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 must a Virginia lawyer do with settlement funds when a third party such as a medical provider or insurer claims a lien on them?
The lawyer must safeguard funds a third party is actually entitled to (by statute, lien, court order, or a client-signed assignment) and cannot unilaterally release disputed funds to the client. A mer…
Can a plaintiff's lawyer agree to indemnify the defendant's insurer against unpaid liens as a condition of settling the case?
No. Agreeing to indemnify the insurer for the client's unpaid liens is improper financial assistance under Rule 1.8(e) and creates a non-waivable conflict under Rule 1.7(a)(2). It is also a Rule 8.4(a…
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…
Can a Virginia lawyer disburse funds from a client trust account before the deposited items have irrevocably cleared, even when the account holds funds for only one client?
No. The opinion concludes a lawyer must wait until deposited funds are irrevocably credited and cleared, with no chance of bank recall, before disbursing, and that the answer is the same whether the t…
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…
Can a Virginia lawyer keep using a bank that freezes the whole trust account after 2:00 deposits, knowing client checks will bounce?
No. The opinion concludes that writing trust-account checks with knowledge that the bank's account-wide hold will bounce them intentionally prejudices clients in violation of Rule 1.3(c) and is a deli…
When a client has assigned settlement proceeds to a medical provider or given it a lien, can the lawyer follow the client's later instruction to pay the money to the client instead?
No. The opinion concludes that under Rule 1.15(c)(4) a lawyer who knows the client has made a valid assignment or granted a consensual lien on settlement proceeds may not disburse those funds to the c…
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…
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…
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…
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 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 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…
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 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…
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…
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 …
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 …
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.
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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.