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 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…
Does a lawyer's duty to protect a client's confidences end when the client dies?
The committee concluded that the duty to protect a client's secrets and confidences survives the client's death, so a lawyer may not reveal a deceased client's confidences unless he reasonably believe…
Can a lawyer advertise contingent-fee representation for collecting child or spousal support arrearages?
The committee concluded the brochure's open-ended contingent-fee language may be misleading, because contingent fees in domestic-relations matters are only rarely proper; the advertisement would not b…
Can a lawyer who is joining the bench sell a collection practice, including its forms and systems, to another lawyer?
The committee concluded that selling a law practice as a going business or selling work in progress is improper, but selling the physical assets (forms, manuals, automated systems) is permissible only…
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…
Must a local government attorney reveal or report a false closed-meeting certification under the Freedom of Information Act?
The committee concluded that, absent a statute requiring disclosure, the government attorney's revelation of a client's fraud under DR 4-101(C)(3) is permissive and must be tempered by the heightened …
Can a lawyer require the client to pay copying costs for the file's work product before releasing the file?
Where no fees are owed and no lien arises, the committee concluded the client owns the entire file, including work product purchased by paying fees, so the lawyer must surrender it and may not conditi…
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 hold a client's file or work product until the legal fee is paid?
The committee concluded that whether 'applicable law' lets an attorney retain a client's papers or work product is a legal question outside its purview, but that even where the law permits retention, …
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…
Can a lawyer take a contingent fee to collect child-support arrearages from a deceased parent's estate?
The committee concluded that because the noncustodial parent was deceased, two of the four conditions for a contingent fee in a support case (the child's age and not undermining the parent-child relat…
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 Virginia lawyer split a fee with an out-of-state attorney who refers a criminal case and acts only as an interpreter?
The committee concluded the proposed fee split was not improper so long as the client consented to the additional employment and the division terms and both attorneys assumed responsibility after full…
Must a lawyer who will be a necessary witness withdraw from the case, and does the substantial-hardship exception save the representation when the testimony concerns a pre-trial issue?
The committee concluded the Code draws no distinction between pre-trial and trial testimony, and that on the limited facts it could not find the substantial hardship needed to excuse withdrawal, so th…
If a lawyer learns in discovery that opposing counsel advanced money to a client against a settlement, must the lawyer report it, and does a protective order excuse the duty?
The committee concluded that advancing money to a client (not for litigation expenses) violated DR 5-103(B), the unprivileged knowledge of it raised a substantial question of fitness so it had to be r…
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 …
If a co-counsel learns the trial lawyer told the client to lie on the stand, must he report it to the court and to the lawyer's other bar?
The committee concluded that if the client committed perjury, the trial lawyer was bound by the fraud-on-a-tribunal disclosure rule, and that the co-counsel who learned of the misconduct had a duty un…
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 closing attorney disburse builder's proceeds and a construction-loan payoff before the lender's deed of trust is recorded, if the lender consents?
The committee concluded it would be improper to disburse the builder's proceeds and construction-loan payoff before recordation of the lender's deed of trust, because Virginia Code 6.1-2.13 barred a s…
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…
Is a contingent fee proper in an adult's civil suit against a parent for childhood abuse, and does the agreement need to meet the contingent-fee disclosure rule?
The committee concluded the abuse suit did not fall under its reluctance to approve contingent fees in domestic-relations cases, and that the described agreement complied with DR 2-105(C), advising th…
Can a lawyer take a contingent fee to recover a valuable marital asset that both spouses forgot about and left out of an already-final divorce settlement?
The committee concluded a contingent fee would not be improper here, because the parties were already divorced with no children so no human relationship would be adversely affected and the client coul…
In a personal-injury case, can a lawyer advance the cost of a client's medical records, and must the lawyer pay a doctor who is withholding records over a fee?
The committee concluded that under DR 5-103(B) the lawyer may advance the cost of obtaining the records as a litigation expense, provided the client remains ultimately liable; whether the lawyer is ob…
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…
Can a lawyer join a trade-and-barter association that takes a 10 percent cut of every trade, lists the lawyer as a member, and refers business to the lawyer?
The committee concluded that the association's 10 percent clearinghouse charge would be improper fee sharing with a nonlawyer under DR 3-102, that listing the lawyer was permissible only if not false …
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…
Must a Virginia lawyer report another lawyer's crime when there is no showing that the crime affected that lawyer's ability to practice law?
The committee concluded that knowing of a crime that does not raise a substantial question about the other lawyer's fitness to practice does not trigger the duty to report under DR 1-103(A); moral cul…
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 court-appointed or pro bono counsel in a death-penalty case advance the cost of an expert witness when the indigent client has no realistic way to repay it?
The committee concluded that it was not improper for a lawyer to advance litigation costs for an indigent client in a death-penalty case where there was no reasonable expectation of repayment, disting…
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…
What can a former in-house lawyer do after learning the company issued a prospectus with false financial information, given the duty of confidentiality to that former client?
The committee concluded that DR 4-101(C)(3) permitted the lawyer to reveal the former client's fraud on third parties related to the representation, and that DR 4-101(D)(1) required the lawyer to advi…
Must a prosecutor report lawyers who admitted, sometimes under immunity, to using or possessing cocaine, when that admission says nothing else about their practice?
The committee concluded that a lawyer's admission to using or possessing cocaine while licensed violated DR 1-102(A)(3) and raised a substantial question as to fitness, so under the facts presented th…
Can a lawyer's partner represent the firm in a fee-collection suit when the lawyer will testify about the fee arrangement and the value of the services?
The committee concluded it was not improper for one of the lawyer's partners to represent the firm in the fee-collection litigation while the lawyer testified about the fee arrangement, the services r…
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…
When a lawyer is winding down a practice, what can and cannot be sold, and how must clients be handled when files move to another lawyer?
The committee concluded that a lawyer could sell a firm's physical assets or leasehold but not its name or good will, and that clients had to be notified and allowed to direct the disposition of their…
If a personal-injury client dies after the insurer makes a settlement offer within the authorized range, must the lawyer tell the insurer about the death before accepting?
The committee concluded it was not improper for the lawyer to settle without volunteering the client's death, absent a direct inquiry from the insurer about the client's health, but said that to avoid…
Can an attorney pay for a follow-up letter from a client's physician if the client stays responsible for the cost?
The committee concluded it was not improper for an attorney to pay for a physician's follow-up letter on a client's behalf so long as the client remained ultimately responsible for the cost, and it de…
Can two unrelated law firms list each other as "of counsel" on their letterheads and pay a 10 percent origination fee on referred work without telling the client?
The committee concluded that it was improper for each firm to list the other as "of counsel" on its letterhead and improper to permit a 10 percent origination fee, and it retracted an earlier opinion …
Can court-appointed counsel withdraw when an involuntarily committed client insists on appealing a decision the lawyer thinks lacks merit?
The committee concluded it was not improper for the attorney to move for leave to withdraw under DR 2-108(C) if existing law supports the circuit court's decision and the attorney has properly advised…
Can an attorney deposit a cashier's check into the trust account after the bank has closed and immediately write a trust-account check against it?
The committee concluded it is not proper for an attorney to deposit a cashier's check payable to the firm's trust account after the bank has officially closed and then immediately write a check on the…
Can an attorney pay a court reporter's costs if the client remains ultimately responsible for them?
The committee concluded it was not improper for an attorney to pay a court reporter's costs so long as the client is ultimately responsible, and it said whether the attorney has a duty to pay was a le…
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…
Under Virginia's Wet Settlement Act, when may a settlement attorney disburse funds, and what happens when lender instructions conflict with the Act?
The committee concluded that an attorney may disburse funds after delivering the deed or deed of trust to the clerk's office with written proof of delivery, must follow a lender's lawful instructions …
Can a lawyer hold a former client's file, including original documents and work product, until the client secures payment of unpaid fees?
The committee concluded that it is not improper to retain a former client's file, made up in equal parts of original documents and work product, until the client arranges security for unpaid legal fee…
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 Virginia lawyer charge a contingent fee to collect overdue child support arrearages?
The committee concluded a contingent fee to recover child support arrearages is permissible only where the prior three-part LE Op. 667 test is met, and on these facts the arrangement was not improper.…
Can a prosecutor arrange for a third party to secretly tape a represented suspect without the suspect's lawyer's consent?
The committee concluded it is improper for a commonwealth's attorney to communicate with a represented, uncharged suspect through a taping intermediary, or to have police implement such a taping plan,…
Can a lawyer advise a divorce client to destroy phone bills the other side has not requested?
Under former EC 7-24, the committee found it not improper to advise a divorce client to destroy telephone bills she was under no obligation to produce. The committee note warns that current Rule 3.4(a…
Can a lawyer pay for a client's medical records after the client has moved to new counsel, if the client stays ultimately responsible?
The committee concluded it is not improper to pay the cost of medical records the lawyer requested for a client who has since retained other counsel, provided the client remains ultimately responsible…
Does a lawyer still have to report another lawyer's misconduct if someone else may already have reported it?
The committee concluded a lawyer's obligation to report a Disciplinary Rule violation persists even when the lawyer believes another party has already reported the misconduct. It was decided under Vir…
Can a group of law firms incorporate to share expertise and split referral fees, and pay a percentage of fees to the shared entity?
The committee found no ethical bar to a group of firms incorporating to share expertise and refer matters, with fees split between referring and working attorneys on client disclosure and consent, and…
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 a lawyer directly contact the employees of an adverse corporation to investigate the case?
The committee concluded it is improper to directly contact an adverse corporation's employees who are part of its 'control group,' meaning those who can commit the corporation to specific causes of ac…
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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.