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 who ghostwrites or reviews pleadings for a pro se litigant disclose that assistance to the court?
No. Absent a court rule or law requiring it, the Virginia Rules do not obligate a lawyer to tell the court that a pro se litigant received behind-the-scenes assistance; nondisclosure is not dishonest …
Does a Virginia prosecutor's ethical duty to disclose exculpatory evidence go beyond Brady, and must a prosecutor reveal that a key witness has died during plea talks?
Yes to the first: Rule 3.8(d)'s 'timely disclosure' duty is broader than Brady and requires disclosure as soon as practicable, not just in time for trial. On the second, a prosecutor may not make a fa…
Can a prosecutor condition a plea offer on defense counsel keeping a witness's identity secret from the defendant, and can defense counsel withhold that information to get a better plea?
No on both. A prosecutor who has disclosed a witness to defense counsel cannot then require counsel to withhold that relevant information from the client, and defense counsel cannot keep salient facts…
In a debt-collection case, can the plaintiff's lawyer be sworn in and testify, or submit a personal affidavit, to prove the debt and get a judgment for the client?
By submitting an affidavit as the only proof of the debt, the lawyer becomes a necessary witness; where the court does not treat the matter as uncontested simply because the defendant fails to appear,…
If a settlement lawyer learns the deed was fraudulently assembled to skip recording and taxes, can the lawyer close the deal, and must the lawyer report the other lawyer?
No to closing. The lawyer cannot knowingly assist a client's fraud under Rule 1.2(c) and must not complete a closing on a deed he knows misrepresents the chain of title; the fraud raises a substantial…
In Virginia, can a criminal defense lawyer choose a bench trial, waiving the client's right to a jury, without the client's authorization, and is failing to tell the court the client never consented a misrepresentation?
No on both points. The opinion concludes waiving a jury trial is a decision reserved to the client under Rule 1.2(a), so the lawyer's unilateral election violated that rule; and electing a bench trial…
When does a Virginia prison attorney who helps inmates with filings form an attorney-client relationship, and must he disclose his help to the court?
The opinion concludes a prison attorney who merely types an inmate's own words is not in an attorney-client relationship and need not disclose his role, but once he provides legal advice or actually d…
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…
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 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…
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 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…
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…
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…
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…
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…
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…
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 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 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…
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.