The Virginia State Bar’s legal staff includes the ethics unit. The ethics hotline, (804) 775-0564 or ethicshotline@vsb.org, serves members of the bar and the public by answering questions regarding ethics and the unauthorized practice of law. Below, are some of the most frequently asked questions, along with summary answers. References in these answers are made to the Rules of Professional Conduct (RPCs)^[1] the Unauthorized Practice Rules (UPRs)^[2], Legal Ethics Opinions (LEOs) and Unauthorized Practice of Law Opinions (UPLs). The rules and many of the opinions can be found at the Virginia State Bar’s Web site: www.vsb.org.

1. The Missing Client and Abandoned Client Funds

For both of these categories, an attorney must provide the requested items regardless of whether the client has paid his bill. The old common law "retaining" lien on the client’s file is overruled by Rule 1.16 (e). A lawyer may ethically pursue all normal collection options against a former client for unpaid fees; however, the retention of the file must never be held up in exchange for payment of the bill for fees, the copying cost, or other costs associated with the representation.

A third category presented in Rule 1.16(e) includes 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 with the attorney/client relationship. A lawyer is not required to provide those items to the client. It is important to note that attorney work product is not in this category. An attorney must provide copies of things like his research, witness interview notes, drafts of documents and outlines of case strategies to the client upon request, as those items are within the second category discussed above.

This provision is a part of the general rule 1.16, addressing an attorney’s duties upon the end of the attorney/client relationship. The intent of this rule is that an attorney be required to provide the outlined items at the termination of the representation, upon request of the client, one time.

5. File Retention

A lawyer who wants to retain his license to practice, but whose legal work is on hiatus, may find switching from active to associate status an appropriate option. Attorneys on associate status are "entitled to all privileges of active members except that they may not practice law, vote or hold office (other than as members of committees) in the Virginia State Bar."^[3] While on associate status, the member pays reduced dues and does not need to comply with the usual Continuing Legal Education requirements. If an associate member is going to take an occasional case, he would need to return to active status. However, while on associate status, the lawyer could provide legal work directly to another attorney in a paralegal/law clerk type of arrangement, teach law as an adjunct professor or serve as an expert/consultant for a licensed attorney.

Effective February 1, 2009, Virginia adopted revised versions of Rules 5.5 and 8.5 of the Rules of Professional Conduct. Virginia's rules now mirror similar versions of Rules 5.5 and 8.5 adopted by a majority of other jurisdictions and based on the ABA Model Rules. Rule 8.5 places jurisdiction and authority to discipline non-Virginia lawyers for any unauthorized practice of law with the Virginia State Bar. These attorneys now are subject to the same discipline as Virginia-licensed attorneys. Rule 5.5 controls and sets the limits of practice in Virginia of non-Virginia licensed attorneys. Attorneys who are not licensed in Virginia cannot establish an office or continuous presence in Virginia for the practice of law. They can, however, engage in certain temporary or occasional practice: (1) undertaken in association with a Virginia-licensed attorney (including an attorney admitted under Part I of the corporate counsel rule, Rule 1A:5 Rules of the Virginia Supreme Court); (2) related to pending or potential proceeding before a Virginia tribunal if the foreign attorney expects to be authorized to practice before that tribunal or is assisting someone who is authorized; (3) related to a pending or potential ADR proceeding; or (4) related to representation of a client by the foreign attorney in the foreign attorney's licensing jurisdiction or regarding international law. Before undertaking these various services the foreign attorney must tell the client and any interested third parties that he/she is not admitted to practice in Virginia, where the lawyer is licensed to practice and the lawyer's office address in the foreign jurisdiction. LEO 1856 provides a detailed analysis of how the provisions for temporary and occasional practice apply to foreign lawyers who are physically located in Virginia. See also UPL Opinion 158.

Another safe harbor for a foreign attorney performing services in Virginia is a pro hac vice appearance in a Virginia court case. Rule 1A:4 of the Rules of Supreme Court of Virginia allows for a court to grant a motion upon application by a foreign attorney, after the foreign attorney has associated with a Virginia-licensed attorney, to appear in a particular matter before the court. The Virginia attorney must appear and participate in proceedings conducted before the tribunal and must accept joint responsibility for the client and the case. The foreign attorney must pay a $250 fee per case along with his/her application and is limited to admission on twelve (12) cases within a twelve (12)-month period preceding a current application.

Finally, a foreign attorney may perform certain legal work as in-house corporate counsel pursuant to Rule 1:A5. An extended explanation of that Rule appears with Question 11, below.

Law school graduation alone does not provide any authority to practice law. The law degree does not change the person’s status as a nonlawyer under the UPRs. As such, the graduate can only work in a law clerk status with all of his work being provided to a lawyer to review, and not directly to clients, opposing counsel or a court. Therefore the graduate cannot give legal advice to any person. The graduate will be deemed a member of the Virginia State Bar and, therefore, able to practice law when they have met all criteria for admission to the bar and the membership staff at the bar has assigned that person a membership number. That bar membership authorizes the person to practice law; however, to appear in court, the lawyer would also need to be properly sworn in.

11. In-House Counsel

The Supreme Court of Virginia adopted Rule 1A:5[4] to govern corporate counsel in Virginia, effective September 1, 2003.  That rule requires all attorneys, not active members in good standing of the Virginia State Bar, who wish to serve as in-house counsel in Virginia to either be certified or registered under the terms of the rule. 

Under Part I of the rule, a lawyer may obtain a corporate counsel certificate permitting limited representation of one Virginia employer.  The certificate authorizes in-house counsel to represent his or her employer in state courts without a pro hac vice appearance as would otherwise be required by Rule 1A: 4.[5]  The lawyer must meet all the requirements for Virginia State Bar membership, including CLE requirements.  Should this lawyer ever choose to become an active member of the Virginia State Bar without examination pursuant to Rule 1A:1[6], work done pursuant to a corporate counsel certificate constitutes the practice of law for that determination. In addition to his practice for his employer, a lawyer certified pursuant to Part I of the rule may provide pro bono legal services in Virginia.

Under Part II of the rule, a lawyer may choose, instead of a certificate, to merely register as a corporate counsel.  Registration does not entitle the lawyer to represent the employer in state court; a pro hac vice appearance would be needed.  Also, should the registered attorney seek to become a member of the Virginia State Bar without examination, the time spent as a registrant will not constitute the practice of law for purposes of Rule 1A:1.

Note that Part I's certificate is only available to foreign attorneys licensed in another state.  For foreign attorneys licensed only in foreign countries, only registration under Part II is available.

A frequent scenario is one in which, for example, a wife comes in to meet with a potential divorce attorney. After discussion of the matter, the wife does not retain this attorney. Later, the husband comes in and wants the same attorney to represent him in the same divorce. Rule 1.18 provides that when a person comes in and shares information in good faith with an attorney in order to seek representation, the attorney must maintain the confidentiality of the information even where the attorney is not retained; the person clearly provides the information to the attorney with a reasonable expectation that confidentiality will be protected. Although the lawyer may not use or reveal any information learned during the consultation with the wife, the lawyer is only disqualified from representing the husband if he learned information from the wife that "could be significantly harmful" to the wife in the divorce proceeding. Even if the lawyer has received such information, he may represent the husband if both husband and wife consent to the representation, or another lawyer in the firm may represent the husband if the lawyer who received the information from the wife took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the wife, is screened from the representation, and gives written notice of the screening to the wife. Rule 1.18(d).

There are three exceptions in the rules where a screen is acceptable: to avoid imputation of a conflict: "revolving door" situations involving government attorneys and situations involving former judges and arbitrators. Rule 1.11 addresses attorneys switching from government practice to private practice, and vice versa. Paragraph (b) of that rule outlines a screening procedure for an attorney in a private firm who had worked "personally and substantially" on a matter where another member of that firm now will represent a party "in connection with" that matter. Rule 1.12 addresses the private practice of former judges and arbitrators. Paragraph (c) outlines a screening procedure for an attorney in a private firm who had participated in a matter as judge or arbitrator where another member of the firm will now represent a party in that same matter. Rule 1.18 addresses duties to prospective clients, and paragraph (d) outlines a procedure for screening an individual lawyer who has received disqualifying information from a prospective client while permitting another lawyer in the firm to represent a party adverse to the potential client. Outside the scenarios addressed by Rules 1.11, 1.12 and 1.18, a screen is not a sufficient cure for conflicts of interest triggered by the ethics rules.

Attorneys hired by executors are not always clear to whom they owe duties of loyalty and confidentiality. Both the executor and beneficiaries may interact with the attorney as if he represents the interests of everyone involved. However, as outlined in LEOs 1452, 1599 and 1720, when an attorney is hired by the executor, she represents that person in that role. She does not represent the beneficiaries. Nonetheless, beneficiaries are not always knowledgeable on that point and may look to the attorney for advice and share personal information with the attorney. An attorney always has a duty to clarify his role whenever dealing with an unrepresented person when that person is confused on the point. Rule 4.3. Accordingly, where a beneficiary is under the impression that the attorney is protecting that beneficiary’s individual interest, the lawyer has an affirmative duty to clarify the matter. Also, while the executor’s attorney does not represent the beneficiary personally, she must, nonetheless, maintain awareness of the executor’s fiduciary duty to the beneficiaries and never assist in a breach of that duty. LEO 1599 and 1778.

When the attorney is discharged prior to the completion of the representation he may only recover the reasonable value of the services which he has rendered . . . and in instances where the fee is contingent upon the outcome of the matter, the attorney may not recover the full agreed upon fee. He is entitled only to a recovery in quantum meruit for services actually rendered.

(See Trust Accounting Frequently Asked Questions).

21. Medical Liens

What is the obligation of the lawyer when the client and a third party claim a right to the same funds?

These situations normally arise in the circumstance where a medical provider asserts that they have a lien against any recovery in the client's matter.   The client may contest that lien or simply want distribution of the funds to themselves with the assertion they will handle or deal with the lien.   The lawyer cannot ignore a third party's legitimate legal interests in the settlement proceeds if those interests exist either by law or assignment. Further, the lawyer cannot disburse funds that are in controversy.  

The lawyer's ethical duties do not require the lawyer to make a legal determination as to who is entitled to the proceeds, only that the lawyer must protect both the client and the third party who appear to have conflicting claims to the funds (lawyer's fiduciary duty to the third party). If the dispute cannot be resolved, the lawyer may interplead the funds into court and request that the court determine the legal entitlement to the funds. Rule 1.15, Comment [4]; LEO 1747.

22. Flat Fees

When is a flat/fixed fee considered earned? What happens if the attorney's representation is terminated before the representation is complete?

Unless the fee agreement specifies otherwise, the entire flat fee is unearned and must remain in the trust account until the entire representation is complete. If the representation is terminated before the matter is complete, the attorney is entitled to a fee based on quantum meruit for the work done prior to termination.

The fee agreement may provide for certain portions of the flat fee to be earned upon the completion of certain benchmarks, which would allow the attorney to draw down the flat fee in stages throughout the representation rather than earning the full fee at the conclusion of the matter. The fee earned at each benchmark must be reasonable considering the amount of work completed.

23. Self-reporting Potential Misconduct

Under what circumstances must an attorney report her own conduct to the Bar?

The Rules of Professional Conduct only require self-reporting for discipline by another state or federal disciplinary authority, agency, or court, conviction of a felony, or conviction of a crime involving theft, fraud, extortion, bribery or perjury or attempt/solicitation/conspiracy to commit those offenses. The Rule does not require self-reporting of traffic violations, including reckless driving. Rule 8.3(e). The Rules of Professional Conduct also do not require that an attorney report a personal bankruptcy.

24. Incorporating a Law Firm

What corporate structures are permissible for a limited liability law firm?

A law firm, if incorporated, may only incorporate as a professional corporation (PC), professional limited liability corporation (PLLC), or registered limited liability partnership (RLLP). After incorporating, the entity must also register with the Virginia State Bar. Code § 54.1-3902

25. Contact with Employees of a Represented Organization

When can a lawyer communicate with current or former employees of an organization when that organization is represented by counsel in the matter?

In Virginia state courts, comment 7 to Rule 4.2 limits the application of the rule to members of the organization's "control group" or "alter ego." This group typically includes current officers and/or directors of an organization or other employees who have the authority to bind the corporation. Rule 4.2 does not bar contact with non-control group/alter ago employees unless they are independently represented by counsel.

Federal courts in Virginia have applied a more restrictive test, barring communication with: (1) persons having managerial responsibility for the organization; (2) any other person whose act or omission in connection with the matter may be imputed to the organization for purposes of criminal or civil liability; or (3) any other person whose statement may constitute an admission on the part of the corporate party. Armsey v. Medshares Mgt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998) (decided under former DR 7-103). At least one state court has interpreted the rule in the same way. Dupont v. Winchester Med. Ctr., Inc., 34 Va. Cir. 105 (Winchester Cir. Ct. 1994).

State and federal courts generally agree that a lawyer may communicate with former employees of the organization, whether or not they were members of the control group during their employment. See Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 2d 948 (W. D. Va 2008); Rule 4.2, Comment 7.

26. Clients Who Make Credible Threats of Suicide

May a lawyer disclose otherwise confidential information to protect a client who threatens to commit suicide?

Rule of Professional Conduct 1.14 ("Client With Impairment") provides guidance to a lawyer whose client's physical and financial well-being is at risk of substantial harm due to the client's diminished capacity. Sadly, there have been many instances when a client facing incarceration, loss of child custody, or loss of income and property has informed his or her lawyer that the client intends to commit suicide. When the lawyer "reasonably believes" that such a threat is credible, the lawyer "may take reasonably necessary protective action" on behalf of the client. Neither the Rule nor the Comments which follow it specifically address a client's threat of suicide, but the Rule should be interpreted to allow the lawyer to contact the client's family, close friends, mental health care providers, or emergency medical services personnel so that an intervention can be made to save the client from harm. Lawyers who take protective action consistent with Rule 1.14 do not violate Rule of Professional Conduct 1.6 ("Confidentiality of Information") because Rule 1.6(a) permits disclosures which are "impliedly authorized in order to carry out the representation". Lawyers must nonetheless adhere to the requirement of Rule 1.14(c) to reveal otherwise confidential information "only to the extent reasonably necessary to protect the client's interests."

The Standing Committee on Legal Ethics has opined that it is not a violation of the ethical duty of confidentiality for a lawyer to disclose to appropriate authorities a client's stated intention to commit suicide. See LEO 560

27. OK, I passed the Bar Exam. When can I practice law?

You may practice law once you have received a license by the Virginia Board of Bar Examiners. See Va. Code §54.1-3900. However, you may not appear in any court in the Commonwealth until you are "sworn in," i.e., administered the oath of qualification by the Supreme Court of Virginia or qualified by an individual court to practice only in that court. See Va. Code §54.1-3903. Every person licensed by the Virginia Board of Bar Examiners or admitted to practice before the Supreme Court of Virginia shall register with the Virginia State Bar within one year after licensure or admission if they intend to practice law in the Commonwealth of Virginia. Va. S. Ct. R., Part 6, §IV, ¶ 2(a). In other words, if you are not yet "sworn in," but hold a license to practice law, you may engage in the practice of law but may not appear in court on behalf of a client. The admissions ceremony at the Supreme Court of Virginia qualifies you to practice in any court in the Commonwealth, but not any federal or bankruptcy courts sitting in Virginia. You must be separately admitted to the federal and bankruptcy courts. Note that the signing and filing of a pleading with a court is an appearance in that court and you must be admitted to practice in that court to do so.

28. Contact with a Person Represented by Counsel on a Limited Scope Representation (LSR).

Rule 4.2 states: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Rule 1.2(b) allows a lawyer and a client to limit the scope of the representation.

Effective January 1, 2019, and until December 31, 2021, lawyers may be able to enter a limited appearance ("limited scope representation") on behalf of a client pursuant to Rule 1:5(f) of the Rules of the Supreme Court of Virginia.

Suppose you are representing a client in a case filed in circuit court and the adversary is a pro se litigant. Shortly thereafter you are served with a "Notice of Limited Scope Representation" indicating that your self-represented adversary is represented by LSR counsel solely for briefing and arguing in opposition to your motion for summary judgment. Prior to hearing on the motion for summary judgment, the pro se litigant calls you and wants to talk about settlement of the case. May you communicate directly with the adversary about settlement, or must you communicate with the LSR lawyer or obtain consent from the LSR lawyer to speak directly with your adversary?

New Rule 1:5(f) makes clear that if LSR counsel has appeared in the case, you are to serve notices and pleadings on both LSR counsel and their client, and the latter is considered "unrepresented" in that matter. But, does that mean that your adversary is "unrepresented" in other activities, e.g., settlement negotiations, etc., that do not require a filing or activity in court?

The best answer is "yes," your adversary is unrepresented for purposes of Rule 4.2 unless you have actual knowledge that the LSR lawyer is representing her client for negotiations also. Treating the LSR client as "represented" on matters for which no notice of representation has been given belies the actual knowledge requirement of Rule 4.2 and disregards the limited scope of the representation for which notice has been given.

If the scope of the notice of LSR is unclear, you could inquire and confirm that she is not being represented by counsel before discussing settlement of the case. Alternatively, you could contact the LSR lawyer to confirm that she is not representing the client for purposes of settlement negotiations. If your inquiry is not satisfactorily answered by either, you may regard the adversary as unrepresented and communicate directly with her.

ENDNOTES –––––––––––––––––––

1 Rules of the Supreme Court of Virginia, Part 6, §II. back to top

2 Rules of the Supreme Court of Virginia, Part 6, §I. back to top

3 Rules of the Supreme Court of Virginia, Part 6, §IV, Para. 3. back to Attorneys on Associate Status

4 Rules of the Supreme Court of Virginia, Part 1 back to In-house Counsel

5 Id. back to In-house Counsel

6 Id. back to In-house Counsel