in the case while at the old firm and did not acquire any relevant confidences. The Bar found that the presumption that the lawyer acquired confidential information at the former firm had been rebutted. | 11/4/1987 |
1082
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| Firm A is considering merging with Firm B, but discovers that it represents a major creditor of one of Firm B's clients. The lawyer in Firm B who represents the client-debtor practices in a satellite office and is the only lawyer at the firm who has ever represented the debtor. The lawyer has never shared any information about the debtor with any other lawyers in Firm B, and played no role in the merger negotiations. If this lawyer leaves Firm B, the remaining lawyers may merge with Firm A and continue to represent the creditor (without obtaining the debtor's consent). "Generally, lawyers associated in a firm with a lawyer who directly represents a client are presumed to have access to confidential information about that client . . . this presumption however is rebuttable." | 5/2/1988 |
489
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| Law firms cannot restrict withdrawing lawyers from unilaterally notifying clients of their withdrawal "once the law firm has been notified or otherwise learns of the lawyer's intended departure." Law firms and withdrawing lawyers "should attempt to agree on a joint communication" to clients with whom the lawyer "has had significant contact" – which "would include a client identifying the departing lawyer, by name, as one of the attorneys representing the client," in contrast to a lawyer who "prepared one research memo on a client matter for another attorney in the firm but never spoke with the client or discussed legal issues with the client." If they cannot "promptly agree on the terms of a joint letter," the law firm "cannot prohibit the departing lawyer from soliciting firm clients." All unilateral or joint communications to clients must give them the choice of "remaining with the firm, going with the departing lawyer, or choosing another attorney." Both law firms and withdrawing lawyers must take reasonable steps to "coordinate to assure that all electronic and paper records for client matters are organized and up to date" – so the client will be protected if it goes with the withdrawing lawyer, stays with the firm or chooses some other law firm. Withdrawing lawyers must "return and/or delete all client confidential information in their possession," unless the client goes with the withdrawing lawyer or the information is necessary for conflicts clearance. Law firms may impose "a reasonable notification period for withdrawing lawyers," but may not impose a notification period that "would affect a client's choice of counsel or serve as a financial disincentive to a competitive departure." For instance, lawyers may not be held to comply with "a pre-established notice period" if all of the clients' files are updated, and the lawyer either "has agreed to cooperate post-departure in final billing" or "does not seek to represent firm clients in the future." Such notification periods are the same as an improper financial disincentive "to a competitive departure," and are "problematic" when imposed only on withdrawing lawyers who plan to compete with the firm while routinely waived otherwise. Lawyers complying with a notification period should not be deprived of "adequate firm resources" needed to serve clients. After lawyers withdraw, law firms "should set automatic email responses and voicemail messages for the departed lawyer's email and telephones, to provide notice of the lawyer's departure, and offer an alternative contact at the firm for inquiries." A "supervising lawyer" should also review incoming emails, voicemails, etc. "in accordance with client direction and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer." Firms and lawyers complying with a notification period should also "discuss and clarify" how to treat new client matters that come in during that period. | 12/4/2019 |
ABA-455
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| Lawyers moving from one firm to another and law firms that hire them cannot rely on any specific rule allowing the exchange of information about clients necessary for a conflicts analysis, but may exchange such otherwise protected information -- although the disclosure "should be no greater than reasonably necessary to accomplish the purpose of detection and resolution of conflicts of interest." The exception in Rule 1.6 for disclosure "impliedly authorized" to represent a client does not apply, because the disclosures by the moving lawyer and the hiring law firm do not serve the client's interests. The exception in Rule 1.6 for disclosures necessary to "comply with other law" does not apply, because the exception refers to law, not ethics rules. Although client consent would resolve any issue, obtaining the consent normally is impractical. However, the ethics rules are "rules of reason," and the recent rule change allowing the screening of lateral hires to avoid imputed disqualification highlights the permissibility of basic conflicts data disclosure that necessarily precedes such a lateral hire. In some situations, neither the moving lawyer nor the firm can disclose privileged information when the disclosure would "prejudice a client or former client" -- as with a planned hostile takeover, contemplated divorce, etc. In other situations, it will quickly become apparent that conflicts will prevent the firm from hiring the moving lawyer -- such as situations in which there are "numerous existing matters" involving conflicts, or the law firm and the potential lateral hire "regularly represent commonly antagonistic groups." Thus, "conflicts information normally should not be disclosed when conversations concerning potential employment are initiated, but only after substantive discussions have taken place." If checking for conflicts will require a "fact intensive analysis of information beyond just the persons and issues involved in a representation" (as when analyzing the "substantial relationship" between a current and former representation, the law firm might be able to analyze conflicts by obtaining information other than from the moving lawyer. If not, the moving lawyer must seek the client's consent to disclose such detailed information, or rely on the new Rule 1.10 provision permitting screening of lateral hires to avoid imputed disqualification. The law firm receiving any confidential information as part of the conflicts analysis should limit use of the information "to the detection and resolution of conflicts of interest, and dissemination of conflicts information should be restricted to those persons assigned to or involved in the conflicts analysis with respect to a particular lawyer." | 10/8/2009 |
0631
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| Lawyers representing clients with adverse interests may continue to do so after merging, as long as the clients consent. | 11/20/1984 |
1757
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| Legal aid society lawyers who are involved in client intake and advice must maintain the confidentiality of what they have learned. “It is irrelevant whether or not an attorney-client relationship ensued” as a result of any client intake interviews, and it is also “irrelevant whether or not the attorneys actually remember” the confidential information imparted to them. When the lawyers move to another legal aid society, their former employer must provide access to the files of clients they formerly represented. It is also necessary for the lawyers to obtain information about their previous work so that they can perform conflicts checks at their new employer. | 5/17/2001 |
1619
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| 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 |
1712
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| This is a comprehensive opinion dealing with temporary lawyers ("lawyer temps"). A lawyer temp is treated like a lateral hire for conflicts purposes (although lawyer temps who are not given "broad access to client files and client communications" could more easily argue that they had not obtained confidences from firm clients for which they had not directly worked). As with lateral hires, screening lawyer temps does not cure conflicts. Lawyer temps may reveal the identity of other clients for which they have worked unless the clients request otherwise or the disclosure would be embarrassing or detrimental to the former clients.Paying a staffing agency (which in turn pays the lawyer temp) does not amount to fee-splitting because the agency has no attorney-client relationship with the client and is not practicing law (the New York Bar took a different approach, suggesting that the client separately pay the lawyer temp and agency). If a firm lawyer closely supervises the lawyer temp, the hiring of lawyer temps need not be disclosed to the client. A lawyer must inform the client before assigning work to a lawyer other than one designated by the client.Because "a law firm's mark-up of or surcharge on actual costs paid the staffing agency is a fee," the firm must disclose it to the client if "payment made to the staffing agency is billed to the client as a disbursement, or cost advanced on the client's behalf." On the other hand, the firm "may simply bill the client for services rendered in an amount reflecting its charge for the Lawyer Temp's time and services" without disclosing the firm's cost, just as firms bill a client at a certain rate for associates without disclosing their salaries. In that case, the "spread" between the salary and the fees generated "is a function of the cost of doing business including fixed and variable overhead expenses, as well as a component for profit."Because the relationship between a lawyer temp and a client is a traditional attorney-client relationship, the agency "must not attempt to limit or in any way control the amount of time a lawyer may spend on a particular matter, nor attempt to control the types of legal matters which the Lawyer Temp may handle." Agencies may not assign lawyer temps to jobs for which they are not competent. | 7/22/1998 |
ABA-444
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| Under Rule 5.6(a), lawyers and their employers have "significant latitude" in restricting lawyers' rights to engage in the practice of law if the restrictions are tied to a legitimate "retirement benefit." To constitute a legitimate "retirement benefit," "the benefit must be one that is available only to lawyers who are in fact retiring and thereby terminating or winding down their legal careers." Normally, the benefit should be payable upon the satisfaction of some minimum age and minimum years of service, and include such indicia as "(i) the presence of benefit calculation formulas, (ii) benefits that increase as the years of service to a firm increase, and (iii) benefits that are payable over the lifetime of a retired partner," or interrelationship with other retirement or Social Security benefits. Other indicia include a separate partnership or other employment provision dealing with the benefit, and an extended pay out period. The term does not include a partner's capital account or previously earned income. If they are tied to a legitimate "retirement benefit," the restrictions can range from a permanent cessation of practicing law to geographic, temporal or practice limitations. Lawyers willing to forfeit their retirement benefit will not be bound by the restrictions, although permissible arrangements could include forfeiture of future benefits or the disgorgement of previous benefits if a lawyer violates the restrictions. | 9/13/2006 |
1700
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| Whether a lawyer may represent a wife in a child support reduction proceeding when one of the lawyer's former partners represented the husband in the original child support proceeding depends on whether the lawyer "participated in the representation of the husband while employed at the former firm or whether [the lawyer] acquired confidences and secrets relative to husband's case" (the Bar did not have enough facts to reach a conclusion).A lawyer's failure to notify an adversary of an action seeking to transfer venue and failure to check for available dates before filing a notice of hearing is conduct "governed by the applicable Rules of Court, local rules, custom and professional courtesy, but not the Code of Professional Responsibility," unless the lawyer is disregarding a standing rule or if the lawyer intentionally or is habitually violating an established rule.A lawyer's service of a subpoena duces tecum outside Virginia "may" violate the ethics code if the lawyer knows that the subpoena is not enforceable, if the documents served on the individual "threaten contempt for non-compliance" and if the subject of the subpoena has not accepted service. | 6/24/1997 |