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VSB ethics panel scratches 2 LEOs

The Virginia State Bar Legal Ethics Committee has withdrawn two 1990 legal ethics opinions out of concern they might lead lawyers astray in matters involving powers of attorney.

The two opinions – LEO 1313 and 1339 – take the view that a law firm hired to prepare a power of attorney is representing the attorney in fact that sought the service.

That’s not always the case, said VSB Ethics Counsel Jim McCauley.

McCauley said the issue can come up in estate planning work involving families. Questions arose from calls on the VSB ethics hotline ((804) 775-0564), he said.

It was “problematic” for the opinions to state in such a conclusory and definite manner that the holder of a power of attorney is always the client, McCauley said.

“We don’t want lawyers to look to those opinions for guidance and come to the wrong conclusion,” he said.

Moreover, McCauley said, a legal ethics opinion may not be the forum to define the attorney-client relationship, a matter under frequent review by the courts. Opining on the creation of an attorney-client relationship is “outside the purview” of the ethics committee, he said.

McCauley described the withdrawal of the two LEOs as a “housekeeping” measure.

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