| 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 |
1642
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| A bar association wants to set up a question referral network under which lawyers from other firms will answer questions without obtaining specific confidential or secret information. The Bar holds that it is likely that the lawyer answering a question will acquire confidential or secret information, and that therefore the inquiring lawyer should obtain the client's consent before asking the questions.The Bar explains that "the anonymous hypothetical approach to consultation encounters difficulties as more details are revealed during the consultation, and seemingly innocuous information may be harmful to the client if revealed to others." Although no attorney-client relationship arises between the inquiring lawyer's client and the answering lawyer, a "special relationship" arises. The consultation "would give rise to a reasonable expectation of confidentiality," so the answering lawyer should arrange for a disclaimer making it clear that the lawyer need not maintain the information's secrecy. Although no attorney-client relationship arises, the answering lawyer may not be adverse to the inquiring lawyer's client without the client's consent. To avoid possible disqualification, the answering lawyer should perform a conflicts check before answering any questions. The inquiring lawyer may not reveal the client's identity to the answering lawyer without the client's consent. [Rule 1.6 Comment [7a] discusses such "mentor" communications.] | 6/9/1995 |
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 |
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 |
0973
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| A law firm which intends to provide will-preparation packages for church members and supply updates to the members every year has an ethical duty to advise the members of any significant legal changes, because the attorney-client relationship will extend from year to year. | 10/5/1987 |
1673
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| A lawyer attempting to locate former clients to whom trust money is owed may use some of the trust money to compensate an investigator aiding in the search, as long as the compensation is reasonable and explained to the located clients (hiring an investigator is not a necessary step, because "due diligence is all that is required of an attorney trying to locate a client"). | 5/16/1996 |
1460
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| A lawyer helping a legal services agency as part of a pro bono program represents a domestic relations client. The lawyer is approached by a client in a divorce matter, and learns that the client's spouse is being represented by the legal services agency. The lawyer may continue to represent the pro bono client and the paying divorce client because the matters are unrelated and therefore there will be no adversity between the clients. The fact that the same agency represents the spouse of the divorce client and also provides assistance to the lawyer in the representation of the domestic relations client does not create a conflict. However, the lawyer must be careful to avoid the sharing of any confidences. | 4/13/1992 |
1057
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| A lawyer may charge a fixed percentage overhead fee for miscellaneous expenses in most representations, although such an arrangement would be improper in contingent fee matters (in which the client must be responsible for the actual costs incurred). (3/22/88)A law firm who occasionally represents an insurance company may represent a company whose interests are adverse to the insurance company's as long as the matters are not substantially related. However, consent would be required if the firm routinely handled the insurance company's matters "from time to time, whether on retainer or not, [or] whether presently engaged or not." (Here, no consent was required because the representation of the carrier was not "ongoing").The Bar contrasted this time-to-time representation (in which consent would be required) from what it described as a representation which was "not ongoing, but was based on the completion of a specific project which has not been completed" in which case consent would not be required. [The "not" is probably a typographical error -- the Bar probably meant "now been completed."] | 3/23/1988 |
0369
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| A lawyer may give general advice to a represented party but may not accept employment unless the other lawyer consents, withdraws or is discharged. [This LEO is probably incorrect -- clients are free to hire and fire lawyers whenever they wish.] | 4/23/1980 |
0503
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| A lawyer may not provide legal advice at the request of a corporation composed of individuals not licensed to practice law (because the corporation would be conducting the unauthorized practice of law). | 3/10/1983 |
0472
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| A lawyer may not represent a criminal defendant conditioned on the client's agreement not to plead guilty or offer testimony, but must instead advise the client of the advantages and disadvantages of any government offer. | 9/20/1982 |
0963
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| A lawyer may not send an adversary a letter during the time an appeal may be filed if the adversary was represented during the trial, even though no appeal has been filed and the adversary's lawyer has not indicated that an appeal will be filed. | 9/4/1987 |
0411
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| 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 |
0668
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| A lawyer may provide general advice to a client already represented by another lawyer, but may not accept employment unless the other lawyer approves or is discharged. [This LEO is probably incorrect -- clients are free to hire and fire lawyers whenever they wish.] | 2/27/1985 |
0275
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| A lawyer may represent a party who is already represented if the lawyer confirms that the representation will not "impinge" on the existing attorney-client relationship. [This LEO is probably incorrect -- clients are free to hire and fire lawyers whenever they wish.] | 12/4/1975 |
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 |
1147
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| A lawyer may reveal to a current client that the lawyer formerly represented the client's adversary's lawyer in that lawyer's own divorce years earlier. The disclosure should not embarrass the former client/lawyer and must be made to the current client in order to obtain proper consent. | 1/4/1989 |
1483
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| A lawyer represented five plaintiffs in obtaining five separate judgments against a defendant and his wife. Three of the plaintiffs wanted to jointly sue to enforce their judgments. An enforcement suit would begin a new representation, and therefore the lawyer was not obligated to represent all five of the original plaintiffs. However, the lawyer still must protect the five original plaintiffs' interests and should advise them of the enforcement procedures and any time limits. The lawyer may represent "several creditors against a single debtor provided that, after full disclosure to each creditor, all creditors consented to the multiple representation and concurred as to the distribution of any funds collected should the amount be inadequate to pay fully each creditor's claim." | 9/1/1992 |
0570
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| A lawyer representing a mentally disabled client may petition for appointment of a committee, but is not obligated to do so. A lawyer must advise a client that the lawyer has received an affidavit, even if the affiant has asked that the client not be advised of its contents. Rule 1.14 provides guidance to lawyers representing clients under a disability.] | 4/20/1984 |
0463
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| A lawyer representing a mentally impaired client may have to make decisions for the client, but should seek appointment of a committee. [Rule 1.14 provides guidance to lawyers representing clients under a disability.] | 7/21/1982 |
1592
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| A lawyer retained by an uninsured motorist insurance carrier but providing informal advice to the defendant motorist has an attorney-client relationship with the motorist. The lawyer may provide such advice without a conflict because the carrier and the motorist share an interest in defeating the plaintiff's claim (although adversity may later develop if the carrier asserts a subrogation claim against the motorist). The lawyer may not permit the motorist to tell the Court that the motorist is appearing pro se, and must comply with any court rules requiring disclosure of informal assistance by a lawyer. [overruled to the extent it is inconsistent with LEO 1874 (7/28/14), which explained that the ethics rules do not prohibit undisclosed assistance to a pro se litigant, but some courts forbid it] | 9/14/1994 |
0575
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| A lawyer who represents and is a member of the board of an adoption agency which located a child and performed a home study may not now represent the adopting parents. | 5/10/1984 |
1709
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| A lawyer who testifies in a venue hearing may not continue to represent the client through the rest of the litigation even if the venue issue will not "come up again during the trial on the merits." If the lawyer had to testify, it could not have been an uncontested matter. The "substantial hardship" exception did not apply because the lawyer did not allege "a distinctive value to the client as a result of any long-standing relationship with the client and familiarity with the client's affairs such that changing lawyers would pose a 'substantial hardship' to the plaintiff." Even though the venue question would not arise before the jury, the witness advocate rule applies with equal force to issues addressed to the judge. The witness-advocate rule "is a broad prophylactic rule designed to prevent even the appearance of impropriety," and therefore a lawyer who "testifies as a witness as to some contested pretrial issue" may not later appear as an advocate on the client's behalf. The lawyer may not arrange for another lawyer to file the lawsuit and handle the pretrial hearing examination (and then replace that lawyer as advocate), because it would circumvent the witness-advocate rule "through the actions of another."A lawyer may not contact an adversary ex parte after the adversary has non-suited a case, because "the entry of a non-suit does not terminate the representation of a party." The presumption of representation continues after the non-suit, just as the presumption continues during the period when an appeal might be filed after a final judgment. | 2/24/1998 |
0410
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| A legal aid lawyer may give general legal advice and answer specific questions in a newspaper column, as long as the readers are warned that the information is general. | 4/28/1981 |
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 |
1020
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| An Assistant Commonwealth's Attorney may not represent a party in a personal injury case in which there has been a collateral criminal prosecution. The Bar rejects the notion of an ethics screen in the Commonwealth's Attorney's office. | 1/21/1988 |
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 |
1286
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| 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 |
0757
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| Even after a client has disappeared, a lawyer must protect the client's interests until the lawyer is discharged or has withdrawn with court permission, including sending the client updates, promptly attending to all necessary matters and maintaining the client's confidences and secrets. | 12/31/1985 |
1193
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| It is not per se improper for a legal aid office to undertake a limited representation of a divorce client as long as the client fully understands and consents to the limited representation (which would not include any litigation or support, custody or property issues). The Bar warns that the disclosure and consent must be carefully addressed because the legal aid client may feel that the client has no choice but to agree to the limitation. | 2/13/1989 |
1669
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| It is not per se improper for a part-time county attorney to also serve as a part-time assistant public defender, although a conflict (not curable by consent) would arise should the lawyer be asked to defend a criminal defendant: (1) if the county is an alleged victim; or (2) if the county attorney's office is responsible for prosecuting the crime (such as violations of building codes or local ordinances). The county attorney (also acting as a part-time public defender) does not face a conflict in advising the Board of Supervisors on such matters as law enforcement budgets, because the attorney is not a member of the governing body and therefore does not vote on the appropriations. Although such a dual role might create a "appearance of impropriety," such a standard "by itself is too vague a standard" to create a conflict. | 4/1/1996 |
1761
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| Legal services organization lawyers may give forms to pro se litigants without violating any prohibitions on “ghost-writing” as long as the lawyers do not assist the pro se` litigants in completing the forms; analogizing the situation to the distinction in the UPL analysis between providing forms and helping complete them. [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]. [overruled to the extent it is inconsistent with LEO 1874 (7/28/14), which explained that the ethics rules do not prohibit undisclosed assistance to a pro se litigant, but some courts forbid it] | 1/6/2002 |
1156
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| Preparation of tax returns may constitute the practice of law if the lawyer is providing advice and legal skills. The lawyer may prepare the tax returns for a client and an unrepresented party if a lawyer discloses the lawyer's loyalty to the client. | 1/31/1989 |
1497
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| The ethical rules permit a law firm to enter into an agreement with a national trade association under which the firm would provide a free initial consultation to association members, and offer discounted fees to any association member who hired the firm. The lawyer could not let the association direct the lawyer's representation of individual members. | 10/19/1992 |
0330
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| Under A lawyer representing a mentally ill patient who receives an airline ticket due to shortly expire should redeem the ticket, place the money in a trust account and advise the court. [Rule 1.14 provides guidance to lawyers representing clients a disability.] | 7/30/1979 |