I. COMPETENCE
II. MAINTAINING THE RELATIONSHIP WITH THE CLIENT
III. REPRESENTING A CLIENT ZEALOUSLY
IV. TERMINATING EMPLOYMENT
V. CONFIDENCES AND SECRETS
VI. SUBSTANCE ABUSE AND THE LAWYER'S RESPONSIBILITY

COMPETENCE; MAINTAINING CLIENTS;
TERMINATING EMPLOYMENT; CONFIDENCES

I. COMPETENCE

A. Public Perception and the Lawyer's Dilemma

1. The practicing lawyer must contend with and carefully survive in an atmosphere which includes:

a. Financial pressures upon the profession previously not experienced;

b. An increasing rate of malpractice actions against lawyers;

c. Sanctions imposed by state and federal judges;

d. More active and vigilant disciplinary committees of the Bar;

e. An increasingly specialized profession with rapid change in many substantive areas of the law.

f. Rapid changes in technology affecting the practice of law.

The lawyer must resist the understandable instinct to become defensive or to strive only to meet minimum standards of conduct.

B. The Definition

1. Webster defines competence as "having requisite ability or qualities." Much additional study and experience is required to achieve competence in the practice of law. Additionally, although a seasoned practitioner may be competent in one area of the practice, he or she may be lacking in "requisite ability" in others. Finally, Webster's definition suggests that "qualities" may be an important factor in the meaning of competence. Certain areas of the practice may require a temperament that is not possessed by everyone.

2. The Virginia Rules of Professional Conduct states the matter succinctly:

Rule 1.1. Competence - A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

C. Uncharted Territory: The Lawyer's "First" Case

1. Must a lawyer decline employment if he or she has no experience in the area of practice? Certainly, the answer to this question is "No," for the practicing lawyer will have many "first" cases. But with these "first" cases come special responsibilities.

2. Comment 2 to Rule 1.1 provides that a lawyer may undertake representation in an area of the law with which he or she is unfamiliar if, in good faith, he or she expects to become qualified through study and investigation. Additionally, such preparation should not result in unreasonable delay or expense to the client. In other words, the burden of attaining competence is to be placed upon the lawyer and without financial or other potentially negative consequences to the client.

3. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

4. "Adequate preparation" includes becoming competent, but it also includes the devotion of time and resources necessary to carry out professional responsibilities to the client. Often the subject of "adequate preparation" is addressed in the context of "neglect" rather than "competence."

5. Incompetence may be a basis upon which an attorney must decline a court appointment. State v. Gasen, 356 N.E.2d 505 (Ohio 1976). Two attorneys were appointed "on the spot" to represent two defendants at a preliminary hearing. The attorneys refused the appointment because they had not reviewed the files nor met with their clients. The attorneys were cited for contempt and jailed. On appeal, the conviction was reversed, and it was held that the ethics of the profession demand that an attorney refuse appointment if he or she cannot fully and adequately prepare his or her client's case.

D. Examples of Disciplinary Proceedings

Cases of "incompetence" are rarely addressed as such. Usually these cases are presented in terms of "neglect" of a matter entrusted to the attorney. However, the following cases are illustrative of the issue of competence.

1. Attorney Grievance Commission v. Bailey, 408 A.2d 1330 (Md. 1979). An attorney undertook to handle a residential real estate conveyance for friends. Unfortunately, the attorney was not approved by any title companies, was not familiar with trust account requirements and did not record the deed, deed of trust and release of prior mortgage for 10 months following the closing. The attorney's license was suspended for 3 years, with all but 30 days suspended on the condition the attorney would agree to limit his practice to criminal law, the area of his competence.

2. Dayton Bar Association v. Timen, 405 N.E.2d 1038 (Ohio 1980). An attorney accepted a court appointment to represent an indigent in federal court. During the representation, the attorney filed motions and memoranda without supporting authorities, and demonstrated an absence of "a fundamental knowledge of proper representation." A public reprimand was imposed.

3. Eighth District Committee v. Bennett, VSB Disc. Bd. No. 82-33. An attorney undertook to handle a lawsuit; however, he failed to file responsive pleadings to a Motion for Judgment. The Board found that the attorney's practice was primarily devoted to real estate transactions and stated: "He is not a litigator and is not competent to handle matters involving litigation." A public reprimand was imposed.

4. With regard to a scheduled hearing of a DWI charge in the Fairfax County General District Court, an attorney

(1) failed to contact or otherwise consult with the client until the day before trial;

(2) sent an inexperienced associate who was unprepared to try the case to court with the client;

(3) made no arrangements for the appearance of the client's witnesses at trial; and

(4) failed to advise the client that the attorney had a scheduling conflict with the trial date and made no arrangements for a continuance.

This lapse of communication and inactivity violated DR 6-101(B) and (C) of the Virginia Code of Professional Responsibility. Now, Rule 1.1 of the Virginia Rules of Professional Conduct. A public reprimand with terms was imposed. In the Matter of Mark Thomas Crossland, VSB Docket No. 95-053-0770 (5th Dist. Comm. 1995).

5. In the Matter of William Elliott Moorman, III, VSB Dockect No. 01-061-0641 (Disc. Bd. 2002).  Lawyer’s intoxication during hearing impaired his ability to represent the client competently and substance abuse problem rendered Respondent unfit to practice law.  Eighteen month suspension with terms including rehabilitation through Lawyers Helping Lawyers and direct supervision upon resumption of law practice.

6. In the Matter of Dwayne Bernard Strothers, Suffolk Circuit Court Docket No. CL05-102 (VSB Docket Nos. 04-010-1810 and 04-010-3530), On August 4, 2005, a three-judge panel of the Circuit Court of the City of Suffolk suspended Dwayne Bernard Strothers’s license to practice law for 90 days, effective September 30, 2005. The judges found that in a divorce case Mr. Strothers failed to handle the matter competently or diligently, failed to communicate with his client, failed to deposit unearned fees and costs into a trust account, and attempted to mislead the bar investigator. In a second case involving a criminal appeal, the panel found Mr. Strothers failed to handle the matter competently and failed to communicate with his client.

7. In the Matter of Tonja Michelle Roberts, VSB Docket No. 06-090-3155 (9th Dist. Cmty. 2007). On March 16, 2007, the Virginia State Bar’s Ninth District Committee imposed a public reprimand with terms on Tonja Michelle Roberts for failing to diligently pursue a personal injure case and keep her client reasonable informed about the status of his legal matter. Under the terms of the reprimand, the committee required Ms. Roberts to ask the court for permission to withdraw from the case, to attend continuing legal education in law-office management, and to consult with the bar’s law-office management consultant. If she fails to comply with terms, her case will be referred to the Virginia State Bar Disciplinary Board for possible suspension of her law license.

8. In the Matter of Paul Granville Watson, IV, VSB Docket No. 06-022-3164 (2nd Dist. Cmty. 2007). On June 14, 2007, the Virginia State Bar Second District Committee, Section II, imposed a public reprimand with terms on Paul Granville Watson, IV for violations of rules that govern competence, diligence, and communication. Mr. Watson defaulted in an appeal by filing in the wrong court, which caused the appeal to be dismissed without being considered on its merits. Thereafter, Mr. Watson failed in an attempt to file for reconsideration and failed altogether to seek an available delayed appeal for his client. Mr. Watson did not communicate with his client for ten months about the status of his appeal. The committee is requiring Mr. Watson to take four hours of continuing legal education courses in ethics and criminal appellate procedure. This was an agreed disposition of ethics charges against Mr. Watson.

9. Livingston v. Va. State Bar (Va.S, Ct. 2013). Even if an attorney has the necessary legal knowledge and skill, "thoroughness and preparation" require the "[c]ompetent handling of a particular matter," which includes "inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners." Va. Sup. Ct. R., Part 6, § II, R. 1.1, cmt. 5 (emphasis added). Livingston obtained three indictments against Collins. Each was based on factual and/or legal errors due not to mere negligence, but to his failure to analyze the evidence and the elements of the charges he brought against Collins. And, without checking the accuracy of the charge in the third indictment, which contained the wrong criminal offense, he presented the indictment to a grand jury and pursued it in the trial court and also on appeal when he filed the untimely petition for appeal. It is not necessary to determine whether any one of these acts of misconduct alone would violate Rule 1.1. In this case, viewing the record in its entirety, there is clear and convincing evidence that Livingston failed to provide competent representation to his client in the prosecution of Collins.

E. The Maintenance of Competency

1. The need for continuing legal education has been recognized by the Bar and imposed by the Virginia Supreme Court in the form of Mandatory Continuing Legal Education. The requirement of 12 hours per year of approved course work (including 2 hours in ethics) is relatively modest. The Rules of the profession call upon the lawyer to aspire to higher standards than mere minimums.

2. Subscribe to and read legal literature in the field in which you practice or aspire to practice.

3. Consider concentrating on a manageable few areas of practice.

4. Seek assistance from more experienced counsel. One of the highest traditions of the Bar is the willingness to assist a fellow lawyer in his or her service to the public. It is a part of a lawyer's obligation to strive at all levels to aid the legal profession in advancing the highest possible standards of integrity and competence.

5. Avoid excessive workloads. The Virginia State Bar, in its Legal Ethics Opinion 1798 (2004) opines that a lawyer who operates with a caseload so overly large as to preclude competent, diligent representation in each case is in violation of the ethics rules.

F. Competence in Using Law Office Technology.

A lawyer must always act competently to protect the confidentiality of clients’ information, regardless of how that information is stored/transmitted, but this task may be more difficult when the information is being transmitted and/or stored electronically through third- party software and storage providers. The lawyer is not required, of course, to absolutely guarantee that a breach of confidentiality cannot occur when using an outside service provider. Rule 1.6 only requires the lawyer to act with reasonable care to protect information relating to the representation of a client. When a lawyer is using cloud computing or any other technology that involves the use of a third party for the storage or transmission of data, the lawyer must follow Rule 1.6(b)(6) and exercise care in the selection of the vendor, have a reasonable expectation that the vendor will keep the data confidential and inaccessible by others, and instruct the vendor to preserve the confidentiality of the information. The lawyer will have to examine the third party provider’s use of technology and terms of service in order to know whether it adequately safeguards client information, and if the lawyer is not able to make this assessment on her own, she will have to consult with someone qualified to make that determination. LEO 1872 (2013) (Virtual law offices and executive suites)

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II. MAINTAINING THE RELATIONSHIP WITH THE CLIENT

A. Communications: The Vital Ingredient

1. One of the most serious areas of complaints against attorneys is the simple failure to maintain communications with the client. Often the attorney is competent and is diligently pursuing the client's interests; however, the client is not informed and presumes the worst.

2. The Virginia Rules of Professional Conduct state this important value in clear and simple language:

a. "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Rule 1.4 (a).

b. "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 1.4 (b).

c. "A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter." Rule 1.4 (c).

3. A complete breakdown of communications resulted in disbarment where an attorney failed to meet with the client, return client's telephone calls, write to the client to advise of the status of the case or communicate in any other means. Fifth District Committee v. Williamson, VSB Disc. Bd. Nos. 80-22, 81-01, 81-02.

4. An attorney settled a case for less than the amount generally discussed by the attorney and client, without knowledge and consent of the client. The attorney's license was suspended for 18 months. Tenth District Committee v. Anthony, VSB Disc. Bd. No. 78-14.

5. A prosecutor may not require defense counsel, as a condition of a plea agreement, to withhold material information from the defendant, because of defense counsel’s communication obligations under Rule 1.4. LEO 1854 (2010). Rule 1.4(c) would permit the defense counsel to withhold the identity of a confidential informant from the defendant if the defense counsel believes that the defendant has enough relevant information about the pertinent facts to make an informed decision; however, whether Witness X’s identity and involvement is additional information that must be disclosed to the client in order for the client to make an informed decision about accepting or rejecting the plea offer is fact specific and must be determined on a case-by-case basis. Fundamentally, the defense counsel cannot withhold from the defendant salient facts or information that would be pertinent to the defendant’s decision to accept a settlement or plea agreement in his or her matter. Id.

6. A lawyer should exert his or her best efforts to insure that decisions of his or her client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his or her client need not be confined to purely legal considerations. A lawyer should advise his or her client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his or her experience as well as his or her objective viewpoint. In assisting his or her client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. He or she may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. In the final analysis, however, the lawyer should remember that the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client and not for himself. See Rule 2.1.

7. A criminal defense counsel may enter into an “open file” discovery agreement with a prosecutor that prohibits the defendant from having a personal copy of certain material, and requiring that the material be returned to the prosecutor, provided the defense counsel can still discuss with the defendant the information contained in the restricted material. LEO 1864 (2012).

8. Helpful hints for better communication:

a. Have all phone calls returned by the attorney or someone on his or her behalf within 24 hours.

b. Consider the practice of routinely sending photocopies of correspondence and prepared documents to the client. It is slightly more expensive but well worth the investment.

c. Develop a diary or "tickler" system and utilize it to remind the lawyer to periodically contact the client.

B. Neglect: What It Is; What It Is Not

1. Rule 1.3 (a) states: "A lawyer shall act with reasonable diligence and promptness in representing a client."

2. Although the language of Rule 1.3 (b) refers to "intent," in the course of human affairs it is difficult to draw the line between gross inattentiveness and intentional behavior.

a. Rule 1.3 (b) provides in part: "A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services. . . ."

b. Rule 1.3 (c) warns that: "A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship. . . ."

3. One act or instance of inadvertence or negligence by an attorney does not necessarily constitute misconduct as defined in the Virginia Rules of Professional Conduct.

4. Neglect has generally been regarded as indifference and consistent failure to carry out the contract of employment. ABA Informal Opinion 1273 (Nov. 20, 1973).

C. Common Complaints Regarding Neglect

1. Procrastination: Amid the stress and demands of practice, an attorney must make choices among competing demands for his or her time. However, at some point the failure to attend to a particular matter amounts to misconduct.

a. An attorney allowed two years to pass after being retained by the client before filing suit. The attorney then allowed the action to abate and another two years passed before he filed a second complaint. The Supreme Court observed that the case required "no extraordinary legal expertise, only diligence and promptness," and imposed a public reprimand. Wilder v. Third District Committee, 219 Va. 175 (1978).

b. An attorney failed to initiate divorce proceedings for six months following employment, even though grounds for divorce existed at the time of his or her employment and the client desired the attorney to proceed immediately. A private reprimand was imposed.

2. Improper Supervision

Delegation of responsibilities does not relieve the attorney of ultimate responsibility to the client and to the profession. A private reprimand was imposed in a Virginia case wherein the attorney delegated the responsibility for preparing and filing estate inventory and accountings to an inexperienced non-lawyer employee who failed to properly execute such responsibilities. See Rule 5.3. LEO 1600 (1994): A lawyer's supervision of non-lawyer employees must be such that it permits the lawyer to retain the requisite relationship with the client and the personal responsibility for all work products emanating from representation of the client. The committee believes that such supervision should be significant, rigorous, and efficient. . . . [A] lawyer may assign to a non-lawyer employee [especially one located at a distance from the supervising lawyer] only those tasks which do not require the exercise of unsupervised legal judgment.

3. Inadequate Preparation

Although initially an issue of competence to practice in a particular area, each case or engagement requires adequate attention and preparation to represent properly a client's interests. A public reprimand was issued when an attorney filed a pleading without first determining that the facts contained therein were correct. Third District Committee v. Steingold, VSB Disc. Bd. No. 81-23.4.

4. Violation of Court Orders

An attorney neglected a case from Spring of 1979 when engaged until October 1980, waiting until immediately before the applicable statute of limitations had run out before filing suit. The attorney failed to file an answer to interrogatories, and for seven months ignored a court order compelling him to do so. The Virginia Supreme Court upheld a two-month suspension for neglect (applying former DR 6-101(A)(3)) (Now, Rule 1.1) and stated that willful disobedience of a single court order alone may justify disbarment. Matthews v. Virginia State Bar, 231 Va. 306, 343 S.E.2d 79 (1986). Such conduct may also evidence that an attorney is unfit to practice law under Rule 8.4 (c).

5. Failure to Perform Under Third Party Entrustment

A lawyer's duty not to neglect matters entrusted to him or her in some instances may extend to third parties whom the lawyer may not perceive to be in a true attorney-client relationship with him or her. In Pickus vs. Virginia State Bar, 232 Va. 5, 348 S.E.2d 202 (1986), a lawyer providing real estate settlement services for a client in several transactions was instructed by lending institutions involved in the transactions to satisfy prior deeds of trust and obtain mortgagee title insurance policies insuring that the new loans constituted first liens. Once title insurance commitments were obtained by the lawyer, the lending institutions delivered substantial funds with which to pay off the prior deeds of trust. Relying upon the client's assurance that he would use the proceeds to pay off the liens, the lawyer delivered the funds to his client rather than satisfying the deeds of trust himself. However, the client did not satisfy the liens. Accepting his client's representation that the liens had been satisfied and without examining the land records himself, the lawyer advised both the title insurance company and the lending institutions that the loans were secured by a first deed of trust. The title insurance company then issued a policy certifying that fact. The Virginia Supreme Court rejected an argument that DR 6-101(A)(3)--the predecessor of DR 6-101(B)--was not violated since the lawyer did not neglect a legal matter entrusted to him by his client, and since his client was not injured by his actions. The Court stated that former DR 6-101(A)(3) (Now see Comment 5 to Rule 1.1) encompassed neglect of legal matters entrusted to a lawyer, whether entrusted by a client or a third party. The Court held, however, that the lending institutions were also clients of the lawyer since they were not represented by other counsel and the lawyer acted alone in closing the loans.

6. Court-appointed Counsel's Obligation to Continue Representation of Defendant on Appeal

In the Matter of S. Delacy Stith, Virginia State Bar Disciplinary Board, Nos. 93-010-0681,93-010-088, 94-010-0329 (1994). Virginia State Bar Disciplinary Board disbarred attorney for cumulative acts of misconduct, including failure as court-appointed counsel to timely note and perfect appeals in three separate criminal matters.

Increasingly, lawyers have been disciplined for failure to perfect a criminal defendant’s right to appeal a criminal conviction. See In the Matter of Henry Otis Brown, VSB Docket No. 01-031-2272 (2002)(public reprimand by agreed disposition for failure to perfect client’s appeal of criminal conviction and for failing to communicate about the status of appeal); In the Matter of Ernest Pleasants Gates, Jr., VSB Docket No. 01-031-3083 (2002)(public reprimand given respondent’s prior disciplinary record, for neglecting appeal to Virginia Supreme Court for client for whom respondent served as court appointed counsel at trial and on appeal); In the Matter of Wesley Lee Pendergrass, VSB Docket No. 02-010-1841 (2003) (one-year suspension, imposition suspended conditioned upon no further misconduct for one year; failure to perfect appeal for court appointed case and failure to advise client that appeal was dismissed due to respondent’s error. Respondent had prior history of neglect, including four findings of misconduct); and In the Matters of Benjamin Thomas Reed, VSB Docket Nos. 01-021-0137, et al (2003) (30-day suspension by agreed disposition; neglected appeals or post-trial motions in three court-appointed criminal cases and failure to communicate with client). See also In the Matter of William P. Robinson, VSB Docket No. 03-022-3450 (2005) (a three judge panel of the Circuit Court for the City of Norfolk  reprimanded William P. Robinson for failing to handle two criminal appeals to the Supreme Court of Virginia in a prompt and diligent manner. Each appeal was dismissed because Mr. Robinson failed to comply with a filing deadline. Mr. Robinson helped each client obtain a delayed appeal. The court dismissed charges that Mr. Robinson failed to competently and promptly handle a third appeal.

D. Reasons for Neglect

Disciplinary proceedings before the District Committees and the Disciplinary Board have involved one or more of the following causes of neglect:

1. Overworked Lawyers

Neglect is frequently caused by a lawyer simply being overworked. Whether the lawyer's overload is due to poor judgment in initially agreeing to represent the client in question or due to unexpected complications which have arisen in other matters, it is imperative that every lawyer make a realistic assessment of the lawyer's ability to handle promptly and competently his or her case load at all times. An overworked lawyer must (a) seek assistance from other lawyers in the firm, (b) make an accurate status report to the client and obtain the client's consent to delay taking action, (c) associate outside co-counsel or (d) withdraw as permitted by the Rule of Professional Conduct.

The Legal Ethics Committee of the Virginia State Bar has issued an opinion that it is professional misconduct for a lawyer to operate under a caseload so heavy that he or she cannot provide diligent and competent representation to each and every client.  LEO 1798 (2004).  Moreover, a partner or supervising attorney must ensure that he or she does not assign to an associate or subordinate attorney more work than that attorney can handle competently and diligently.  Id.

2. Inadequate Compensation

It is a natural tendency of lawyers to want to place the needs of prompt and well-paying clients ahead of those who are either unwilling or unable to pay what the lawyer considers to be fair compensation. This may be the case particularly when a lawyer initially agrees to accept a fee or quotes a fee to a client which later proves to be inadequate due to the lawyer's lack of familiarity with the subject matter involved and the lawyer's misjudgment as to the amount of time which would be required to discharge competently his or her duties. Here again, good judgment is critical.

3. Nature of Client

A number of characteristics of the client may affect whether a lawyer chooses to neglect the client's needs. These characteristics are very basic things, such as (a) the demeanor of the client, (b) whether the client is critical or expresses appreciation for the lawyer's efforts, (c) whether the client exhibits trust and loyalty to the lawyer or is the type who appears to suspect self-interest on the part of the lawyer, for example by periodically questioning whether the time expended by the lawyer is reasonable and necessary and (d) whether the lawyer and client are peers or otherwise have a good rapport with one another.

E. Duty to Plan Ahead

Lawyers should make arrangements for their client files to be maintained in the event of their own death, disability, impairment or incapacity.  Freak accidents, unexpected illness and untimely death do occur and your client’s interests may be unprotected.  This is part of the duty of diligence and competence to provide for such untimely events.  Rule 1.3 Comment [5]. Several steps can be taken to provide for such an event.

1. Have a plan.  Find another attorney to close your practice in such an event.

2. Draft written instructions to your family, the attorney and your office staff, that includes information and guidance to detailed information and where they can find it.  Also, detailing the delegation of duties to each.

3. Discuss all of these items with each of the appropriate persons.

4.The arrangement with the attorney should include several items such as a signed consent form allowing the attorney to administer the needs of the clients and the practice.

5.You should discuss with this attorney any and all arrangements for payment agreed upon between you and the attorney. You may establish a “buddy” system whereby you each agree to perform this function for the other upon a “triggering” event.

6. The assisting attorney must also be aware of conflicts of interest issues and must do a conflicts check when reviewing confidential client file information.

7. If you do not make arrangements to allow someone access to your trust account, your clients’ money will remain in the trust account until a court orders access.  This is likely to cause delay and put a client in a difficult position.  On the other hand, allowing access to your trust account is a serious matter that may result in misappropriation problems, etc. 

8.In a sense, you are creating a system for the settlement of your own estate and the orderly winding up of your law practice. Other considerations include durable powers of attorney and will provisions that provide for these events.

9.Valuable information and guidance, along with example drafts of special documents can be found at the Senior Lawyer’s Conference link on the Virginia State Bar website; www.vsb.org.

 

F. Special Duties to Unique Clients

1. When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Rule 1.14 (a).

2. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest. Rule 1.14 (b).

3. It may be appropriate for a lawyer who represents a mentally impaired client to seek appointment of a guardian or committee for the client. Rule 1.14(b); LEOs 463, 570.

F. Limitation of Liability

1. Rule 1.8 (h) states: "A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice, except that a lawyer may make such an arrangement with a client of which the lawyer is an employee as long as the client is independently represented in making the agreement."

2. A public reprimand was issued to an attorney who attempted to obtain a release from a client after failing to file a timely petition for appeal. Tenth District Committee v. Stone, VSB Disc. Bd. No. 78-11.

3. It is not improper for a lawyer to secure from his client a release from liability for specific completed acts, in exchange for consideration paid to the client, provided that (1) there is full disclosure to, and consent received from, the client; (2) the client is first advised to seek independent counsel as to whether to sign such an agreement; and (3) provided that the transaction was not unconscionable, unfair or inequitable when made. LEO 1550.

4. It is improper for a lawyer to prospectively limit his liability to a client at the outset of the attorney-client relationship or through a general release for prospective conduct during the course of the relationship. LEO 1487.

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III. REPRESENTING A CLIENT ZEALOUSLY

A. Pursuing a Client's Objectives

1. "A lawyer shall abide by a client's decisions concerning the objectives of representation…, and shall consult with the client as to the means by which they are to be pursued." Rule 1.2 (a).

2. Furthermore, the lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16. Rule 1.3 (b).

3. A lawyer may not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3 (mandatory disclosure of client's intent to commit crime or client's perpetration of fraud on a tribunal). Rule 1.3 (c).

4. A lawyer may limit the objectives of the representation if the client consents after consultation. Rule 1.2 (b).

5. A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Rule 1.2 (c). If the client insists on the pursuit of such conduct, the lawyer may withdraw pursuant to the provisions of Rule 1.16. Rule 1.6.

B. Representing a Client Within the Bounds of the Law

For a complete discussion of impermissible conduct in the course of client representation, see Topic 6, Section II (G), infra.

C. Use of Information Sent to Attorney in Error by Opposing Counsel

An attorney received a misdirected fax intended by opposing counsel to be sent to their client. The fax contained settlement positions and outlined some trial strategy in the event the case did not settle. In 1997, in LEO 1702, the Legal Ethics Committee concluded that the receiving attorney may not use any information contained in the misdirected fax; must not read further once determining that the information was confidential or privileged; notify the sending attorney of the mishap; and abide by the sending attorney's instructions as to the disposition of the misdirected fax. The committee adopted the reasoning of ABA Op. 92-368 in concluding that a lawyer receiving "inadvertently transmitted confidential documents from opposing counsel or opposing counsel's client" should return the document. Although prohibiting a lawyer from reading an inadvertently transmitted document based on "boilerplate" notices on fax cover pages would "violate reality," once the lawyer recognizes a document as confidential, the lawyer "has an ethical duty to notify opposing counsel, to honor opposing counsel's instructions about disposition of the document, and not to use the document in contravention of opposing counsel's instructions." Although some cases adopt a "doctrinaire rule that even an inadvertent transmission of confidential documents causes a loss of attorney-client privilege and permits the receiving lawyer to use the documents," the "rules of evidence do not . . . displace ethical standards governing lawyers (relying on ABA Op.94-382 to overrule LEO 1076, which had allowed a lawyer to use documents from an adversary's file sent to the lawyer by an unknown third party).

LEO 1702 relies in part on ABA Formal Opinions 92-368 and 94-382. Since issuing those opinions, the ABA has revised Model Rule 4.4 to include express language requiring only notice to the other attorney when the attorney/client materials are inadvertently transmitted. Virginia has not made a corresponding change to its Rules of Professional Conduct; the analysis in LEO 1702  remains the pertinent authority on this issue in Virginia.  See also LEO 1786.

In LEO 1871 (2013) the Legal Ethics Committee recognized that the handling of inadvertently produced documents in the course of pre-trial discovery requires a different analysis if there is post-production claim of privilege, Since LEO 1702 was adopted in 1997, the Supreme Court of Virginia adopted Rule 4:1(b)(6)(ii), which states that the recipient of inadvertently disclosed privileged information must either destroy or sequester the inadvertently disclosed material until the court resolves the privilege claim. Rule 3.4(d) requires a lawyer to obey standing rules of a tribunal. Thus, to the extent that the confidential information is received in the discovery phase of litigation, a lawyer: (1) may review the information if necessary to determine his obligations under the discovery rule; (2) must notify the party producing the documents that the lawyer is in possession of them; (3) is not ethically obligated to return the information to opposing counsel; and (4) may sequester the material pending a judicial determination of whether and to what extent the receiving lawyer may use the information. Outside of the discovery process, the requirements of LEO 1702 fully apply. See also Fed. R. Civ. P. 26(b)(5)(B).

Whether or not the attorney-client privilege has been waived by the inadvertent document production is a question of law to be decided by the court applying the test set out in In Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113 (2010)

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IV. TERMINATING EMPLOYMENT

A. Introduction

Just as the Virginia Rules of Professional Conduct regulate the formation of the attorney-client relationship, it also specifies the proper procedures for withdrawal from the representation of a client.

B. Duties of an Attorney Prior to Termination

Before attempting to terminate the attorney-client relationship at any stage of the proceedings, the lawyer has three general responsibilities:

1. Obtain Permission from Court or Tribunal

If permission for withdrawal is required by the rules of the tribunal, such permission must be obtained after notice to the client as to the time and place of a motion to withdraw. Rule 1.16 (c).

2. Protect the Client

a. The lawyer must take whatever reasonable steps, regardless of the reason(s) for the withdrawal, that are necessary to avoid foreseeable prejudice to the rights of his or her client. Rule 1.16 (b) & (d). Such steps include reasonable notice, the allowance of time to employ other counsel, refunding any advance payment of fee that has not been earned, delivery to the client of all papers and properties to which the client is entitled, and compliance with the applicable laws and rules. See Rule 1.16 (d); LEO 871; LEO 897 (not improper for attorney to withdraw from representation when client has moved and is unable to be located, provided reasonable steps have been taken to protect the client's interests).

b. Legal Ethics Opinion 1357 states that where the client has replaced the former lawyer, an attorney's refusal to allow a former client to ascertain the contents of the file is presumptively prejudicial and violative of DR 2-108(D). [Now, Rule 1.16 (d)] The opinion states that it is the attorney's duty to explain and furnish a list of the contents of the file indicating which items involve unpaid fees and which items are the client's property, i.e., either provided originally by the client or for which no fees are owing. In a more recent comprehensive opinion, the committee reemphasized that it is improper to withhold the client's file as security for unpaid fees owed to the lawyer, if material prejudice to the client will occur. LEO 1690. Current Rule 1.16 (e) eschews a “prejudice” standard in favor of a more objective and easily-applied rule.

3. Return Unearned Fees

a. The attorney must return any part of the fee that has been paid in advance that has not been earned at the time of termination.  Rule 1.16 (d); Rule 1.15  (b) (4); See LEO 1606 (compendium opinion dealing with             retainers, advanced legal fees, non-refundable legal fees, retainers or minimum fees, fixed fees, and contingent fees, inter alia, states that unearned fees must be deposited into a trust account until earned and refunded upon termination of representation).

b. When the file is returned to a client or turned over to the lawyer designated by the client to receive the file, it should include all of the pleadings, original papers belonging to the client, correspondence to the opposing counsel and any other property clearly belonging to the client, as well as letters from the client to the lawyer. Anything the client has entrusted to the lawyer should be returned in the original form, but other material may be copied at the lawyer's expense. See LEOs 1171, 1366, 1418, 1544, 1690.

b.         When the file is requested by the client or the client’s new lawyer, former counsel should strictly follow Rule 1.16 (e). 

 

            RULE 1.16      Declining Or Terminating Representation

 

(e)       All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and, therefore, upon termination of the representation, those items shall be returned within a reasonable time to the client or the client’s new counsel upon request, whether or not the client has paid the fees and costs owed the lawyer.  If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication.  Also upon termination, the client, upon request, must also be provided within a reasonable time copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); transcripts, pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; research materials; and bills previously submitted to the client.  Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request.  The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship. The lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required. The lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation.

c. An attorney shall have a lien upon his or her client’s cause of action sounding in tort or unliquidated damages on contract or for a cause of action for annulment or divorce upon execution of an agreement with the attorney to prosecute the action.  Va. Code Section 54.1-3932.  Also, when an attorney employed under a contingent fee contract is discharged without just cause and the client employs another attorney who effects a recovery, the discharged attorney is entitled to a fee based upon quantum meruit for services rendered prior to discharge and, as security for such fee, to the lien.  Heinzman v. Fine, Fine, Legum & Fine, 217   Va. 958, 234 S.E.2d 282 (1977); see also LEO 1606.  A lawyer has an ethical duty to put initial monies received from a client into a trust account and convert them to a fee only at such time as the fee is earned.  Rule 1.15 (a); LEO 1606.

C. Mandatory Withdrawal

Withdrawal from representation of a client is mandatory (after obtaining permission from the tribunal as required by its rules) if: (1) continuing the representation will result in a course of conduct by the lawyer that is illegal or inconsistent with the Virginia Rules; (2) the lawyer's physical or mental condition materially impairs the lawyer from adequately representing the client; or (3) the lawyer is discharged by the client. Rule 1.16 (a).

D. Permissive Withdrawal

1. Withdrawal is permissive (after compliance with relevant court procedures) if it can be accomplished without material adverse effect on the interests of the client, or if:

a. the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or unjust. Rule 1.16 (b) (1); or

b. the client has used the lawyer's services to perpetrate a crime or fraud. Rule 1.16 (b) (2); or

c. a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent. Rule 1.16 (b) (3); or

d. the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled . Rule 1.16 (b) (4) ; or

e. the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.  Rule 1.16(b)(5).  For example, when the client is failing to follow the lawyer’s advice. See, LEO 842 (attorney may move to withdraw from representation of client who repeatedly breaches agreements to pay agreed-upon fees and to reimburse the attorney for out-of-pocket expenses);  or

f. other good cause for withdrawal exists. Rule 1.16 (b)(6).

2. Attorney may seek to withdraw from representation on appeal if client has failed to pay fees.  If court does not permit withdrawal, lawyer may not refrain from participation so as to cause appeal  to be dismissed.  LEO 974; Rule 1.16 (b) (4) & Rule 1.16 (c).

E. Court Denies Motion to Withdraw

A lawyer shall continue to represent a client notwithstanding good cause for termination of the relationship, when ordered to do so by a tribunal. Rule 1.16 (c).

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V. CONFIDENCES AND SECRETS

A. Introduction

Although the terms "confidences" and "secrets" are not used in ABA Model Rule 1.6, Virginia's version of Rule 1.6 (a) retains the two-part definition of "information" subject to the lawyer's ethical duty of confidentiality. This duty is at the core of the attorney-client relationship and is also related to other ethical duties (the conflict of interest rules are based in part on the problem of the use of confidential information). Lawyers' ability to both represent and counsel clients is based on the lawyer knowing all the facts and on the client having confidence in the lawyer. Both getting the facts and gaining confidence are possible only if the client knows that the lawyer will not reveal what is told and will not harm the client with information revealed.

There is often confusion regarding the language we use in this area. "Confidences" and "Secrets" are terms of art as used in the old Code of Professional Responsibility. Without explicit reference to these terms, Rule 1.6 (a) nevertheless incorporates them: "A lawyer shall not reveal information protected by the attorney-client privilege or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). This two-part standard in Rule 1.6 (a) is discussed more fully below.

1. Confidences

A "confidence" is that which would be protected by the evidentiary rule known as the attorney-client privilege. Com. v. Edwards, 235 Va 499, 370 S.E.2d 296 (1988). Whether something is a "confidence" is, therefore, a question of law and can be researched in the same way as any other such question.

2. Secrets

A "secret" is a much broader term than a "confidence". A "secret" is any information "gained in the professional relationship" (1) that the client has told the lawyer not to reveal-"be held inviolate"; or (2) that "the disclosure of which would be embarrassing or would be likely to be detrimental to the client." Rule 1.6 (a). It does not matter that the lawyer learned the "secret" from a public source, as long as the information was acquired in the course of the representation. LEO 1349. The use of the word "secret" is, therefore, somewhat misleading and confusing-a "secret" can be a court record or a newspaper article.

a. Lawyers should not discuss their clients or their clients' business outside the office, except in the course of the representation. The Legal Ethics Committee has opined in numerous prior opinions that the contents of a client's file come under the confidentiality protections afforded under Rule 1.6  or its predecessor DR 4-101. See, e.g., LEOs 967, 1628 , 1664 and 1811. Lawyers may, however, discuss or post on blogs information about a former client’s past case without the former client’s consent when such information has been disclosed in a public judicial proceeding. Hunter v. Virginia State Bar (Feb. 28, 2013)

b. The names of the clients should be kept confidential in many circumstances. LEO 1147. For example, a client comes to a lawyer and states that he or she has been involved in a hit-and-run accident and retains the lawyer to negotiate a plea agreement with the Commonwealth's Attorney. Without the client's consent, the lawyer should not disclose the client's name.

c. A lawyer learns from a former client that the lawyer represented in a personal injury suit that former client is now in jail under an assumed name.  The lawyer may not reveal the client’s true identity unless there is some independent legal duty or the reason the client is in jail has something to do with the prior representation and there is fraud involved.  LEOs 1270, 1331.

d. A lawyer may not reveal his or her client’s whereabouts which the lawyer knows because of his/her  representation of the client and constitute a “secret” because the client has requested that the information be kept confidential. LEO 1316.

e. Financial arrangements with the client would usually be a confidence or a secret. However, several laws [e.g. 31 U.S.C §§ 5322, 5324 (Reporting of cash transaction in excess of $10,000] require disclosure and therefore would be permitted under Rule 1.6 (b) (1).

f. Upon attorneys' move from one legal aid office to another in same geographical area serving the same client base, Legal Aid Society A may properly provide attorneys now in Legal Aid Society B with confidential client list information sufficient to enable lawyers in Legal Aid Society B to perform conflicts checks. LEO 1757.

In sum, the principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. Comment [5], Rule 1.6.

B. The Principle of Non-Disclosure

1. The General Rule

The fact of representation is confidential; possibly a "confidence" and often a "secret". Absent consent, and the exceptions thereto contained in Section C below, a lawyer shall not knowingly reveal, use to the disadvantage of the client, or use to the advantage of himself/herself or a third party, a confidence or secret of the client. While truly minor matters may be disclosed from time to time in dealing with other lawyers and the judicial system (Rule 1.6 (a)), the general rule requires a steadfast refusal to divulge client matters.

a. A lawyer may represent a client in a zoning matter without revealing client's identity if client so requests. LEO 1284.

b. Identifying data about a legal aid client is a secret. LEO 1300.

2. Time of Application and Extent of Coverage

The obligation of non-disclosure applies in every situation and not solely in judicial proceedings. Unlike the attorney-client privilege, the duty of confidentiality applies to information communicated by the client in the presence of other persons. Rule 1.6 (a).  Furthermore, the duty of non-disclosure covers the periods prior to and subsequent to the creation of the attorney-client relationship as well as during the relationship. See LEOs 812, 928, 1207, 1307, 1794.  A lawyer must protect confidential information given by a potential client even if he or she is not hired to represent that person or where no attorney-client relationship was created.  Rule 1.18, Rules of Professional Conduct; LEOs 1453, 1546, 1613, 1794.  See also LEO 1832. (Client spoke only with attorney’s secretary and provided details of client’s case. Client never retained lawyer.  Lawyer can represent opposing party if secretary is screened.)  Similarly, after the employment terminates, the lawyer must continue to protect all confidential information acquired during the course of the relationship.  Comment  9(a) to Rule 1.6.  The attorney-client privilege and the duty to protect confidences and secrets survives the death of the client. LEOs 1207, 1664.  See also Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998) (Office of Independent Counsel not entitled to handwritten notes of attorney James Hamilton from whom Deputy White House Counsel Vince Foster, Jr. sought legal counsel nine days before his suicide).

3. Duty Extends Beyond Mere Non-Disclosure

Not only must the attorney protect against a disclosure of confidential information by himself or herself, but he or she also must assure that others do not disclose the information or use the information for their own purposes.

At all times, the lawyer must take care to prevent employees and fellow firm members from disclosing or utilizing confidential information obtained from a client. A lawyer shall exercise reasonable care to prevent his or her employees or associates and others whose services are utilized by him or her from disclosing or using confidences and secrets of a client. Lawyers frequently need to consult with colleagues or other attorneys in order to competently represent their client's interests. A lawyer should exercise great care in discussing a client's case with another attorney from whom advice is sought such as discussing a case in strictly hypothetical or abstract terms when possible. Comment [5a] to Rule 1.6.  See also Rule 5.3.

4. Disclosure Necessary for Administrative Purposes

It is not improper, however, for a lawyer to give limited, necessary information to an outside agency for such purposes as banking or bookkeeping, provided he or she warns the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential.  However, such conduct is improper where the client directs otherwise.  Compliance with Rule 1.6 (b) (5) might require a written confidentiality agreement with the outside agency to which the lawyer discloses information. Comment  [5c] to Rule 1.6; Rule 1.6(b) (5).  See LEO 859.

5. Personal Use of Information Obtained from a Client

Information acquired in the course of representing a client may not be used to the disadvantage of the client or even by a lawyer for the lawyer's own purposes, absent full informed consent by the client. See Rule 1.8 (b).

6. Business Relationships

A lawyer should be careful in entering into business deals with clients because that relationship is fraught with potential problems; a lawyer finds himself or herself having a conflict of interest as a member of the business enterprise when he or she also acts as an attorney representing individuals. See also Rule 1.8 (a).

7. Fee Payment

It is important to remember that the attorney-client relationship is not contingent upon a lawyer being paid; nor can the lawyer refrain from working on the client's matter because the fee has not been paid.

C. Exceptions to the General Rule

1. Discretionary Disclosures

A lawyer may reveal the confidences and secrets of the client in a limited set of circumstances under Rule 1.6 See also Topic 6, II, B, C, D, E. These include:

a. If the Client Consents After Full Disclosure

A lawyer must be sure that the client fully understands the benefits and detriments to him or her and others that may arise from such a disclosure. Rule 1.6 (a).

b. When Required by Law or Court Order

(i) Without this exception, Rule 1.6 (b) (1), a lawyer would be in an impossible situation if the law or a court order required him or her to reveal information. This exception does not require disclosure, but merely allows the lawyer to follow the applicable law or adhere to a court order. Thus, if the lawyer chooses not to reveal client information in this situation, the lawyer may be punished for violating the law or court order, or he or she may have violated the Virginia Rules of Professional Conduct under some other Rule, but the lawyer has not violated Rule 1.6 (b) (1).

(ii) It is not improper for attorney to identify clients with unclaimed trust accounts and turn monies over to Department of Treasury. LEO 818.

(iii) It is not improper for attorney to produce documents containing confidential information pursuant to court order or to establish a defense against an allegation made by a client about the lawyer.  Rule 1.6(b)(2);  See LEOs 645, 1433, 1628

(iv) It is not improper for attorney to release to the court correspondence between two attorneys who represent clients in a joint venture where release is by court order. LEO 300.

(v) Where grand jury requests material from attorney regarding his or her client and attorney believes material is protected by attorney/client privilege, attorney should not release any materials until subpoenaed and compelled to by court and after subpoena has been challenged in court. See LEOs 334, 1628.

(vi) It is not improper for attorney to testify against client if, after attorney objects to being required to testify, the court orders the attorney to testify. See LEOs 439, 1433.

(vii) A law firm received a subpoena from a federal grand jury in another state seeking documents related to firm's past representation of a former client. The firm followed former client's instructions and resisted the subpoena. The government filed a motion to compel. The law firm opposed the motion. A federal district court ordered production of all documents. It is not improper for firm to comply with court order. See LEOs 967, 1352, 1433, 1628.

(viii) A lawyer is not required to obtain consent to post on his blog specific case information about matters the lawyer handled in court on behalf of a former client if the information has been disclosed in a public courtroom. The lawyer’s free speech rights trump the protection of Rule 1.6 with respect to the former client’s case information once that information has been disclosed in a public court proceeding. Hunter v. Virginia State Bar (2013). The lawyer must still comply with Rule 7.1’s mandatory disclaimer for advertising specific case results.

c. Fraud on Third Parties

Disclosure is permitted where the client has "in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation." Rule 1.6 (b) (3). The lawyer's discretion, however, here is rather strictly limited:

i. Suspicion or even probable cause to believe is not sufficient. The lawyer cannot reveal unless the information clearly establishes the fraud. The language "clearly establishes" has been interpreted to mean the same in this section [Rule 1.6 (b)(3)] as it means in Rule 1.6 (c) (2) which states that "information is clearly established when the client acknowledges to the attorney...that the client has committed fraud." LEOs 1347, 1367.

ii. The fraud must be one that was committed in the course of the representation, and it must be related to the subject matter of the representation. LEO 1731 illustrates this point. An attorney represents a client in a criminal matter in which sentencing is pending. Prior to sentencing, the client contacts the attorney and advises she has been arrested for driving while intoxicated and driving with a suspended license. The client also advises that at the time of this arrest, she provided false identification (her girlfriend’s driver’s license) and was arrested under her girlfriend’s name.  The committee concluded that information given by a client to an attorney concerning activity by the client that may constitute a past crime must be protected by the attorney as a confidence or secret under DR 4-101 (B) (now Rule 1.6(a)). DR 4-101 (C) (3) (now Rule 1.6(b)(3)) states that an attorney may reveal information that clearly establishes that his client has perpetrated a fraud on a third party, but the fraud must be related to the subject matter of the representation. Because the subject matter of the attorney’s representation of the client (sentencing hearing on criminal drug charge) and the fraud committed by the client (misrepresentation of identity to police officer during arrest for DWI) are unrelated, the attorney may not reveal the client’s fraud unless the client consents.

iii. The fraud must have been perpetrated upon a third party. If such a fraud has caused very little harm, however, the lawyer may choose not to reveal. Frauds upon the court are given separate treatment in Rule 1.6 (c)(2).

(a) Little harm may be ministerial details or inconsequential matters.

(b) Examples of a fraud perpetrated upon a third party are misrepresentations in contracts and plea negotiations with a Commonwealth's Attorney before a matter gets to the tribunal stage, or misrepresentations to bank regulators.

(c) Attorney was able to vacate a default judgment based on client's statement during representation that service was improper. Attorney then learns service was proper. Client has not responded to attorney's effort to contact him or her. If incorrect representations regarding validity of service were made to the court, the attorney must disclose fraud. Attorney may disclose fraud to adverse counsel. LEO 730.

(d) Attorney previously served as in-house counsel for corporation. Attorney became aware the corporation had issued prospectus containing false information. Attorney resigned from corporation. Attorney may reveal fraudulent activity after advising corporation of consequences of continuing to issue false prospectuses and attorney's duty to disclose if corporation does not abandon its course of conduct. LEO 983.

(e) Lawyer may not reveal error on hospital bill forming basis for insurance settlement since there is no fraud, information is protected, and insurer has not questioned the bill. LEO 1289.

(f) Attorney who learns client misrepresented that goods were American-made when they were actually imported, avoiding duty charges, must disclose such fraud to Government counsel in action to collect penalty against client. LEO 1367.

(g) Under federal law, a lawyer representing a publicly held entity before the SEC may have an obligation to “climb the corporate ladder” and report to higher authorities, such as the chief legal officer, the board or audit committee, violations of the securities laws and other breaches of fiduciary duty.  The SEC rules, issued pursuant to the Sarbanes-Oxley Act of 2002, also permit lawyers to disclose client fraud to third parties to prevent substantial injury to a corporation or investors.

d. Attorney's Fees

i. Reasonableness of Fees

If a lawyer's fee is questioned, rules of confidentiality should not prevent him or her from proving the reasonableness of it. Rule 1.6 (b) (2). See LEOs 834, 859, 1095. However, in proving the reasonableness of the fee, the disclosure of confidential information can be only to the extent necessary. The lawyer should not use the threat of disclosing a confidence as a lever in a fee discussion. Generally, the amount of the fee paid by a client is not protected by the attorney-client privilege, and there are many cases on the subject, especially from the federal courts. However, in proving the reasonableness of the fee, the disclosure of confidential information can be only to the extent necessary to prove the reasonableness.

ii. Source of Fees

For example, under certain circumstances a lawyer may be forced to disclose whether his or her fees were paid by a third party. A lawyer should bear this in mind when accepting a fee from third parties.

iii. Large Cash Payments

Federal law requires a lawyer to report a cash fee in excess of $10,000.00 or a series of payments which exceed $10,000.00 in related transactions. The identity of the source must be reported as well as the source's tax identification number. It is a criminal offense to fail to do this. In addition, it is a felony for a lawyer to conspire with a client to launder money or for the lawyer to engage actively in the laundering of money. 18 U.S.C. §§ 371 & 1956; 31 U.S.C. §§ 5322 & 5324.

e. To Defend Against an Accusation of Misconduct

i. If a client accuses his or her lawyer or the lawyer's employees or associates of misconduct, the lawyer has a right to refute such accusations even though it may be necessary to disclose the client's confidences and secrets in the process. Rule 1.6 (b) (2); LEOs 1433, 1609.

ii. There must be an actual controversy in which the client is the aggressor and the lawyer is defending himself or herself. Meyerhofer v. Empire Fire and Marine Ins. Co., 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998 (1974); Application of Friend, 411 F. Supp. 776 (S.D.N.Y. 1975). In general, there is no exception for making such disclosure to refute accusations made by third parties, unless the client's conduct is also implicated.

iii. A defense lawyer whose former client claims that the lawyer provided constitutionally ineffective assistance of counsel generally may not disclose confidential information to government lawyers prior to any hearing on the defendant’s claim, without a court order requiring the disclosure or the informed consent of the former client.  LEO 1859.

2. Mandatory Disclosure

A lawyer is required to reveal the confidences and secrets of the client in two situations under Rule 1.6 (c):

a. Intention of Client to Commit a Crime

When a lawyer learns from his or her client that the client intends to commit a crime, the provisions of Rule 1.6 (c)(1) require the lawyer to take certain steps, if feasible: (1) advise the client of the possible legal consequences of the action; (2) urge the client not to commit the crime; (3) explain that, if he or she persists, the lawyer must reveal the criminal intention unless abandoned; and (4) if the crime involves perjury, the lawyer must seek to withdraw as counsel. [NOTE: Unlike the ABA Model Rule 1.6, Virginia's Rules of Professional Conduct imposes mandatory disclosure] This exception does not apply to past crimes, People v. Belge, 83 Misc. 2d 186, 372 N.Y.S. 2d 198 (1975) (attorney not required to disclose existence of three previously committed murders), but the above steps must be taken if the client intends to commit a crime, regardless of whether or not it is related to the subject matter of the representation, and no matter how minor the offense might be. See Rule 1.6 (b) (3); In Re Ryder, 381 F.2d 713 (4th Cir. 1967).

i. Future crimes are not privileged and must be reported if the lawyer is unsuccessful in convincing the client not to go through with it. For example, a lawyer must report a client's plan to kill someone or rob a bank.

ii. The lawyer also has a duty to report continuing crimes and such information is not privileged. Furthermore, if the lawyer is himself or herself part of or privy to the crime or crimes, such as receiving stolen property, being an accessory to the offense or being a member of a conspiracy, this is not privileged information. But see LEO 929.

iii. Attorney may disclose to appropriate mental health authorities the stated intentions of client to leave the state and commit suicide. LEO 560.  See also Rule 1.14.

iv. Attorney learned that client had been charged in brother's name with DUI. Client admitted this to his or her attorney and agreed to admit the same in court. Client then asked for a postponement of court notification. Attorney is required to reveal client's intent to perjure after trying to dissuade client and encouraging client to tell court of error.

If client commits perjury, attorney has duty to disclose. However, attorney has no obligation to reveal client's poor driving record to the court or commonwealth's attorney. Attorney does not have to reveal perjury to the commonwealth's attorney. LEO 542.

v. Even where client's stated intent to commit a crime is contingent upon the occurrence of a certain event, an attorney's duty to disclose is required under Rule 1.6 (c)(1). LEO 1355.

vi. Disclosure is improper when:

(a) Attorney received telephone messages from client in divorce case by way of a third person that client had "blown away" his wife. Attorney assisted in committing client to hospital for psychiatric evaluation. Commonwealth's Attorney intends to call attorney as witness regarding telephone conversation. Since message received by attorney indicated crime already had occurred and attorney represented client, attorney/client privilege prohibits attorney from revealing any knowledge gained about the crime. LEO 1087.

(b) Client failed to appear for trial of 8 felony counts. Arrest warrant was issued. Client informed attorney of his or her intention to remain a fugitive and leave the United States. Committee opines that client's "continuing wrong" does not fall into exception set out in Rule 1.6 (c) (1), and therefore that disclosure was not required. "Continuing wrong" concept is based on ABA Formal Opinion 155, May 4, 1936. On these extremely narrow grounds, it is the determination of the Committee that a continuing wrong is not addressed by the exception to the general rule protecting confidentiality in the attorney/client relationship. This privilege has been called "the most revered of our common law" and traceable to the reign of Elizabeth I. LEO 929. Client's whereabouts are a "secret" under Rule 1.6 if client requests attorney not to reveal. LEO 1316.

(c) There is no duty for attorney to report information to social services agencies concerning possible child abuse by client's husband unless the client's failure to disclose the alleged child abuse amounts to crime. For the legal requirements regarding the obligation to report suspected child abuse, see Va. Code §  63.2-1509.  LEO 705.

(d) Client advised attorney during course of representation that client had hidden weapons which were subject of a search warrant. Attorney may not reveal information to law enforcement officials because information is protected by attorney/client privilege. LEO 404.

(e) Attorney is not required to disclose to the court that client, administrator of estate, misappropriated estate proceeds for personal use, as long as client makes prompt and full restitution to the estate. LEO 287.

b. Fraud upon a Tribunal

1. Generally, if a lawyer has "information which clearly establishes" that his or her client has perpetrated a fraud upon a tribunal the lawyer must: (1) request the client to advise the tribunal of the fraud; and (2) if the client refuses, the lawyer must reveal it to the tribunal. The fraud on the court must have been committed "in the course of the representation"; must be "related to the subject matter of the representation"; and must be acknowledged by the client. See LEOs 1347, 1367, 1451. Rule 1.6 (c) (2).

2. By the specific language of the Rule a lawyer only knows of the fraud "when the client acknowledges to the attorney that he has perpetuated a fraud upon a tribunal." This can put the lawyer in a difficult situation when he or she has learned from a source other than the client that fraud has been perpetuated on a tribunal, but the client refuses to acknowledge it.

3. A lawyer's duty to reveal fraud upon a tribunal has no time limitations, and the obligation exists even if he or she does not learn of the fraud until long after the representation has ended. See LEOs 729, 730.

4. For example, if a client represents to the court that he or she has no prior record when the lawyer is aware that the client does, the lawyer must inform the court of his or her client's perjury if the client refuses to do so. The difficult questions are when the court asks the lawyer whether the client has a record or if the Court states that it is giving a suspended sentence because there is no evidence that the client has a record and the lawyer, in fact, knows that the client has a record. See paragraph 2(b)(6) infra.

5. When Disclosure Is Required:

i. Attorney learns from client that client and witness perjured themselves before a federal administrative law judge. Perjured testimony was material and probably contributed to a favorable decision. Attorney must reveal fraud after advising client to reveal fraud and client failed to follow that advice. LEO 727.

ii. Misrepresentations made during a deposition constitute a fraud on a court. LEO 1451.

iii. Attorney learned from client two years after representing client in Chapter 13 bankruptcy that client had undisclosed assets, including two notes payable to client from attorney's law partners. Attorney properly informed court of client's fraud upon the court after client refused to advise court of fraud. LEO 699.

iv. An attorney who discovers that client has made payments to creditors outside Chapter 13 bankruptcy plan must reveal information to the court. LEO 444.

v. Court appointed attorney for indigent client has ethical duty to report to appropriate authorities that the client can afford private counsel after attorney calls upon client to reveal fraud to the court. LEO 390.

vi. A lawyer may not, by omission or commission, permit the court to believe his client's true identity is a false name assumed by his client. LEO 1491.

6. Obviously, the client may not perpetrate a fraud on the court, nor may the attorney affirmatively misrepresent factual matters at the hearing. But does an attorney have an affirmative duty to correct an erroneous pre-sentence report or order of the court, if the attorney or client in no way contributed to the error? A lawyer must always balance his duty as an advocate to zealously represent the client's interests and his duty of candor to the court. In Legal Ethics Opinion 1186 (1989), the committee concluded that a defense lawyer is under no obligation to advise the court that it has overlooked a criminal charge, since the facts are on the public record and the lawyer has done nothing to conceal them. The committee relied on DR 7-101 (A) (3) stating that it would be unethical to reveal information that would prejudice or damage the client. In Legal Ethics Opinion 1400 (1991), the committee opined that a criminal lawyer representing a client found guilty of a felony is under no duty to reveal that the sentencing document later signed by the judge erroneously states the defendant was found guilty of a misdemeanor (assuming that the lawyer did not endorse the document or otherwise participate in drafting it). In fact, the lawyer was ethically obligated not to reveal the error since the revelation would damage his client. The opinion assumed that the lawyer did not endorse the document or otherwise participate in its creation. Similarly, in Legal Ethics Opinion 1215 (1989), the committee concluded that a defense attorney was not required to inform the court or the Commonwealth that the court had rescheduled a trial date beyond the statutory limitation period for the prosecution of a particular felony. The defense attorney had not sought the continuance nor had he agreed to it. Similarly, in LEO 1731, the committee concluded that an attorney was not required to voluntarily reveal information that his client has been arrested between trial and sentencing, where such information was omitted from the pre-sentence report. However, the committee cautioned that the defense attorney must be careful not to mislead the court, and be truthful in response to any questions by the court.

7. No Duty to Disclose Omission in Bankruptcy Filing.

Should an attorney disclose to the bankruptcy court that his former client failed to inform the court of an asset inherited by the client during the180 day disclosure period?

No, not in this scenario. The attorney learned from an outside source that his former client inherited real estate during the 180 day period in which the debtor is required to inform the court of post-petition assets. The attorney learned that his former client did not disclose the inherited real estate as required. The committee found that the debtor inherited the asset after termination of the attorney-client relationship; and, the attorney did not discover the problem until after the professional relationship had ended. Thus, the client’s purported fraud on the court did not occur during the course of the representation as required under Rule 1.6 (c). Rule 1.6's general duty of confidentiality prevents the attorney from disclosing any information about this issue. LEO 1777.

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VI. SUBSTANCE ABUSE AND THE LAWYER'S RESPONSIBILITY

A. The Problem

1. Abuse of alcohol and chemical substances is a national epidemic. The National Institute of Alcohol and Substance Abuse reports that incidents of alcoholism and/or chemical dependency for the legal profession are above the national average.

2. Often a deteriorating legal practice and the neglect of legal matters are symptomatic of a substance abuse problem. Various bar associations have determined that a large portion of ethical violations, disciplinary procedures, and disbarment procedures can be attributed to chemical dependency.

3. Obviously, chemical dependency and substance abuse may adversely affect a lawyer's competence in the practice of law. Additionally, each lawyer has the responsibility to report to the appropriate disciplinary body any violations of the Disciplinary Rules that raise a substantial question as to a lawyer's honesty, trustworthiness, or fitness to practice law. Rule 8.3 (a). The understandable reluctance to report a fellow lawyer upon suspicion of substance abuse, however, has resulted in benign neglect of a growing problem.

B. A Partial Solution

1. The Virginia State Bar and The Virginia Bar Association have jointly sponsored a substance abuse committee that produced a program entitled "Lawyers Helping Lawyers."

2. The objectives of the program include:

a. A desire to "separate" the program from the state disciplinary forces to encourage the chemically dependent to come forward.

b. A dedication to confidentiality to give each participant assurance that the information is private and to encourage honesty and trust.

c. Utilization of a group of highly motivated, responsible lawyers who serve on a voluntary basis to implement the program and to aid others in the profession.

3. Rule 8.3 has been added to the Virginia Rules of Professional Conduct to assure the confidentiality of the "Lawyers Helping Lawyers" program.

4. Additionally, Va. Code § 8.01-226.1 provides in part:

Any licensed lawyer shall be immune from civil liability for, or resulting from, any act, decision, omission, communication, finding, opinion or conclusion done or made while engaged in efforts to assist other lawyers in connection with substance abuse counseling pursuant to the guidelines of the Virginia State Bar plan of "Lawyers Helping Lawyers" . . . . provided that the lawyer acts in good faith and without malicious intent.

5. Each congressional district has a group of lawyers dedicated to confidentiality and to the aid of their fellow lawyers who are available to counsel and encourage the lawyer afflicted by substance abuse. Referral to trained intervention counselors and/or substance abuse programs are among many options available.

6. Help is available. The call will not threaten a legal career. It might save one.

7. Hot Line: 1-877-545-4682

8. For more information concerning programs available, call The Virginia Bar Association (804) 644-0041.

C. Partners’ Obligations With Respect to Mentally Impaired Lawyer in the Firm

ABA Formal Opinion 03-429 (2003):

If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation. The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.

D. Substance Abuse and Mental Health Issues in Disciplinary Actions

Alcohol and drug abuse can lead to serious disciplinary actions against an impaired lawyer. Every year the Disciplinary Board hears summary suspension, disability and misconduct cases involving lawyers who are impaired by alcoholism or drug addiction. In disability or summary suspension cases there is usually direct evidence of substance abuse by the attorney. In misconduct cases, however, there is often no direct evidence of substance abuse, but there may be circumstantial evidence of abuse.

1. In the Matter of David Roland Page, VSB Docket No. 03-000-0061 (2003). The disciplinary board summarily suspended respondent’s license to practice law based upon his conviction in Fairfax County Circuit Court of driving while intoxicated, third or subsequent offense within ten years. Prior to further hearing, respondent surrendered license to practice law.

2. In the Matter of Francis Sullivan Callahan, VSB Docket No. 01-021-2010 (2002). A three-judge circuit court entered and order suspending respondent’s license for 45 days based on arrest and guilty plea to "attempt to purchase ecstasy" under which he was sentenced as a first offender.

3. In the Matter of William Elliott Moorman, III, VSB Dockect No. 01-061-0641 (Disc. Bd. 2002).  Lawyer’s intoxication during hearing impaired his ability to represent the client competently and substance abuse problem rendered Respondent unfit to practice law. Agreed eighteen month suspension with terms including rehabilitation through Lawyers Helping Lawyers and direct supervision upon resumption of law practice.

When does a lawyer need help for substance abuse? Here are some behavioral warning signs:

• Lying about alcohol or drug use

• Becoming jumpy, shaky, nervous or ill when deprived of drugs or alcohol

• Using alcohol or drugs in the morning or at work

• Having trouble stopping use once drinking or drug use begins

• Avoiding family, friends or colleagues to get drunk or high

• Experiencing legal or financial problems due to drugs or alcohol

• Taking risks, such as engaging in illicit sexual encounters or driving while under the influence of alcohol or drugs

• Developing chronic health problems or requiring hospitalization as a result of drugs or alcohol

The sooner a lawyer gets help with substance abuse the better. Do not assume that lawyer’s impairment is known to the bar. Act on your concerns and get help through Lawyers Helping Lawyers or other appropriate assistance program. If the lawyer poses a risk to clients or the public, report the matter to the Virginia State Bar.

 

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Copyright © 2014 Virginia State Bar. All rights reserved. Updated 11/01/14