March 2, 2008
Choice Of Law
An agreed disposition posted Friday on the web page of the Virginia State Bar raised (but did not resolve because the attorney accepted a reprimand) an interesting issue. The attorney represented a client who was on parole and sought to set aside the conviction. He received a $5,000 retainer that he did not place in escrow. He took a number of steps that did not achieve benefit to the client (named Dreama Sue Blankenship). She sought return of a portion of the retainer and filed a bar complaint.
The lawyers response: he was "entitled to handle the funds in this manner because of freedom of contract to enter into a non-refundable out-of-state retainer given that he lived and practiced in Kentucky and complainant lived in Virginia." One problem was a general lack of documentation of the fee agreement itself.
Since the lawyer filed the case in Virginia, where the criminal case had taken place and parole was being supervised, Virginia ethics rules clearly would apply under Rule 8.5. The question that remains is whether the lawyer and complainant have the freedom to contract away ethical requirements that exist for the protection of the client. Would the client need independent legal advice to enter into such an agreement? (Mike Frisch)