Legal Ethics opinions
Disclaimer
The Lawyer Disciplinary Board issues advisory opinions regarding the ethical propriety of attorney conduct. An archive of these Legal Ethics Opinions can be found by Chronological Order or by Subject Matter.
Legal Ethics Opinions are advisory only and are not binding upon the Supreme Court of Appeals. Opinions issued pursuant to Rule 2.16 of the Rules of Lawyer Disciplinary Procedure, however, are binding upon the Hearing Panel of the Lawyer Disciplinary Board in any subsequent disciplinary proceeding involving the requesting lawyer.
Please note: Legal Ethics Opinions cite the applicable West Virginia Rules of Professional Conduct and statutes/case law in effect at the time of the writing of the opinion that may be obsolete now. Please refer to the current West Virginia Rules of Professional Conduct. A correlation chart contained here may be helpful in cross-referencing provisions of the former Code of Professional Responsibility with the current Rules of Professional Conduct.
Disciplinary Counsel may also assist attorneys with questions relating to their ethical responsibilities. Inquiries may be made from 9 a.m. to 5 p.m. on weekdays by calling (304) 558 7999.
ADVERTISING
L.E.I. 77-08 Advertising Specialization on Business Cards/Letterhead
L.E.I. 77-11 Announcement of Specialization by Lawyer-CPA
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.
L.E.I. 90-03 Lawyer Referral/Advertising Programs
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Superseded by Rule 7.2 of the Rules of Professional Conduct.
L.E.I. 97-01 Use of a Trade Name for Advertising Purposes
L.E.I. 97-03 Attorney Participation in Prepaid Legal Services Plans
ATTORNEY GENERAL
CHILD ADVOCATES
CLIENT FUNDS
L.E.I. 82-05 Duties of Lawyer to Protect Doctor's Fees Out of Client's Recovery
L.E.I. 78-06 Expend Fund to Locate Missing Clients
L.E.I. 99-03 Non-Refundable Retainers
L.E.I. 00-01 The Threat of Criminal Prosecution as a Negotiating Tool
L.E.I. 05-02 Legal Funding Plans
L.E.O. 06-01 Is it Proper for a Lawyer to Accept a Referral Fee from a Financial Services Provider
Propriety of Attorneys Obtaining Loans From Third Party Lenders
CONFLICT OF INTEREST
L.E.I. 78-14 Attorney General Not to Accept Court Appointments
L.E.O. 2013-02 Potential Conflicts of Interest for Federal Government or Military Attorneys Defending Agencies Against Furlough-related Complaints
L.E.I. 86-02 Child Advocate Office within Department of Human Services
L.E.I. 78-20 Disqualification of Attorney in Circuit Court Pending Litigation
L.E.I. 83-11 Lawyer-Legislator Representation RE: Court of Claims
L.E.I. 83-03 Lawyer Preparing Will Named as Beneficiary or Grantee
L.E.I. 85-04 Loyalty in Human Rights Commission Proceedings
L.E.I. 77-03 Municipal Judge Representing Criminal Defendants or Working as Assistant Prosecutor
L.E.I. 78-12 Municipal Judges-Representing Criminal Defendants
L.E.I. 79-03 Conflict of Interest – Disqualification of Attorney in Circuit Court Pending Litigation
L.E.I. 89-03 Clarification of Previous Legal Ethics Inquiry 77-03- Re: Municipal Judges
L.E.I. 93-03 Municipal Judge as Assistant Prosecutor
L.E.I. 93-01 Multiple Representation of Legal Services Clients
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.
L.E.O. 07-01 Potential Conflicts of Interest for Attorneys Representing Personal Representatives in Wrongful Death Claims
L.E.I. 89-01 Real Estate Practice
L.E.I. 81-10 Representation of County Official and Criminal Appointments
L.E.I. 79-13 Represented a Client and Firm Represented the Corporation Earlier
L.E.I. 77-02 Represented Spouse in Former Divorce Action
L.E.I. 77-07 Representing Both Spouses in Irreconcilable Differences Divorce
L.E.I. 98-02 When Lawyers Know About and/or Come Into Possession of Fruits or Instrumentalities of A Crime
L.E.I. 99-01 Ethical Propriety of Insurance Company Captive Law Firms
L.E.I. 99-02 Submitting Insurance Defense Legal Bills to Outside Auditors or Reviewers
L.E.I. 04-01 Summary Proceedings
L.E.I. 05-02 Legal Funding Plans
L.E.O. 06-01 Is it Proper for a Lawyer to Accept a Referral Fee from a Financial Services Provider
L.E.O. 2016-01 Propriety of Attorneys Obtaining Loans From Third Party Lenders
EMPLOYMENT
L.E.I. 78-18 Appointed to Hear Civil Matters of B&O Taxes
L.E.I. 78-15 Appointed to Represent an Indigent
L.E.I. 85-01 Attorneys as Hearing Examiners
L.E.I. 78-04 Criminal Defense Counsel's Duty of Disclosure
L.E.I. 76-01 Dual Practice of Law and Another Business or Profession
L.E.I. 76-02 Using Attorney Designation While Engaging in Insurance Business
L.E.I. 76-05 Employment-Dual Practice of Law and Another Business or Profession
L.E.I. 77-01 DUAL PRACTICE OF LAW AND ANOTHER BUSINESS OR PROFESSION
L.E.I. 79-03 Employed as a Municipal Judge and By a Law Firm
L.E.I. 94-02 Lawyer Retained for Uninsured Motorist Coverage
L.E.I. 92-03 Participation in Living Trust Marketing Franchise
L.E.I. 79-06 Retained by a Collection Agency
L.E.I. 77-02 Solicitation of Business
L.E.I. 96-02 Lawyers Practicing in Limited Liability Partnerships Or Limited Liability Companies
L.E.I. 99-01 Ethical Propriety of Insurance Company Captive Law Firms
L.E.I. 03-01 Private Employment of Appointed Counsel
FAMILY LAW MASTERS
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).
FEES
L.E.I. 76-04 Accepting Credit Cards for Fees
L.E.I. 92-02 Attorney Retaining Liens
L.E.I. 83-05 Compensation of Appointed Counsel to Defend Indigent
L.E.I. 82-01 Contingent Fee for Collecting Child Support Arrearages
L.E.I. 89-02 Copying Charges for Files
L.E.I. 78-07 Finances Charges on Delinquent Accounts overturned by ➔ L.E.I. 93-02
L.E.I. 80-01 Forwarding Overdue Accounts to Collection Agency overruled by ➔ L.E.I. 94-01
L.E.I. 84-04 Refusal to File Divorce Decree Until Paid
L.E.I. 97-02 Contingent Fee Contracts with Organizations or Individuals Obtaining Expert Witnesses
L.E.I. 98-01 Fixed or Flat Fee Arrangements for Insurance Defense Work [amended]
L.E.I. 99-03 Non-Refundable Retainers
L.E.I. 03-01 Private Employment of Appointed Counsel
L.E.I. 05-02 Legal Funding Plans
L.E.O. 06-01 Is it Proper for a Lawyer to Accept a Referral Fee from a Financial Services Provider
L.E.O. 2016-01 Propriety of Attorneys Obtaining Loans From Third Party Lenders
FILES
L.E.O. 2012-01 Use of Electronic Media for File Storage
L.E.I. 89-02 Copying Charges for Files
L.E.I. 92-02 Attorney Retaining Liens
L.E.I. 02-01 Retention and Destruction of closed Client Files
GUARDIAN AD LITEM
INSURANCE DEFENSE
L.E.I. 99-01 Ethical Propriety of Insurance Company Captive Law Firms
L.E.I. 99-02 Submitting Insurance Defense Legal Bills to Outside Auditors or Reviewers
L.E.I. 98-01 Fixed or Flat Fee Arrangements for Insurance Defense Work [amended]
L.E.I. 94-02 Lawyer Retained for Uninsured Motorist Coverage
L.E.I. 04-01 Summary Proceedings
LEGAL AID
L.E.I. 83-06 Advancement of Expenses
L.E.I. 93-01 Multiple Representation
LEGAL RESEARCH SERVICE
L.E.I. 84-03 To Be Made Up of West Virginia State Bar Members
METADATA
L.E.O. 09-01 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.
MUNICIPAL JUDGE
PARALEGALS
L.E.I. 76-07 Attorneys Responsible for Paralegal's Work
PARTNERSHIPS
L.E.I. 78-05 Attorney and Court Reporter
L.E.I. 78-11 Out of State and In State Forming Partnership
L.E.I. 94-04 Propriety of Firm Names Which Sound Like a Partnership
L.E.I. 96-02 Lawyers Practicing in Limited Liability Partnerships Or Limited Liability Companies
PROFESSIONAL RESPONSIBILITY
L.E.I. 92-04 Duty to Report Misconduct of Impaired Lawyer
L.E.I. 88-03 Settlement Agreements Requiring Withdrawal of Ethics Complaint
L.E.I. 00-01 The Threat of Criminal Prosecution as a Negotiating Tool
PROSECUTING ATTORNEY
L.E.I. 78-1 aSSISTANT PROSECUTING ATTORNEY BEING AN ATTORNEY AGAINST BOARD OF REGENTS
L.E.I. 81-3 tHIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 4, 2012
L.E.I. 90-2 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 4, 2012
L.E.I. 84-1 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 4, 2012
L.E.I. 92-1 IMPUTED DISQUALIFICATION OF PROSECUTING ATTORNEYS AND THEIR ASSISTANTS
L.E.I. 81-4 PRIVATE EMPLOYMENT OF STAFF ATTORNEY OF PSC
L.E.I. 78-2 PROSECUTING ATTORNEY AND ASSISTANTS REPRESENTING P.I. CLAIMANTS
L.E.I. 83-4 PROSECUTING ATTORNEY REPRESENTING CLAIMANT IN COURT OF CLAIMS
L.E.I. 77-9 PROSECUTING ATTORNEY REPRESENTING CLAIMANT BEFORE WORKERS' COMPENSATION COMMISSION
L.E.I. 90-1 PROSECUTING COUNTY PUBLIC OFFICIALS
L.E.I. 84-5 CONFLICTS OF PROSECUTORS AND ASSISTANT PROSECUTORS IN SAME PRIVATE LAW FIRM
L.E.I. 76-3 PROSECUTORS ENGAGING IN CRIMINAL DEFENSE IN ADJOINING COUNTIES
L.E.I. 86-3 REPRESENTING A CLIENT WHO WAS PREVIOUSLY INVESTIGATED
L.E.I. 81-9 SPECIAL PROSECUTORS REPRESENTING OTHER CLIENTS
L.E.I. 80-4 STATE ATTORNEY REPRESENTING CITIZEN RECOVERING FEE FROM STATE
L.E.I. 83-8 STATE ATTORNEY REPRESENTING CLIENT IN REPARATION ACT CLAIM
L.E.I. 85-06 THIS OPINION WAS VACATED BY THE LAWYER DISCIPLINARY BOARD ON SEPTEMBER 4, 2012
REAL ESTATE
L.E.I. 89-01 Conflicts of Interest
L.E.I. 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.
L.E.I. 83-12 Plaintiff-Attorney as Special Commissioner
SERVICE OF PROCESS
L.E.I. 85-03 Attorney Interfering With
WHOLLY-OWNED SUBSIDIARY LAW FIRMS
L.E.O. 09-02 Wholly-Owned Subsidiary Law Firms
WITHDRAWAL
L.E.I. 79-16 Attorney Withdrawing from a Case
L.E.I. 88-03 Withdrawal of Complaints
GHOSTWRITING
L.E.O. 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.
LAWYER DISCIPLINARY BOARD ORDER ENTERED 9/14/12 WHICH VACATES PRIOR OPINIONS
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