1.2 Ethical Considerations

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

1.2 ETHICAL CONSIDERATIONS ⁷

1.201 In General.

Although the ethical constraints governing lawyers come into their clearest focus in the litigation arena, they are an ever-present concern for any attorney in representing a client's interest. Negotiating and Drafting Marital Agreements may involve cooperative parties who are trying to amicably resolve the issues surrounding the demise of their marriage, so the conflicting sides of an issue may not be clearly defined. In such circumstances the ethical rules, particularly those concerning conflicts and confidences, are particularly important. Even with the guidance of ethical rules, considerable perceptiveness and judgment are required to handle the problems that arise.

Most ethical rules rely on a contractual model of the lawyer-client relationship, which presumes that each party is capable of receiving and evaluating information. But the drafting of both prenuptial and postnuptial agreements differs from preparing a business contract in a normal arms-length transaction. Whether parties are looking forward to starting a life together or enmeshed in the turmoil that can surround the breakdown of a marriage, the client's ability to receive and evaluate information may be colored by emotional forces that affect judgment. Ethical concerns in this setting may pose difficult problems for the lawyer.

1.202 The Virginia Rules of Professional Conduct.

The Virginia Supreme Court has adopted the Rules of Professional Conduct (the Rules). They are based on and, to a large extent, follow the Model Rules of Professional Conduct of the American Bar Association (ABA). The Virginia Rules follow the ABA numbering format, even for the numbering of paragraphs in the Commentary. Thus, a break in a numerical sequence may indicate a deviation from the ABA Model Rules, and a small "a" or other letter appended to a paragraph number indicates an addition not found in the ABA version.

The Preamble to the Rules is an overview of the general objectives of the Rules and sets forth aspirational goals for the legal profession. It also presents some guidelines for how the Rules might be applied. The Rules are identified as rules of reason to be interpreted with reference to the purpose of legal representation and the law itself. While authority from other jurisdictions interpreting similar rules is acknowledged to be helpful in understanding the Virginia Rules, the Preamble asserts that foreign interpretations are not binding in Virginia.

The existence of a lawyer-client relationship is determined by substantive law external to the Rules. Even so, the Preamble indicates that a client's request for legal services and the lawyer's agreement to provide them may be the defining characteristics of the lawyer-client relationship. The Preamble notes that some Rules, such as those pertaining to confidences, may apply even when a lawyer is still considering whether to enter into a lawyer-client relationship. ⁸

Assessment of a rule violation in the disciplinary process is made "on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation." ⁹ Whether sanctions are to be imposed and, if so, the type of sanction depends on all the circumstances, such as the seriousness of the violation, extenuating factors, and previous violations. The Preamble indicates that violation of a rule should not give rise to a cause of action or create a presumption that a legal duty has been breached. The Rules are designed to provide guidance for lawyers and a structure for regulating lawyers' conduct.

1.203 Communication with the Client.

The Rules establish several mandatory duties of communication. Rule 1.4(a) provides that a lawyer must keep the client reasonably informed and must promptly comply with reasonable requests for information regarding the representation. A lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions. ¹⁰ A lawyer must also inform the client of pertinent facts and of communications from another party that may significantly affect settlement or resolution of the matter. ¹¹ The Commentary to Rule 1.4 indicates that the duty to keep a client informed includes a duty to advise the client of dispute resolution processes. ¹² This requirement is unique to Virginia.

The Commentary also indicates that the information communicated should be such as to fulfill reasonable client expectations. ¹³ The context of the representation is a factor in determining what information to communicate. In litigation, a lawyer should explain general strategy but not, ordinarily, strategic details. The information should generally be furnished in a form that is appropriate for a comprehending and responsible adult. ¹⁴ The Commentary authorizes a lawyer to delay transmitting information when the client would likely react imprudently to immediate communication. ¹⁵ For instance, the client's own psychiatrist may ask that counsel refrain from revealing a diagnosis because doing so would harm the client. ¹⁶

1.204 Client Confidences.

A. In General.

Rule 1.6(a) requires the nondisclosure of client confidences or secrets unless a client consents after full disclosure. But Rule 1.6(a) allows disclosure of confidences and secrets regardless of express consent if the disclosure is impliedly authorized in order to carry out the representation. The Commentary indicates that a client's instructions or special circumstances may limit the concept of implied consent. ¹⁷

B. Scope of Protection.

Under Rule 1.6, a lawyer may not reveal information protected by the attorney-client privilege or information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to the client. Although the ABA Model Rules set forth a definition of "client information" that includes all information "relating to the representation," the definition was rejected as too broad and was not adopted into the Virginia version of the Rules. ¹⁸

The Commentary to Rule 1.6 emphasizes that information does not have to come directly from the client in order for it to be protected. ¹⁹ It is sufficient that the information is protected by the attorney-client privilege, ²⁰ the client has requested that it be kept secret, or it would be embarrassing to the client. A client's consent to disclose a confidence must be an informed consent. The client must be given adequate information about the confidence and the consequences of disclosure. ²¹

The duty of confidentiality continues after the client-lawyer relationship has terminated. ²² Furthermore, a lawyer who has formerly represented a client or whose present or former firm has represented the client may not use to the client's disadvantage information that was gained in the prior representation unless its disclosure would be permitted under Rule 1.6 or Rule 3.3 requiring candor before a tribunal, or unless the information has become generally known. ²³

Commentary added to Rule 1.6 in 2016 emphasizes the lawyer's duty to safeguard information that is protected under the Rule against unauthorized access by third parties or unauthorized or inadvertent disclosure by the lawyer or other persons who are participating in the representation or under the lawyer's supervision. ²⁴ The new commentary particularly addresses keeping abreast of evolving technology, including precautions regarding data security. ²⁵

The confidentiality rules prevent a lawyer from associating another lawyer in the matter without the client's consent. ²⁶ Consultation with another lawyer in a manner that would disclose the identity of the client or any client confidences without the client's consent is also prohibited. ²⁷ However, the lawyer may use anonymous hypotheticals for consulting with another lawyer without client consent. ²⁸ The Commentary to Rule 1.6 indicates that seeking advice from other lawyers is permitted if it is done in strictly hypothetical or abstract terms and care is taken to determine that the lawyer from whom advice is sought does not have a conflicting interest. ²⁹ The advising lawyer should protect the information imparted by the consulting lawyer. This portion of the Commentary is unique to Virginia and is not found in the Commentary to the ABA Model Rules. The Commentary would allow lawyers within a firm to disclose information to one another unless a client has requested that the information be confined to a specific lawyer. "War stories" and gossip are permitted as long as they are anonymous, but the information should not be such that the identity of the client or other confidential information could be deduced from the facts. ³⁰

When a lawyer, after obtaining the client's consent, consults with another lawyer, the consultant lawyer is required to keep the facts and substance of the consultation confidential. ³¹ The consultation creates a potential for conflict that would disqualify the consultant lawyer from representing a client adverse to the consulting lawyer's client. The consulting lawyer should disclose the identity of the client on whose behalf the consultation is sought to allow the consultant lawyer to conduct a conflicts check. ³² The same rule applies when consulting with nonlawyers who may be employed by the client, such as accountants or private investigators. ³³

C. Implied Consent to Disclosure.

Many lawyers rely, either consciously or unconsciously, on the concept of implicit consent in their dealings with a client. While this concept might be comforting, an explicit understanding with the client as to what information may be disclosed and to whom can prevent embarrassment and unhappiness for both the lawyer and the client.

Rule 1.2(d) states, "[a] lawyer may take such action on behalf of the client as is impliedly

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