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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1750

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

47-Lawyer Referral Services

55-Firm Names and Letterhead

82-Advertising

83-Solicitation

84-Direct Mail Marketing

86-Descriptions of Certification and Specialization

A compendium opinion on lawyer marketing reflects the 7/1/17 ethics rules changes. First, lawyers must disclose that their advertising includes actors rather than lawyers "when the language used implies otherwise" (as when actors "use first person references to themselves as lawyers"). Second, lawyers may use a phrase such as "no recovery, no fee" only when they have already decided that the "client's responsibility for advanced costs and expenses will be contingent on the outcome of the matter." Third, law firms may not include the name of a lawyer "not associated with the firm or a predecessor of the firm," and must "actually practice" under their advertised name. It is "potentially misleading" for lawyers to advertise "the use of a non-exclusive office space" if lawyers do not provide legal services there. Fourth, lawyers may not advertise that would-be clients "will have to consult an attorney" before speaking with an insurance company representative. Fifth, lawyers may advertise their participation in lawyer referral services, as long as the service is: "operated in the public interest; is open to all area lawyers who meet the services requirements; requires service members to pay malpractice insurance or otherwise ensure financial responsibility; has adopted procedures for admitting and removing lawyers; prohibits any fee-generated referral to any lawyers who have an ownership interest in the service. Among other things, such referral service membership advertising may not: falsely imply that membership is based on some objective "quality of services" assessment; state or imply that the services contain all eligible lawyers; falsely state or imply that a "substantial number" of lawyers participate in the service. Sixth, although advertising specific or cumulative case results no longer must be preceded by a specific disclaimer, such advertisements "can be misleading." For instance, it would be misleading to advertise a $1,000,000 verdict if the lawyer's client had turned down a $2,000,000 settlement offer before trial. Seventh, lawyers may not use such "extravagant or self-laudatory" advertisements such as "the best lawyers," "the most experienced," etc. Eighth, lawyers may not advertise or use client testimonials that cannot be "factually substantiated" – the same standard as the lawyers' own advertisements. Lawyers may use "soft endorsements" that describe lawyers' return of clients' phone calls, appearance of concern, etc. Ninth, lawyers may list their inclusion in publications such as The Best Lawyers In America, but if they are delisted they must accurately state the "year(s) or edition(s) in which the lawyer was listed." Tenth, lawyers may advertise as a "specialist" or "specializing in" certain areas, as long as they can establish its accuracy. Eleventh, lawyers may advertise using terms such as "expert" or "expertise" if they can factually substantiate the description.10/2/2019
490

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19-Judge Conflicts

39-Miscellaneous

After pointing to evidence that some judges have "repeatedly failed to inquire into litigants' ability to pay financial obligations prior to incarceration for nonpayment," characterizing as "a core ethical obligation of the judiciary" judges' duty to inquire into such litigants' ability to pay.3/24/2020
488

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19-Judge Conflicts

Judges must disqualify themselves where "their impartiality might reasonably be questioned." ABA Model Code of Judicial Conduct 2.11(A), lists specific family relationships that automatically meet that standard, but that rule does not provide any guidance on other personal relationships with lawyers that would require their disqualification. Judges must "avoid even the appearance of impropriety in performing their duties," but "are presumed to be impartial." Possible grounds for disqualification is "evaluated against an objective reasonable person standard," and "judicial disqualification is the exception rather than the rule." Personal relationships that might or might not require disqualification can be separated into three categories: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. First, judges have no obligation to disclose their relationship with a party or lawyer who is an "acquaintance." These persons' "interactions outside of court are coincidental or relatively superficial." "[N]either the judge nor the lawyer seeks contact with the other, but they greet each other amicably and are cordial when their lives intersect." Second, judges should disclose (but have discretion to continue presiding over a case if a party objects to the judge's presiding) if one of the parties or lawyers meets the "friendship" standard. That relationship "implies a degree of affinity greater than being acquainted with a person; indeed, the term connotes some degree of mutual affection." Those meeting this standard might include former law colleagues who occasionally meet for a meal, or law school classmates who occasionally communicate with each other. A closer friendship exists if judges and parties or lawyers exchange holiday gifts, "regularly socialize together," regularly interact "because their children are close friends"; "vacation together"; etc. Depending on the degree of friendship, judges may or may not have to disqualify themselves. Third, judges may have to disqualify themselves they have a "close personal relationship" with a party or lawyer. Examples include a romantic involvement (or a desire for such an involvement), a cordial relationship with a divorced spouse, the judge's acting as a "godparent" of a lawyer's or party's child, or vice versa. Judges must disqualify themselves if they have a romantic relationship with a lawyer or party (or desire such a relationship). Judge should "disclose other intimate or close personal relationships" with a party or a lawyer, but have the discretion "to either continue to preside over the proceeding or disqualify himself or herself." In that situation, judges "should put the reasons for the judges' decision to remain on the case or to disqualify himself or herself on the record." Judges subject to possible disqualification "based on a friendship or close personal relationship with a lawyer or party" may seek the parties' waiver of disqualification. Such a waiver "must be put on the record of the proceeding."9/5/2019
489

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5-Lawyers Changing Jobs

12-Withdrawing Lawyers (Including Non-Compete Issues)

Law firms cannot restrict withdrawing lawyers from unilaterally notifying clients of their withdrawal "once the law firm has been notified or otherwise learns of the lawyer's intended departure." Law firms and withdrawing lawyers "should attempt to agree on a joint communication" to clients with whom the lawyer "has had significant contact" – which "would include a client identifying the departing lawyer, by name, as one of the attorneys representing the client," in contrast to a lawyer who "prepared one research memo on a client matter for another attorney in the firm but never spoke with the client or discussed legal issues with the client." If they cannot "promptly agree on the terms of a joint letter," the law firm "cannot prohibit the departing lawyer from soliciting firm clients." All unilateral or joint communications to clients must give them the choice of "remaining with the firm, going with the departing lawyer, or choosing another attorney." Both law firms and withdrawing lawyers must take reasonable steps to "coordinate to assure that all electronic and paper records for client matters are organized and up to date" – so the client will be protected if it goes with the withdrawing lawyer, stays with the firm or chooses some other law firm. Withdrawing lawyers must "return and/or delete all client confidential information in their possession," unless the client goes with the withdrawing lawyer or the information is necessary for conflicts clearance. Law firms may impose "a reasonable notification period for withdrawing lawyers," but may not impose a notification period that "would affect a client's choice of counsel or serve as a financial disincentive to a competitive departure." For instance, lawyers may not be held to comply with "a pre-established notice period" if all of the clients' files are updated, and the lawyer either "has agreed to cooperate post-departure in final billing" or "does not seek to represent firm clients in the future." Such notification periods are the same as an improper financial disincentive "to a competitive departure," and are "problematic" when imposed only on withdrawing lawyers who plan to compete with the firm while routinely waived otherwise. Lawyers complying with a notification period should not be deprived of "adequate firm resources" needed to serve clients. After lawyers withdraw, law firms "should set automatic email responses and voicemail messages for the departed lawyer's email and telephones, to provide notice of the lawyer's departure, and offer an alternative contact at the firm for inquiries." A "supervising lawyer" should also review incoming emails, voicemails, etc. "in accordance with client direction and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer." Firms and lawyers complying with a notification period should also "discuss and clarify" how to treat new client matters that come in during that period.12/4/2019
491

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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
1891

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79-Communicating with a Governmental Adversary

Lawyers may communicate ex parte with “a narrow subset of government officials” – as long as the communication is made for the purpose of addressing a policy issue, and the government official being addressed has the ability or authority to take or recommend government action, or otherwise effectuate government policy on the issue.” This freedom does not depend on whether the government official is in the “control group” or not (which governs non-governmental contexts), but rather whether the communication is “authorized by law” (such as “a citizen’s right to petition a legislative body). There is no need for the communicating lawyer to alert the government’s lawyer about such ex parte communications with government officials.1/9/2020
1872

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13-Marketing - Miscellaneous

45-Law Firms - Miscellaneous

53-Office Sharing with Non-Lawyers

82-Advertising

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

Copyright 2000, Thomas E. Spahn