Legal Profession

Question 1

A lawyer is generally prohibited from entering into an agreement with a client that places a prospective limitation on the lawyer’s…

Answer 1

…malpractice liability to the client.

BUT, Virginia recognizes an exception when the lawyer is an employee of the client as long as the client is independently represented in making the agreement.

Question 2

A lawyer must provide […] representation to the client.

Answer 2

competent

Question 3

Competent representation requires…

Answer 3

the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

A lawyer is not required to know the law that governs the client’s legal claim before undertaking representation, provided the lawyer will be able to acquire the necessary knowledge with reasonable diligence.

Question 4

A lawyer’s fee must be […].

Answer 4

reasonable

Question 5

Must a lawyer explain the fee to the client?

Answer 5

Yes.

A lawyer must adequately explain her fee to a client. When a lawyer has not regularly represented a client, a written contract regarding the fee is preferred.

Question 6

When should an explanation of the fee be made?

Answer 6

Before or within a reasonable time after commencing the representation

Question 7

What factors (among others) is a court likely to consider to determine whether a fee is reasonable?

Answer 7

(1) experience of the lawyer performing the service
(2) fee customarily charged in the locality for similar legal services.

Question 8

What are the special requirements regarding contingent fees?

Answer 8

(1) Agreement must be in writing
(2) Written agreement must explain how fee will be calculated, especially deductions for expenses
(3) Must provide an ending statement to client covering outcome and calculation of fee and expenses

Question 9

Are sexual relationships with clients prohibited?

Answer 9

Not necessarily, but there can be a risk of conflict of interest.

Question 10

For a conflict of interest where a lawyer’s representation of a client will be materially limited by the lawyer’s personal interests, it may be waived if…

Answer 10

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation; AND
(2) the client consents in writing.

However, if the conflict is sufficiently gross or there is a direct conflict, the conflict cannot be waived.

Question 11

Unless the client agrees to another arrangement, when a lawyer receives property of another, the lawyer must…

Answer 11

…promptly deliver that property and generally provide an accounting on request.

Question 12

Funds in which two or more persons (one of whom may be the lawyer) claim an interest must…

Answer 12

… be held in the trust account until the dispute is resolved and there is an **accounting and severance **of their interests.

Any portion belonging to the lawyer must be withdrawn promptly from the trust account.

Question 13

A potential conflict of interest occurs when

Answer 13

(i) two clients’ interests are directly adverse to each other, OR

(ii) there is a high probability that representing one client will materially limit the lawyer’s ability to represent another

This is an objective standard.

Question 14

A lawyer must take […] to safeguard client property.

Answer 14

[reasonable steps]

Lawyers must maintain client trust accounts and safety deposit boxes for the safekeeping of client property.

Question 15

A lawyer must not […] her property with that of a client; client funds must be held in a […] account separate from a lawyer’s property.

Answer 15

[comingle]

[client trust]

Question 16

Lawyers are prohibited from making statements that are […] or remaining silent when the statement or silence would amount to […] under applicable tort principles.

Answer 16

[fraudulent]

[fraud]

A statement to a third party must be both false and material for it to subject the lawyer to discipline.

Question 17

Every pleading filed must be signed by ….

The Virginia attorney cannot …

If the pleading is not signed properly, ___ unless ___.

A signature defect may be cured within ___ after ___ or ___.

After cure, the corrected pleading or other paper is treated as ___.

A invalid filing for lack of signature will ___ of any applicable SoL. However, if the signature defect is properly cured, ___.

Answer 17

… a pro se litigant, or by an attorney admitted to practice in Virginia.

… authorize an attorney licensed in another state, but not in Virginia, to sign the Virginia licensed attorney’s name to the pleading.

… the pleading is defective and voidable … and until the signature defect is cured.

… 21 days … it is brought to the attention of the offending party … if the offending party seeks and is granted leave of court within a reasonable time of filing.

… having been properly signed when originally served or filed.

… will not toll the running of an applicable … the pleading or motion will relate back to the date it was originally served or filed.

Question 18

A lawyer shall not make or offer an agreement in which a broad restriction on the lawyer’s […] is part of the settlement, except…

Answer 18

[right to practice]

…when such a restriction is approved by a tribunal or a governmental entity.

Virginia Rule 5.6 thus prohibits a lawyer from agreeing not to represent other clients in connection with settling a claim on behalf of a current client.

Question 19

A lawyer must […] if continuing the representation will violate the Virginia Rules.

Answer 19

[withdraw]

Question 20

If a lawyer must withdraw, that lawyer should:

Answer 20

immediately:
(i) notify the client of his withdrawal
(ii) seek leave of the court to do so, AND
(iii) take reasonable measures to minimize the harm to the client resulting from the termination of representation.

Question 21

What reasonable steps must an attorney take to minimize harm to the client resulting from the lawyer’s withdrawal?

Answer 21

Such steps include: (i) protecting the client’s confidentiality, (ii) returning the client’s files, all AJ’s work product, records, and any unearned fees, and (iii) assisting the client while they seek to secure new counsel to avoid or minimize material harm to the client’s interests.

Question 22

Lawyers and judges have a duty to report a lawyer’s serious misconduct to the appropriate professional authority when the lawyer or judge has…

Answer 22

…reliable information that another lawyer has committed misconduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

Question 23

Once the client fires the lawyer, the lawyer must…

Answer 23

…withdraw and return the client’s papers and property that are in the lawyer’s possession.

In Virginia, even papers produced as work product must be turned over to the client.

This duty to return papers to the client exists even when the client has not paid the lawyer’s fee.

Question 24

Virginia recognizes that an attorney is entitled to recovery based on […] when a client, without cause, fires the attorney who is providing services under a contingent-fee agreement and the client employs another attorney who […].

Answer 24

[quantum meruit]

[obtains recovery for the client]

The attorney’s quantum meruit recovery is based on the reasonable value of the services in themselves, and not necessarily on their benefit to the client.

Question 25

A lawyer generally may not represent a client if the lawyer is a […] in a contested case unless…

Answer 25

[necessary witness]

…disqualifying the lawyer would result in a substantial hardship for the client.

Question 26

After undertaking a representation, if a lawyer learns that the lawyer may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that…

Answer 26

[may]

…the testimony is or may be prejudicial to the client.

A lawyer must withdraw if continuing the representation will violate the Virginia Rules.

Question 27

As a general rule, when a lawyer has a conflict of interest, that conflict is […] to all of the lawyers in the lawyer’s law firm.

Answer 27

[imputed]

Question 28

While generally a lawyer is empowered to determine the best means for achieving the goals set by a client, a lawyer is also required to provide a client with…

Answer 28

…sufficient information to permit the client to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.

Question 29

Lawyers are prohibited from communicating about the subject matter of a dispute with…

Answer 29

… represented opposing parties without first obtaining permission from the opposing party’s lawyer.

A mere witness is not a represented party.

Question 30

When dealing with a represented organization, the rules prohibits unauthorized communication between an opposing lawyer and…

Answer 30

…employees who supervise, direct, or regularly consult with the organization’s lawyer regarding the subject matter of the representation.

Question 30

A lawyer is under an affirmative obligation to refrain from implying that the lawyer is disinterested in…

Answer 30

…the matter about which the lawyer is communicating.

Question 31

Under the duty of confidentiality, a lawyer must use […] to prevent the inadvertent or unauthorized…

Answer 31

[reasonable efforts]

…disclosure of confidential and privileged information.

Question 32

Under the duty of communication, a lawyer must…

Answer 32

… keep a client informed of the status of the client’s matter and must respond to a client’s reasonable requests for information.

Question 33

In business transactions between a lawyer and client, the rules require…

Answer 33

…that a client consents in writing, that the client be given a reasonable opportunity to seek the advice of independent counsel, that the transaction be objectively reasonable, and that the transaction be in writing and in terms that can be understood by the client.

The client must be given an opportunity to seek independent counsel, but no written suggestion of outside counsel is required.

Question 34

When a client gives an attorney a retainer or an advance deposit, the money belongs to …

Answer 34

… the client and must be placed into the Firm’s trust account.

Question 35

The attorney-client privilege covers …

However, the ___ are not “communications.”

Further, the privilege is waived where the communication takes place under circumstances that …

Answer 35

… (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance.

… underlying facts …

… persons outside the privilege can overhear what is said.

Question 36

The work-product doctrine applies to …

The doctrine protects covered materials from ___ unless ___ can show they have a ___ and

Answer 36

… (1) documents (2) prepared by a lawyer or their lawyer’s team (3) in anticipation of litigation.

… discovery … opposing counsel … substantial need for it … cannot, without undue hardship, obtain an equivalent by other means.