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 a state legislator who is an associate at a law firm vote on legislation the firm is drafting for a client whose business is affected by the bill?
Yes. The opinion concluded that mere representation of a client affected by legislation creates no per se impropriety, so the legislator may vote, provided neither the firm nor the legislator leads th…
Does a lawyer commit misconduct by submitting the same medical bills in two accident claims and presenting evidence the lawyer knows is false?
Yes. The opinion concluded that a lawyer who knew before trial that the medical bills related only to the first accident, yet presented them as relating to the second and let the client deny the first…
When a client follows a departing associate, can the old firm refuse to itemize its services on the contingent-fee lien, and must the new lawyer report that?
The opinion concluded that the old firm may not refuse to itemize its services, because the fee rules require a lawyer to explain the fee and furnish a contingent-fee closing statement; if the refusal…
Can a lawyer staff a distant branch office mostly with nonlawyers the lawyer rarely visits, and can a Virginia lawyer front a satellite office for an out-of-state lawyer?
The opinion concluded that supervision of nonlawyer staff must be significant, rigorous, and efficient enough to keep the lawyer's direct client relationship and full responsibility for the work; an o…
Can a prosecutor make public statements about someone under investigation when no charges have been filed and a jury trial is only possible?
The opinion concluded that whether a prosecutor's extrajudicial statements created a clear and present danger of interfering with a fair jury trial is a fact question beyond the committee, but if a fa…
Can a lawyer take stock in a client's company as payment for legal fees?
Yes, not per se improper. The opinion concluded that a lawyer may accept stock in a corporation (and its predecessor partnership) as compensation, so long as the lawyer believes independent profession…
Can a corporation's lawyer tell a former employee that he represents her individually and instruct her not to talk to opposing counsel?
Not without her agreement. The opinion concluded that a corporation's attorney does not represent former employees individually unless they engage him, so he may not claim to represent a former employ…
Can a D.C. law firm that has a nonlawyer partner practice law in Virginia through a licensed Virginia lawyer?
No. The opinion concluded that, although a lawyer licensed in both D.C. and Virginia may practice through a nonlawyer-partner firm in D.C. without Virginia discipline, that firm may not practice law i…
Can a part-time prosecutor in private civil practice send a letter threatening law-enforcement action to gain an advantage for a private client?
No. The opinion concluded that a letter warning the recipient that the lawyer would otherwise seek assistance through law enforcement and legal avenues was a threat, and because the lawyer had told th…
Can a lawyer pay a nonlawyer referral business a percentage of the recovery for sending clients, or a set fee instead?
No to both, on these facts. The opinion concluded that paying a nonlawyer a percentage of the recovery for referrals is improper fee-splitting with a nonlawyer and compensates a nondelegable solicitat…
Do fee-arbitration committee members have to report a lawyer's misconduct they learn about, and does the lawyer's joining arbitration affect that?
The opinion concluded that fee-arbitration committee members who conclude, to a substantial degree of certainty, that a lawyer's conduct violated the rules and raised a substantial question about fitn…
If a government lawyer seems to stonewall a public-records request, has that lawyer committed misconduct, and must a lawyer-requester who only suspects it report it?
On these facts, no. The opinion concluded that the government attorneys did not conceal records or knowingly make a false statement, because an unwritten 'policy' can still exist as custom or practice…
Can a settlement attorney for a borrower hand original closing documents or the promissory note to the lender before the borrower's three-day right to rescind has run?
The committee declined to answer. The opinion concluded that the question turns on interpreting the federal Truth-in-Lending Act and Virginia's Wet Settlement Act, a legal issue beyond the committee's…
In a custody dispute, can a parent's lawyer meet with the minor children without the guardian ad litem's permission?
The opinion concluded that a minor child is not a 'party' to the parents' divorce, so the no-contact-with-a-represented-party rule did not apply, and a parent's counsel could meet with the children wi…
Did a prosecutor's pretrial statements to newspapers about a murder defendant violate the rule against extrajudicial statements that endanger a fair trial?
The committee declined to decide whether the statements actually created a clear and present danger to a fair trial, calling that a fact-bound legal question beyond its purview; it noted only that if …
Must a lawyer tell a client she can file a bar complaint against opposing counsel, and must the lawyer report opposing counsel's misconduct, before the case is over?
The opinion concluded that the lawyer had to tell the client she could complain to the bar and could not wait until the litigation ended to do so; and that the lawyer had to report opposing counsel's …
Can a lawyer draft a will for a godmother that names the lawyer as an ultimate beneficiary, and may the lawyer then serve as executor and trustee?
The committee concluded that drafting the will was improper because a godparent is not a 'relative' under the rule barring a lawyer from preparing an instrument giving the lawyer a gift; but serving a…
Can a Commonwealth's Attorney sit in a quasi-judicial role reviewing a grievance panel decision when he earlier served on the same agency's board and is close to the people involved?
The committee concluded that the prosecutor should not serve in the quasi-judicial capacity, because the cumulative effect of his prior board service, close personal relationships, and earlier involve…
Must a successor lawyer report opposing counsel who lied about meeting a filing deadline, and does the reporting duty disqualify the successor as a witness in the malpractice case?
The committee concluded that the successor lawyer may have a duty under DR 1-103(A) to report a lawyer who falsely told the client, opposing counsel, and the court that a suit was timely filed, becaus…
When opposing counsel records a deed understating the purchase price to cut the grantor's tax, must the other lawyer report it to the bar and to the tribunal?
The committee concluded that a lawyer who knowingly let a deed be recorded understating the consideration made a false statement and that the other lawyer may have a duty under DR 1-103(A) to report i…
When a client dies before signing the will the lawyer drafted, must the lawyer turn the unexecuted will over to the estate, or can he withhold it as a confidence?
The committee concluded that, with no fees owed, the client owns the complete contents of the file, so the unexecuted will is estate property that must be returned to the deceased client's personal re…
Is it misconduct for a lawyer to set up a trust transfer so a client can dodge an assignment to a creditor, and must opposing counsel report it?
The committee concluded that a lawyer who advised transferring property into a trust to avoid honoring an assignment to a creditor counseled or assisted fraudulent conduct in violation of DR 7-102(A)(…
After a partner testified for the client at trial, can another partner from the same firm handle the client's appeal to the state supreme court?
The committee concluded that the appeal was not a separate representation from the trial, because appellate argument might require attacking the credibility of the partner's trial testimony, so the ad…
Can a lawyer refuse to hand over a client's file until the client signs a receipt, and mail it instead?
The committee concluded that a lawyer may not condition release of the file on a signed receipt; the rule contains no such requirement, and where the client appeared in person and a limitations deadli…
Must a lawyer report another lawyer's trust-account misconduct learned during a case when the client orders him not to disclose it?
The committee concluded that although trust-account misconduct is generally a per se reportable violation, the duty to report does not apply here because the information was the client's protected 'se…
Can a lawyer borrow money from a client while the client's contested litigation is pending?
The committee concluded that borrowing from a client during pending litigation is not per se improper, but only if the lawyer first complies with the business-transaction rule, full and adequate discl…
Can a referring lawyer take a share of the fee from the lawyer he sent the case to when he did none of the work?
The committee concluded that a pure referral fee was improper: the 'assumption of responsibility' that lets lawyers in different firms divide a fee required the referring lawyer to provide meaningful …
Can a criminal defense lawyer also represent the victim and the victim's mother, and tell them they need not cooperate with the prosecutor?
The committee concluded that simultaneously representing the defendant, the juvenile victim, and the victim's mother was per se improper under DR 5-105(A) and (B) and not curable under (C); advising t…
Can a former judicial law clerk, and his new firm, work on a related case after the clerk had substantial responsibility for it in chambers?
The committee concluded that the former law clerk had substantial responsibility in the matter and could not participate, professionally or financially, in a related new case even before a different j…
Can a lawyer settle a case using interrogatory answers he now knows are false, as long as he stays silent instead of repeating them?
The committee concluded that it would be improper for the lawyer to attempt settlement without first amending interrogatory answers he knows are false, and that staying silent would not save him, beca…
When separate lawyers handle a real estate closing, what form of funds must the purchaser's lawyer use to disburse to the seller's lawyer, and who pays for certified funds?
The committee concluded that the Wet Settlement Act's strict requirements on the form of immediately disbursable funds apply even when purchaser and seller have separate counsel, so disbursement to th…
When a partner moves to a firm on the other side of pending cases, can a screen let the new firm keep those cases, and can the partner keep a financial interest in his old firm's fees?
The committee concluded that a screen could not cure the side-switch conflict, because the former-client rule requires the former clients' consent; absent it, neither the lawyer nor his new firm could…
When a corporation's lawyer prepares a board member for deposition and the member reveals he caused the harm, must the lawyer warn him to get his own counsel and keep what he said confidential?
The committee concluded that the lawyer had to advise the former board president, an unrepresented person whose interests conflicted with the condominium, to seek independent counsel; could not contin…
If a firm that is outside counsel for a local government hires that government's own lawyer who worked the same case, is the firm disqualified?
The committee concluded that the former government attorney could not personally participate, professionally or financially, in the same matter in private practice, even though no adverse interests we…
Can a lawyer advise a client to secretly record a conversation with an unrepresented person to capture an admission?
The committee concluded that, while the legality of secret recording is a question of law beyond its purview, advising a client to start a conversation under possibly false pretenses and secretly reco…
In a residential loan closing, what must the lender's attorney tell an unrepresented borrower, and when can the same attorney represent both sides?
The committee concluded that if the attorney represents only the lender, that should be communicated to the borrower, but the rules do not require the lender's attorney to advise the borrower of the r…
If opposing counsel knowingly pleads a false date to dodge a statute of repose, has he violated the rules, and must the other lawyer report it?
The committee concluded that a lawyer who knew the true installation date but pleaded a false one made a knowing false statement of fact in violation of DR 7-102(A)(5) and possibly DR 1-102(A)(4). The…
Can a prosecutor pursue cross-warrants where the same person is both a Commonwealth witness and a defendant, and how may the prosecutor talk to that person?
The committee concluded that because no attorney-client relationship exists between the prosecutor and the parties, conflict rules do not apply, and a prosecutor who believes each cross-warrant is sup…
Must court-appointed counsel turn over the entire file, including personal notes and diaries, at no cost when the client later claims ineffective assistance?
The committee concluded that materials dictated or prepared for the client's specific case must be given to the client, while a diary kept as a general log across all the lawyer's clients need not be …
Can a firm represent a client suing one division of a bank while another lawyer at the firm represents a different division of the same bank, even with everyone's consent?
The committee concluded that simultaneously representing a borrower against one bank division while representing another division of the same bank was improper, because the two divisions are part of o…
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 Virginia lawyer note a board certification granted by another state's bar, like Florida's tax-law certification, on Virginia letterhead?
The committee concluded that noting a Florida Bar board certification in tax law on Virginia letterhead and business cards is not improper, provided the statement is not false or misleading, the certi…
Does a lawyer have to report another lawyer for filing an attorneys'-fee motion that the other side says a settlement waived, when the parties dispute what the settlement covered?
The committee declined to decide whether the fee motion was an unwarranted claim because the parties disputed what the settlement covered, and a committee cannot resolve a factual dispute. With no fac…
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…
Does a lawyer have to keep an open client trust account if his practice rarely holds client money?
The committee concluded that a lawyer whose practice does not generate client proceeds (such as personal injury or real estate settlement funds) and who takes no advance fees need not maintain an open…
When no fees are owed, is a former client entitled to the entire file, including the lawyer's notes, internal memoranda, and multiple drafts?
The committee concluded that, where no fees are outstanding, the client is entitled to the entire contents of the file (including attorney's notes, internal memoranda, and multiple drafts), the lawyer…
Can in-house counsel accept indemnification from a corporate employer under the company's articles or bylaws?
At the time, the committee concluded that the plain language of DR 6-102(A) did not ethically permit a corporate attorney-employee to accept such indemnification, and it suggested a rule change as the…
Can in-house counsel represent the employer at an administrative hearing where counsel will be the only witness, and can the hearing examiner overrule an objection?
The committee concluded that if in-house counsel's testimony is relevant to the central issue, it is improper to represent the employer in the administrative hearing while testifying, unless the testi…
Can a lawyer refuse to let a former client find out what is in the client's file?
The committee concluded that refusing to let a former client ascertain the contents of his file is presumptively prejudicial and violates DR 2-108(D); the lawyer must explain and furnish a list of the…
When a partner leaves a firm, what may the remaining partners do about that partner's clients, files, and a liability release?
The committee concluded that the remaining firm may not solicit a departing partner's clients in person to keep them, may not extract an assignment of settlement proceeds or require a release of liabi…
Can an assistant Commonwealth's Attorney prosecute a perjury case in which his own chief prosecutor must testify about the investigation?
The committee concluded that, because an indictment is a preliminary proceeding (not a conviction) and the defense may offer contrary evidence absent a guilty plea, it would be improper for the assist…
Can a Virginia lawyer charge a contingent fee to a divorced client in an appeal seeking to reclassify marital property?
The committee concluded that, because the parties were already divorced and no human relationships would be adversely affected, a contingent fee tied only to property reclassified above the trial cour…
What does 'applicable law' mean for an attorney's retaining lien on a client's file, and which file materials must be returned to the client?
The committee concluded 'applicable law' under DR 2-108(D) is the law of an attorney's lien for fees owed: a lawyer may assert a retaining lien on the file for unpaid undisputed fees unless withholdin…
When a client owes undisputed fees, can the lawyer condition giving the client a copy of the entire file on payment of those fees?
The committee concluded that where the fee is undisputed and the client can pay, a lawyer may assert a retaining lien on the file as security, but not where withholding would prejudice the client; eve…
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 a settlement attorney agree to a lender's request to waive certified funds and disburse on uncollected items at a real estate closing?
The committee concluded the attorney may honor the lender's waiver of certified funds only if he advises the lender that settlement proceeds must still be in one of the other forms the Wet Settlement …
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 lawyer who advanced litigation costs sue a solvent client to recover them, and must the lawyer pursue collection?
The committee concluded that because the client remains ultimately liable for advanced litigation costs under DR 5-103(B), the lawyer may take collection action against a solvent client, is not requir…
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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.