11.12 Ethical Considerations

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

11.12 ETHICAL CONSIDERATIONS

11.1201 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." ¹⁹¹

11.1202 Contingency Fees. Attorneys cannot collect contingency fees in domestic relations cases except in rare circumstances where:

1.	The contingent fee is for the collection of, and is to be paid out of (i) accumulated arrearages in child or spousal support; (ii) an asset not previously viewed or contemplated as a marital asset by the parties or the court; (iii) a monetary award pursuant to equitable distribution or under a property settlement agreement;
2.	The parties are divorced and reconciliation is not a realistic prospect;
3.	The children of the marriage are now or will soon be at the age of maturity, and the legal services rendered pursuant to the contingent fee arrangement are not likely to affect their relationship with the noncustodial parent;
4.	The client is indigent or could not otherwise obtain adequate counsel on an hourly fee basis; and

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5. The fee arrangement is fair and reasonable under the circumstances. ¹⁹²

11.1203 Attorney-Client Privilege.

A. General Rule.

(a)	A lawyer shall not reveal 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 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).
(b)	To the extent a lawyer reasonably believes necessary, the lawyer may reveal:
	(1)	such information to comply with law or a court order;
	(2)	such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
	(3)	such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;

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	(4)	such information reasonably necessary to protect a client's interests in the event of the representing lawyer's death, disability, incapacity or incompetence;
	(5)	such information sufficient to participate in a law office management assistance program approved by the Virginia State Bar or other similar private program;
	(6)	information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential;
	(7)	such information to prevent reasonably certain death or substantial bodily harm.
(c)	A lawyer shall promptly reveal:
	(1)	the intention of a client, as stated by the client, to commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned. However, if the crime involves perjury by the client, the attorney shall take appropriate remedial measures as required by Rule 3.3; or
	(2)	information concerning the misconduct of another attorney to the appropriate professional

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		authority under Rule 8.3. When the information necessary to report the misconduct is protected under this Rule, the attorney, after consultation, must obtain client consent. Consultation should include full disclosure of all reasonably foreseeable consequences of both disclosure and non-disclosure to the client.
(d)	A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule. 193

B. Legal Ethics Opinion 693. The duty to disclose a client's confidence or secret to prevent fraud upon a tribunal exists only if the fraud occurred during the course of the attorney-client relationship. (4/12/1985)

11.1204 Conflicts of Interest.

A. General Rule.

(a)	Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
	(1)	the representation of one client will be directly adverse to another client; or
	(2)	there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b)	Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if each affected client consents after consultation, and:

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(1)	the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2)	the representation is not prohibited by law;
(3)	the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4)	the consent from the client is memorialized in writing. 194

B. Legal Ethics Opinions. ¹⁹⁵

1. LEO 221. An attorney may not represent one spouse in a divorce action if the attorney's associate discussed the matter with the other spouse, even though the other spouse did not retain the associate. (11/29/1972)

2. LEO 227. It is improper for an attorney to represent one spouse in a divorce action if the other spouse previously consulted the attorney's firm about a divorce, even if the other spouse hired another firm and the current grounds for divorce differ from what the other spouse discussed with the attorney's firm. (9/20/1973)

3. LEO 241. "It is improper for an attorney to represent a client in a divorce action when his partner represents the client's spouse in an unrelated matter."

4. LEO 295. It is proper for an attorney to represent either spouse in a no-fault divorce action even if the attorney previously represented the parties when they purchased their home as long as the attorney did not acquire "any type of special knowledge from the previous real estate transaction." (2/17/1978)

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5. LEO 337. "It is improper for an attorney to represent a wife in a domestic matter when two years prior the attorney had conferred with husband with regard to legal advice concerning a separation from his wife."

6. LEO 354. An attorney cannot represent one spouse in a contested divorce action if the attorney previously prepared a property settlement agreement for the parties and represented them in an adoption matter. (1/7/1980)

7. LEO 355. It is not proper for an attorney to represent an ex-spouse in a child custody proceeding if the attorney previously represented the other spouse's current spouse in a matter dealing with marital problems that could help the ex-spouse in his or her case, unless the other spouse's current spouse expressly consents. (2/6/1980)

8. LEO 403. An attorney may not represent one spouse in a divorce action if the attorney previously represented the other spouse in a dispute with his or her first spouse over an increase in child support for the child born to the first marriage. (2/27/1981)

9. LEO 445.

It is not improper for an attorney to represent a wife in a no-fault divorce when a member of that attorney's firm had previously represented the husband on a charge of felonious assault of a third party. The opinion of the Committee is limited to the facts of this particular inquiry. The Committee has relied heavily upon the representation that there will be no allegations of cruelty or physical abuse and upon the assumption that no information of a confidential nature was obtained by reason of the former representation. (1/18/1982)

10. LEO 452. It is improper for an attorney to represent one spouse in a divorce action when the attorney previously initiated a detailed discussion with the other spouse about the parties' marital situation at a social gathering before being retained in the divorce action. (4/12/1982)

11. LEO 538. It is not improper for an attorney to represent one spouse in custody and support proceedings even though the attorney previously represented the other spouse on a charge for driving under the

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influence as long as the custody and support proceedings do not involve "any evidence rising out of the earlier traffic offense." The attorney must withdraw if he or she learns that information gained while representing the other spouse will be relevant to the custody and support proceedings. (1/18/1984)

12. LEO 543. An attorney may not participate in a divorce action if the opposing party has alleged a 12-month separation and the attorney's client has stated that this is not true, unless the attorney discloses the misrepresentation through pleadings or other...