PROFESSIONAL RESPONSIBILITY - VA

Background A. States Regulate lawyers 1. State Supreme Courts: each state regulates Att; State SCT inherent authority to regulate Att s State 2. Bar Associations: rules of PR adopted by SCT are administered by BA of that state B. Federal Courts: generally defer to ethical rules of the state in which they sit C. Origins of Ethical Regulations: ABA MCPR and newer MRPC = model for states to adopt in some form D. Integrated Bar: VA State Bar (VASB) is integrated = Att must be a member of BA to practice law E. Self Regulation: 1. profession regulates itself after rules adopted by SCT, 2. Violations reported to BA; 3. Disciplinary hearings and investigations are initiated by BA F. Virginia Rules of Professional Conduct: new version adopted in 1/1/2000 II. The Regulatory System A. Admission 1. Undergraduate degree + 3 years of law school 2. Pass the bar examination 3. Being of good moral character a. Provide answer to detailed background questionnaire B. Out of State Practice 1. Limited a. Cannot generally represent VA s citizens but may appear in CT pro hac b. If licensed in any State may appear at any time with VA co-counsel C. Federal Practice 1. Generally require local Bar Membership but same permission is given to out of state as above D. Direct Regulation of Law Practice 1. Rules of PR a. Can t K away by client or another Att Can t agree to practice outside the rules b. Rules can t be successfully challenged as inapplicable i. May only raise claims that rules were mistakenly or unfairly applied in particular context 2. Procedures: a. Complaint for violation is filed with VASB; gives notice to Att if cause is found b. Hearing held; right to confront accuser; can t resign to avoid discipline c. If violation found, can appeal in State CT 3. Sanctions: a. Disbarment b. Suspension c. Reprimand public: in Bar journal; private: letter d. Fines e. Restitution to victims of an ethical violation f. Limitation on practice g. Requiring CLE h. Drug/alcohol rehab i. Re-take Bar Exam NOTE: State/Fed CT can sanction Att for ethical violations, e.g. a contempt order 4. Duty to report violations: must report violations by another Att, UNLESS: a. Information is privileged, i.e. the other Att is a client b. Info obtained while helping Att in a substance abuse program, OR c. Client reveals misconduct BUT doesn t consent to report I.

Indirect Control Over Attorney Conduct: apart from PR rules, may be civil/criminal liable 1. Criminal law: criminal act, aiding and abetting by Att punishable by prosecution 2. Civil Liability: liable for malpractice (intentional, negligent or reckless conduct) a. Can be sanctioned for ethical misconduct by BA and malpractice by Cts F. Law Firms and Legal Services Organizations: some of the rules relate to these entities 1. Restrictions on Law Practice: covenants not to practice impermissible; can t restrict right to practice after termination a. Restrictions as part of settlement MUST be approved by CT or Gov't entity 2. Legal Service Plans: can t associate with if entity uses deceptive ad or solicitation 3. Independent Professional Judgment: att can t allow to interfere with his independent judgment or influence handling of matters 4. General Rules Apply: false ad, misleading letterhead or hiring lawyer with revoked license apply to law firms and lawyers G. Right to Counsel 1. Duty to ensure right to counsel is effective and 2. 2% of professional time for pro-bono aspirational duty 3. If client refuses to pay bill can t withdraw if materially prejudice client, e.g. once trial begun H. Restrictions on Non-Lawyers 1. Unauthorized practice of law: non-lawyers prohibited to practice law a. Bankers and RE brokers can t give legal advice for a fee i. Filling blanks on legal form as routine matter is not unauthorized practice 2. Aiding and Abetting unauthorized Practice: a. Allowing client to use Att s letterhead or do legal work and charge for it b. Splitting fee with such client is violation of the ethical rules 3. Fee-splitting with non-ATT: generally prohibited, BUT a. May collect and pay legal fees to widow of deceased Att in YOUR firm; and b. May include non-Att E ee in a firm s profit-sharing or retirement plan c. NOTE: Ks to split fees with non-lawyer are against public policy and are voidable by either party 4. Multi-disciplinary practice: may not partnered with non-Att if biz relates to practice of law 5. Lawyer whose License is Revoked: hiring as law clerk or paralegal is aiding and abetting unauthorized practice of law IF used to work for you or if representing his previous clients III. Rules of Conduct A. Obtaining Clients 1. Advertising: permitted if not misleading or deceptive. a. Must be accurate as to services offered b. Att level of experience and expertise c. Fee schedule i. Some level of dignity required and if exaggerated is misleading d. NOTE: ads must include: name and address of responsible Att (law firm may file statement with BA ID the Att), video and audio copies of ads must be kept for 1 year to be evaluated if necessary and must be clear they are ads 2. Solicitation: face to face and telephonic permitted but limited a. Prohibited if false or coercive; can t threaten, promise results, harass, confuse, take advantage of potential client who is ill, or under influence of drugs b. VA doesn t have blanket rule against solicitation BUT prohibited in PI or wrongful death claims, unless prior professional or family relationship with prospective client c. NOTE: doesn t apply to Att who are potential clients, and doesn t limit what can be said to those seeking advice, e.g. coming voluntarily to your office 3. Letters: may write letters to get biz if not misleading or deceptive E.

Include: Advertising MATERIAL Announcement cards and brochures allow BUT can t imply non-existent p ship or claim to be specialist (except for patent and admiralty) i. STATE: Practice limited to c. Note: VA allows statement of certification in particular area of law BUT must disclose that VA doesn t currently have certification process 4. Advancing money to [get] Client: a. Can t advance living expenses BUT b. Can advance or guarantee cost of litigation but client remains responsible for repayment unless indigent B. Frivolous Litigation 1. Valid claims: can t take case if client s purpose is to harass or injure a. Can t file claim or assert defense not supported by law i. OK to argue good faith for a change in the law 2. Criminal Matters: can t threaten criminal prosecution to help client gain advantage in civil matter a. Criminal Defense Att: not frivolous to introduce all possible defenses for client i. It is unethical not to do so 3. NOTE: other issues upon meeting potential client: a. Conflict of interest b. Even if relationship doesn t develop there is a duty of confidentiality i. Can t use any info received against the client c. Can t lightly refuse client to terminate representation C. Duty of Competence 1. If take representation of valid claim HAVE to represent competently a. It s a ethical violation to neglect a matter or fail to do adequate research b. Should plan client s protection in case of Att s death or disability designating responsible Att 2. Ability: before taking a case must determine capacity to handle it a. Can refer to competent Att if Client approves i. If client approves can continue to work in the case 3. Diligence: besides knowing law and procedures, competence implies efficiency, timeliness and keeping in touch with the client (settlement offers must be communicated to client) a. Must defer to client decisions and consult about objectives D. Attorney-Client Contracts 1. Engagement letters clarifying arrangements, and scope of representation 2. K is not required BUT contingency fees must be in writing, must explain calculation of fee a. At the end of representation settlement statement is required b. Ks can t limit malpractice liability i. In-house counsel can limit personal liability as any other officer in their employment Ks E. Compensation 1. Fee must be reasonable; client must understand how she ll be billed. Explanation must be in writing by request a. Contingency fees permissible and typical in PI but client can request hourly billing b. If no risk to lose the case contingent fees are not appropriate i. For criminal case and domestic matters not appropriate ii. Termination of representation before settled or tried fees awarded in quantum meruit basis IF client obtains a judgment 2. Terminology: a. Advance deposits: refundable to the extent not withdrawn b. Retainers: not refundable; earned for being available a. b.

i. Portion returned if Att terminated during term of retainer 3. Fee-splitting with Other Att: a. If client wants 2 Att OK b. Referral fees OK in VA; fees can be shared w/o both Att remaining responsible for or working on the case 4. Fee- splitting with Non-Att: a. Can t share fees, and can t merge law practice with non-legal biz b. Can pay fees to estate of deceased Att, and c. Can contribute fees to profit-sharing or retirement plan for non-Att E ee i. NOTE: non-lawyers cannot advise clients, appear in CT and client relationship must be supervised by an Att who ensures ethical practice and reviews final work product 5. Securing Fees: can sue for fees and take lien to secure fees (not considered taking interest in case) F. Relationship with your Client 1. Roles a. Agent: ability to bind client so must show up at trial and file docs. i. Explain to let client make informed decision, unless asking for unethical behavior b. Fiduciary: can t use client s money/info to your advantage c. Trustee: as Tee of client, no commingling of funds even if no harm is done 2. Conflict of interest: can t take or keep case if interest in the outcome if may affect independent professional judgment G. Entity as Client 1. Corporations: itself, not the bd, shareholders, officer or E ee. However, duty to advise BD and duty to shareholders, but in case of conflict must disclose conflict to those who advised. a. Att director has potential conflict of interest confusing to client when conflict develops w/i the corporation 2. Partnerships: same as above. Also it is hard to represent partner and also partnership impossible to represent partner once conflict b/w partners develops a. Disclose potential conflict at the outset; actual conflict when arise i. Likely to withdraw at this point H. Privileged Information 1. Communications with client are privileged to encourage honesty 2. Advice to client, work product and docs are protected a. Info discovered outside Att-client relationship not covered, nor evidence given to Att to hide b. Privileged can be waived; some docs can be partially privileged I. Confidential Information 1. Duty of confidentiality: broader than evidentiary privilege; covers secret unrelated to particular judicial or administrative proceeding a. Any info expected by client to be held, embarrassing or detrimental to client i. Privilege is perpetual ii. Note: legal research is not confidential, but facts are 2. Limits: a. Consent: may reveal what client wants, but must disclose implications b. CT order: may reveal info if ordered to c. Fraud on 3rd party: may reveal fraud on another (related to your representation) d. Intention to commit crime: MUST reveal, but 1st try to dissuade e. Fraud on tribunal: MUST reveal, but 1st try to get client to reveal f. Perjury by criminal : if plans to lie, try to persuade not to; if fails, should withdraw; if not possible, reveal to the CT

Summary: Revealing Client Wrongdoing: can t use false evidence, make false statements, or assists wrongdoing. Options if hear or see fraudulent activities: a. Past fraud on tribunal: mere suspicion, do nothing; if client admits, request him to report; if he doesn t you do b. Past fraud on 3rd party: suspicion = no duty. If established, may reveal c. Present involvement in fraud: must withdraw to avoid assisting client d. Future intent to commit crime: advise client to reconsider, if persist, reveal it 4. Att exceptions: may reveal confidences to establish reasonableness of fee and a. To defend against charges of wrongdoing J. Conflicts of Interest 1. Att vs. Client: att s interest can t interfere with client s. Must represent loyally and with zeal. Cannot draft a will that gives you a gift form a client a. Biz deals with clients can t represent client with contrary interests if counsel to a venture or p ship; must disclose potential conflict of interest and ensure transactions are fair and equitable i. Withdraw if dispute develops b/w partners b. Advancing funds to client: prohibited b/c Att may have to much interest in the outcome c. Att as witness: can t in the same case; don t take case if know you can be witness, and if realize after taking it, withdraw i. Potential conflict: att interest in fee, client s in having a good witness ii. However, may if mere formalities, about own legal fees, if withdrawing will cause hardship (i) If actual conflict exists, lawyer became adverse witness, imputed to entire firm d. Book deals: criminal defense Att can t sign during representation of famous criminal i. Risk: to make the book exciting rather than serve client s interest 2. Clients with Conflicting Interests: based on duty of loyalty and confidentiality. Shouldn t take new client if interests conflict with existent client [if potential conflict, ensure ability to exercise independent judgment for each client]. If conflict arises, may withdraw for one or both. Disclose potential conflicts and get both consent to continue representation a. Criminal Cases: can t represent co- s; possible each may claim the other was primary offender b. Common representation: clients asking non-partisan advice; disclose potential conflict and withdraw if decide each needs independent counsel i. May act as 3rd party neutral or mediators c. Payment of fees by 3rd party: must disclose to client, get consent; refuse 3rd party influence representation 3. Conflict b/w former client and current client: can t represent new client in same matter represented former client, or substantially related to prior matter if materially adverse to interest of former client, unless he consents. Entire firm conflicted out if you are a. Former Gov't att and judges: entering private practice can t take cases they worked but the firm may screen them off and no conflict b. Att changing firms: if used to work for firm that represented client in conflict with client of new employer whole firm conflicted out, IF new Att worked and had access to confidential info of the matter i. The firm Att leaves can take clients adverse to departing Att if no one has confidential info K. Zeal: diligent representation and competence capability to represent client w/o unreasonable delay or expense. Must keep clients informed and involved 1. Bounds of the Law: cannot get involved with fraudulent client or bring frivolous lawsuit a. Withdraw if client request involvement in unethical/illegal acts b. Must ensure no prejudice to client i. Ct s permit if litigating 2. Conflicts: if can t be zealous b/c personal values or client is distasteful, MUST withdraw 3.

Roles of Lawyer 1. Negotiator a. Can t lie in negotiations about facts, law, strengths of client s case b. Do not reveal confidences BUT do not participate in a fraus 2. Lobbyist a. Cannot imply to client ability to influence legislator, public official or judge 3. Advocate: Limits a. Lying: can t and can t advise client to lie. Don t need to reveal weakness of case BUT can t make false statement of law or fact b. Trickery: Not allowed to: i. Manipulate witness, destroy discoverable docs to influence trial ii. Make frivolous discovery requests or fail to comply with proper discovery request c. Honesty: need to be candid with CT and treat opposing party/counsel fairly i. Not permitted to insult or abusive to gain advantage at trial d. Relations with media: can t use them to influence trial i. STD: w/e statement likely to substantially interfere with fairness of jury trial e. Contact with opposing party i. Can t talk with represented party w/o her Att present or consent, except (i) Represent person seeking 2nd opinion or replacement counsel ii. If opposing party not represented, can t appear impartial or give advice (except to get Att) iii. Opposing witness is not party, so can and should talk to them f. Client lying i. Lie or mislead the CT: Att duty with CT is greater than confidentiality (i) Advise client to rectify; if he doesn t = REVEAL g. Revealing legal adverse authority i. MUST if in your jurisdiction and directly adverse to your client s claim or defense h. Avoid personal opinions i. ATT CAN T offer own views of facts, witnesses, or proper outcome, unless you are witness i. Jurors i. Can t influence/harass ii. Can talk to them AFTER trial, in proper dignified manner, to find out if there was reversible error in deliberations j. Witnesses i. Can t induce them to testify in a certain way ii. May pay for travel expenses, and modest fee iii. Can request not to give info if a relative or employee of the client k. Special rules for prosecutors i. His zeal is mediated by higher duty to ensure justice is done (i) Must reveal all evidence and witnesses helpful to (ii) May not bring doubtful cases, try to get to waive his rights, discourage witness from testifying on behalf of M. Termination of The Attorney-Client Relationship 1. MUST withdraw if a. About to break law or commit unethical act b. Physically or mentally unable to represent adequately c. Client FIRES you 2. MAY withdraw a. Will not affect or materially prejudice client b. Client is breaking the law

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c. Client is not following advice d. Client is placing unreasonable financial burden on your practice 3. Once in trial must seek Judge s permission to withdraw. Always take steps to protect client; return all docs, cooperate with new counsel, etc IV. Judicial Conduct A. Lawyers Rules 1. Can t give gifts/ loan money to judge (b/c appearance of influence 2. Can t talk to judge ex parte, and any written communication must be copied to opposing counsel 3. If leave private practice to become judge or public official, can t use position to get special advantage for your previous clients, or let them influence you B. Judge s Rules 1. Must have integrity, impartiality. Conduct must promote public confidence in the judiciary. Can t be influenced by social relationships or favor certain Att 2. Judges MUST: a. Avoid ex parte communications, though they may seek expert advice and talk to CT E ee about case b. Be fair and efficient c. Avoid public statements about a case d. Disqualify themselves if have personal or financial interest in a case e. Not accept substantial gifts f. Report their income from all sources g. Avoid political causes, though involvement with educational and charitable activities is permitted h. Not practice law or run for office