| 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 |
1600
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| [WITHDRAWN 9/16] A lawyer should not open up a branch office to be staffed entirely by non-lawyers (with the lawyer expecting to visit the branch office two days each month), because a lawyer's supervision over non-lawyer staff "should be significant, rigorous and efficient." | 6/14/1994 |
1380
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| [WITHDRAWN 9/16] Although the Bar cannot determine if two affiliated professional corporations are a single entity for purposes of the ethics rules, a determination that they are two separate entities might mean that they are violating: the fee-splitting rules; the prohibition on paying compensation to recommend employment; the ban on using the name of a lawyer who has left the firm and is engaged in business elsewhere. | 11/30/1990 |
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 |
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 |
0844
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| A group of law firms may incorporate to share their expertise. A fee-sharing arrangement does not have to be proportional to the different firms' effort as long as the client consents after full disclosure and both lawyers are responsible for the client. [This LEO was partially overruled by Rule 1.5(e), which does not require that a lawyer sharing in fees also share responsibility, thus allowing "referral fees" if the client consents after full disclosure.] | 9/2/1986 |
ABA-420
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| A law firm hiring a contract lawyer may either bill his or her time as: (1) fees, in which case the client would have a "reasonable expectation" that the contract lawyer has been supervised, and the law firm can add a surcharge without disclosure to the client (although some state bars and courts require disclosure of both the hiring and the surcharge); or (2) costs, in which case the law firm can only bill the actual cost incurred “plus those costs that are associated directly with the provision of services” (as explained in ABA LEO 379). | 11/29/2000 |
1735
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| A law firm may employ independent contractor lawyers under the following conditions: whether acting as independent contractors, contract attorneys or "of counsel," the lawyers must be treated as part of the law firm for confidentiality and conflicts of interest purposes; the firm must advise clients of any "mark-up" between the amount billed for the independent contractor lawyers' services and the amount paid to them if "the firm bills the amount paid to the Attorney as an out-of-pocket expense or disbursement," but need not make such disclosure to the clients if the firm bills for the lawyers' work "in the same manner as it would for any other associate in the Firm" and the independent contractor lawyer works under another lawyer's "direct supervision" or the firm "adopts the work product as its own;" the independent contractor lawyers may be designated as "of counsel" to the firm if they have a "close, continuing relationship with the Firm and direct contact with the firm and its clients" and avoid holding themselves out as being partners or associates of the firm; the firm must disclose to clients that an independent contractor lawyer is working on the client's matter if the lawyers "will work independently, without close supervision by an attorney associated with the Firm," but need not make such disclosure (and obtain consent)if the "temporary or contract attorney works directly under the supervision of an attorney in the Firm;" the firm may pay a "forwarding" or "referral" fee to the independent contractor lawyers for bringing in a client under the new Rules. | 10/20/1999 |
1659
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| A law firm may hire an associate who also maintains a separate law practice; the firm may include the associate's name on its letterhead but should disclose the associate's separate office address "to avoid the possibility of misleading the public regarding the associate's relationship with the law firm." | 1/23/1996 |
1450
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| A law firm may not require or prevent one of its lawyers from filing an ethical complaint against a lawyer in another firm. | 3/23/1992 |
0956
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| A law firm may not sell its name or goodwill, but may sell physical assets. A lawyer taking over a practice should notify clients of their right to select another lawyer and give direction about the disposition of their files (which should not be transferred without disclosure to the clients). [Rule 1.17 permits the purchase or sale of a law firm's practice, including good will, under certain circumstances.] | 8/21/1987 |
1438
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| A law firm may not share profits with an advertising agency unless its employees are bona fide and regular employees of the law firm. [Approved by the Supreme Court of Virginia 11/2/16]. | 10/21/1991 |
ABA-351
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| A law firm may use terms such as "affiliated" and "associated" in describing other firms as long as the terms are not misleading. [Overruled in ABA LEO 388.] | 10/20/1984 |
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 |
0469
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| A law practice may indicate the absence of a partnership by using the term "affiliated law offices." | 9/20/1982 |
1234
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| A lawyer becoming a judge may sell the physical assets of a law firm but not its goodwill, active client files or work in progress. It is improper to inflate the value of the assets to disguise the sale of the practice as a going business. [Rule 1.17 permits the purchase or sale of a law firm's practice, including good will, under certain circumstances.] | 4/19/1989 |
1113
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| A lawyer fulfills the ethic Rules' obligations by sending notices to all of a law firm's clients that the law firm is disbanding. A lawyer has fewer obligations to clients that have been retained by the lawyer' partner before the partnership began and who therefore never engaged the partnership to represent them. | 8/24/1988 |
0356
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| A lawyer handling a petty cash account for the lawyer's client/employer is not required to prepare an accounting when the attorney-client relationship ends; a lawyer admitted to practice in Virginia by examination is not required to maintain an office in Virginia. | 3/10/1980 |
0802
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| A lawyer may be a member of two law firms. | 5/27/1986 |
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 |
0934
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| A lawyer may not: pay a lump sum to a disbarred lawyer to take over the practice; pay for the disbarred lawyer's yellow page advertisement; divide a contingent fee with the disbarred lawyer; employ the disbarred lawyer as a legal assistant on a set salary; and take over the disbarred lawyer's phone number and answer the telephone as "law offices." [To the extent it is inconsistent, this LEO was overruled by LEO 1218.] | 6/16/1987 |
1318
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| A lawyer may practice law and operate a consulting firm out of the same office as long as the activities are kept separate and clients consent after full disclosure. The lawyer may send out one bill for both services as long as the bill fully discloses the separate services. | 2/1/1990 |
0255
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| A lawyer representing a party in a partition suit may form a partnership with a lawyer who had previously represented the party's opponent in the partition suit, as long as the party consents after full disclosure. | 12/13/1974 |
0286
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| A lawyer who has taken over the practice of a deceased lawyer may notify the clients and ask for their direction about disposition of files. | 1/30/1978 |
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 |
1551
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| A lawyer who represents companies that compete with a company employing the lawyer's non-lawyer fiancé may continue to represent the clients as long as they are only adverse "in a business setting" to the fiancé's employer and "unless and until any two or more clients become adverse to each other in legal matters." Any disqualification of the lawyer based on the engagement is not imputed to the other lawyers in the firm. | 10/20/1993 |
0393
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| A non-Virginia lawyer may own and operate a legal clinic in Virginia as long as the corporation is domesticated and all legal services are performed by Virginia lawyers. | 12/15/1980 |
0388
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| A non-Virginia lawyer who is a registered patent lawyer may practice trademark law in Virginia and create a partnership with Virginia lawyers as long as the partnership only practices before the Patent & Trademark Office. [USPTO ethics rules preempt any Virginia ethics rules, and would allow such a partnership; Va. LEO 1843 (4/16/08)] | 8/7/1980 |
1584
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| A Virginia lawyer may enter into a partnership with a non-lawyer in the District of Columbia, because its ethics rules permit such partnerships (Virginia's DR 1-102(B) acts "as a conflicts of rules provision" allowing the more permissive DC rule to apply). Although the partnership (through a Virginia lawyer) may conduct activities in DC benefiting Virginia clients, it may not engage in the practice of law in Virginia, and the Virginia lawyer may not conduct any of the lawyer's practice in Virginia through the partnership. [Rule 8.5(a) now indicates that Virginia lawyers must comply with the Rules regardless of where they practice, and Rule 8.5(b) now provides a "choice of law" rule for lawyers licensed in more than one jurisdiction.] [Approved by the Supreme Court of Virginia 11/2/16]. | 4/11/1994 |
0460
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| A Virginia lawyer may practice in the state without maintaining an office here. | 7/21/1982 |
493
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| ABA Model Rule 8.4(g) prohibits conduct “that the lawyer knows or reasonably should know is” “harassment or discrimination on the basis of” specifically identifiable attributes, “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The prohibition applies to all “conduct related to the practice of law.” ABA Model Rule 8.4(g) thus applies “in non-litigation matters or at law firm social events or bar association functions” (although “Rule 8.4(g) does not regulate conduct unconnected to the practice of law, as do some other rules of professional conduct”). ABA Model Rule 8.4(g) “prohibits other conduct that is not covered by other law;” and might involve “a single instance of a lawyer” engaging in the prohibited conduct. “[T]he most common violations will likely involve conduct that is intentionally discriminatory or harassing.” “The existence of the requisite harm is assessed using a standard of objective reasonableness.” ABA Model Rule 8.4(g) specifically excludes from its prohibition “[l]egitimate advice or advocacy consistent with [the ABA Model Rules].” The following acts would not violate ABA Model Rule 8.4(g): (1) a First Amendment challenge to “a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities;” (2) a CLE program speaker “express[ing] the view” criticizing “a race-conscious process in admitting African-American students to highly ranked colleges and universities;” (3) a lawyer’s membership in “a religious organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.” The CLE speaker scenario does not violate ABA Model Rule 8.4(g), because “even a controversial [point of view] cannot reasonably be understood as harassment or discrimination contemplated by [ABA Model] Rule 8.4(g)” – and “[t]he fact that others may find a lawyer’s expression of social or political views to be inaccurate, offensive, or upsetting is not the type of ‘harm’ required for a violation.” The following acts would violate ABA Model Rule 8.4(g): (4) an adjunct professor/lawyer “supervising a law student in a law school clinic” making “repeated comments about the student’s appearance and also making unwelcome, nonconsensual physical contact of a sexual nature with the student” (which involves “conduct related to the practice of law,” although the “conduct . . . may not necessarily fall directly within the context of the representation of a client”); (5) law firm lawyers stating during a planning session or “an orientation program for newly-hired associates to familiarize them with firm policies and procedures” stating that lawyers should “never trust a Muslim lawyer” or “represent a Muslim client” (“[b]ecause the remarks were made within the law firm setting, they were ‘related to the practice of law”). In sum, ABA Model Rule 8.4(g) “does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation.” (which “must necessarily be judged, in context, from an objectively reasonable perspective”). | 7/15/2020 |
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 |
1774
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| An associate may not (absent consent) prepare a patent opinion seeking to invalidate a patent held by another firm client (which the associate’s law firm represents in different technologies). The supervising partner who knowingly directed the associate’s action violated Rule 5.1, because the partner ordered and ratified inappropriate conduct by a subordinate lawyer. | 2/10/2003 |
0694
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| An associate may not continue a firm's practice if the partners have lost their licenses, although the associate may maintain an independent practice as long as there is no misrepresentation and the clients understand the situation. | 5/10/1985 |
ABA-499
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| As additional states "permit business structures that allow nonlawyer ownership of law firms and the sharing of legal fees with nonlawyers," lawyers "may acquire a ‘passive' investment interest" in what are called alternative business structures, as long as: (1) the passive investment "does not include scenarios in which the investing lawyer practices law through the ABS [alternative business structure], manages or holds a position of corporate or managerial authority in the ABS, or is otherwise involved in the daily operations of the ABS"; and (2) "the investing lawyer does not have access to information protected by [ABA] Model Rule 1.6 without the ABS client's informed consent." Although a law firm's lawyer's personal interest resulting from her investment in an ABS is not automatically imputed to her colleagues under ABA Model Rule 1.10, lawyers must analyze a possible ABA Model Rule 1.7(a)(2) "material limitation" conflict. | 9/8/2021 |
ABA-388
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| Describing relationships between law firms using terms like "network", "alliance", "correspondent", "affiliate" or "associate", without more, tends to mislead. If such a relationship would be relevant to a prospective client, the lawyer could include such a description in a retainer letter with such a client. Clients must be advised of relationships among firms (such as "of counsel" relationships) that might create a conflict of interests. | 12/5/1994 |
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 |
ABA-483
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| In addition to complying with the guidance in ABA LEO 477R (5/11/17) lawyers dealing with a databreach or cyberattack ("a data event where material client confidential information is misappropriated, destroyed, or otherwise compromised, or where a lawyer's ability to perform legal services for which the lawyer is hired is significantly impaired"): (1) must comply with their competence duty, including monitoring for databreaches (making "reasonable efforts," because not immediately detecting a databreach may not constitute an ethics violation); (2) "act reasonably and promptly to stop the breach and mitigate damage resulting from the breach" (and "should consider proactively developing an incident response plan"); (3) make "reasonable attempts to determine whether electronic files were accessed, and if so, which ones"; (4) comply with their confidentiality duty (although lawyers' competence in preserving client confidences "is not a strict liability standard and does not require the lawyer to be invulnerable or impenetrable"), including considering any implied authorization to disclose client confidences to law enforcement to the reasonably necessary to assist in "ending" the breach or recovering stolen information," in light of considerations such as the disclosure's harm to the client); (5) advise current clients about such databreach or cyberattack (whether or not client data deserves protection under Rule 1.15 – which remains an "open question"); (6) in responding to a databreach or cyberattack involving former clients' data, consider "reach[ing] agreement with clients before conclusion, or at the termination, of the relationship about how to handle the client's electronic information that is in the lawyer's possession" (noting that "the Committee is unwilling to require notice [of a databreach or cyberattack] to a former client as a matter of legal ethics in the absence of a black letter provision requiring such notice"); (7) consider their obligation to notify clients depending on the type of breach (for instance, lawyers need not alert their clients of a ransomware attack if "no information relating to the representation of a client was inaccessible for any material amount of time, or was not accessed by or disclosed to unauthorized persons"; (8) must comply with state and federal law if "personally identifiable information or others is compromised as a result of a data breach". | 10/17/2018 |
ABA-453
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| Law firms' in house ethics counsel: may disclose and receive client confidences to and from other firm lawyers, because "unless a client has expressly instructed that information be confined to specific lawyers within the firm, the lawyer handling the matter does not violate the duty of confidentiality by consulting within the firm about the client's matter."; may but is not required to disclose to clients that the lawyer has discussed with other firm lawyers ethics issues involving that client; does not face a per se conflict in discussing with other firm lawyers possible conflicts of interest involving the client, but may face a conflict if the communications involve protecting the interests of the law firm or its lawyers rather than the client; should explain to the firm lawyer requesting advice whether the in house ethics counsel represents the law firm, the individual lawyer or both; must comply with Rule 1.13's requirement to disclose any wrongdoing up the law firm's chain of command; should consider a possible duty to disclose a colleague's unethical conduct, recognizing that "reporting under this rule is required only when the conduct in question is egregious and 'of a type that a self-regulating profession must vigorously endeavor to prevent.'"; should remember that any duty of disclosure is trumped by the duty of confidentiality to clients (either the law firm or the individual lawyer); recognize that he might have to withdraw from representing the law firm and the individual lawyer if they disagree about whether he should report wrongdoing; realize that other lawyers in the firm may have a duty to report a colleague's wrongdoing, because they do not have an attorney-client relationship with the law firm or the individual lawyer (but may have a duty of confidentiality to firm clients whose information is involved). | 10/17/2008 |
1850
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| Lawyers frequently outsource legal and non legal support services to lawyers and non-lawyers. Examples include “reproduction of materials, database creation, conducting legal research, case and litigation management, drafting legal memoranda or briefs, reviewing discovery materials, conducting patent searches, and drafting contracts” (but do not include a scenario in which a lawyer “is working under the direct supervision of lawyers in the firm and has full access to information about the firm’s clients, and therefore is associated with the firm”). Lawyers who engage in such outsourcing must comply with four duties. First, such lawyers must “exercise due diligence in the selection of lawyers or nonlawyers,” must take reasonable steps to assure that they comply with the lawyers’ ethical rules, must review their work “on an ongoing basis,” and must “remain ultimately responsible for [their] conduct and work product.” Lawyers arranging for overseas outsourcing “should” enter into a written agreement confirming these steps. Second, lawyers who hire “a temporary lawyer to work on a client’s matter” must advise the client. Similarly, such lawyers “must obtain informed consent from the client if the lawyer is outsourcing legal work to a lawyer or nonlawyer who is not associated with or working under the direct supervision of a lawyer in the firm that the client retained, even if no confidential information is being shared outside of the firm.” Third, lawyers “must secure the client’s consent in advance” if they will share “confidential client information” with a lawyer or non-lawyer who is not “associated with the firm nor directly supervised” by a firm lawyer. Lawyers should obtain written confidentiality agreements, and “should also ask the nonlawyer whether he or she is performing services for any parties adverse to the lawyer’s client.” Fourth, lawyers charging clients for outsourced work as a disbursement must disclose any mark-up. Under ABA LEO 379 (12/6/93), lawyers need not disclose any mark-up or staffing agency fee if they outsource to lawyers or non-lawyers working “under the direct supervision of the lawyer such that they are considered ‘associated’ with the firm.” | 1/12/2021 |
ABA-451
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| Lawyers may outsource "legal or non-legal support" services as long as they bear various ethics requirements in mind -- mentioning outsourcing to foreign lawyers as only one example of outsourcing, along with "the use of a local photocopy shop" to copy documents, retaining a "document management company" in litigation, using third party vendors "to provide and maintain a law firm's computer system" and reliance on a "legal research service" to conduct research. Lawyers arranging for such outsourcing must ultimately assure competent service by anyone assisting in the lawyer's work for the client. Lawyers' duties under ABA Model Rule 5.1 and 5.3 "apply regardless of whether the other lawyer or the nonlawyer is directly affiliated with the supervising lawyer's firm" -- despite the reference to "a firm" in ABA Model Rule 5.1 Comment [1]. Lawyers arranging for the outsourcing must adequately investigate the people who will be conducting the outsourced work (including even such issues of confidentiality as "recycling and refuse disposal procedures." Lawyers arranging for overseas outsourcing should assess such issues as: the foreign lawyers' legal training and dedication to "core ethical principles" similar to U.S. lawyers, the possibility of confidential materials being seized in "judicial or administrative proceeding" and other threats to confidentiality. Lawyers arranging for outsourcing may have to alert their clients, if the outsourcing services will be performed independently of the lawyer (referring to ABA LEO 356, which deals with temporary lawyers). Because "ordinarily" the lawyer will not exercise a "high degree of supervision and control" over the work that is being performed, the lawyer generally will have to provide notice to their clients. Lawyers providing confidential client information to a third party may do so only with the client's consent, and the "implied authorization" to reveal client confidences in performing legal services "does not extend to outside entities or to individuals over whom the firm lacks effective supervision and control." Lawyers must be very careful to assure confidentiality, and "[w]ritten confidentiality agreements are . . . strongly advisable in outsourcing relationships." In fulfilling their duty to "minimize the risk of potentially wrongful disclosure," lawyers arranging for the outsourcing "should verify that the outside service provider does not also do work for adversaries of their clients on the same or substantially related matters." In charging fees for the outsourced work, lawyers should comply with the standards articulated in ABA LEO 420. Lawyers may generally add a surcharge to the cost paid to those performing outsourced work (without notice to the client), as long as the total fee is reasonable. Lawyers deciding to pass the cost along to the client as a disbursement may not mark up the cost, but may only bill the client the actual cost "plus a reasonable allocation of associated overhead, such as the amount the lawyers spent on any office space, support staff, equipment, and supplies for the individuals under contract." In the case of outsourced services, the overhead cost may include "a reasonable allocation of the cost of supervising those services if not otherwise covered by the fees being charged for legal services." Lawyers arranging for outsourcing must avoid assisting anyone in the unauthorized practice of law, although generally there should be no UPL problem if lawyers performing the outsourced work assist the lawyers (who remain ultimately responsible for the work) and do not hold themselves out as being admitted in the jurisdiction. | 7/9/2008 |
ABA-401
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| Lawyers may practice in limited liability partnerships if they meet legal requirements, accurately describe the entity in communication and assure that "the lawyer rendering the legal services to the client must be personally responsible to the client." | 8/2/1996 |
1872
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| Lawyers must be mindful of their confidentiality, supervision and marketing responsibilities, among other things, if they practice "virtually," or if they combine a virtual practice with an "executive office suite" for meetings and other activities requiring a physical office. Lawyers sharing a space with nonlawyers must take reasonable steps to protect client confidences. Lawyers must also take reasonable steps to protect their clients' confidential information when dealing with technology, including examining "the third party provider's use of technology and terms of service" before using such provider's cloud computing or other services (lawyers unable to assess these factors on their own "will have to consult with someone qualified to make that determination"). Lawyer might also have an obligation to explain to their clients the risk of using certain methods of communication and storage. A lawyer not physically present with colleagues and staff must nevertheless comply with the normal duties of supervising subordinate lawyers and nonlawyers. Lawyers may not use misleading marketing by listing as an office a place where the lawyer does not actually practice (analyzing the situation using such factors as the frequency with which the lawyer uses the space, whether nonlawyers also use the space, signage, etc.). Under the current Virginia regulations (which are the subject of proposed amendments), lawyers admitted by motion to practice in Virginia must maintain an office where they can see clients (which does not include a "virtual office or shared occupancy arrangements." | 3/29/2013 |
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-429
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| Lawyers practicing in law firms, law departments or similar organizations must establish policies and procedures assuring that all lawyers in the organization fulfill their ethical requirements and protect their clients -- even if a lawyer becomes impaired by substance abuse, mental illness, etc. Lawyers learning of ethics violations by an impaired lawyer may have an obligation to report the violation. Even if not obligated to report violations, lawyers may choose to reveal information about violations or the impairment -- unless confidentiality duties to clients or some other rules prohibit the disclosure. Lawyers in a firm or other organization from which an impaired lawyer has withdrawn may have an obligation to reveal the impairment if clients are deciding whether to retain the now departed impaired lawyer. The law firm or other organization does not have a duty to reveal the impairment if a client has already shifted its relationship to the departed lawyer, but must avoid any endorsement of the departed lawyer’s ability to represent the client (such as a joint letter from the law firm and the departed lawyer regarding the transaction, which "could be seen as an implicit endorsement by the firm of the departed lawyer's competence"). | 6/11/2003 |
1872
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| Lawyers relying on non-exclusive "executive office rental" space or similar space must: (1) "act competently to protect the confidentiality of clients' information"; (2) take reasonable steps to "supervise subordinate lawyers and nonlawyer assistants" that are not located with the lawyer; (3) avoid advertising such "non-exclusive office space or virtual law office" as "a location of the firm" unless it is an "office where the lawyer provides legal services." | 10/2/2019 |
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 |
498
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| Providing guidance for lawyers' virtual practice, defined as follows: "This opinion defines and addresses virtual practice broadly, as technologically enabled law practice beyond the traditional brick-and-mortar law firm. A lawyer's virtual practice often occurs when a lawyer at home or on-the-go is working from a location outside the office, but a lawyer's practice may be entirely virtual because there is no requirement in the Model Rules that a lawyer have a brick-and-mortar office."; addressing: (1) competence, diligence and communication; (2) confidentiality; (3) supervision; also providing advice about "virtual practice technologies": (1) "Hard/Software Systems"; (2) "Accessing Client Files and Data; (3)"Virtual meeting platforms and video conferencing" (including the following advice: "Access to accounts and meetings should be only through strong passwords, and the lawyer should explore whether the platform offers higher tiers of security for business/enterprises (over the free or consumer platform variants). Likewise, any recordings or transcripts should be secured. If the platform will be recording conversations with the client, it is inadvisable to do so without client consent, but lawyers should consult the professional conduct rules, ethics opinions, and laws of the applicable jurisdictions. Lastly, any client-related meetings or information should not be overheard or seen by others in the household, office, or other remote location, or by other third parties who are not assisting with the representation, to avoid jeopardizing the attorney-client privilege and violating the ethical duty of confidentiality."; (4) "Virtual Document and Data Exchange Platforms"; (5) "Smart Speakers, Virtual Assistants, and Other Listening - Enabled Devices" (including the following advice: "Unless the technology is assisting the lawyer's law practice, the lawyer should disable the listening capability of devices or services such as smart speakers, virtual assistants, and other listening-enabled devices while communicating about client matters. Otherwise, the lawyer is exposing the client's and other sensitive information to unnecessary and unauthorized third parties and increasing the risk of hacking."; also providing advice about lawyers' supervision duties over their subordinates/assistants and their vendors; concluding with a reminder that: (1) "lawyers practicing virtually must make sure the trust accounting rules, which vary significantly across states, are followed;" (2) "lawyers still need to make and maintain a plan to process the paper mail, to docket correspondence and communications, and to direct or redirect clients, prospective clients, or other important individuals who might attempt to contact the lawyer at the lawyer's current or previous brick-and-mortar office."; and (3) "[i]f a lawyer will not be available at a physical office address, there should be signage (and/or online instructions) that the lawyer is available by appointment only and/or that the posted address is for mail deliveries only. Finally, although e-filing systems have lessened this concern, litigators must still be able to file and receive pleadings and other court documents." | 3/10/2021 |
ABA-356
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| Temporary lawyers must comply with all ethics rules arising from a lawyer's representation of a client, but depending on the facts (such as whether the temporary lawyer "has access to information relating to the representation of firm clients other than the clients on whose matters the lawyer is working") may not be considered "associated" with law firms for purposes of the imputed disqualification rules (the firm should screen such temporary lawyers from other representations). Lawyers hiring temporary lawyers to perform "independent work for a client without the close supervision of a lawyer associated with the law firm" must obtain the client's consent after full disclosure. Lawyers need not obtain the client's consent to having temporary lawyers working on the client matters if the temporary lawyers are "working under the direct supervision of a lawyer associated with the firm." Lawyers need not advise clients of the compensation arrangement for temporary lawyers "assuming that a law firm simply pays the temporary lawyer reasonable compensation for the services performed for the firm and does not charge the payments thereafter to the client as a disbursement." | 12/16/1988 |
1576
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| The Bar declines to indicate whether a commissioner in chancery may order a lawyer to issue stock in the lawyer's law firm and give it to the lawyer's ex-spouse as part of a divorce settlement. | 2/8/1994 |
1818
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| There is no per se prohibition on lawyers keeping all of their files in electronic form, but lawyers must: (1) retain paper documents that might be required (such as "testamentary documents, marriage certificates, or handwriting exemplars"); (2) recognize that although the rules "do not specify the form of file maintenance," a lawyer considering destroying a client's paper file "should review that file to make sure that any documents that may be of continued use or benefit to the client only if they are maintained in paper form are not destroyed." | 9/30/2005 |
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-347
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| This Opinion offers guidance for lawyers whose offices lose legal services funding. | 12/1/1981 |
0971
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| Three lawyers in a twelve-lawyer firm may create a wholly owned subsidiary of the firm to handle personal injury work. | 9/30/1987 |
0945
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| Two firms may not characterize themselves as "of counsel" to each other when the firms in essence have created only a referral relationship. Among other things, the firms may not agree to a 10% "referral fee" between themselves. [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.] | 6/10/1987 |
ABA-423
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| U.S. law firms may include partners who are foreign lawyers, as long as the arrangement complies with U.S. and foreign law, and the foreigners are "members of a recognized legal profession in the foreign jurisdiction" (examples include lawyers in European Union countries, Great Britain, Japan, and Sweden); U.S. lawyers must avoid assisting in the unauthorized practice of law by foreign lawyers in the U.S., and should remember that many countries recognize only a narrow attorney-client privilege (for example, most civil law countries do not protect communications with in-house corporate counsel). | 9/22/2001 |
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 |
1856
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| Under Virginia Rule 5.5, non-Virginia lawyers "may not practice Virginia law on a 'systematic and continuous' basis," unless they (1) limit their practice to the "law of the jurisdiction/s where they are licensed"; (2) practice "exclusively federal law" under the federal supremacy clause (such as "lawyers with practices limited to immigration or military law or who practice before the Internal Revenue Service, the United States Tax Court, or the United States Patent and Trademark Office," although lawyers such as bankruptcy, patent or federal procurement lawyers must abide by courts' possible limitation of practice before the courts to members of the Virginia Bar, and may provide advice "such as the debtor's homestead exemption and status or priority of claims or liens" or "the assignment of the patent to a third party or the organization of a corporate entity to market or franchise the invention" only under the conditions mentioned immediately below; (3) "provide advice about Virginia law or matters peripheral to federal law (described immediately above) only if they do so on a "temporary and occasional" basis and (as stated in UPL Opinion 195) "under the direct supervision of a Virginia licensed lawyer before any of the [non Virginia] lawyer's work product is delivered to the client" or if they "associate with an active member of the Virginia State Bar." This liberal multijurisdictional practice approach (allowing non-Virginia lawyers to practice systematically and continuously in Virginia as long as they limit their practice to the law of jurisdictions where they are licensed) "embrac[es]" the approach of two earlier Virginia Supreme Court-approved Virginia UPL opinions (UPL Opinions 195 (2000) and 201 (2001)). Rule 5.5 overrules an earlier UPL Opinion about which law applies to a non Virginia lawyer's practice of another state's law while physically in Virginia; thus, "New York law should govern whether a foreign lawyer not authorized to practice in New York may advise New York clients on matters involving New York law. The [non Virginia] lawyer's physical presence in Virginia may not be a sufficient basis to apply Virginia's rules over New York's rules governing foreign lawyer practice." Contract lawyers hired to "work on a matter involving Virginia law" must either "be licensed in Virginia or work in association with a Virginia licensed lawyer in the firm on a temporary basis" although such a lawyer's practice "could be regarded as 'continuous and systematic" if the non Virginia contract lawyer is hired "to work on several and various Virginia matters/cases over a period of time." Such contract lawyers need not be licensed in Virginia if the lawyer is "hired to work only on matters involving federal law or the law of the jurisdiction in which the [non Virginia] contract lawyer is admitted." [Approved by the Supreme Court of Virginia 11/2/16]. | 9/11/2011 |
1887
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| Unlike supervisory lawyers (whose duties to supervise and to report other lawyers' misconduct was addressed in Virginia LEO 1886 (12/15/16)), lawyers not playing a supervisory role are governed only by Rule 8.3's reporting obligation – which is sometimes triggered by Rule 1.16's requirement that lawyers withdraw from representing clients if their "physical or mental condition materially impairs" their ability to represent a client. This reporting obligation arises only if the other lawyer violates an ethics rule, so "a lawyer's impairment, on its own, does not necessarily violate the RPCs at all." This means that lawyers without a supervisory role have no duty to "proactively address the impairment of other lawyers." However, lawyers must report another lawyer whose "material impairment" requires the other lawyer's withdrawal from a representation under Rule 1.16. Although the reporting obligation remains subject to lawyers' confidentiality duty, "in many cases a report may be accomplished without disclosing information that would be embarrassing or detrimental to the firm's clients." Lawyers must also remember that "reporting a lawyer's impairment to both the Bar and to LHL [Lawyers Helping Lawyers] is important, and each report serves different purposes." | 6/28/2017 |