Virginia State Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Virginia State Bar, with full citations and source links on every page.
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Must a Virginia lawyer disclose to opposing counsel that he sent a letter supporting a judge in a judicial-inquiry proceeding?
No. The opinion concludes a lawyer's letter of support to the Judicial Inquiry and Review Commission is citizen participation in a government process, not a 'thing of value' given to influence the jud…
Can a Virginia prosecutor prosecute defendants represented by a lawyer with whom the prosecutor co-owns a law office building and equipment?
No. The opinion concludes that where a prosecutor co-owns the office building and law-practice equipment with the defense lawyer and shares mortgage and loan obligations tied to that law practice, the…
Are Virginia prosecutors held to the same competence and diligence duties as other lawyers, and can an excessive caseload be an ethics violation?
The opinion concludes the duties of competence (Rule 1.1) and diligence (Rule 1.3) apply equally to Commonwealth's Attorneys, with no lower standard for prosecutors; a caseload so large it precludes c…
Can a Virginia lawyer keep using a bank that freezes the whole trust account after 2:00 deposits, knowing client checks will bounce?
No. The opinion concludes that writing trust-account checks with knowledge that the bank's account-wide hold will bounce them intentionally prejudices clients in violation of Rule 1.3(c) and is a deli…
Can a Virginia defense lawyer tell witnesses they need not talk to the prosecutor or need not appear in court?
The opinion concludes the defense lawyer's statements did not violate Rule 3.4(h), because none was an actual request to withhold information (its civil-matter exception aside). But three of the four …
Does a Virginia lawyer owe confidentiality after an initial consultation, and can a spouse 'taint shop' to disqualify every divorce lawyer?
The opinion concludes the duty of confidentiality under Rule 1.6 attaches to an initial consultation even when no attorney-client relationship forms and no fee is paid, so a lawyer who received the wi…
Can one Virginia defense lawyer represent two criminal defendants in separate cases when one client's defense points at the other?
The opinion concludes the lawyer had an impermissible conflict of interest under Rule 1.7(b): once he realized one client (Defendant #2) was the very person his other client (Defendant #1) feared and …
Must a lawyer give a client a medical report from the file when the doctor or an insurer who controls the report tells the lawyer not to release it?
The opinion concludes that a medical report obtained for the representation is part of the client's file under Rule 1.16(e), so on termination the lawyer must provide it; a non-client carrier or docto…
Can a settlement agreement, or a firm's employment agreement, bar lawyers from ever suing a particular company again, and is that restriction enforceable under the ethics rules?
The opinion concludes that whether a settlement-based restriction is a 'broad' restriction barred by former DR 2-106(B) (now Rule 5.6(b)) is a fact-intensive question the committee will not resolve, s…
Can a lawyer employed by a federal intelligence agency use alias identities and non-consensual recording in authorized covert work without violating Rule 8.4(c)?
The opinion concludes yes. Extending the law-enforcement exception of LEO 1738 to authorized intelligence and covert activity, the committee holds that lawful undercover methods such as alias identiti…
Must a criminal-defense lawyer give a former client a copy of the pre-sentence report from the file when the client asks for it to pursue habeas relief?
The opinion concludes that a pre-sentence report is part of the client's file under Rule 1.16(e), not an internal document the lawyer may withhold, so the lawyer must provide it on request, subject on…
Can a Virginia lawyer represent clients competently using only email, fax, and telephone, without ever meeting them face-to-face?
The opinion concludes there is no per se requirement that a lawyer meet a client in person; competence (Rule 1.1) and communication (Rule 1.4) turn on the content of what is reviewed and conveyed, not…
Can a lawyer contract with an unrepresented expert witness to keep work-product confidential and to alert the lawyer before responding to a subpoena for it?
The opinion concludes that a lawyer who properly discloses work product to a retained expert may, under Rule 5.3, take reasonable measures to ensure the expert protects that confidentiality, including…
When a note sets attorney's fees at a percentage of the debt, can the lawyer pay the client lender the part of the collected fee that exceeds the lawyer's actual hourly charges?
The opinion concludes that returning the excess of a contractual percentage attorney's-fee award over the lawyer's actual fee to the client lender does not violate Rule 5.4(a)'s bar on sharing legal f…
Can a county attorney sue the Board of Zoning Appeals on behalf of the Board of Supervisors when the same attorney has advised the BZA on the very variance at issue?
The opinion concludes the county attorney has a conflict either way: if the BZA is a former client, Rule 1.9 bars suing it on a substantially related matter (the variance and the public notice for it)…
Must (or may) a lawyer tell the bankruptcy court that a former client failed to disclose an inheritance, when the lawyer learned of it only after the representation ended?
The opinion concludes the lawyer is neither required nor permitted to disclose. Rule 3.3's duty to correct false evidence is not triggered because the nondisclosure and the lawyer's discovery both occ…
Is it a conflict of interest for a lawyer to represent the estate administrator who is also the surviving spouse claiming an elective share against the estate?
The opinion concludes there is no conflict, because the lawyer who represents an estate represents the personal representative, not the beneficiaries, and representing one person in two capacities (as…
Are conflicts imputed across all Virginia public defender offices and capital defense units under one commission, or is each office a separate firm for conflict purposes?
The opinion concludes that a single public defender office is a 'firm' under Rule 1.10, but separate Public Defender Offices and Capital Defense Units under the Public Defender Commission are separate…
Can a firm prepare an opinion attacking a patent held by one of its own current clients because another firm lawyer handles that client's patents in a different technology?
The opinion concludes there is a direct-adversity conflict under Rule 1.7: helping Client A invalidate a patent held by current Client B is directly adverse to Client B even though the firm's work for…
Can a lawyer who serves in the state legislature, or that lawyer's firm, represent private clients before local zoning boards and councils when no firm member sits on those boards?
The opinion concludes yes. The per se conflict recognized in LEO 1763, where a firm member sat on the very board appeared before, does not extend to appearances before local bodies on which no firm me…
Can a lawyer or legal aid office represent a daughter seeking guardianship over her mother when the mother is also a current client of the same office in another matter?
The opinion concludes no. Representing the daughter in a guardianship petition against the mother is directly adverse to a current client under Rule 1.7, cannot satisfy either consent prong because an…
Can a lawyer help a client transfer her only asset to put it beyond creditors' reach if the client says her goal is to make herself insolvent?
The opinion concludes the answer depends on a substantive legal question the committee will not decide: whether the transfer is fraud under Virginia's conveyance statutes. Rule 1.2(c) lets the lawyer …
Does a prosecutor violate the ethics rules by telling a defendant in open court that he will be tried by a jury, likely facing a longer sentence, if he appeals his conviction?
The opinion concludes no. Rule 3.8's special prosecutor restrictions do not reach this statement, and no general rule on lawyer communications prohibits the prosecutor's remark that the defendant woul…
Can a private law firm hold a fee-collection contract with a Commonwealth's Attorney while also defending criminal cases prosecuted by that same office?
The opinion concludes no. Once a defense attorney contracts to collect fines for a Commonwealth's Attorney, the prosecutor's personal-interest conflict under Rule 1.7(b) cannot be cured (the client is…
Can a lawyer charge a contingent fee made up of both a percentage of the recovery and an hourly rate, with both parts payable only on a successful outcome?
The opinion concludes a mixed contingent fee (a percentage of recovery plus an hourly rate, both contingent on success) is permissible so long as the total fee is reasonable under Rule 1.5(a); Rule 1.…
Can a lawyer let a finance company front the client's fee in exchange for keeping a discounted portion of that fee?
The opinion concludes no. An arrangement in which a finance company advances the lawyer a discounted lump sum and keeps the discount as its share of the legal fee is impermissible fee-sharing with a n…
Can a lawyer who settled a mother's accident case then represent her child's injury claim from the same accident, when the mother may be a potential defendant?
The opinion concludes it depends. The mother as next friend is not a current client, so Rule 1.7 does not apply, but she is a former client in a substantially related matter, so Rule 1.9 bars the chil…
Can a law firm represent a client before a local governing body when one of the firm's lawyers sits on that body, even if the lawyer discloses the tie and abstains from voting?
The opinion concludes no. A firm may not represent a client before a governing body on which one of its lawyers serves, and the board-member's recusal does not cure the conflict, because withdrawing f…
Can a legal aid office give blank legal forms to pro se litigants it does not represent, without violating the rules on candor to a tribunal?
The opinion concludes yes. Handing out blank legal forms, with no help completing them and no advice, is not the practice of law and is not undisclosed ghost-writing, so it does not violate Rule 3.4(d…
When legal aid lawyers move to a different legal aid office, may the old office share confidential client information so the lawyers can run conflicts checks?
The opinion concludes yes. Confidential information from intake and representation is imputed to the lawyers who moved, regardless of whether they remember it or formed an attorney-client relationship…
Can an estate-planning lawyer who is also a licensed insurance agent earn a share of the commission on a policy he recommends to fund the client's insurance trust?
The opinion concludes yes, if the lawyer follows Rules 1.7 and 1.8. Taking a commission on the policy is not per se improper, but the lawyer's insurance-agent interest creates a Rule 1.7(b) conflict t…
Can a collections lawyer tell the opposing side that he will advise his client to pursue criminal charges, and that repayment will not stop them, without making an improper threat?
The opinion concludes the letter here does not by itself violate Rule 3.4(h). A lawyer may advise his own client about possible criminal prosecution (Comment 5), and because this letter said the prose…
Is it an improper threat for a lawyer to warn opposing counsel that continued ex parte contact with his client could lead to criminal charges?
The opinion concludes the letter does not by itself violate Rule 3.4(h). Under the committee's two-part test it is a threat, but on its face its purpose was to stop the opposing party's direct contact…
Can a nonprofit lawyer referral service run by a local bar association charge participating attorneys a percentage of the fees they collect, instead of a flat fee?
Yes. The opinion concludes a nonprofit bar-run referral service may charge a percentage fee, treating it as the usual and reasonable fee of a referral service under Rule 7.3(d) rather than impermissib…
Can a plaintiff's lawyer contact represented defendants, by mail or at a deposition, to advise them of their right to separate counsel when their insurer-retained lawyer may have a conflict?
No. The opinion concludes Rule 4.2 bars a plaintiff's lawyer from communicating with represented defendants without their lawyer's consent, even to warn them of a possible conflict, and even in their …
Can a lawyer interview a former employee of an opposing corporation ex parte, and can the lawyer ask about that employee's privileged communications with the company's counsel?
Yes as to the contact, no as to privileged communications. The opinion concludes Rule 4.2 (with Comment 4) lets a lawyer contact an unrepresented former employee of an opposing corporation, but Rule 4…
What does Virginia's compendium advertising opinion say about actors, 'no recovery, no fee,' case results, trade names, referral services, and calling yourself a 'specialist' or 'expert'?
This is Virginia's consolidated guidance on lawyer advertising under Rule 7.1. It treats as misleading: undisclosed actors posing as lawyers, 'no recovery, no fee' when the client may owe costs, unqua…
Can a staff lawyer or volunteer lawyer turn over court-awarded attorney's fees to the nonprofit public-interest organization that sponsored the case?
Yes. The opinion concludes that turning over court-awarded fees to a nonprofit public-interest organization that sponsored the litigation does not violate Rule 5.4(a)'s bar on sharing legal fees with …
When a client has assigned settlement proceeds to a medical provider or given it a lien, can the lawyer follow the client's later instruction to pay the money to the client instead?
No. The opinion concludes that under Rule 1.15(c)(4) a lawyer who knows the client has made a valid assignment or granted a consensual lien on settlement proceeds may not disburse those funds to the c…
Can a Virginia law firm form a partnership with a foreign legal consultant who is treated as a nonlawyer and is not admitted to practice in any U.S. state?
No. The opinion concluded it would be improper under Rule 5.4 for a Virginia attorney to form a partnership or professional limited liability company with a foreign legal consultant who is a nonlawyer…
Can a prosecutor warn the Commonwealth's witnesses about deceptive tactics used by defense investigators without violating the duty not to discourage cooperation with the defense?
Partly. The opinion concludes a prosecutor may tell prosecution witnesses that defense investigators may contact them, identify those investigators by name, and tell witnesses they are free to speak o…
Can a Virginia lawyer pay a referring lawyer a share of the fee when the referring lawyer takes no responsibility for the case and does no further work?
Yes. The opinion concludes that, unlike the former Code, Rule 1.5(e) no longer requires the referring lawyer to assume responsibility to the client in order to share a fee, so a division is permissibl…
Can a Virginia lawyer participate in, or direct an investigator to make, a lawful one-party-consent recording of someone who does not know they are being recorded?
Sometimes. The opinion overrules Virginia's prior categorical ban and concludes Rule 8.4 does not bar a lawyer engaged in a criminal or housing-discrimination investigation from making otherwise lawfu…
If a competent capital-murder defendant wants the death penalty and tells his lawyer not to present mitigating evidence at sentencing, must the lawyer follow that instruction?
The opinion concluded that, where the lawyer reasonably believes the defendant is competent and has made a rational, stable choice, the lawyer was ethically bound to respect the client's decision not …
Can a lawyer threaten a nonparty witness with a defamation suit over the witness's statement, when the threat may be meant to keep the witness from testifying?
It depends on the lawyer's motive and the merits. The opinion concluded that if the threatened legal action has no basis in law or fact and is made merely to harass or intimidate the witness or keep t…
Can a law firm use a lawyer as an independent contractor or 'of counsel', bill the client more than it pays that lawyer, and when must the arrangement be disclosed?
The opinion concluded a firm may engage a lawyer as a contract attorney or 'of counsel', subject to the same confidentiality and conflict rules as an associate. The firm could bill the client either b…
Is a contract requiring a departing lawyer to pay his old firm a percentage of contingency fees on cases he takes with him proper, and must the new firm honor it?
The opinion concluded the fee-splitting agreement was improper. It violated the former rule on dividing fees between lawyers in different firms (no client consent, and the old firm would assume no res…
Can a lawyer who served as co-administrator of an estate later represent a party in litigation against that estate over the same assets?
Partly. The opinion concluded that under the former-client conflict rule the lawyer, who had been his own client as co-administrator of the estate, could not, without the successor administrator's con…
Can a law firm represent a client before a local governing body when one of the firm's lawyers is a member of that body, if the lawyer-member discloses the tie and abstains?
No. The opinion concluded it is not ethically permissible for a law firm to represent a client in a matter before a governing body on which one of the firm's lawyers serves, even if that lawyer-member…
Can a law firm hire a lawyer through a nonlawyer staffing agency, and how do conflicts, confidentiality, fee-sharing, disclosure, and billing apply?
Yes. The opinion concluded a firm may retain a temporary lawyer through a nonlawyer staffing agency, treating the temp like a lawyer moving between firms: conflicts and imputed disqualification turn o…
Can a discrimination plaintiff's lawyers, as part of the settlement, agree to be hired by the defendant employer to advise it on its employment practices, with the plaintiff waiving the conflict?
On these facts, yes. The opinion concluded the settlement did not violate the bar on agreements that broadly restrict a lawyer's right to practice, because the agreement contained no explicit restrict…
Can a Commonwealth's Attorney serve on the advisory board of a local Alcohol Safety Action Program, and can that program be administered out of the prosecutor's own office?
Split. The opinion concluded it is not improper for a Commonwealth's Attorney to serve on the ASAP advisory board, consistent with prior opinions allowing prosecutors to sit on community boards that d…
Must a plaintiff's lawyer who testified at a pretrial venue hearing withdraw from the trial, and can a stand-in lawyer be used to avoid the disqualification?
Yes, and no. The opinion concluded that under the witness-advocate rule a lawyer who testified for his client on the contested venue issue could not continue to conduct the trial, and that the rule ap…
Can a lawyer who served on a county planning commission and as campaign treasurer for a supervisor represent clients in zoning cases before those bodies?
Generally yes, with limits. The opinion concluded the lawyer's former service on the planning commission does not bar representing clients before it or the board of supervisors in matters where he had…
Can a lawyer contact, ex parte, a former officer or control-group employee of an adverse corporation to ask what the person remembers?
Yes. The opinion concluded that once a control-group employee separates from the corporate employer, the bar on ex parte contact ends, because the former employee no longer speaks for or binds the cor…
Can a lawyer place closed client files in a university archive and let researchers have limited access to them?
Only with client consent or after confirming the files hold no confidences or secrets. The opinion concluded that the duty of confidentiality survives the matter and even the client's death, so a lawy…
Can a divorce lawyer take an assignment of the proceeds from the sale of the client's marital home to secure payment of the fee?
Not until a final decree resolves all issues over the property. The opinion concluded that taking an interest in marital property still subject to the divorce gives the lawyer an improper proprietary …
Must a lawyer report another lawyer's misconduct right away even though a related civil case is still pending, or wait until the civil case ends to avoid looking like leverage?
Report without unnecessary delay. The opinion concluded that once both prongs of the reporting rule are met, the lawyer must report promptly and need not wait for the pending malpractice claim to conc…
When a lawyer asks another lawyer for advice through a bar consultation network, what confidentiality and conflict duties arise between the two lawyers?
The consulting lawyer must get client consent before revealing confidences or secrets, the consulted lawyer must keep the consultation confidential even though no attorney-client relationship forms, a…
Is a lawyer's secret, non-consensual tape recording of a phone call improper even if legal, and must opposing counsel report it while a civil suit is pending?
The opinion concluded that a lawyer's surreptitious, non-consensual recording was improper under the dishonesty rule even if lawful, including when the lawyer acted as a corporate officer rather than …
Browse Virginia State Bar opinions by topic
Legal ethics opinions from the Virginia State Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.