These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
 Back to main menu
  Topic: 46 - Confidentiality - Miscellaneous
LEO NumTopicsSummaryDate
0929

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A client's failure to appear on felony charges and intent to remain a fugitive (including a plan to leave the United States) constituted a "continuing wrong" -- which a lawyer had no duty to disclose.6/24/1987
1869

printPrint
18-Consent and Prospective Waivers

28-Law Firm Staff

46-Confidentiality - Miscellaneous

49-Lawyers - Miscellaneous

A family court self-help center facilitator (a lawyer or a paralegal trained in family law who volunteers to assist unrepresented customers) does not establish an attorney-client relationship with such customers, if the Customer Agreement "has the pro se litigant understand and acknowledge that the limited assistance provided by the Facilitator does not create a lawyer-client relationship, that no legal advice is given, that information will not be kept confidential and that the Facilitator may provide assistance to adverse litigants." (footnote omitted). A lawyer merely providing legal information and not legal services does not fall under Rule 6.5's provision governing "short-term limited legal services." "Merely providing sample pleadings or forms to a pro se litigant is not the practice of law; however, the completion of a form pleading or legal document for the pro se litigant would be." (footnote omitted). Rule 6.5 does not address conflicts arising after a lawyer provides such a limited representation, so the lawyer may be precluded from other representations adverse to the client the lawyer had assisted. Paralegals may not engage in the "unsupervised preparation of pleadings or other legal documents," so lawyers may not train paralegals to provide such unsupervised services. Various resources can help lawyers distinguish between providing "legal information" and "legal advice." [Approved by the Supreme Court of Virginia 11/2/16].5/28/2013
0376

printPrint
17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A lawyer is not obligated to report a non-client's fraud unless it involves a tribunal. 7/11/1980
0377

printPrint
46-Confidentiality - Miscellaneous

A lawyer is not obligated to report a notary public's criminal conviction to the appropriate authorities.7/15/1980
0929

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A lawyer receiving a letter from a fugitive client indicating that the fugitive intends to leave the United States may not reveal the client's intent because it amounts to a "continuing wrong" rather than a future crime (which would have to be revealed).6/24/1987
ABA-477

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Because communication technology, its accompanying risks and the ethics rules have changed since ABA LEO 413 (3/10/99), lawyers must take the following steps when communicating with their clients using new technology: comply with the ABA Model Rules 2012 "technology amendments"; assess what "reasonable efforts" a lawyer must make when protecting client confidentiality (which "is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors"); consider using encryption for sensitive client communications, although "the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication"; recognize that for "certain highly sensitive information" lawyers might have to "avoid" the use of electronic methods or any technology to communicate with the client altogether"; understand the nature of threats to client confidentiality, including how client information is transmitted, stored -- and the vulnerability of security at "[e]ach access point"; understand and use reasonable "electronic security measures"; recognize that "'deleted' data may be subject to recovery," so it may be necessary to "consider whether certain data should ever be stored in an unencrypted environment, or electronically transmitted at all"; carefully label client confidential information; train lawyers and non-lawyers in the use and risk of electronic communications and storage; undertake reasonable due diligence on communication technology vendors; inform clients about the risks of communicating sensitive information; comply with clients' requirements for special protective measures.5/11/2017
1859

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

48-Criminal Defense Lawyers

Criminal defense lawyers whose clients have claimed ineffective assistance of counsel may not disclose client confidences to defend themselves immediately upon the filing of the habeas petition, because it is "unlikely that it is reasonably necessary for the lawyer to disclose confidential information at the time the petition is filed, when the court has not made a determination whether the petition is legally and procedurally sufficient." The lawyer would be justified in disclosing confidential information under the Rule 1.6 self defense exception "under judicial supervision at a formal proceeding, after a full determination of what information should be revealed."6/6/2012
ABA-483

printPrint
16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

45-Law Firms - Miscellaneous

46-Confidentiality - Miscellaneous

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-480

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers blogging, tweeting, and otherwise engaging in public commentary through social media or otherwise must comply with the ABA Model Rules' confidentiality duties – which extend beyond the attorney-client privilege and include all information relating to a representation, even if it is in a public document or generally known. Lawyers may violate this rule even if they communicate in a "hypothetical" – if "there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical" (because both the client's identity and the situation deserve confidentiality protection.3/6/2018
491

printPrint
26-Fruits and Instrumentalities of Crimes

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

48-Criminal Defense Lawyers

56-Duty to Advise the Court

Lawyers have a duty under ABA Model Rule 1.1, 1.3, 1.4, 1.13, 8.4 and 1.16 "to inquire further to avoid assisting" clients' wrongful conduct if the lawyer "has knowledge of facts that create a high probability that a client is seeking the lawyer's services in a transaction to further criminal or fraudulent activity." "Failure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard" of ABA Model Rule 1.2(d). The "Committee rejects the view that the actual knowledge standard of [ABA Model] Rule 1.2(d) relieves the lawyer of a duty to inquire further where the lawyer is aware of facts creating a high probability that the representation would further a crime or fraud." If a client "refuses to provide information or asks the lawyer not to evaluate the legality of a transaction the lawyer should explain to the client that the lawyer cannot undertake the representation unless an appropriate inquiry is made."4/29/2020
ABA-413

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers may ethically communicate client confidences using unencryped e-mail sent over the Internet, but should discuss with their clients different ways of communicating client confidences that are "so highly sensitive that extraordinary measures to protect the transmission are warranted." 3/10/1999
ABA-473

printPrint
30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers receiving a subpoena or other compulsory process calling for the disclosure of client confidential or privileged communications or documents: (1) must notify or make reasonable steps to notify current or former clients of the subpoena; (2) must consult with available clients about whether to challenge the demand or appeal (but may withdraw if such an appeal is beyond the retention scope or is a new matter the lawyer does not wish to handle); (3) must consult with available clients about fees if the original retainer letter does not require clients' payments in that situation -- although lawyers "may be required to challenge the initial demand" even without a fee agreement; (4) "should" resist disclosure on behalf of unavailable clients, but may comply with a court order overruling any objections (in that situation, lawyers may seek to withdraw or file a later quantum meruit action for fees); (5) need not appeal on behalf of unavailable clients a court order requiring disclosure; (6) must in all circumstances only disclose client confidential or privileged information or communications "to the extent reasonably necessary" (which may require lawyers to seek protective orders or other arrangements.2/17/2016
ABA-476

printPrint
8-Bills and Fees

30-Disclosing Confidences Under Court Order

46-Confidentiality - Miscellaneous

Lawyers seeking to withdraw as counsel of record because they are not being paid must "err on the side of non-disclosure" of their grounds for seeking withdrawal. Courts "have differed widely" as to information they require before considering such a withdrawal motion, and should work with lawyers to minimize the required disclosure. Lawyers "could": (1) seek withdrawal without disclosing any client confidences; (2) if unsuccessful, respond to courts' insistence for some additional information by requesting an in camera or under seal process; and (3) publicly disclose client confidences only if the court orders such disclosure.12/19/2016
496

printPrint
16-Lawyer's Personal Interests

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers tempted to respond to “online criticism and negative reviews” must remember their confidentiality duty – which even covers “information in the public record.” The only likely applicable exception in ABA Model Rule 1.6 (b)(5) applies “in a controversy between the lawyer and the client.” Even if “an online posting rose to the level of a controversy between lawyer and the client, a public response is not reasonably necessary or contemplated...in order for the lawyer to establish a claim or defense.” Lawyers may: (1) “request that the host of the website or search engine remove the post” (without revealing any protective client confidential information, but “staging] that the post is not accurate or that the lawyer has not represented the poster if that is the case”); (2) “give serious consideration to not responding to negative online reviews” to avoid generating more online activity that might increase search result visibility; (2) “respond with a request to take the conversation offline and to attempt to satisfy the person;” (3) post a disclaimer of representation if the poster is not a client or former client; (4) be careful not to disclose client confidences if the poster has a relationship to the representation, remembering that “[e]ven a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information,” (5) respond to a negative post as follows: “[p]rofessional obligations do not allow me to respond as I would wish.”1/13/2021
ABA-482

printPrint
14-Ownership of Files and Attorney Lien Issues

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

40-Trust Accounts

41-Non-Virginia Lawyers

46-Confidentiality - Miscellaneous

49-Lawyers - Miscellaneous

82-Advertising

Lawyers who face or whose clients face the consequences of large-scale disasters such as hurricanes, floods, fires, etc.: (1) must comply with their communication duties, and therefore should maintain contact information for their clients and consider providing their own contact information to those clients; (2) if they continue to represent clients in the affected area, may be able to provide services outside their normal expertise, should evaluate in advance ways to assure that they will have the necessary client files and legal resources, keep track of litigation deadlines, take steps in advance to access trust funds and deal with affected financial institutions holding client or their own funds; (3) may have to withdraw from representations if they are unable to competently represent clients; (4) if they either permanently or temporarily re-locate to other jurisdictions, must comply with the multijurisdictional rules, other statutes and regulations of those jurisdictions; (5) must notify clients of the loss of "documents with intrinsic value" (such as executed wills, etc.), as well as other client or lawyer files that the lawyer cannot reconstruct after reasonable attempts to do so (to avoid such problems, lawyers should maintain copies of important documents in an off-site location," should consider returning all original documents and documents with intrinsic value created by the lawyer as a result of the representation to clients at the end of representation" and should also consider "including in fee agreements or engagement letters the understandings between the lawyer and the client about how the lawyer will handle documents once the representation has ended"); and (6) must avoid improper solicitation or other advertising in the wake of such disasters (remembering that they may solicit pro bono representations because those are not motivated by pecuniary gain). Out-of-state lawyers affected assisting clients in such affected areas must comply with the pertinent jurisdictions' multijurisdictional rules and other regulations.9/19/2018
498

printPrint
45-Law Firms - Miscellaneous

46-Confidentiality - Miscellaneous

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-479

printPrint
31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Under ABA Model Rule 1.9, lawyers may not disclose former clients' protected client information unless the rules permit it, and may not "use" such information to the former clients' disadvantage unless the rules permit it -- or unless the information has become "generally known." Information is not "generally known" simply because it is publicly available, is discussed in open court, is in court records, or is otherwise a matter of public record. Instead, information is "generally known" if "through traditional media sources" or "through publication on internet web sites; or through social media" the information is: (1) "widely recognized by members of the public in the relevant geographic area"; or (2) "widely recognized in the former client's industry, profession, or trade without being widely recognized by the public."12/15/2017

Copyright 2000, Thomas E. Spahn