LEGAL ETHICS IN WEST VIRGINIA
West Virginia Office of Lawyer Disciplinary Counsel
2008 Kanawha Boulevard, East Charleston, WV 25311 (304) 558-7999
TABLE OF CONTENTS
The subject of legal ethics does not have many black and white propositions, rather there are many
difficult grey are.as where choosing the wrong course of action could leave a lawyer open to ethics
complaints or discipline. There is no absolute protection against ethics complaints -people can
and often do file complaints which are frivolous. However, there are steps which lawyers can take
to avoid receiving ethics complaints and, most importantly, avoid violating the Rules of
Professional Conduct. Becoming familiar with the basic rules and understanding where to seek
guidance when questions arise are important first steps.
This chapter provides an overview of the disciplinary process in West Virginia and some important
rules to follow. It does not purport to be a comprehensive analysis, does not replace careful
research and review of an issue, and does not bind the Office of Disciplinary Counsel, the Lawyer
Disciplinary Board or the Supreme Court of Appeals of West Virginia on these matters.
A. Rules of Professional Conduct. The West Virginia Rules of Professional Conduct
[“RPC”] are published annually in the Michie’s West Virginia Code Annotated State Court Rules
Volume. The RPC govern lawyer’s conduct both in representing clients and, in some cases, their
private lives [for example, a conviction of a crime which reflects adversely on a lawyers honesty
can be a violation of the RPC, even if the crime had nothing to do with a case or a client]. Each
rule in the RPC is followed by a Comment section and, where applicable, an annotation to West Virginia cases. Although the
Comment sections are not binding upon the Court, they should be carefully reviewed as they often
provide helpful examples and analysis.
B. Rules of Lawyer Disciplinary Procedure. The Rules of Lawyer Disciplinary Procedure [RLDP]
are also published in the Michie’s West Virginia Code Annotated State Court Rules Volume. The RLDP
are the procedural rules which govern disciplinary proceedings. The RLDP were significantly
amended effective July 1,
1999. The primary change with the amendments was to allow for screening and easier dismissal of
frivolous complaints.
C. The Standards of Professional Conduct. The Standards of Professional Conduct
were adopted by the Supreme Court of Appeals of West Virginia effective January
1, 1997. They are aspirational in character and seek to encourage lawyers to behave in a civil
and professional manner. All lawyers should read and abide by them. The Standards are not a basis
for a cause of action and are not enforceable by the Lawyer Disciplinary Board.
THE LAWYER DISCIPLINARY BOARD
The Lawyer Disciplinary Board was created by the Supreme Court of Appeals of West Virginia and is
considered an administrative arm of the Court. Its functions are set forth in the RLDP. Before
the adoption of the RLDP in 1994, the Board was named the
11Committee on Legal Ethics.. and had a slightly different structure.
There are 19 members of the Board: 131awyers and 6 non lawyers. Members are appointed by the
President of the State Bar. The members volunteer their time. They
serve a three year term and may be reappointed once [for a total of six years]. Members reside all
over West Virginia.
The Board is charged with investigating complaints of violations of the RPC and taking “appropriate
action.” When handling complaints, the Board divides into two bodies, the Investigative Panel and
the Hearing Panel [discussed in complaint procedures section, below].
The Board as a whole considers policy matters and issues formal advisory opinions [called L.E.O.s, or “legal ethics opinions” 1 discussed below.
THE OFFICE OF DISCIPLINARY COUNSEL
The Office of Disciplinary Counsel [ODC] is the full-time staff of the Lawyer Disciplinary Board.
The staff, who are employees of the West Virginia State Bar, consists of four lawyers [called
Disciplinary Counsel], three legalassistants, and a clerk/receptionist. Disciplinary Counsel serve
as legal counsel to the Board.
The ODC reviews all complaints filed with the Lawyer Disciplinary Board and investigates where
appropriate. The ODC may screen frivolous complaints, may dismiss complaints which after
investigation are shown to lack merit, and prosecutes lawyers where complaints do have merit.
Duties of the ODC are set forth in the RLDP.
The ODC in its discretion.may initiate complaints on its own when it learns of a violation but no
one has already filed a complaint. The ODC can also petition directly to the Supreme Court in
cases in which a lawyer is impaired and unable to practice, has abandoned his I her practice, or
appears to be a danger to the public.
1 These Opinions were called L.E.I.s, or “legal ethics inquiries” until2006.
The ODC also attempts to informally resolve matters where appropriate. For example, if a client
merely seeks assistance in obtaining a file or in getting a lawyer to return calls, an ODC employee
will attempt to resolve the situation with a telephone call to the lawyer. This often avoids a
formal sworn complaint and investigation.
Very importantly, Disciplinary Counselgive informal advice to lawyers on compliance with the Rules
of Professional Conduct. There is no charge for this service, rather it is a benefit of State Bar
membership. Lawyers or members of their legal staff may call and request this informal advice at
(304) 558-7999, fax at (304) 558-4015, or send a letter to
2008 Kanawha Boulevard, East, Charleston, WV 25311. For routine questions, calling on the telephone
is the quickest way to receive an answer. If the advice given is confirmed in writing by the
requesting lawyer pursuant to RLDP 2.15, the Disciplinary Counsel who gave the advice will sign-off
on the letter, and the letter is admissible should anyone file an ethics complaint about that
matter. ODC staff makes informal advice a priority, and more than 700 of these opinions are given
each year. Please call before you act!
THE COMPLAINT PROCESS
The disciplinary process is started when a sworn, notarized complaint is received by the ODC or
when ODC initiates a complaint. For policy reasons [protection of the public], and because some
of the Rules of Professional Conduct pertain to how a lawyer deals with opposing parties and
unrepresented persons,–there is no standing requirement as to who may file a complaint. Parties
may, and often do, file against the opposing counsel.
A lawyer at ODC evaluates the complaint to determine whether it alleges a violation on its face.
If not, a letter is sent declining to docket which closes the complaint. If the complaint should be referred to a State Bar committee, such as the Voluntary Fee Dispute Mediation
Program, it is. The complaint also can be referred to fee dispute mediation AND docketed as an
ethics complaint.
If a violation is alleged on its face, the complaint is sent to the lawyer for a response. The
lawyer has 20 days to respond, but may request an extension of time for good cause. ODC may perform
any appropriate investigation.
If no violations are found, the case will be closed [dismissed] by either the Chief Lawyer
Disciplinary Counsel or the Investigative Panel of the Lawyer Disciplinary Board. The closing order
sets forth a brief explanation as to why the complaint is closed. A Chief Lawyer Disciplinary
Counsel closing may be appealed by the Complainant to the Investigative Panel [“IP”].
The IP has a total of seven members: five lawyers and two non-lawyers. In addition
to closing complaints, it can find probable cause that a violation occurred and issue a Statement
of Charges to the Hearing Panel of the Board for a hearing. Alternatively, the IP can issue an
“Investigative Panel admonishment11 when a lawyer has committed a violation, but that violation
does not warrant formal discipline. An IP admonishment is not considered to be formal discipline,
and is not reported to other jurisdictions where the lawyer presently may be licensed. The IP
also may close [dismiss] a complaint with a caution or warning to the lawyer to change bad
practices, thus giving the lawyer a chance to correct the problem. A large majority of complaints
are dismissed by the ODC or the IP, and do not go further in the process.
If the IP finds probable cause that a violation of the RPC occurred and that a hearing should be
held, a formal statement of charges is drafted and filed with the Clerk
of the Supreme court of Appeals of West Virginia. A Hearing Panel Subcommittee [consisting of
Board members who are not on the IP] is appointed. The Subcommittee consists of two lawyers and
one non-lawyer. The Subcommittee holds an evidentiary hearing, where an ODC lawyer serves as the
“prosecutor” and the Respondent lawyer is usually represented by counsel. ODC has the burden of
proving the case by clear and convincing evidence. Te hearing is open to the public, testimony is
taken and exhibits are offered. ODC and the Board do not have the authority to “settle.. an ethics
case.. However, ODC and the Respondent lawyer can agree to submit stipulated findings
of fact, conclusions of law, and a recommended sanction to the Subcommittee for consideration.
After holding the evidentiary hearing, the Hearing Panel Subcommittee can accept the stipulations
or make recommended findings of fact, conclusions of law, and propose a recommended sanction to
the Supreme Court of Appeals of West Virginia.
The Supreme Court reviews all cases in which the IP has found probable cause and issued a Statement
of Charges. The Supreme Court is the final arbiter of legal ethics cases. The Supreme Court
reviews the Hearing PanelSubcommittee’s recommendations and may establish a briefing schedule and
hold oral argument, particularly if either ODC or the Respondent object to the Hearing Panel
Subcommittee’s recommendations. The Court can conduct an independent review even if no one
objects. The Court applies a de
novo standard of review as to questions of law and to determining the appropriate sanction,
but gives substantial deference to the Hearing Panel Subcommittee’s findings of fact.
The Supreme Court then issues a decision, which can either be published or unpublished.
Some cases, such as emergency petitions, impairment petitions, or criminal convictions, go directly
to the Supreme Court.
The Board and Court also hear “reciprocal cases” in which a lawyer who is also licensed in another
state is sanctioned in that state for misconduct. Proceedings are then initiated in West Virginia
based upon that out-of-state sanction.
PUBLIC RECORDS
A. Your address. Whatever address a lawyer lists with the West Virginia State Bar is a matter
of public record. When ODC forwards a complaint to a lawyer, this address is used and will become
known to the complainant. Accordingly, lawyers who do not wish for complainants or others to know
their home addresses or phone numbers should list work information instead.
B. “Informal complaints.” Where there has been no sworn complaint filed, but a client may
call ODC seeking help in obtaining a file or a return call from a lawyer, these remain
confidential. If a sworn complaint is filed, it is a public record after the complaint is
resolved, as described in the next section.
C. Confidentiality of open complaints. The details of complaints filed or
investigations conducted by ODC are confidential while the complaint is still open. However, ODC
“may release information confirming or denying the existence of a complaint or investigation,
explaining the procedural aspects of the complaint or investigation, or defending the right of the
lawyer to a fair hearing. Prior to the release of information … reasonable notice shall be
provided to the lawyer.” RLDP Rule 2.6.
D. Closed complaints and the “public file.” Once the complaint has been resolved
-whether by the ODC, the IP, or decision of the Supreme Court- the initial complaint and the
closing order or Supreme Court decision are matters of public record. Per the orderof the Supreme
Court of Appeals of West Virginia in Daily Gazette Co. v. Committee on Legal Ethics, 326 S.E.2d 705
(1994), closing orders and the initial complaints are matters of public record even if the
complaint was determined to be frivolous.
E. Hearings cases. If a Statement of Charges is issued, it is filed with the Supreme Court
Clerk, and thus is a matter of public record. All pleadings thereafter in a hearing case are
filed with the Clerk. The hearing is open to the public. The Hearing Panel Subcommittee’s
recommendation, the briefs to the Supreme Court, and the Supreme Court’s decision [even if
unpublished) are filed with the Clerk and are public records. The ultimate decision of the Supreme
Court is placed in ODC’s public file.
WHAT TO DO IF YOU RECEIVE A COMPLAINT
Remember that many complaints are based on a misunderstanding, or are filed because a client is
unhappy with a fee or the outcome of a case, or the opposing party has focused his unhappiness on
the opposing counsel.
If you want to have another lawyer represent you in the ethics complaint, you may do so. The
general practice has been for the lawyer to respond to the initial complaint, but to hire counsel
if a Statement of Charges is issued [i.e., if the IP finds probable cause and refers the complaint
to a Hearing Panel Subcommittee>. This is the decision of the lawyer
who receives the complaint, and the decision should be based upon how comfortable the lawyer is in
responding on his/her own and how serious the allegations are.
The ODC will send the lawyer a copy of the complaint along with an explaining cover letter. Read
the complaint and letter carefully, review any file on the underlying case, and prepare a written
response to the ODC. There is no set format for the response. A letter with a verification is the
usual format. The response must be verified.
Failure to respond to an ethics complaint or a request for information from ODC constitutes a
separate and independent violation of Rule 8.1(b) of the RPC, even if the underlying complaint
otherwislacks merit.
Because of the number of complaints and other work ODC handles, the complaint process can sometimes
take a long time. Lawyers may contact ODC and check on the status of the matter. All complaints
which are pending review by the Chief Lawyer or the IP are considered 11under investigation,”
regardless of the seriousness of the allegations. The length of time a complaint is under
investigation is not necessarily synonymous with how serious ODC believes the complaint to be.
FORMAL OPINIONS OF THE BOARD
The Lawyer Disciplinary Board issues formal advisory opinions, called L.E.O.s [Legal Ethics
Opinions]. These opinions are not binding upon the Supreme Court, but are binding upon the Board.
The opinions are published in the West Virginia Lawyer Magazine upon issuance and are also
available on the West Virginia State Bar’s Internet homepage. All opinions can also be obtained by
contacting ODC.
The State Bar’s homepage also includes the West Virginia Code, cases, other
research materials, and lots of helpful links. The Bar’s page is www.wvbar.org. To find the
(…E.O.s (formerly L.E.I.s), choose the “Members” option, then choose the “Lawyer
Disciplinary Board” option.
WHERE TO GO TO RESEARCH AN ETHICS QUESTION
A. Read the Rules of Professional Conduct [in the State Court Rules Volume of the Code],
including the comment sections and any annotated cases pertaining to the applicable rule.
B. Many decisions of the WV Supreme Court on lawyer ethics and related matters are published
cases and are available in printed reporters, computer research services, or the Supreme Court’s
homepage www.state.wv.us/wvsca/.
C. If you have a question about compliance with the Rules of Professional Conduct, you are
invited to call the Office of Disciplinary Counsel and speak with one of the Disciplinary Counsel
at no charge. Phone (304) 558-7999.
D. Check to see if there is an L.E.O. on your topic [see section above]. These can be found
on the State Bar’s homepage atwww.wvbar.org or may be obtained by calling the ODC.
E. The ABAIBNA Manual on Professional Conduct, published by the American Bar Association and
the Bureau of National Affairs, Inc., includes information and discussion on the model rules upon
which WV’s rules are based. There is information on the differences among the states, various state
and ABA advisory opinions, the ABA model rules and model code, the model rules of lawyer
disciplinary enforcement, current reports on cases across the nation, etc. The Manual is available
in most law libraries.
F. Hazard and Hodes The Law of Lawyering, published by Prentice Hall Law & Business, has a
discussion of each of the model rules with citations to select state cases. Sections on applying
the rules are provided. This reference is available in most law libraries.
G. The American Bar Association has a call-in service called ETHICSearch which focuses on
ABA advisory opinions and the model rules. ABA advisory opinions are not binding in WV, but are
generally very persuasive. Make sure to compare the WV rule with the model rule – many are
identical, but not all. There may be a charge for this service. Call 800-285-2221 (option B).
JUSTICES, JUDGES,MAGISTRATES, JUDICIAL CANDIDATES, AND FAMILY LAW MASTERS
A. Complaints against Supreme Court Justices, Circuit Court Judges, Family Law Judges,
Magistrates, Mental Hygiene Commissioners and judicial candidates are handled by the Judicial
Investigation Commission, the counterpart to the Office of Disciplinary Counsel. Contact Charles
R. Garten, Counsel, or Nancy Black, Executive Secretary, at Post Office Box 1629, Charleston, West
Virginia 25326, telephone number (304) 558-0169.
B. Judges must abide by a separate set of stringent rules, the Code of Judicial
Conduct. These rules are published in the Michie’s State Court Rules volume of the
West Virginia Code.
DILIGENCE
Diligence is important: Diligence and lack of communication are by far the basis for most
complaints filed with the ODC. Every day new complaints are filed where clients allege th.at the
lawyer did not take timely, or any, action on a case. This includes not talking to potential
witnesses, not performing discovery, not filing documents in a timely manner or at all, etc.
Because of their busy practices, this can get to be a problem for some lawyers. Rule 1.3 requires
a lawyer to ..act with reasonable diligence and promptness”.
COMMUNICATING WITH THE CLIENT
Basic Considerations: Diligence and lack of communication are the main areas of complaints filed
with the Office of Disciplinary Counsel. Thus, a friendly, responsive demeanor with clients is a
necessity. Even the smallest matter may be very important to your client. Prompt attention to
that matter and communication with your client are absolutely critical to avoid complaints.
Returning Calls and Responding to Letters: Rule 1.4(a) of the RPC requires a lawyer to ..keep a
client reasonably informed about the status of a matter and promptly comply with reasonable
requests for information.” You should make it a priority to return the client’s calls and answer
letters, or have a member of your staff do it for you. Often the client just wants to know the
status of a matter, which can be communicated by your secretary or legal assistant- just do not
permit support staff to give legal advice.
Even if you have nothing new to report, return the call or have someone in your office return the
call or respond by letter. If a client calls your office numerous times a day every day, of
course you do not have to take/return evf;ry single call- it is a reasonableness test- but you
should return some of these calls, and it is important that you personally speak with the client
from time to time.
Explaining the matter to the client: Pursuant to Rule 1.2(a) of the Rules of Professional Conduct,
settling a case or accepting a plea bargain are decisions to be made by the client, with the
lawyer’s advice. Rule 1.4(b) requires that a lawyer uexplain a matter
to the extent reasonably necessary to permit the client to make informed decisions regarding the
representation.” The ODC gets numerous complaints every year from clients who say their lawyer did
not explain something to them and/or coerced them into settling or pleading. What kind of
explanation you give often depends on the client- a client who is unsophisticated in the ways of
litigation may need more time with you than a business CEO would, but you must spend the time.
Written documentation of your advice is important. If the client is not following your advice, a
written letter to the client confirming the situation is a good step.
ADVERTISING
Basic Considerations: You may advertise by newspaper, radio, television or in magazines. You must
keep a copy of the advertisement or communication, and records of where and when the ad or
communication took place, for two years after its last dissemination. [Rule 7.2]. You should
avoid mentioning the dollar amounts of past verdicts, to avoid creating an unjustified
expectation of results you can achieve. [Rule
7.1(b)]. Do not compare your services with other lawyers’ services unless the comparison can be
factually substantiated. [Rule 7.1(c)]. You may include statements of fact, such as the fact that
you are a C.P.A., a civil trial specialist certified by the National Board of Trial
Advocacy, or a nurse. Your ad must include the name of the “responsible attorney.” [Rule
7.2(d)]. If your ad copy includes “no recovery-no fee” or similar phrases, you must
disclose in the ad the client’s responsibility for fees, costs and expenses. [L.E.I. 96-01). The
same rules apply to Internet advertising. [L.E.I. 98-03).
Targeted Solicitation: You are permitted to write directly to someone known to be in need of legal
services, such as an accident victim, as long as the solicitation does not include coercion, duress
or harassment, and complies with the other advertising rules. [Rule 7.3(b)]. You MUST include the
words “Advertising Material” on the outside of the envelope.
Telephone or in-person contact with someone with whom you have had no prior professional
relationship is forbidden. Use of investigators, paralegals, police officers, hospital
employees, or others to do that which the lawyer may not do is equally unethical. Committee on
Legal Ethics v. McCorkle, 452 S.E.2d 377 (W. Va. 1994); Lawyer Disciplinary Board v.
Allen, 479 S.E.2d 317 (W.Va. 1996). Moreover, you are not justified in contacting a potential
client by telephone or in person when someone other than the client calls and leaves a message that
the client wants you to call. The caller should be told that the potential client must call you
himself.
Collective National or RegionalAdvertising: Some advertisers want lawyers to join in regional or
national advertising which entitles you to a referral on a geographic basis. For example, there may
be a television advertisement. Those people calling in from the geographic area you “paid for” are
given your name. A lawyer is prohibited from paying for a referral. However, a lawyer may pay the reasonable costs
of advertising or the usual charges of a not-for-profit lawyer referral
service. [Rule 7.2(c)]. The line between advertising and paid referrals is sometimes blurred.
Also, some of these advertisements do not comport with this state•s Rules of Professional.Conduct,
and you are responsible for any ad in which you participate. Please review L.E.I. 903 and 97-03
before entering into these types of agreements.
Firm Name: If you do not operate as a partnership, you cannot use a firm name which sounds like a
partnership. [Rule 7.5(d)]. You may include the names of deceased partners or retired partners.
You cannot use the name of those individuals who have left the firm and are still practicing.
If you are simply sharing space with another lawyer, do not put the other lawyer’s name on your
letterhead, and both attorneys should advise every client in writing that he/she is only sharing
space [otherwise, the clients of the other attorney might think you are their lawyer and may sue
you or file an ethics complaint against you if they are dissatisfied].
You may use a trade name if it does not imply a connection with a government or
charitable entity or is not otherwise misleading. [Rule 7.5(b)]. It is misleading to advertise
under a trade name which conceals the true identity of your firm. [L.E.l. 97-01]. If you wish to
practice as an entity other than a partnership or sole proprietorship, you may
incorporate underW. Va. Code§ 30-2 5a. Prior to filing your Articles of Incorporation, you must
submit them to the West Virginia State Bar for review. Please include language in the Articles of
Incorporation which reflects that the legal corporation is governed by the obligations and
restrictions contained in W. Va. Code §30-2-5a and the current ethical standards. Remember
that only members of this Bar on active status may be shareholders.
Recently-enacted statutes permit lawyers to practice as a limited liability partnership or a limited liability company if they maintain a certain amount of malpractice
insurance or self-insurance and meet other requirements. W.Va. Code §31-1B-1, et seq. and W.Va.
Code §478-10-1, et seq. If you practice as a legal corporation or a limited liability partnership
or company, your letterhead must disclose this fact.
LEGAL FEES
General Considerations: Rule 1.5(a) of the Rules of Professional Conduct requires every fee to be
“reasonable”, taking into account the eight factors set forth in the Rule. Contingent fee
agreements must be in writing. [Rule 1.5(c)]. L.E.I. 99-03 requires written fee agreements for
non-refundable retainers. Even if a written agreement is not required, you must disclose the
basis of your fee at the beginning of the representation or within a reasonable time thereafter.
[Rule 1.5(b)]. You are strongly encouraged to use written fee agreements at all times for the
protection of yourself and your client. The absence of a written fee agreement has fueled many
misunderstandings and ethics complaints.
Contingent Fee Agreements: Contingent fees must be reflected in a written agreement. You may not
accept a contingent fee for criminal cases or domestic relations cases. A contingent fee agreement
is not appropriate for matters in which there is no real risk of recovery involved, such as
recovering life insurance proceeds for the named beneficiary in an uncontested setting. Committee
on Legal Ethics v. Tatterson, 352 S.E.2d
107 (W.Va. 1986). Your agreement should specify whether your percentage is calculated from the
gross amount recovered or from the net amount after expenses are deducted. You should prepare a
settlement statement at the conclusion of the case showing the remittance to the client and the
method of its determination. [Rule 1.5(c)].
Although you have a signed contingent fee agreement, you may still be required to justify a fee
charged in light of the eight factors set forth in Rule 1.5(a). Committee on Legal Ethics v.
Gallaher, 376 S.E.2d 346 (W. Va. 1988).
When you are terminated by your client prior to the conclusion of the case, you are entitled to a
quantum meruit recovery, assuming that you can sufficiently document your work, or in some cases
you can assert a contract theory. Hardman v. Snyder, 393 S.E.2d
672 (W.Va. 1990); Shaffer v. CAMC, 485 S.E.2d 12 (W.Va. 1997). Depending upon the circumstances,
you may file an attorney’s lien to protect your rights to any recovery. See Rule 1.16(d) and L.E.I.
89-02 and 92″02 for other obligations to clients upon termination or withdraw.
Non-refundable Retainers: Some attorneys wish to charge a certain fee at the initiation of the
representation and deem this a ..minimum” fee or a non-refundable retainer no matter how much or
little time is spent on the case. Some states ban this practice. It is not per se unethical in
West Virginia, although the Board has issued an opinion, L.E.I.
99-03, which encourages lawyers to avoid minimum retainers in cases where a specific work product
is expected [like a divorce case>. The Board suggests in L.E.I. 99-03 that minimum retainers are
allowed in types of cases where lawyers are paid for availability [like ongoing business
consulting, or to preventthe lawyer from representing the opposing side]. Non-refundable or minimum
retainers must be set forth in a written representation agreement which clearly explains the terms
to the client. Furthermore, even if the client agrees, the overall fee charged must still meet the
reasonableness test set forth in RPC Rule 1.5(a).
Workers’ Compensation and Other Benefits Claims: W.Va. Code §23-5-16 (previously §23-5-5)
permits an attorney to charge no more than 20% of benefits to be received in a 208 week period.
Disputes concerning the interpretation of this statute are common. Here are a few guiding
principles: A permanent total disability award, whether a standard life award or a second-injury
life award, cannot be broken down into more than one award. The first check, for back benefits, is
part of a single award. Do not take 20% of that check and then take 20% of 208 weeks. Committee
on Legal Ethics v. Coleman,
377 S.E.2d 485 0/V. Va. 1988). This statutory limitation cannot be waived by the client for
reasons of public policy. Committee on Legal Ethics v. Burdette, 445 S.E.2d 733 (W. Va.
1994). Do not take a percentage of an award which was awarded before you were retained, unless
you are defending against a protest and actually perform legal work.
The fees you charge in Social Security and Black Lung cases are governed by federal regulations.
Please check these carefully. There may be specific requirements which your fee agreement and rate
must meet, including, but not limited to, advance disclosure to the agency. If the Social
Security Administration directs you to refund a portion of your fee, do so promptly.
Fee Splitting: You may divide your fee with another attorney not in the same firm if the client is
advised of and does not object to the participation of the other lawyer and the fee split is
proportional to the work done. [Rule 1.5(e)]. Fee splitting in contingent fee cases is treated
somewhat differently. Remember that you cannot pay a referral fee to
. someone who simply recommends your services. However, if the referring lawyer
assumes joint responsibility for the case and the client agrees to the arrangement in writing,
the referring lawyer may share the fee. A fee split is unethical if there is some ethical or legal impediment to the referring lawyer representing the client at all, such as having
a conflict of interest.
Letters of Protection or Acknowledgment of Assignments: Rule 1.15(b) requires you to pay a client
or a third person promptly when you are holding trust money. If you have issued a letter of
protection or acknowledged in writing an assignment to a medical provider or other creditor, you
must follow through when you receive a judgment or settlement. Scyoc v. Holmes, 450 S.E.2d 784
(W.Va. 1994). Otherwise, you may be personally liable for payment and may face disciplinary
charges. If you guaranteed payment, do hot trust your client to handle it. You are still free to
negotiate with the creditor on your client’s behalf, but you cannot ignore your earlier promise.
Finally, if your representation is terminated before the conclusion of the case, you should notify
anyone to whom you have sent a letter of protection and advise them, as well as your successor
counsel.
Repayment of Subrogated Funds: When your client’s insurance company makes medical payments for
bills incurred due to an accident, it usually has a subrogation clause requiring repayment if the
client collects damages from the tortfeasor. Workers’ Compensation and Medicaid have similar
provisions for medical payments. Medicaid has a statutory requirement that the lawyer must advise
WVDHHR of any possible subrogation right. There are certain circumstances in which the client is
not obligated to repay these subrogated funds, depending upon the amount of recovery. When there
is a sufficient recovery to justify the client repaying the funds, Federal Kemper v. Arnold, 393
S.E.2d 669 (1990), holds that the insurance company must pay its pro rata share of attorney’s fees.
Nonpayment Problems: If you are owed a fee, you cannot delay preparing a final order or the Family
Law Master’s recommended decision until you receive payment. [L.E.I.
84-04]. You may only charge a finance charge on unpaid balances if the client has agreed
to such charges in writing at the beginning of the representation [L.E.I. 93-02] and the finance
charge is reasonable. You may only forward an overdue account to a collection agency under limited
circumstances -see the nine conditions setforth in L.E.I. 94-01. You cannot hold a client’s file
hostage to obtain a fee from a client who fired you. [L.E.I. 89-02 and 92-02]. Not all conflicts
can be waived by the client. If an independent lawyer examining the situation would not seek a
waiver from the client, then neither may you. [Comment, Rule 1.7].
LEGAL FUNDING PLANS
The Board has stated that a lawyer may not refer the client to any legal funding plan in which the
lawyer, his/her law firm, or the lawyer’s family member has an ownership interest. Additionally,
the lawyer shall not receive any compensation or other value from the funding plan in exchange for
referring clients as this would violate Rules 1.8(c) and
1.7(b).
However, the lawyer may, at the client’s request, honor the funding plan’s letter of protection
signed by the client. The lawyer is prohibited from providing a letter of protection to the funding
plan signed by the lawyer because this makes the lawyer a part of the loan process, a violation of
Rules 1.8(e) and 1.7(b).
Ultimately, you should not recommend the client’s matter to the legal funding plan nor contact the
plan on a client’s behalf. While you may provide information to the funding plan upon the client’s written request, the West Virginia Lawyer Disciplinary Board strongly
cautions attorneys against involvdment with these plans. [L.E.I. 2005-02]
CONFLICTS OF INTEREST
General Considerations: You should have a system in place for checking conflicts even if you
practice by yourself. Above all, clients expect loyalty from their lawyer. Keep in mind that in
non-governmental practice, conflicts of other lawyers in your firm are imputed to you and vice
versa. [Rule 1.1OJ. Screening or “Chinese Walls” are not always permitted. Also watch for staff
conflicts — if you hire the paralegal away from a law firm who is opposing you on a case, and the
paralegal knows all about the opponent’s case, you may have a problem and you risk getting thrown
off the case.
Current Client: Do not accept a new case if the representation will be directly adverse to a
current client, even if it concerns an unrelated matter. [Rule 1.7(b)]. You cannot withdraw from
representing the first client to cure the problem. Direct adversity extends beyond naming the
client as a party. It includes suing a closely-held corporation of the client and cross-examining
the client as an adverse witness. Committee on Legal Ethics v. Frame, 433 S.E.2d 579 (W.Va. 1993).
Cross-examining a current client, even in a totally unrelated case, creates an adversity and is a
conflict.
Former Client: You should not represent a client whose interests are ..materially adverse” to a
former client in the “same or substantially related matter”, unless the former client consents.
[Rule 1.9(a)]. The law presumes that the former client imparted confidential information. State
ex rei. McClanahan v. Hamilton, 430 S.E.2d 569 (W. Va.
1993). Interpret the phrase “same or substantially similar matter” broadly to avoid
disqualification motions, possible sanctions, or ethics complaints.
If the current matter is unrelated to the earlier matter, you still may not use information
relating to the earlier representation to the disadvantage of the former client. [Rule 1.9(b); Rule
1.6]. For an overview of client confidentiality obligations and Rule 1.6, see Lawyer Disciplinary
Board v. McGraw, 461 S.E.2d 850 (W.Va. 1995).
Not all conflicts can be waived by the client. If an independent lawyer examining the situation
would not seek a waiver from the client, then neither may you. [Comment, Rule
1.7].
Initial Client Consultation: A consultation with a prospective client can disqualify you from
representing the opposing party, even though you were not hired or paid by the first individual.
It depends upon the amount and type of information conveyed by the potential client. State ex
rei. DeFrances v. Bedell, 446 S.E.2d 906 (W.Va. 1994); State ex re. Taylor Associates v. Nuzum, 330
S.E.2d 677 (W. Va. 1985). Even if you no longer have your notes and cannot remember the conversation, if the conversation occurred and
confidential informationas defined by Rule 1.6 was passed, then you have a conflict. You may wish
to limit the extent of the initial consultation to avoid this problem, particularly in domestic
relations cases. Letters of engagement and non-engagement are highly recommended, as are accurate
client intake information and accurate record-keeping. Add information regarding initial
consultations to your conflicts check system.
Moving to a New Firm: If you represented a client in Firm No. 1 and you learned information prot
cted by Rule 1.6 which is material, your new firm, Firm No. 2, will be disqualified from
representing the opposing party unless both parties waive the conflict. In this circumstance, no
screening is allowed.
Remember that Rule 1.6 “Confidentiality of information” is broader than the attorney client
evidentiary privilege. Rule 1.6 protects “information relating to representation”. However, if
your representation of the client while in Firm No. 1 was limited to non confidential
information, your firm will not necessarily be disqualified and you may be screened from
participation. The Comment to Rule 1.10 suggests if you had no involvement in the
representation of the client while in Firm No. 1, you are not prohibited from representing the
opposing party in the same litigation when you join Firm No. 2. However, you may wish to think
carefully before doing this. Clients expect loyalty from an entire firm, not just those lawyers
working on the matter.
Government Employment: Under Rule 1.11, a government lawyer entering or leaving private practice
has a different standard. The lawyer is conflicted out if he/she
‘”participated personally and substantially” during the prior employment. A government lawyer
leaving for private practice should not represent a private client in a matter in which the lawyer
had participated “personally and substantially” while serving as a government attorney, regardless
of whether or not the lawyer is switching sides.
Contact with Unrepresented Party: You must not state or imply you are uninterested. [Rule 4.3].
One lawyer cannot represent opposing parties. This is of particular concern in domestic relations
cases. A lawyer representing one spouse must not prepare an answer for the unrepresented spouse to
sign, and must not even present a form answer for the unrepresented spouse’s use. See Walden v.
Hoke, 429 S.E.2d 504 (W.Va. 1993), Committee on Legal Ethics v. Frame, 433 S.E.2d 579 (W.Va. 1993).
The lawyer may draft a property settlement agreement, since that is a document to be signed by
both parties- but it is a good idea to put in the document that the unrepresented party
recognizes that the lawyer only represents the one client. When negotiating or discussing the
agreement with the unrepresented party, the lawyer should make clear– preferably in writing
that he/she is not safeguarding the unrepresented party’s interests. [Rule 4.3].
Transacting Business with a Client: You should not enter into a business transaction with a
client unless the terms are very fair to the client, there is a written agreement, and the client
is given an opportunity to seek the advice of independent counsel. [Rule 1.8(a)]. You should
inform the client in writing about the desirability of seeking legal advice. A business
transaction includes borrowing money from and loaning money to a client.
Committee on Legal Ethics v. Cometti, 430 S.E.2d 320 (W.Va. 1993), Committee on Legal Ethics v. Battistelli, 457 S.E.2d 652
(W.Va. 1993). This is an area where several lawyers have been the subject of formal charges in
recent years. Lawyer Disciplinary Board v. King, 650 S.E.2d 165 (W.Va. 2007).
Limiting Your Liability for Malpractice: You should not make an agreement with a client to
prospectively limit your liability for malpractice unless the client is independently represented.
[Rule 1.8(h)]. This general prohibition does not restrict your right to practice as a limited
liability entity or a legal corporation. If you commit malpractice and wish to settle the claim,
you must first advise the client in writing to consult another lawyer. [Rule
1.8(h)]. As a practical matter, do not settle a claim on terms that you cannot realistically meet,
or there will be an ethics complaint in your future.
Real Estate Transactions: L.E.l. 89-01 discusses providing notification of whom you represent when
you are the closing attorney in a real estate transaction. Please review this opinion carefully.
The opinion contains a helpful notification form for your use.
OFFICE PRACTICE
Malpractice Insurance: Much to the surprise of non-lawyers throughout the state, West Virginia
lawyers are not required to maintain legalmalpractice insurance unless they practice under a
limited liability form of business. However, the West Virginia State Bar now requires you to
disclose, among other things, whether you maintain mal ractice insurance. [Article III(A) of the
West Virginia State Bar By-Laws]. Lawyers who do not have malpractice coverage run an
incredibly high risk. Moreover, if you are in a partnership and your partner commits
malpractice, your personal liability is eminent and you could lose your savings, your house, etc.
Trust Accounts: The most basic rule is not to commingle client money with your firm money. A
check in which you and your client have an interest should be deposited into a trust account. If
the sum of money will not justify maintaining a separate account, you should place the check in an
IOLTA generaltrust account. [Rule 1.15(d)]. You cannot personally benefit from interest earned from
client funds. You must also send a Notice of Compliance with Rule 1.15 for your IOLTA account to
the West Virginia Bar Foundation, Inc. This form may be obtained by contacting the West Virginia
State Bar.
When a check has been deposited into a trust account, any fee or reimbursement
for expenses owed to you should be promptly paid to you in the form of a check from the trust
account. Do not leave the money in your trust account or write checks for rent or general business
expenses on the trust account. When you have money deposited in the trust account for litigation
expenses, write expense checks directly on the trust account. Do not transfer a lump sum into your
business account and then write the checks. Do not run a check owed in part to your client through
your business account. Do not cash settlement checks without depositing them first into the trust account. It is also a bad idea to
pay your client in cash.
Your trust account records should always show whose money is in the account without having to
review all of your individual client files. [Rule 1.15(a)]. The records should also reflect on
whose behalf withdrawals are made or checks are written.
It should go without saying that you cannot 11borrow11 or use client funds for uses other than
their intended use. Misappropriation is complete when you use client money for personal purposes
or for purposes of other clients’ cases, even temporarily. Lawyer Disciplinary Board v. Kupec, 505
S.E.2d 619 (W.Va. 1998); Lawyer Disciplinary Board v. Wheaton, 610 S.E.2d 8 (W.Va. 2004).
Misappropriation is an offense which generally results in disbarment.
Advancing Client Expenses: You may advance the costs of litigation and make repayment contingent
upon recovery. You may also pay such costs outright for indigent clients. [Rule 1.8(e)(1) & (2)].
You cannot advance or loan money for living expenses, even if it is in the client’s best interest
to avoid early settlement or even if the client begs you for money because he cannot make the rent,
etc. Do not advance money pending receipt of a settlement or benefits check.
Travel expenses associated with a client who is examined by an expert can be considered costs of
litigation. Payment for medical treatment cannot.
Supervision of Nonlegal Personnel: Lawyers have an obligation to make sure nonlegal personnel
follow the same ethical practices which lawyers must follow. [Rule 5.3 and L.E.I. 76-07].
Moreover, lawyers must insure that their nonlegal personnel do not practice law. [Rule 5.5(b)]. For guidance on what constitutes the unauthorized practice of law,
contact the Committee on Unlawful Practice at the West Virginia State Bar.
Communicating with Employees of an Organizational Party: You may not talk with those current
employees, officers and directors of a party 11Whose acts or omissions in the matter under inquiry
are binding on the corporation or imputed to the corporation for purposes of its liability,
employees implementing the advice of counsel, those officials who have the legal power to bind the
corporation … or any member … whose own interests are directly at stake. Dentv. Kaufman, 406
S.E.2d 68 (W.Va. 1991). Also read Rule 4.2 and State ex rei. CAMC v. Zakaib, 437 S.E.2d 759 (W.Va.
1993).
Communicating with Treating PhysicianI Testifying ExpertPhysician: Counsel may not have ex parte
contact with the opposing party’s treating physician. tate ex rei. Kitzmiller v. Henning, 437
S.E.2d 452 (W. Va. 1993). For expert physicians, see Rule
26(b)(4)(A) of the WV Rules .of Civil Procedure, but basically you can only get to a testifying
expert’s opinion by means of deposition or interrogatories do not contact him yourself. For
non-testifying experts, see Rule 26(b)(4)(B).
Keeping your Law License Current: You must pay your Bar dues annually regardless of whether you
receive a dues notice. You must also meet the Continuing Legal Education requirements and fill out
the requisite forms to establish that you have fulfilled those requirements. You must also submit
a Financial Responsibility Disclosure form which indicates, among other things, whether you have
malpractice insurance. If your law license is suspended for failing to pay dues, failing to fulfill
CLE requirements or failing to submit your FinancialResponsibility Disclosure form, youmust not
continue to practice law. To continue to practice would be an ethics violation. [Rule 5.5(a)].
WITHDRAWAL
Motion to Withdraw: When you wish to withdraw or your representation has been terminated, you must
file a motion to withdraw if you have made n appearance before a forum, either in person or by
pleading. Godbeyv. Lanham, 445 S.E.2d 174 (W. Va.1994); Trial Court Rule 4.03(b). Review Trial
Court Rule 4.03 before filing a motion to withdraw, which sets forth eight specific things of which
the client must be notified. Since you are still
under an obligation to protect your client’s interests, keep the motion as general and bland as
possible. Revealing client confidences or trial strategy in the motion to withdraw may violate
Rule 1.6. Lawyer Disciplinary Board v. Farber, 488 S.E.2d 460 (W.Va. 1997).
You should not withdraw at a time when the client will lose a valuable procedural right and will
not realistically have time to obtain other c·ounsel. Examples of this situation are the 10-day
period in which to file objections to the Family Law Judge’s recommended decision and the period in
which to file objections to a recommendation in a Social Security case, unless you receive a
continuance for the client.
Returning the File: When you ceae representing a client, whether you have been fired or you
voluntarily withdraw, the client is entitled to the file, regardless of whether you are owed money
for fees or expenses. This includes all material provided by the client; all correspondence; all
pleadings; motions and other material filed; discovery, including depositions, and all documents
which have evidentiary value and are discoverable under the Rules of Civil Procedure, such as
business records. If the client has not paid fees or expenses clearly owed, the attorney may
withhold work product as defined by WV Rules
of Civil Procedure. [L.E.I. 92-02 and Rule 1.16(d)]. However, if the client is current on
his/her bill, you must turn over work product as the work has been paid for.
The client should be given the original documents. If the lawyer wishes to retain a copy, he/she
may not charge the client copying charges unless specifically agreed to by the client at the
beginning of the representation. [L.E.I. 89-02]. The attorney cannot condition the return of the
file upon the client signing a general release of liability. The attorney may have the client sign
a receipt indicating that the file has been released.
Refunding Unused Portions of Retainer: This issue generates many ethics complaints. Rule
1.16(d) requires you to return unused portions of a retainer. What is to be considered “unused” is
the crux of the problem. If an attorney has charged a flat fee to represent someone, the client
generally believes he/she is entitled to some type of refund if the attorney does not complete the
matter. Often the attorney believes he/she has devoted a sufficient amount of time to justify
keeping the entire fee. The final determination as to whether the fee is unethical must
be made based upon the reasonableness test of Rule 1.5. There may also be civil contract
theories involved. The client is also entitled to an accounting or itemization from the attorney.
[Rule 1.15(b)].
Retention and Destruction of Closed Client Files: When you destroy a file from a concluded
representation, you are destroying someone else’s property. [L.E.O. 89-02 and 92-02]. The best
practice is for you to obtain explicit client consent prior to destroying files.. The easiest way
to obtain consent is to include language in every representation agreement or retainer letter which
sets forth your file retention policy.
At some point in time, even absent explicit consent to destroy, it is no longer
reasonable for a client to expect that the lawyer will still maintain the client’s property.
Consistent with Rule 1.15(a), the Lawyer Disciplinary Board advises that closed client files either
be provided to the individual client or be maintained for a minimum of five years if the client has not requested the file. However, some files must be maintained well beyond
five years, such as files pertaining to the claims of minor children and certain tax matters.
There are undoubtedly other examples. In addition, you should also check with your
malpractice insurance carrier to determine the minimum time period it recommends as you may be
exposed to a malpractice claim beyond five years.
Before destroying files, the lawyer or some capable firm employee must look through every
file to ensure that no original documents are forever lost. These documents must be removed and
properly handled before disposing of the file. You must also continue to protect client
confidentiality during this process pursuant to Rule 1.6. Finally, any destruction of client files
must be done in such a way as to protect this confidentiality. The Lawyer Disciplinary Board
recommends that any destruction be accomplished by burning, shredding, or some similar manner
which results in complete destruction. [L.E.I.
2002-01].