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. 
 
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  Topic: 49 - Lawyers - Miscellaneous
LEO NumTopicsSummaryDate
Virginia-1889

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

49-Lawyers - Miscellaneous

73-Family Law Lawyers

A court-appointed lawyer has no duty to represent a parent in appealing an adverse termination of a parental rights order unless the parent has "at some stage in the proceeding" directed or requested the lawyer to appeal the adverse ruling. A lawyer must consult with the parent about filing such an appeal, but may not file the appeal if the lawyer has been unable to contact the parent and receive instructions.11/8/2018
1869

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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
1412

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34-Limiting Liability to Clients

49-Lawyers - Miscellaneous

A solo practitioner's research and preparation of briefs and other pleadings constitutes the practice of law, which prevents the lawyer from limiting the lawyer's professional liability (regardless of the lawyer's attempt to contractually define the services as not amounting to legal services). 6/12/1991
493

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21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

49-Lawyers - Miscellaneous

ABA Model Rule 8.4(g) prohibits specified “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. “The existence of the requisite harm [which ABA Model Rule 8.4(g) cmt. [3] explains is “includ[ed] in the discrimination prohibition] 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 of 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, non-consensual 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
0596

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49-Lawyers - Miscellaneous

Law students practicing in their third year of law school should be considered lawyers for conflicts of interest purposes. [Law students may no longer practice law.]8/10/1984
431

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21-Reporting Another Lawyer's Unethical Conduct

49-Lawyers - Miscellaneous

Lawyers might suffer from an impairment that calls into question their fitness as a lawyer, or may cause an ethics violation. Among other things, impaired lawyers may “repeatedly miss court deadlines, fail to make filings required to complete a transaction, fail to perform tasks agreed to be performed, or fail to raise issues that competent counsel would be expected to raise.” Even “a single act by a lawyer may evidence her lack of fitness.”) Although lawyers assessing their ABA Model Rule 8.3 duty to report another lawyer’s ethics violation “need not act on rumors or conflicting reports about a lawyer,” such lawyers might “consider consulting with a psychiatrist” or other third party. Lawyers might also communicate with a possibly impaired lawyer, although “the affected lawyer’s denials alone do not make the lawyer’s knowledge non-reportable under [ABA Model] Rule 8.3.” Although “information gained by a lawyer about another lawyer is unlikely to be information protected by [ABA Model] Rule 1.6 for example, observation of or information about the affected lawyer’s conduct in litigation or in the completion of transactions,” ABA Model Rule 8.3 requires a client’s consent if reporting another lawyer’s misconduct would involve disclosure of ABA Model Rule 1.6-protected information. Although a lawyer may report another lawyer’s possible impairment “to an approved lawyers’ assistance program,” “such a report is not a substitute for reporting to a disciplinary authority” if the other lawyer’s impairment results in a reportable ethics violation.8/8/2003
ABA-482

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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
1392

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32-Lawyers Acting in Other Roles (Miscellaneous)

49-Lawyers - Miscellaneous

54-Insurance Defense Lawyers

Plaintiff or defense lawyers may serve on Medical Malpractice Review Panels as long as they are not representing the claimant or the defendant, or are otherwise involved in actual facts before the panel. 1/14/1991
ABA-469

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

49-Lawyers - Miscellaneous

51-Government Attorneys

Prosecutors who allow private debt collection companies to use their stationery to explicitly or implicitly threaten prosecution of delinquent debtors violate: (1) ABA Model Rule 8.4(c)'s anti-deception provision; (2) ABA Model Rule 5.5(a)'s prohibition on assisting nonlawyer's unauthorized practice of law, because such conduct necessarily involves nonlawyers analyzing whether a crime has been committed and a prosecution would be justified.11/12/2014
ABA-356

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45-Law Firms - Miscellaneous

49-Lawyers - Miscellaneous

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
ABA-481

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

36-Withdrawal from Representations

43-Conflicts of Interest - Miscellaneous

49-Lawyers - Miscellaneous

The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case- and fact-specific inquiry. No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation. Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client. An attorney-client relationship ends when: the engagement letter specifies such a time, the lawyer or the client explicitly end the relationship, "when overt acts inconsistent with the continuation of the attorney-client relationship indicate that the relationship has ended," or "when it would be objectively unreasonably to continue to bind the parties to each other." An "episodic" client might be a continuing client in the absence of any ongoing matter if the client periodically engaged the lawyer, and the client "reasonably expects that the professional relationship will span any [such] intervals and that the lawyer will be available when the client next needs representation."4/17/2018

Copyright 2000, Thomas E. Spahn