12.5 Ethics

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

12.5 ETHICS

Virginia practitioners pursuing or responding to discovery must consider the ethical limits on their actions. The Virginia State Bar (VSB) has issued well over one thousand Legal Ethics opinions (LEos) that interpret the Virginia Rules of Professional Conduct (Ethics Rules) and the former Code of Professional Responsibility.

It is useful to consider the ethics principles that apply in connection with (i) dealings with other participants in the discovery process; (ii) the substance of discovery responses; (iii) the remedies and sanctions that might apply to discovery abuses; and (iv) specific discovery procedures.

12.501 Lawyers' Dealings with Other Participants in Discovery Matters.

A. Current Clients.⁴⁴⁰ Lawyers owe their primary duty of care and loyalty to their clients.⁴⁴¹ In pursuing discovery on behalf of clients, lawyers must act competently⁴⁴² and pursue all lawful objectives unless instructed otherwise.⁴⁴³ Lawyers must also keep their clients reasonably informed of material facts.⁴⁴⁴ The VSB has confirmed that a lawyer who has made a material mistake must inform his or her client of the mistake.⁴⁴⁵ The lawyer's important duty of confidentiality is discussed in paragraph 12.502(B).

The VSB has confirmed the common-sense rule that lawyers may satisfy their communication duty by communicating with their clients electronically.⁴⁴⁶ The VSB has also addressed the dilemma that arises when a lawyer who represents a possibly impaired client must decide whether to give certain documents to that client.⁴⁴⁷

The Ethics Rules explicitly require lawyers to defer to their clients' decisions about their objectives and to consult with their clients about the means of pursuing those objectives.⁴⁴⁸ In 2016, the Eastern District of Virginia sanctioned a lawyer for failing to pass along to his client a settlement offer from the defendant.⁴⁴⁹ This duty of vigorous representation⁴⁵⁰ and communication requires lawyers to fully advise clients of the consequences of their actions in connection with discovery. The duty applies when clients are responding to discovery. For instance, one LEO has stated that a lawyer must make full disclosure to the client before suggesting that the client sign a blanket authorization for medical, psychological, and psychiatric evaluations.⁴⁵¹ Similarly, the duty of zealous repre sentation and communication requires lawyers to advise their clients of material discovery responses by adversaries.

Lawyers' duty of loyalty to their clients also applies when lawyers are seeking information. This issue sometimes arises if a lawyer's duty of vigorous representation of one client would require discovery of another client. For instance, a lawyer representing a client in commercial litigation might find it necessary to subpoena the adversary's bank records. If the lawyer represents the bank on unrelated matters, does a conflict of interest arise? If it does, the lawyer presumably could seek discovery from the bank only with the bank's (and the other client's) consent. The answer to this question is not obvious. Some discovery is cordial and non-confrontational and would hardly seem to be the kind of "adversity" that triggers the conflicts rules and the consent requirement. On the other hand, discovery can be nasty. If a conflict arises when a lawyer pursues discovery of a client, does it depend on the nature of the discovery?

The American Bar Association (ABA) has explicitly indicated that any discovery of a client on behalf of another client triggers the conflict rules.⁴⁵²

Although the VSB has not issued such an explicit opinion dealing with discovery from current clients, it has discussed two scenarios in which a lawyer is disabled from being adverse to a former client because of material confidential information obtained from the client. In LEO 140 7,⁴⁵³ a lawyer's adversary hired an expert that the lawyer's firm had previously represented and about whom the lawyer had material incriminating evidence. The opinion indicated that because the lawyer could not use the incriminating evidence of the firm's former client, the lawyer could not cross-examine the adversary's expert. This seems like the wrong outcome, and could encourage a litigant to hire its adversary's former client as a testifying expert—with the hopes of knocking out the adversary's lawyer. It makes more sense to allow another lawyer (frequently called "conflicts counsel") to cross-examine such a testifying expert.

Another frightening scenario is discussed in LEO 145 7.⁴⁵⁴ A lawyer represented a condominium board of directors in a personal injury action filed by a visitor who hurt himself in the condominium swimming pool. While the lawyer was preparing one of the board members for a deposition, he learned that the board member (while acting as the condominium's president) had exceeded his authority in permitting visitors to use the swimming pool. The opinion stated that although the lawyer did not represent the board member individually, his failure to advise the board member of this fact meant that the member could have a reasonable expectation that confidences shared with the board's lawyer would remain secret. Therefore, the lawyer could not represent the board because he then had material adverse confidential information about one of the board members. Because the information was secret, the lawyer could not even share it with his client or explain why the lawyer had to withdraw. Such scenarios highlight the importance of lawyers properly identifying their clients, their role, and whom they do not represent.

Although the VSB has not specifically addressed it, Virginia lawyers would be wise to notify their clients and seek consents if they find it necessary to conduct discovery of their clients. Given the difficulty of predicting the course of discovery in litigation, lawyers might wonder what to do in the midst of a large litigation matter if it becomes necessary to seek discovery from a client and the client does not consent. ABA LEO 36 7⁴⁵⁵ indicated that it might be appropriate for co-counsel to seek discovery. In some situations, it might be necessary to hire a lawyer solely to seek discovery from a client who will not consent to the client's lawyer seeking discovery from the client.

Bars disagree about the ethical propriety of lawyers providing "behind the scenes" assistance to a litigant appearing pro se. The Ethics Rules clearly do not prohibit all types of assistance—or a lawyer could be punished for providing "cocktail party" advice to a neighbor.

Some bars draw the line at lawyers "ghostwriting" pleadings (presumably including discovery pleadings) for a litigant who claims to be acting pro se. Several Virginia legal ethics opinions had taken this approach,⁴⁵⁶ and the Federal District Court for the Eastern District of Virginia has also taken this position.⁴⁵⁷ The ABA took exactly the opposite stance—concluding that "the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of litigation," so a lawyer "may provide legal assistance to litigants appearing before tribunals 'pro se' and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance."⁴⁵⁸ This dramatic mismatch between the Virginia Bar's and Virginia courts' approach to ghost-writing has continued. In Virginia LEO 1874, the Virginia Bar explained that lawyers generally may assist pro se litigants without disclosing their role.⁴⁵⁹ However, the Western District of Virginia soon warned lawyers practicing before that court not to rely on Virginia LEO 1874.⁴⁶⁰ And more recently, the Eastern District of Virginia went even further. A Local Rule deems any lawyer preparing ghost-written pleadings to have appeared before the court, and requires all pro se litigants to certify in writing under penalty of perjury that they prepared their pleadings without the aid of a lawyer (or identify the lawyer who assisted).⁴⁶¹

B. Former Clients. Lawyers often owe lingering duties to former clients.⁴⁶² A lawyer's duty to a former client can affect discovery in a number of ways.

First, a lawyer might receive a subpoena for files relating to a former client. Although the VSB apparently has not addressed this scenario, the ABA has indicated that a lawyer receiving a subpoena for a former client's file must oppose the subpoena unless the client consents to revealing the file.⁴⁶³ A 2016 ABA legal ethics opinion provided guidance about lawyers' responsibility upon receiving a subpoena or other compulsory process calling for disclosure of client confidential information or privileged communications.⁴⁶⁴

Second, the Ethics Rules require a lawyer to turn over nearly all of a client's files to the client, even if the lawyer has not been fully paid.⁴⁶⁵ Rule 1.16(e) makes it clear that "[t]he lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required." However, the rule also explains that "the lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation."

C. Parties to a "Common Interest" Agreement. The ethical duties that lawyers owe to their former clients and to non-clients from whom they received information can have a surprising effect in connection with the commonly-used "joint defense" or "common interest" agreements. Significantly, the Ethics Rules might bar a lawyer who had represented one signatory to such a "common interest" agreement from being adverse to another member.⁴⁶⁶

D. Unrepresented Persons and Entities. In connection with both formal and informal discovery, lawyers often must deal with unrepresented persons and entities. The Ethics Rules governing such contacts emphasize disclosure and...