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 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 take a child support arrearage case on contingency when the child is young and the custodial parent is not indigent?
The committee concluded it is improper to take a child support arrearage collection on a contingent fee where the child is nine, has recently visited the noncustodial parent, and the custodial parent …
Can a settlement attorney disburse loan funds from trust based on deposited financial instruments under the Wet Settlement Act?
The committee concluded it is not improper to disburse from a trust account under the Virginia Wet Settlement Act when the disbursements rest on deposits of the financial instruments, or instruments i…
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 threaten criminal charges to gain leverage in a civil debt collection?
The committee concluded it is unethical for a lawyer to threaten criminal charges solely to gain an advantage in a civil matter, including alluding to possible prosecution in a debt-collection letter …
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…
When can a Virginia lawyer collect child support arrearages on a contingent fee?
The committee set out a four-part test: a contingent fee to collect child support arrearages is unethical unless the children are at or near maturity, the fee will not undermine the noncustodial paren…
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 plaintiff's lawyer agree, as a condition of settling a case, not to take or bring similar claims against the same defendant in the future?
The committee concluded that a plaintiff's attorney may not enter a settlement agreement conditioned on the attorney's promise not to accept cases or prosecute similar claims against the same defendan…
Can a lawyer solicit an accident victim by letter, telephone, or in person to be hired for the case?
Under the former Code, the committee concluded a lawyer could seek to represent an accident victim in writing and could solicit the employment by telephone or in person, provided the lawyer complied w…
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…
Must a lawyer wait for settlement funds to clear the bank before disbursing them to a client, and can the firm advance the client's share from its general account?
The committee concluded that a lawyer must deposit settlement proceeds to the trust account and wait until the bank credits the funds before disbursing to a client, may not disburse cash back at depos…
Can a lawyer take a contingent fee to collect overdue child support when the client cannot afford a retainer?
On the facts presented, the committee concluded a contingent fee to collect a $50,000 child support arrearage was not improper where the client could not pay even a modest retainer, no other fee arran…
Can a lawyer take a contingent fee to pursue a divorced spouse's claim to the other spouse's military retirement pay?
The committee concluded that, absent special circumstances, it is improper for an attorney to represent a divorced spouse's claim against her husband's military retirement pay on a contingent fee basi…
Can a lawyer pay a fact witness for the time the witness spends preparing for and giving testimony?
The committee concluded a lawyer could compensate a witness for the reasonable value of time spent preparing for and giving testimony, where the client stays ultimately responsible, the payment is not…
Can a lawyer guarantee a physician's charges for litigation-related work if the client stays responsible for the bill?
The committee concluded a lawyer could guarantee a physician's charges for litigation-related activity so long as the lawyer's client remains ultimately liable for the expenses. The Virginia State Bar…
May an attorney charge a contingent fee in a family law or divorce case, including a fee based on an equitable-distribution monetary award?
The committee concluded that, except in extremely rare situations, a contingent fee in family law and domestic relations cases is ethically improper, and that the possibility of a monetary award under…
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…
Must a lawyer who thinks a client is mentally disabled seek a guardian, and must the lawyer tell the client about a confidential affidavit?
The committee concluded that a lawyer who believes her client is mentally disabled is not obligated to petition for a committee or personal representative, though she may if she deems it in the client…
Can a lawyer assert res judicata based on a decree that, by the lawyer's own inadvertent error, released more of the claim than the court actually ruled on?
The committee concluded that, where no intentional misrepresentation was made to the court, a lawyer may assert the affirmative defense of res judicata arising from a decree the lawyer mistakenly draf…
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 …
Can a lawyer contact employees of an adverse corporation in litigation, and which employees are off limits?
The committee concluded a lawyer may communicate with employees of a corporation adverse to the lawyer's client if the lawyer first discloses the adversarial role and the employee is not one who could…
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 lawyer send a letter to an accident victim soliciting personal injury work, and what must the mailing say?
The committee concluded that a lawyer may write directly to an automobile accident victim to solicit personal injury employment, so long as the letter contains no false, fraudulent, misleading, or dec…
Can a law firm advance litigation costs that the client, including an indigent class, will never have to repay?
The committee concluded that it is improper for a private law firm to advance litigation costs and expenses where the client will not be ultimately liable for them, even in a class action with no read…
Is it ethical to run a program that refers less experienced lawyers to experienced lawyers for guidance on their clients' matters?
The committee concluded that a lawyer-to-lawyer program, in which less experienced attorneys are referred to attorneys experienced in particular areas to assure adequate legal service to the less expe…
Can a lawyer hold on to a client's documents as security for unpaid fees?
The committee concluded that an attorney may retain a client's warrants pending payment of fees for past services, but only if the retention does not prejudice the client and the client is not otherwi…
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…
What can a lawyer do when a client is mentally impaired and cannot make decisions, and should the lawyer seek a guardian?
The committee recognized that representing a mentally impaired client places an additional burden on the lawyer, who may be compelled to make decisions for the client, and the opinion states it would …
Can a lawyer interview employees of a represented adverse corporation who are senior enough to bind the company?
The committee concluded it is improper for an attorney to communicate with witnesses for an adverse, represented corporation who are employees senior enough to commit the corporation as its alter ego,…
Can a lawyer state on the letterhead that he is certified as a Civil Trial Advocate by the National Board of Trial Advocacy?
The committee concluded that it is not improper for an attorney to designate on his letterhead that he has been certified as a Civil Trial Advocate by the National Board of Trial Advocacy. It was deci…
When an associate leaves a law firm, may the associate keep representing the firm's clients, and who is entitled to the client files?
The committee concluded it is not improper for a former associate to represent clients of the former firm if they agree, and both the associate and the firm may access the relevant files. Who keeps th…
May an attorney charge a contingent fee based on a percentage of a lump-sum property settlement awarded in a domestic relations case?
The committee concluded it is ethically improper to base a legal fee on a percentage of the court-awarded lump-sum property settlement. Decided under Virginia's former Code of Professional Responsibil…
May a lawyer charge interest or a finance charge on a client's overdue fee account?
The committee concluded it is improper to automatically impose interest or finance charges on delinquent fee accounts, but an interest charge is permissible in an individual case where the client has …
May a lawyer accept credit cards for the payment of legal fees and expenses, and on what conditions?
The committee concluded that, reversing the prior prohibition, lawyers may accept credit cards for legal fees and expenses if the Code is fully observed: advance fees paid by card stay in trust until …
May an attorney represent an indigent wife on a contingent fee to collect long-overdue alimony arrearages already fixed by a court order?
The committee concluded it would not be improper to represent the wife on a contingency basis to recover alimony arrearages, where the alimony had been fixed by a prior court order, the arrearages had…
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…
When may a real estate settlement attorney disburse from the trust account against the buyer's and lender's checks deposited at closing?
The committee concluded a settlement attorney may disburse against funds received in the forms prescribed by Virginia's Wet Settlement Act, but disbursing against a check not in those forms before it …
May a domestic relations attorney keep deposition copies whose costs the attorney advanced until the discharged client pays, and when is advancing those costs proper?
The committee concluded an attorney may retain deposition copies for which costs were advanced, pending payment after discharge, if retention does not prejudice the client and the client is not otherw…
May an attorney handle a suit to recover child support arrearages or to determine future support rights on a contingent fee basis?
The committee concluded it would be ethically improper to accept a suit to recover child support arrearages or to determine future support rights on a contingent fee basis. Decided under Virginia's fo…
Must a court-appointed attorney who has been discharged return the client's file to the client on request?
The committee concluded a court-appointed attorney has an ethical duty to return the client's file on request, even after the attorney has been discharged. Decided under Virginia's former Code.
May a lawyer communicate directly with employees of an adverse corporation in litigation without going through the corporation's counsel?
The committee concluded a lawyer may communicate with employees of an adverse corporation so long as the employee is not in a position to commit the corporation to a course of action, that is, is not …
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…
What should a lawyer do with a soon-to-expire redeemable airline ticket belonging to a client who has been involuntarily committed to a mental institution?
The committee concluded the attorney should redeem the expiring ticket, deposit the proceeds in a trust account, and promptly advise the court of the funds. Decided under Virginia's former Code.
When a firm's associate leaves to start a practice and keeps a former firm client, may the firm withhold that client's files to collect an unpaid fee?
The committee concluded it is improper for the firm to withhold the client's files in an attempt to collect a past fee. Decided under Virginia's former Code.
When one attorney buys another's law practice, may the buyer purchase the client files and pending cases as accounts receivable and keep the seller's name on the letterhead?
The committee concluded the selling attorney should notify all current clients of the practice's termination and let them choose new counsel, and that it is improper for the buyer to purchase client f…
If an attorney who has paid out-of-pocket litigation costs is asked to withdraw before trial in favor of new counsel without reimbursement, what must the attorney do, and when may costs be advanced?
The committee concluded the attorney must seek leave of court to withdraw and pursue collection of the fee through the courts, and that advancing costs is permissible only if the client specifically a…
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…
May a patent attorney who has withdrawn or been discharged keep the client's file until fees are paid, where releasing it would force an out-of-state collection suit?
The committee concluded it is not improper to retain the client's case file pending payment if the retention does not prejudice the client and releasing the file would require the attorney to pursue a…
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…
Must a lawyer report another attorney's misconduct to the bar when the lawyer learned of it from a client in confidence and the client refuses to consent to disclosure?
The committee concluded it is improper to report another attorney's unethical conduct to the bar when the information was obtained from a client in confidence and the client refuses to consent to the …
If a lawyer defending another attorney in a bar disciplinary proceeding learns the client misrepresented material facts to the committee, must the lawyer disclose it, and may the lawyer withdraw?
The committee concluded it is improper for the lawyer to fail to disclose the client's misrepresentation of material facts to the committee, and it is not improper to withdraw from the representation …
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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.