LEGAL ETHICS OPINIONS
issued by the
LAWYER DISCIPLINARY BOARD

Legal Ethics Inquiries [L.E.I.]
and
Legal Ethics Opinions [L.E.O.]
[Formally changed to Legal Ethics Opinions in 2006]

CHRONOLOGICAL INDEX
1976 through present

[L.E.O.] Opinion No.:

L.E.O. 2016-01 PROPRIETY OF ATTORNEYS OBTAINING LOANS FROM THIRD PARTY LENDERS TO ADVANCE LITIGATION COSTS AND WHETHER COSTS AND INTEREST ASSOCIATED WITH THE LOAN CAN BE CHARGED TO CLIENT

L.E.O. 2015-01 USE OF STAND-IN COUNSEL

L.E.O. 2015-02 SOCIAL MEDIA AND ATTORNEYS

L.E.O. 2015-03 THE AMENDED RULES OF PROFESSIONAL CONDUCT AND THEIR EFFECT ON L.E.I. 98-02

L.E.O. 2014-01 Entitled The Duty of Counsel to Treat All Persons Represented by a Guardian Ad Litem the Same as Any Other Person or Party in Terms of Prohibited Direct Contact

L.E.O. 2013-02 Potential Conflicts of Interest for Federal Government or Military Attorneys Defending Agencies Against Furlough-related Complaints

2013-01 SETTLEMENT AGREEMENTS CONTAINING “INDEMNIFY AND HOLD HARMLESS” LANGUAGE THAT RESTRICT AN ATTORNEY’S ONGOING REPRESENTATION VIOLATE THE RULES OF PROFESSIONAL CONDUCT

2012 LAWYER DISCIPLINARY BOARD ORDER ENTERED ON SEPTEMBER 14, 2012, WHICH VACATES PRIOR OPINIONS

2012-01 USE OF ELECTRONIC MEDIA FOR FILE STORAGE

2010-01 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON JANUARY 30, 2015

Opinion required disclosure of attorney’s representation for preparation of any pleading or other document (with exception of court forms) to be filed with a court or tribunal, or with a state or federal agency once the case becomes contested. Disclosure was not required when document is not intended to be filed with a tribunal or when providing aid in filling out forms adopted by and/or used by tribunals or federal or state agencies. This was changed by comment 9 to Rule 1.2 and comment 3 to Rule 3.3 which both specifically allow ghostwriting without disclosure of attorney’s representation.

2009-02 WHOLLY-OWNED SUBSIDIARY LAW FIRMS

2009-01 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON JANUARY 30, 2015

Opinion put burden on an attorney to take reasonable steps to protect metadata in transmitted documents and burden on a lawyer receiving inadvertently provided metadata to consult with the sender and abide by the sender’s instructions before reviewing such. This was changed by comment 2 and 3 to Rule 4.4. Those comments indicate that a lawyer who “knows or reasonably should know” the documents where inadvertently sent electronically is required to promptly notify the sender so they may take protective measures. Whether the lawyer is required to take additional steps is a matter of law because there is a question of whether the privileged status of the document has been waived. Further, Rule 4.4 does nto address the legal duties of lawyers who receive information that they “know or reasonably should know” may have been inappropriately obtained. The determination of whether to voluntarily return or delete the unread information is a matter of professional judgment of the lawyer.

2008 NO OPINIONS ISSUED

2007-01 POTENTIAL CONFLICTS OF INTEREST FOR ATTORNEYS REPRESENTING PERSONAL REPRESENTATIVES IN WRONGFUL DEATH CLAIMS

2006-01 IS IT PROPER FOR A LAWYER TO ACCEPT A REFERRAL FEE FROM A FINANCIAL SERVICES PROVIDER?

[L.E.I.] Opinion No.:

2005-02 LEGAL FUNDING PLANS

2005-01 WHETHER AN AGREEMENT TO ABIDE BY INSURANCE COMPANY IMPOSED BILLING GUIDELINES VIOLATES THE RULES OF PROFESSIONAL CONDUCT

2004-01 SUMMARY PROCEEDINGS

2003-01 PRIVATE EMPLOYMENT OF APPOINTED COUNSEL

2002-01 RETENTION AND DESTRUCTION OF CLOSED FILES

2001 NO OPINIONS ISSUED

2000-01 THE THREAT OF CRIMINAL PROSECUTION AS A NEGOTIATING TOOL

99-03 NON-REFUNDABLE RETAINERS

99-02 SUBMITTING INSURANCE DEFENSE LEGAL BILLS TO OUTSIDE AUDITORS OR REVIEWERS

99-01 ETHICAL PROPRIETY OF INSURANCE COMPANY CAPTIVE LAW FIRMS

98-03 ATTORNEY ADVERTISING ON THE INTERNET

98-02 WHEN LAWYERS KNOW ABOUT AND/OR COME INTO POSSESSION OF FRUITS OR INSTRUMENTALITIES OF A CRIME

98-01 FIXED OR "FLAT" FEE ARRANGEMENTS FOR INSURANCE DEFENSE WORK [AMENDED 1999]

97-03 ATTORNEY PARTICIPATION IN PREPAID LEGAL SERVICES PLANS

97-02 CONTINGENT FEE CONTRACTS WITH ORGANIZATIONS OR INDIVIDUALS OBTAINING EXPERT WITNESSES

97-01 USE OF A TRADE NAME FOR ADVERTISING PURPOSES

96-02 LAWYERS PRACTICING IN LIMITED LIABILITY PARTNERSHIPS OR LIMITED LIABILITY COMPANIES

96-01 "NO RECOVERY-NO FEE" LAWYER ADVERTISEMENTS MUST DISCLOSE CLIENT RESPONSIBILITY FOR LITIGATION COSTS AND EXPENSES IN THE SAME ADVERTISEMENT

1995 NO OPINIONS ISSUED

94-04 THE PROPRIETY OF FIRM NAMES WHICH SOUND LIKE A PARTNERSHIP

94-02 DUTIES OF LAWYER RETAINED PURSUANT TO UNINSURED MOTORIST COVERAGE

94-01 COLLECTION OF OVERDUE ACCOUNTS

93-03 MUNICIPAL JUDGE AS ASSISTANT PROSECUTOR

93-02 FINANCE CHARGES ON DELINQUENT FEE ACCOUNTS

93-01 MULTIPLE REPRESENTATION OF LEGAL SERVICES CLIENT THROUGH A PRO BONO PROGRAM

92-04 DUTY TO REPORT MISCONDUCT OF AN IMPAIRED LAWYER

92-03 PARTICIPATION BY ATTORNEY IN LIVING TRUST MARKETING FRANCHISE

92-02 ATTORNEY RETAINING LIENS

92-01 IMPUTED DISQUALIFICATION OF PROSECUTING ATTORNEYS AND THEIR ASSISTANTS

1991 NO OPINIONS ISSUED

90-03 LAWYER REFERRAL/ADVERTISING PROGRAMS

90-02 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

Opinion deals with when citizens could institute criminal warrants and investigations in Magistrate Court. This was changed by Rule 3 of the Magistrate Rules for Criminal Procedure which requires that all criminal complaints be presented to the Magistrate Court by a prosecuting attorney or law enforcement officer showing probable cause.

90-01 PROPRIETY OF WV PROSECUTING ATTORNEYS PROSECUTING COUNTY PUBLIC OFFICIALS

89-03 CLARIFICATION OF PREVIOUS LEGAL ETHICS (INQUIRY 77-3; RE: MUNICIPAL JUDGES)

89-02 COPYING CHARGES FOR FILES

89-01 CONFLICTS OF INTEREST IN REAL ESTATE PRACTICE

88-02 LIMITATIONS OF OUTSIDE PRACTICE OF CHILD ADVOCATES

88-03 SETTLEMENT AGREEMENTS REQUIRING COMPLAINANTS TO WITHDRAW ETHICS COMPLAINT

87-01 ADVERSE PARTY - DEALING DIRECTLY WITH EMPLOYEES ABA IO 1410

87-02 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

Opinion deals with whether attorneys appointed as Family Law Masters may also have a private domestic relations practice. This system was superseded by the Family Court Division, W.Va. Code 51-2A-1, et seq. The statute further provides [a] family court judge is not permitted to engage in the outside practice of law and shall devote full time to his or her duties as a judicial officer. W.Va. Code 51-2A-4(b).

86-3 PROSECUTING ATTORNEY - REPRESENTING A CLIENT HE PREVIOUSLY INVESTIGATED

86-2 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

W.Va. Code 48-18-110 establishes that Child Support Enforcement Attorneys represents the State and does not represent the child or either parent. Furthermore, W.Va. Code 48A-1-1 et seq. has been repealed.

85-6 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

This opinion dealt with law firm members in which the spouse of a prosecutor in another county are precluded from accepting criminal cases involving that county. The Committee on Legal Ethics declined to issue an opinion and acknowledged that the West Virginia Rules of Professional Conduct were then under consideration by the Supreme Court and felt that Rule 8.1(i) would address the issue.

85-4 POSSIBLE CONFLICTS OF LOYALTY IN HUMAN RIGHTS COMMISSION PROCEEDINGS

85-3 SERVICE OF PROCESS - ATTORNEY INTERFERING WITH

85-2 LAWYERS SERVING TOGETHER IN A PROSECUTING ATTORNEY'S OFFICE ARE NOT MEMBERS OF A "LAW FIRM" FOR PURPOSES OF IMPUTED DISQUALIFICATION

85-1 EMPLOYMENT - ATTORNEYS AS HEARING EXAMINERS

84-5 CONFLICTS OF PROSECUTORS AND ASSISTANT PROSECUTORS IN SAME PRIVATE LAW FIRM

84-4 REFUSAL TO FILE FINAL DIVORCE DECREE UNTIL PAYMENT OF FEES

84-3 LEGAL RESEARCH SERVICE

84-01 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

This opinion was applicable when many prosecuting attorneys were still part time employees. If not actual conflict existed, the LEO suggested it was appropriate for the prosecutor to go forward with prosecution. But with the extent of prior representation of the accused by the prosecuting attorney in other prior matters, at a minimum, the appearance of an impropriety would exist if he or she were to proceed in the current prosecution. Opinion is therefore not appropriate today.

83-12 PROPRIETY OF A PLAINTIFF-ATTORNEY SERVING AS SPECIAL COMMISSIONER IN SALE OF REAL PROPERTY

83-11 PROPRIETY OF LAWYER-LEGISLATORS REPRESENTATION OF A CLIENT BEFORE THE COURT OF CLAIMS

83-9 DUTY OF PARENT'S LAWYER TO NOTIFY GUARDIAN AD LITEM IN NEGLECT OR ABUSE PROCEEDINGS

83-8 REPRESENTATION OF A PRIVATE CITIZEN'S CRIME VICTIMS REPARATION ACT CLAIM BY AN ATTORNEY EMPLOYED BY THE STATE

83-6 ADVANCEMENT OF EXPENSES BY A LEGAL AID SOCIETY

83-5 COMPENSATION OF COUNSEL APPOINTED TO DEFEND INDIGENT CLIENT

83-4 PROPRIETY OF PROSECUTING ATTORNEY'S REPRESENTATION OF CLAIMANT IN A MATTER BEFORE THE COURT OF CLAIMS

83-3 GENERALLY A LAWYER MAY NOT ETHICALLY PREPARE A WILL IN WHICH THE LAWYER IS NAMED AS A BENEFICIARY OR GRANTEE

82-5 DUTIES OF LAWYER CONCERNING "PROTECTION" OF DOCTOR'S FEES OUT OF CLIENT'S RECOVERY

81-10 CLASS ACTIONS; CONFLICTS OF INTEREST; COURT APPOINTED LAWYERS; DISQUALIFICATION

81-9 SPECIAL PROSECUTING ATTORNEY'S REPRESENTATION OF OTHER CLIENTS

81-4 PRIVATE EMPLOYMENT OF STAFF ATTORNEY OF PUBLIC SERVICE COMMISSION

81-3 PROPRIETY OF ACCEPTANCE OF APPOINTMENT BY CITY ATTORNEY IN CERTAIN JUVENILE CASES

80-4 MAY A STATE EMPLOYEE WHO IS AN ATTORNEY SUE THE STATE FOR A PRIVATE CITIZEN AND RECOVER HIS LEGAL FEE FROM THE STATE?

80-3 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

Superseded by Rule 7.2 of the Rules of Professional Conduct.

80-1 PROPRIETY OF LAW FIRM REFERRAL OF ITS OVERDUE CLIENT ACCOUNTS TO COLLECTION AGENCY

79-16 WITHDRAWAL - ATTORNEY WITHDRAWING FROM A CASE

79-13 CONFLICT OF INTEREST - REPRESENTED A CLIENT AND FIRM REPRESENTED THE CORPORATION EARLIER

79-6 EMPLOYMENT - RETAINED BY A COLLECTION AGENCY

79-3 CONFLICT OF INTEREST - MUNICIPAL JUDGE REPRESENTING CRIMINAL DEFENDANTS

78-20 CONFLICT OF INTEREST - DISQUALIFICATION OF ATTORNEY IN CIRCUIT COURT PENDING LITIGATION

78-19 CLIENT FRAUD - AGAINST ADMINISTRATIVE TRIBUNAL

78-18 EMPLOYMENT - APPOINTED TO HEAR CIVIL MATTERS OF B&O TAXES

78-17 MATTER WAS REVIEWED AND ANSWERED BY FORWARDING 76-3 AND 78-1 AND A LAW REVIEW ARTICLE ENTITLED "LEGAL ETHICS AND THE PROSECUTING ATTORNEY"

78-16 WITHDRAWAL - ATTORNEY WITHDRAWING FROM A CASE

78-15 EMPLOYMENT - APPOINTED TO REPRESENT AN INDIGENT

78-14 ATTORNEY GENERAL - NOT TO ACCEPT COURT APPOINTMENTS

78-13 REQUEST TOO BROAD - COMMITTEE DECLINED TO GIVE OPINION (11/79)

78-12 MUNICIPAL JUDGES - REPRESENTING CRIMINAL DEFENDANTS

78-11 PARTNERSHIPS - OUT OF STATE AND IN STATE FORMING PARTNERSHIP

78-10 ELIMINATED AS LEI - SEE LEC 78-37 FOR FURTHER EXPLANATION

78-9 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

This opinion was expanded upon and superseded by LEO 89-01 - Conflicts of Interest in Real Estate Practice.

78-8 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 14, 2012

Confusing opinion and covered by current Rules of Professional Conduct.

78-7 FEES - FINANCE CHARGES ON DELINQUENT ACCOUNTS

78-6 EXPEND FUND TO LOCATE MISSING CLIENTS

78-5 PARTNERSHIPS - ATTORNEY AND COURT REPORTER

78-4 EMPLOYMENT - CRIMINAL DEFENSE COUNSEL'S DUTY OF DISCLOSURE

78-2 PROPRIETY OF A PROSECUTING ATTORNEY OR HIS ASSISTANTS IN ACCEPTING EMPLOYMENT ON BEHALF OF CLAIMANTS IN PERSONAL INJURY LITIGATION ARISING OUT OF MOTOR VEHICLE ACCIDENTS

78-1 PROSECUTING ATTORNEY - ASSISTANT PROSECUTING ATTORNEY BEING AN ATTORNEY AGAINST BOARD OF REGENTS

77-11 LEGAL ADVERTISING - ANNOUNCEMENT OF SPECIALIZATION BY LAWYER - CPA

77-9 PROSECUTING ATTORNEY - PROSECUTING ATTORNEY REPRESENTING CLAIMANT BEFORE WORKER'S COMPENSATION COMMISSION

77-8 LEGAL ADVERTISING - ADVERTISING SPECIALIZATION ON BUSINESS CARDS/LETTERHEAD

77-7 CONFLICT OF INTEREST - REPRESENTING BOTH SPOUSES IN IRRECONCILABLE DIFFERENCES DIVORCE

77-6 LEI WAS WITHDRAWN AND THE FILE CLOSED 2/15/78

77-5 NO OPINION ISSUED BY COMMITTEE - HYPOTHETICAL SITUATION

77-4 COMPLAINT AGAINST ATTORNEY. SEE FILE

77-3 MUNICIPAL JUDGE - REPRESENTING CRIMINAL DEFENDANTS

77-2 EMPLOYMENT - SOLICITATION OF BUSINESS

77-1 EMPLOYMENT - DUAL PRACTICE OF LAW AND ANOTHER BUSINESS OR PROFESSION

76-7 PARALEGALS - ATTORNEYS RESPONSIBLE FOR PARALEGAL'S WORK

76-6 COMMITTEE UNWILLING TO GIVE OPINION DUE TO PERSONAL INTEREST OF ATTORNEY IN CLIENT'S CASE

76-5 EMPLOYMENT - DUAL PRACTICE OF LAW AND ANOTHER BUSINESS OR PROFESSION

76-4 USE OF CREDIT CARDS FOR PAYMENT OF LEGAL FEES AND EXPENSES

76-3 PROSECUTING ATTORNEY - PROSECUTORS ENGAGING IN CRIMINAL DEFENSE IN ADJOINING COUNTIES

76-2 EMPLOYMENT - DUAL PRACTICE OF LAW AND ANOTHER BUSINESS OR PROFESSION

76-1 EMPLOYMENT - DUAL PRACTICE OF LAW IN ANOTHER BUSINESS OR PROFESSION