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The law governing the
conduct of lawyers in Virginia is based on:
VA Rules of Professional Conduct (RPC)
ABA Model Rules
Applicants for admission to the bar shall not:
· knowingly make false statements of material fact
- · fail to disclose a fact necessary to correct a
- · fail to respond to a lawful demand for
- nonconfidential information from an admissions or disciplinary authority, or
· obstruct lawful investigation
It is professional misconduct to:
1. Violate the RPC
- 2. Commit a criminal act or wrongful act that
- adversely affects L’s honesty, trustworthiness, or truthfulness as a lawyer
- (catch all)
- 4. State or imply an ability to improperly
- influence judge, public official or legislative body
A lawyer not licensed in VA is nonetheless subject to the disciplinary authority of VA if:
1. he offers to provide legal services in VA
2. or holds himself out to provide law services in VA
Supervising attorneys are personally responsible for subordinates’ ethical violations if:
- 1. they order or ratify the subordinate’s unethical
2. or knew about the misconduct at the time where the consequences could have been prevented or mitigated (and didn’t stop it)
When selling a law firm, the seller must notify the clients regarding:
1. The proposed sale and identity of the purchaser
2. Any proposed change in the terms of the future representation, including the fee arrangement
- 3. The client’s right to consent or refuse
- to transfer the client’s matter (w/in 90 days of notice)
4. The client’s right to retain other counsel and/or take possession of the file
5. That refusal of consent to the transfer is presumed if client does not take any action or object w/in 90 days receipt of notice.
The RPC allows adverting as long as the communication is not misleading. A statement is misleading if:
1. it contains false or misleading info
2. states or implies a particular outcome
- 3. compares lawyers series with other lawyer’s series (unless it can be factually
Advertisements for legal services must include:
1. name and
2. office address of the lawyer responsible for its conduct.
L cannot give anything of value for referral services. However, L can pay:
1. reasonable cost of permissible advertisements or communications
2. usual charges of a non-profit lawyer referral service
Law firm name restrictions:
- 1. Trade names ok if not misleading or apply a
- connection a government agency or charity
2. Lawyers not associated with each other cannot imply they are partners
What is solicitation?
Personal contact with a specific prospective client in order to obtain employment with respect to a particular matter.
In person contact for fee generating employment is permitted only if:
The person contacted is:
· has a or close personal relationship w/ L
· or prior relationship with L.
Solicitation is ok if:
· its not for pecuniary gain
· L can rep a group or organization that wants to start a prepaid legal services plan for its members
Duty of competence: Factors used to assess the sufficiency of L’s knowledge and skill in a particular matter include:
1. relative complexity and specialized nature of the matter
2. L’s general experience
3. L’s training and experience in the field
4. Prep and study time L is able to give
5. Feasibility of referring the matter
A lawyer can provide advice or assistance in an emergency, even if he lacks the skills ordinarily
it is limited to what is reasonably necessary.
If client is not competent to handle a representation he may:
1. Decline the case or withdraw
2. Get competent!
3. Associate w/ competent counsel
Factors to determine whether a fee is clearly excessive include:
1. time and labor required
- 2. novelty and difficulty of questions and skills
3. fee customarily charged
4. amount in controversy and results obtained
- 5. experience and reputation of the lawyer
- performing the services
6. whether fee is fixed or contingent
Contingent fees are
· domestic relations
Contingent fees must:
be written and include:
· method of fee calculation
· when fees are to be deducted
When can L advance
court costs and litigation expenses for C?
· when C is ultimately liable for costs
- · or C is indigent and L agreed in advance to
- absorb the costs
If L enters into a biz transaction with C:
1. The transaction must be fair and reasonable to C
2. Terms are fully disclosed to C in an understandable way
3. Client must be given reasonable opportunity to seek independent counsel
4. IC Writing.
L cannot rep C if L is a necessary W, unless:
1) Testimony is for an uncontested issue
- 2) Testimony relates to the nature and value of
- legal services rendered in the case
- 3) Or—if the disqualification of L would create a
- substantial hardship for C
A lawyer related to another L2 who is a parent-sibling-spouse-or intimate relationship:
Must not rep C1 in a case directly adverse to the C2 of L2.
· consent from C1 and C2
· after full disclosure
· And L1 and L2 reasonably believe can provide competent rep.
L must not rep C1 if representation is directly adverse to another C2 or materially limited by the lawyer’s responsibilities to another C2 unless:
1. each affected C consents after consultation
2. L reasonably believes he can provide competent & diligent rep
3. Rep not prohibited by law
4. Rep does not involve the assertion of a claim by C1 against C2 in the same lit
Can a lawyer rep multiple criminal co-defendants?
Yes… but they shouldn’t; because of the “grave” potential for a conflict.
Can a lawyer rep multiple parties in a civil case?
· risk of adverse effect is minimal
· L reasonably believes competent & diligent
· Cs give IC in WRITING
A 3rd party may pay for C’s rep only if:
1. C consents after consultation
- 2. No interference with L’s independence or
- professional judgment or w/ the L-C relationship
3. Confidentiality is preserved.
When L is disqualified by a COI, his firm is also disqualified, unless:
The COI is based on a personal interest that does not materially limit representation by the firm.
Firm may rep C with interests adverse to departed L’s clients, unless:
1. new matter is the same or substantially related to the case the departed L worked on
2. Ls remaining in the firm have confidential info that is material to the matter.
Former Govt Ls are prohibited from personally representing a client when:
- GL personally and substantially participated in the same matter as a public employee-à
- unless G and C consent.
Withdrawal from rep is MANDATORY if:
1. rep would break RPC
2. L’s mental or physical condition impairs ability to rep C.
3. Ya FiRED!
If termination of L’s representation = Breach of K, attorney can:
Recover damages in quantum meruit.
Withdrawal from rep is PERMISSIVE if:
1. insists on a course of action that is illegal or unjust
- 2. C insists on taking action/inaction that L
- considers repugnant or imprudent
3. C has used L’s services to perpetrate crime or fraud
4. C fails obligation (like to pay L)
5. Rep could create unreasonable financial burden on L
6. Other good cause exists
- ***even so, the court can require L to
- continue rep
If L terminates C’s rep, L must:
- Take steps to the extent reasonably practicable to protect C’s interests.
- · Give C reasonable notice of termination
- · Give C time to retain new counsel
- · Return unearned fees.
Duty of candor to the court: L shall not knowingly:
1. make a false statement to judge
2. fail to disclose material facts, when disclosure is necessary to avoid assisting C with a criminal act
- 3. fail to disclose legal authority known to be
- adverse to C’s position
4. offer false evidence.
Special duties of
· don’t charge someone without pc
· disclose exculpatory or mitigating ev
Exception to AC privilege:
Required disclosure to prevent future crimes.
When can confidential info be revealed?
1. ok client
2. implied ok client to carry out rep
3. between firm lawyers
4. to establish a claim or respond to allegations
How does confidentiality requirement differ from A-C privilege?
Confidentiality applies to the info acquired during the representation by any source.
What would you like to do?
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