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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Can lawyers represent a client in a suit when they and others in their firm will be called as critical witnesses on the central issue?
The committee concluded that the lawyers should not have accepted employment to represent the client where they knew or should have known they ought to be called as witnesses on the central fraud issu…
Can a lawyer who is co-executor and co-trustee have his own firm represent the estate, and what happens if he must testify?
The committee concluded it is not per se improper for an attorney/fiduciary to engage his own firm to handle estate administration, but because he was also a co-fiduciary, the other co-fiduciaries had…
Can a former government lawyer who worked on an early version of an agency rule later represent a private party challenging the final rule?
On reconsideration of clarified facts, the committee concluded the lawyer's substantial responsibility ended when the agency adopted a later draft he had no part in, so representing a private party ch…
Can a lawyer lobby the legislature when a partner or of-counsel colleague at the firm is an elected legislator?
The committee concluded it is improper for a lawyer to lobby the General Assembly when a lawyer with whom he shares a professional relationship is an elected member of that body, and that this applies…
Can criminal-defense lawyers own a bail-bond business and refer their own clients to it?
The committee concluded the lawyers may own and refer clients to the bail-bond business only with full disclosure of their interest and the client's consent; they may not also represent the bail-bond …
Can a law firm defend criminal cases that a partner had substantial responsibility for while he was an assistant Commonwealth's attorney?
The committee concluded that reading police reports, summarizing them, preparing witness lists, and preparing cases for preliminary hearings amount to substantial responsibility under DR 9-101(B), so …
Can a firm defend a civil case when one of its partners prosecuted the same client in a criminal proceeding from the same incident?
The committee concluded the firm's representation creates an appearance of impropriety under DR 9-101(B) because a partner had prosecuted the client in the related juvenile proceeding, and that no con…
Can a corporation agree to hold its in-house lawyer harmless for malpractice committed in serving the corporation?
The committee concluded that a hold-harmless agreement limiting an in-house lawyer's liability for personal malpractice in serving the corporation is not proper under DR 6-102(A), even with the corpor…
Can a lawyer sign a contract agreeing to pay a client's medical provider and expert-witness fees out of the client's recovery?
The committee concluded a lawyer may advance or guarantee medical and reasonable expert-witness fees only if the client remains ultimately liable and never as a contingent fee to a witness; while cont…
Can a lawyer accept a forwarding (referral) fee on a case he had to forward to other counsel because of a conflict of interest?
The committee concluded it would be improper to accept a forwarding fee on a case forwarded because of a conflict, because the forwarding lawyer cannot expressly assume responsibility to the client as…
Can a law firm form and invest in a for-profit subsidiary that provides non-legal services to the firm's clients?
The committee concluded the general concept of a firm owning a non-legal services subsidiary did not violate the Canons, but flagged that the arrangement raised concerns under the rules on unauthorize…
When a lawyer withdraws from representing both an employer and its employees over a conflict, who is entitled to the file the lawyer created?
The committee concluded that which documents belong to the employer versus the employees is a legal question outside its province; the ethics rules only require the lawyer to return property to the pe…
Can a lawyer keep representing a client in a later, related suit when the lawyer may be called as a witness other than on the client's behalf?
The committee concluded that under DR 5-102(B), a lawyer who may be called as a witness other than on behalf of his client may continue the representation until it becomes apparent that his testimony …
Can a lawyer draft a client's will that names the lawyer as a devisee, even if only to pass the property on to a charity of the lawyer's choosing?
The committee concluded that DR 5-104(B) bars a lawyer from preparing an instrument giving the lawyer a testamentary gift unless the client is a relative, and that to comply the property should be pla…
Can a lawyer place title insurance for a client through an agency the lawyer's firm has a financial interest in, and what must the lawyer disclose?
The committee concluded there is no per se bar under DR 5-101(A) to a lawyer obtaining title insurance for a client through a firm-affiliated agency; the controlling factor is the adequacy of the lawy…
Can a Commonwealth's Attorney prosecute an embezzlement case where a former law-firm colleague was a shareholder and agent of the victim?
The committee concluded LE Op. 1046 was dispositive; under that opinion the prosecution would be proper if the prosecutor could rebut the presumption that he acquired confidential information from his…
In child-support enforcement cases, does an assistant attorney general represent the custodial parent or only the state, and what are the no-contact and disclosure duties?
The committee concluded that the Attorney General represents only the state (the Department of Social Services and its Division of Child Support Enforcement), not the custodial parent, so there was no…
When a lawyer goes into a partnership with a friend and drafts the agreement, must the lawyer advise the friend to get independent legal advice?
The committee concluded that whether DR 5-104(A) applied depended on whether an attorney-client relationship existed, which it would not assume on the limited facts; if one did exist, the lawyer shoul…
Is it a conflict of interest for one assistant attorney general to prosecute a case before a state regulatory board while a second assistant attorney general advises that same board?
The committee concluded there was no conflict because both assistant attorneys general represented the same client, the board, so DR 5-105(C) and (E) did not apply; it strongly suggested precautions t…
Can a part-time assistant Commonwealth's attorney handle personal-injury cases in a jurisdiction where the office also prosecutes crimes, if separate offices and phone lines screen the two roles?
The committee concluded that DR 5-105 and its imputation provision barred the part-time assistant Commonwealth's attorney, and others in the office, from civil matters related to a prosecution the off…
Can a lawyer's partner, who as an assistant Commonwealth's attorney prosecuted a man for rape, now help sue that man civilly on behalf of the victim?
The committee concluded it would be improper, because the partner had participated in the criminal prosecution of the same opposing party; a former assistant Commonwealth's attorney may take the victi…
When an assistant Commonwealth's attorney has agreed to join a defense firm, can the firm keep defending cases that the incoming prosecutor is still prosecuting in the meantime?
The committee concluded that DR 5-101(A) required the defense lawyer to disclose the incoming prosecutor's future employment to affected clients and obtain their consent, and suggested the relationshi…
Can a lawyer who sits on a state facility's human rights committee also represent patients of that facility in unrelated proceedings?
The committee concluded it was not improper, because the patient matters the lawyer was handling were not substantially related to the matters the lawyer would consider as a committee member, while ca…
Can a lawyer represent a law partner in a private contractual dispute that has nothing to do with the firm or its legal work?
The committee concluded it was not improper for a lawyer to represent a partner in a private contractual dispute with third persons, so long as neither the issues in the suit nor the real property inv…
Can an in-house lawyer get an indemnity agreement from the corporate employer covering legal malpractice?
The committee concluded that an attorney may not solicit indemnification from a corporate employer that limits liability for the attorney's own legal malpractice, but may solicit indemnification for m…
Can a lawyer who serves as a part-time state hearing officer also represent private clients in matters before that same agency?
The committee concluded a part-time hearing officer may represent clients before the agency in substantially unrelated matters but not in matters substantially related to those he hears, and may not a…
Can a legal aid lawyer represent clients against a party who is represented by the lawyer's own spouse?
The committee concluded it is improper for a legal aid attorney to represent the organization's clients in an action against a party represented by the attorney's spouse, though the spouse's firm may …
Can a lawyer represent a client in a matter where the lawyer stands to buy the disputed property on favorable terms?
The committee concluded a lawyer with a personal financial interest in the disputed property must either decline the representation or proceed only after disclosing that interest, particularly the fav…
Can a defense lawyer take criminal cases in a court where the lawyer's spouse serves as a prosecutor?
The committee concluded a defense attorney whose spouse prosecutes welfare fraud in the same courts may defend criminal cases generally, but may not defend the welfare fraud cases the spouse prosecute…
Can the settlement attorney for a failed real estate closing buy the property himself?
The committee concluded the settlement attorney for a transaction that fell through on the buyer's default may purchase the property himself, provided he complies with DR 5-104 on business dealings wi…
Can a lawyer represent a corporation in litigation when the lawyer's partner is an officer of that corporation who will testify?
The committee concluded that where two lawyers are principals of a professional corporation and one is the managing director, officer, and shareholder of a client corporation who will testify in a con…
Can a lawyer's firm represent a party in a civil case arising from a traffic matter the lawyer heard as a substitute judge?
The committee concluded a firm member other than the lawyer who heard the traffic case as a substitute judge may represent an insured defendant in the related civil suit. It was decided under Virginia…
Can the spouse and law partner of a part-time prosecutor handle a real estate matter that needs that prosecutor's official approval or advice?
The committee concluded that the spouse and law partner of a part-time commonwealth's, city, or county attorney may not take a real estate matter requiring plat approval if that prosecutor would have …
May lawyers who are related or in a close personal relationship represent opposing parties in the same matter?
The committee concluded that lawyers in the same nuclear family may not represent opposing interests, even with disclosure and consent, while lawyers in the same household or other close relationships…
Must a firm withdraw when one of its partners will have to testify as a material witness in the client's case?
The committee concluded a firm must not continue representing a client once it is apparent that one of its partners will be a material witness in an arbitration hearing on the same case, unless an exc…
Can a firm created by a merger represent the former firm in a malpractice case when a member of that former firm will have to testify?
The committee concluded that a firm formed by merging the defendant firm with another firm may not represent the former firm and its partners in a legal malpractice case where it appears a member of t…
Can a lawyer handle a case against a client whose opposing counsel is the lawyer's spouse, and can another lawyer in the same office take it instead?
The committee concluded a staff attorney may not represent a client in a child support matter when the opposing party is represented by the staff attorney's spouse, but another attorney in the same of…
Can a lawyer take an ownership stake in a client entity plus a contingent fee as payment for forming it and representing it before a government body?
The committee concluded a lawyer who forms a client entity and represents it before a local body seeking a cable franchise may take a proprietary interest and a separate contingent fee, provided the c…
Can a lawyer withdraw from a personal injury client's case after taking a job with the defendant corporation, and what notice is required?
The committee concluded a lawyer who accepts employment with the defendant corporation may withdraw from a personal injury client before suit is filed, provided the lawyer gives written registered-mai…
Can a lawyer become an assistant county attorney when the lawyer's spouse litigates significant cases against the county?
The committee concluded that a lawyer may accept employment as an assistant county attorney even though the lawyer's spouse, individually or through the spouse's firm, conducts significant litigation …
After a firm breaks up, can a former partner take a matter adverse to a client the other partner handled, when the matter is closely related?
The committee concluded that a former partner may not represent the decedent's family against a client whose related hit-and-run matter the other partner had handled, because partnership imputes the f…
Can a lawyer working with a divorce mediation service give legal help to both spouses, and can the service pay the lawyer?
The committee concluded that giving legal advice to both parties is usually improper because it cannot be done non-partisanly, but that providing only 'legal information,' with both parties understand…
Can a lawyer who serves as a divorce mediator later represent one of the parties in the uncontested divorce, and join a mediation center's approved list?
The committee concluded a lawyer-mediator could give 'legal information' (not advice) to both parties in simple uncontested divorces with consent, could represent one party in a later uncontested divo…
Can a prosecutor or assistant prosecutor testify in a case that another lawyer in the same Commonwealth's attorney's office is prosecuting?
The committee concluded that a Commonwealth's attorney's office is subject to the same restrictions as a private law firm, so it would be improper for a Commonwealth's attorney or an assistant to test…
May a part-time Commonwealth's Attorney in a small county also serve as counsel for the county's Public Service Authority and Industrial Development Authority?
The committee concluded it is not ethically improper for the Commonwealth's Attorney of a county under 15,000 inhabitants to also serve as counsel for the county's Public Service Authority and Industr…
May a defense attorney practice criminal law in a jurisdiction where the attorney's spouse is an Assistant Commonwealth's Attorney?
The committee concluded it is ethically permissible, with full disclosure and the client's consent under Canon 5, for an attorney to practice criminal law where the spouse is an Assistant Commonwealth…
May an attorney for an estate purchase an asset of that estate?
The committee concluded an attorney acting for an estate may purchase an estate asset if there is full and complete disclosure to all interested parties and all of them consent. Decided under Virginia…
May a law firm defend cases that arose while one of its lawyers was an Assistant Commonwealth's Attorney, if that lawyer had no involvement in them as a prosecutor?
The committee concluded it is not improper for the present firm of a former Assistant Commonwealth's Attorney to defend cases that arose during the lawyer's time in the prosecutor's office, so long as…
When a lawyer joins a new firm, may that firm keep representing clients adverse to clients of the lawyer's old firm?
The committee concluded it is not improper for the firm to continue the adverse representation, so long as the new partner did not personally represent the adverse clients at the former firm and all c…
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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.