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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How does Virginia classify retainers, advanced fees, fixed fees, and contingent fees, and when must a fee go in trust or be refunded?
A true retainer (paid to secure availability) is earned when paid and is the lawyer's property, so it stays out of trust; advanced legal fees and fixed fees belong to the client until earned and must …
What ethical duties does a Virginia lawyer have when outsourcing legal or support work to lawyers or nonlawyers outside the firm, including overseas providers?
A lawyer may outsource work to a lawyer or nonlawyer outside the firm if the lawyer supervises the work for competence and to avoid aiding unauthorized practice, protects client confidences, bills app…
Can a Virginia lawyer pass credit-card merchant fees on to the client, and how should those fees and chargebacks be handled with the trust account?
A lawyer may pass merchant fees on to a client who pays by credit card if the fee is disclosed and the client consents; the committee cautions against letting the bank debit the trust account and says…
From whom may a court-appointed guardian ad litem for a minor accept payment of her fee, and can the insurer that is settling the minor's claim also pay the guardian ad litem?
The opinion concludes a guardian ad litem may accept fee payment from a third party such as the insurer only if Rule 1.8(f)'s conditions are met; because a minor cannot consent and the guardian cannot…
Can a Virginia lawyer put a clause in a contingent-fee agreement converting to an hourly or contingent fee if the client fires the lawyer mid-case without cause?
The opinion concludes alternative or 'conversion' fee clauses are permissible in contingent-fee contracts if they comply with the Rules, are adequately explained (Rules 1.4 and 1.5(b)), stay reasonabl…
Can a Virginia lawyer garnish a former client's unearned fees sitting in the new lawyer's trust account to collect unpaid fees?
The opinion concludes it is not a per se ethics violation to garnish a former client's advanced (unearned) fees held in successor counsel's trust account to collect a fee judgment, because those funds…
When a note sets attorney's fees at a percentage of the debt, can the lawyer pay the client lender the part of the collected fee that exceeds the lawyer's actual hourly charges?
The opinion concludes that returning the excess of a contractual percentage attorney's-fee award over the lawyer's actual fee to the client lender does not violate Rule 5.4(a)'s bar on sharing legal f…
Can a lawyer charge a contingent fee made up of both a percentage of the recovery and an hourly rate, with both parts payable only on a successful outcome?
The opinion concludes a mixed contingent fee (a percentage of recovery plus an hourly rate, both contingent on success) is permissible so long as the total fee is reasonable under Rule 1.5(a); Rule 1.…
Can a lawyer let a finance company front the client's fee in exchange for keeping a discounted portion of that fee?
The opinion concludes no. An arrangement in which a finance company advances the lawyer a discounted lump sum and keeps the discount as its share of the legal fee is impermissible fee-sharing with a n…
Can a nonprofit lawyer referral service run by a local bar association charge participating attorneys a percentage of the fees they collect, instead of a flat fee?
Yes. The opinion concludes a nonprofit bar-run referral service may charge a percentage fee, treating it as the usual and reasonable fee of a referral service under Rule 7.3(d) rather than impermissib…
Can a Virginia lawyer pay a referring lawyer a share of the fee when the referring lawyer takes no responsibility for the case and does no further work?
Yes. The opinion concludes that, unlike the former Code, Rule 1.5(e) no longer requires the referring lawyer to assume responsibility to the client in order to share a fee, so a division is permissibl…
Can a law firm use a lawyer as an independent contractor or 'of counsel', bill the client more than it pays that lawyer, and when must the arrangement be disclosed?
The opinion concluded a firm may engage a lawyer as a contract attorney or 'of counsel', subject to the same confidentiality and conflict rules as an associate. The firm could bill the client either b…
Is a contract requiring a departing lawyer to pay his old firm a percentage of contingency fees on cases he takes with him proper, and must the new firm honor it?
The opinion concluded the fee-splitting agreement was improper. It violated the former rule on dividing fees between lawyers in different firms (no client consent, and the old firm would assume no res…
Can a law firm hire a lawyer through a nonlawyer staffing agency, and how do conflicts, confidentiality, fee-sharing, disclosure, and billing apply?
Yes. The opinion concluded a firm may retain a temporary lawyer through a nonlawyer staffing agency, treating the temp like a lawyer moving between firms: conflicts and imputed disqualification turn o…
Can a discrimination plaintiff's lawyers, as part of the settlement, agree to be hired by the defendant employer to advise it on its employment practices, with the plaintiff waiving the conflict?
On these facts, yes. The opinion concluded the settlement did not violate the bar on agreements that broadly restrict a lawyer's right to practice, because the agreement contained no explicit restrict…
Can a divorce lawyer take an assignment of the proceeds from the sale of the client's marital home to secure payment of the fee?
Not until a final decree resolves all issues over the property. The opinion concluded that taking an interest in marital property still subject to the divorce gives the lawyer an improper proprietary …
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 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…
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…
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 …
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 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 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…
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 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…
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…
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 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'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 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 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 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 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…
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 …
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 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 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…
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…
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…
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 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…
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.
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 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…
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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.