West Virginia State Bar (Lawyer Disciplinary Board) Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the West Virginia State Bar (Lawyer Disciplinary Board), with full citations and source links on every page.
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Can a West Virginia lawyer use artificial intelligence, including generative AI, in a law practice?
Yes. Nothing in the West Virginia Rules of Professional Conduct prohibits using AI as a tool, but the lawyer's duties of competence, diligence, communication, confidentiality, and supervision still ap…
When a former prosecutor joins a public defender's office in West Virginia, can the office screen them so it can keep handling the cases, or is the whole office disqualified?
Screening under Rule 1.11(b) is available for matters the former prosecutor did not handle personally and substantially. If the prosecutor did participate personally and substantially in a matter, the…
Can a West Virginia lawyer join an online attorney-client matching service that collects the client's fee and takes a per-case 'marketing fee' out of it?
No. The Board concludes that a lawyer who participates in the described attorney-client matching service model would violate the Rules of Professional Conduct, because the per-matter marketing fee sha…
Can a West Virginia lawyer pay a fact witness for the time the witness spends testifying or preparing to testify?
A lawyer may pay a fact witness reasonable compensation for time lost preparing for testimony and being interviewed, but not for attending court or a deposition beyond the statutory witness fee, and n…
Can a West Virginia lawyer borrow from a third-party lender to advance litigation costs in a contingent-fee case, and pass the loan's interest and costs on to the client?
Yes, with conditions. The Board concludes the Rules of Professional Conduct do not bar a lawyer from borrowing from a third-party lender to fund litigation costs, and the actual interest and costs may…
When a West Virginia lawyer or investigator comes into possession of physical evidence of a client's crime, what do the amended Rules of Professional Conduct require?
The opinion reaffirms L.E.I. 98-02 and concludes that, under the amended rules, applicable law (including obstruction and evidence-tampering statutes) may require a lawyer who takes possession of phys…
What ethics rules govern a West Virginia lawyer's use of social media (Facebook, LinkedIn, Twitter) for client matters, friending, juror and judge research, reviews, and advertising?
L.E.O. 2015-02 answers twelve social media questions. West Virginia lawyers may advise clients about their posts, connect with clients, review jurors, and advertise online, but may not contact represe…
Can a West Virginia lawyer hire stand-in counsel (a lawyer outside the firm, often through a company) to cover a hearing, and what duties apply to both lawyers?
Yes. The Board concludes using stand-in counsel is permissible if both the hiring lawyer and the stand-in lawyer follow the Rules: competent and prepared representation, client communication and infor…
When a court appoints a guardian ad litem for a child or protected person, can the other lawyers in the case contact that child or person directly, or must they go through the guardian ad litem?
They must go through the guardian ad litem. The opinion concludes a guardian ad litem is both alter ego and attorney for the child or protected person, so Rule 4.2's bar on contacting a represented pa…
If a federal government or military attorney has been or expects to be furloughed, can the attorney still defend their agency against other employees' furlough complaints, or is that a conflict of interest?
It is a conflict, but a waivable one. The opinion concludes the attorney's personal interest creates a conflict under Rule 1.7; it may be waived only if the attorney reasonably believes the representa…
Can a plaintiff's lawyer in West Virginia personally agree, as a condition of settlement, to indemnify and hold the defendant harmless from third-party claims or liens on the settlement funds, and can defense counsel demand it?
No. The Board concludes a lawyer's personal agreement to indemnify and hold the opposing party harmless from third-party claims or liens violates Rules 1.8(e) and 1.7(b), and defense counsel who propo…
Can a West Virginia lawyer store client files electronically, including with an off-site or cloud provider, and what must the lawyer do to protect them?
Yes. The Board concludes electronic storage of client files is permissible under the Rules of Professional Conduct, provided the lawyer uses due diligence to protect the client's confidentiality, the …
Can a West Virginia law firm organize another law firm as its wholly-owned subsidiary, and how must the two firms hold themselves out and check conflicts?
Yes. The opinion concludes the Rules of Professional Conduct accommodate a wholly-owned subsidiary law firm, provided the firm complies with Rule 5.7 and West Virginia statutes; both firms must disclo…
When a West Virginia lawyer represents the personal representative in a wrongful death case, does the lawyer also represent the beneficiaries, and is it a conflict if they fight over how the recovery is divided?
Not necessarily, but it can be. The opinion concludes a lawyer for the personal representative does not automatically represent the beneficiaries, so no conflict arises by default; but if the lawyer's…
Can a West Virginia lawyer accept a referral fee from a financial services provider for sending clients to that firm?
No. The Lawyer Disciplinary Board concluded it is ethically improper for a lawyer to accept a referral fee from a financial services provider, and the conflict cannot be cured by client disclosure and…
Can a West Virginia lawyer refer a personal-injury client to a litigation-funding company that advances cash against the client's expected recovery, or release the client's case information to it?
Only with care, and never for the lawyer's benefit. The opinion concludes a lawyer may not refer a client to a funding plan the lawyer (or the firm or family) owns or that pays the lawyer for referral…
Can a West Virginia lawyer hired and paid by a liability insurer to defend an insured agree to follow the insurer's litigation-management or billing guidelines that require approval before discovery, research, or motions?
No, not the restrictive kind. The opinion concludes a lawyer paid by an insurer to defend an insured cannot ethically agree to guidelines that dictate how defense work is allocated, require prior appr…
In West Virginia, can the insurance defense lawyer prepare the summary-settlement petition that an unrepresented parent or guardian of an injured minor will file and sign?
The Board could not reach consensus, splitting between a Rule 1.7 inherent-conflict view and a Rule 4.3 permissible-drafting view. Until the question is resolved, the opinion lists seven protective di…
Can a West Virginia lawyer who was appointed to represent an indigent defendant later be paid by the client or by a third party and become privately retained counsel?
Sometimes, on an ad hoc basis. The opinion concludes appointed counsel may become privately retained if the lawyer first discloses the change to the court, is released from the appointment, and never …
How long must a West Virginia lawyer keep a former client's closed file, and how can the lawyer destroy it without violating the duty to safeguard client property?
The file is the client's property. The opinion concludes a lawyer should either return a closed file to the client or keep it at least five years after the representation ends (longer for some matters…
When can a West Virginia lawyer threaten criminal prosecution to gain leverage in negotiating a civil matter, and what are the limits?
The opinion concluded that, after Committee on Legal Ethics v. Printz, a lawyer may seek restitution in lieu of criminal prosecution if the negotiation is otherwise legitimate, but set five limits: re…
Can a West Virginia lawyer charge a non-refundable retainer, and when does keeping the unearned fee violate the rules?
It depends on the type. A non-refundable fee for availability is not a per se violation if clearly explained, but where specific work is expected all fees must be earned, and any non-refundable retain…
Can an insurance defense lawyer send the insured's legal bills to the insurer's outside auditor or reviewer?
Only with the insured's informed consent. The opinion concluded that itemized legal bills are confidential under Rule 1.6, so a lawyer may release them to outside auditors only after consulting the in…
May an insurance company use salaried in-house lawyers practicing under a firm name to defend its insureds in West Virginia?
Yes, but only subject to conditions: the insured is the sole client, the file stays confidential, the lawyer keeps independent judgment, and the captive firm discloses its insurer affiliation because …
How do West Virginia's advertising and solicitation rules apply to a lawyer's website, email, newsgroup postings, and chat-room contacts?
Websites are public-media advertising subject to the truthfulness rules; email and newsgroup solicitations should carry an 'Advertising Material' label; spamming can be improper harassment; and real-t…
Can a West Virginia lawyer agree with a liability insurer to defend the insurer's insureds for a fixed or flat fee?
Yes, flat-fee insurance defense is not a per se violation, but the lawyer must ensure in each case that the fee is enough to provide competent, diligent representation and must fully disclose the arra…
What must a criminal defense lawyer do when the client tells the lawyer about, or hands over, the fruits or instrumentalities of a crime?
The opinion gives a balancing framework, not a bright-line rule: a lawyer may not conceal, destroy, or alter physical evidence; what a client says about it is privileged, but the items themselves are …
Can a West Virginia lawyer participate in a prepaid legal services plan, and who is responsible for the plan's advertising?
A lawyer who participates in a prepaid legal services plan is ethically responsible for the plan's advertising and solicitation in West Virginia, and a plan that pays the lawyer nothing while charging…
Can a West Virginia lawyer use, or have a client use, an organization that obtains a medical expert under a contingency fee contract?
No. The opinion concluded that an arrangement where an organization obtains an expert under a contingent fee violates the literal language of West Virginia Rule 1.8(k), which bars contingent payment t…
Can a West Virginia law firm advertise under a trade name while doing business under a different name made up of the partners' names?
Only if it discloses both names. The opinion concluded that advertising under a trade name that conceals the firm's identity is materially misleading, so a law office must designate every firm and tra…
Can a West Virginia lawyer advertise 'No Recovery-No Fee' without saying the client may still owe litigation costs and expenses?
No. The opinion concluded that 'No Recovery-No Fee' and similar contingent-fee advertising is inherently misleading and violates Rule 7.1 unless the same advertisement also discloses that the client i…
Can West Virginia lawyers practice in a limited liability partnership or limited liability company without violating the malpractice-limitation rule?
Yes. The opinion concluded that Rule 1.8(h) addresses a lawyer's personal liability to a client, not the firm's liability as a whole, so a client need not be independently represented before hiring an…
Can a West Virginia sole practitioner who employs associates use a firm name like 'Law Offices of Smith & Jones' when no partnership exists?
No. The opinion concluded a name such as 'Law Offices of Smith & Jones,' where Jones is an employee and no partnership exists, suggests a partnership that does not in fact exist and is prohibited by R…
When an insurer hires a lawyer to defend in the name of an uninsured motorist under uninsured-motorist coverage, who is the lawyer's client and what does the lawyer owe the named defendant?
The lawyer represents the insurance company's interests, not the uninsured motorist's. The opinion held the lawyer owes no duty of loyalty to the defendant, must treat the defendant as an unrepresente…
Can a West Virginia lawyer refer a former client's overdue legal-fee account to a collection agency?
Yes. The opinion overruled the bar's earlier ban and held a lawyer may refer an overdue account to a collection agency, but only under eight guidelines, including exhausting other collection efforts, …
Can a lawyer serve at the same time as an elected municipal judge and as an assistant prosecuting attorney?
No. The opinion concluded it would be prejudicial to the administration of justice for a municipal judge to be employed simultaneously as an assistant prosecuting attorney, because appearing as counse…
Can a West Virginia lawyer charge interest or a finance charge on a client's overdue legal-fee balance?
Yes, if the client agreed in writing at the outset of the representation. The opinion rescinded the bar's earlier ban (L.E.I. 78-7) and held Rule 1.5 does not prohibit interest on unpaid balances, but…
Can a legal services agency represent one party with a staff lawyer while the opposing party, screened by the same agency, is represented by a volunteer pro bono lawyer?
Yes, with safeguards. The opinion concluded that neither a staff-lawyer-versus-pro-bono-lawyer split nor a pro-bono-versus-pro-bono split is a prohibited conflict when intake is by nonlegal staff, the…
Can a West Virginia lawyer hold a client's file under a retaining lien until unpaid fees are paid after the representation ends?
Only to a limited extent. The opinion concluded that when retaining the file would interfere with the client's ongoing litigation, the lawyer's retaining-lien right under Rule 1.16(d) must give way; t…
When a prosecuting attorney or an assistant is personally disqualified from a matter, is the whole prosecutor's office disqualified?
It depends who is disqualified. The opinion concluded that if the elected Prosecuting Attorney is disqualified for any reason, the disqualification is imputed to the entire office; but if an assistant…
Does reporting an impaired lawyer's misappropriation of client funds to a lawyer-assistance program satisfy a lawyer's duty to report misconduct under Rule 8.3(a)?
No. The opinion concluded that the Committee on Legal Ethics is the appropriate professional authority for reporting misconduct under Rule 8.3(a); reporting to the Lawyer Assistance or Lawyer Impairme…
Can a West Virginia lawyer participate in a living-trust marketing program where a nonlawyer franchisee sells the trust, an out-of-state company prepares it, and the lawyer only supervises signing?
No. The opinion concluded that a lawyer who participates in such a living-trust marketing franchise assists a nonlawyer in the unauthorized practice of law and violates Rule 5.5(b), because the franch…
Can a West Virginia lawyer join a for-profit company that screens injury callers and refers them to paying attorneys on a rotation basis?
No, as structured. The opinion concluded a lawyer cannot participate in a for-profit referral program (PITLA) that screens calls, because it is an impermissible for-profit referral service and its ads…
Can a West Virginia county prosecuting attorney investigate or prosecute county public officials whose offices the prosecutor represents?
Yes, not a per se conflict. The opinion concluded a county prosecutor represents the office, not the individual occupying it, so prosecuting a county official is not a conflict per se; but the prosecu…
May a West Virginia municipal judge (and the judge's law partners) accept appointments to represent people in juvenile status, abuse/neglect, and mental hygiene matters?
Yes. The opinion clarified that L.E.I. 77-3's bar on municipal judges and their partners handling criminal defense does not reach juvenile status offenses, juvenile abuse/neglect with no related crimi…
When a representation ends, can a West Virginia lawyer charge the client for copying the file the lawyer must return?
Usually not. The opinion concluded a lawyer must return the client's original documents on termination and may keep copies, but absent a prior agreement that the client pays copying charges, the lawye…
In a West Virginia real estate transaction, can one lawyer represent more than one party (buyer, seller, lender), and what disclosures and limits apply?
Yes, with conditions. The opinion concluded a lawyer may represent more than one party in a real estate transaction only after determining there is no actual conflict, making full written disclosure a…
Can a West Virginia lawyer make settling a civil case conditional on the other side withdrawing its bar disciplinary complaint?
No. LEI 88-03 concluded that a lawyer who requests or agrees to have an ethics complaint dropped in exchange for settling related litigation may have committed a separate ethical violation, and the di…
Can a West Virginia child support advocate (and the advocate's law partners) take private domestic relations cases on the side?
LEI 88-02 concluded that a Child Advocate may not represent private clients in any domestic relations matter anywhere in the state; the advocate's partners and associates are barred only in the advoca…
Which employees of a represented corporate adversary can a West Virginia lawyer contact directly without going through the company's counsel?
LEI 87-01 adopted ABA Informal Opinion 1410: a lawyer may contact most employees of a represented corporate adversary, but not its directors, officers, managing agents, or persons designated to speak …
Whom does a state-paid West Virginia Human Rights Commission lawyer represent, the Commission or the complainant, and can the Commission waive the conflict?
LEI 85-4 concluded that after the probable-cause stage the state-paid lawyer is required by law to advocate for the complainant because their interests then align with the Commission's; the lawyer mus…
Can a West Virginia prosecuting attorney later represent, in private practice, a person the prosecutor previously investigated for criminal charges?
Not when the later private matter is connected to the earlier investigation. LEI 86-3 concluded a prosecutor should not have taken a former criminal client's fee-dispute case because that civil litiga…
Can a West Virginia lawyer use influence over the sheriff's office to delay or block service of civil process?
No. LEI 85-3 concluded that an attorney who interferes with or delays service of civil process engages in conduct prejudicial to the administration of justice under DR 1-102(A)(5) and may also violate…
If one assistant prosecutor is disqualified from a case, is the entire prosecuting attorney's office disqualified in West Virginia?
No. LEI 85-2 concluded that lawyers serving together in a prosecuting attorney's office are not a 'law firm' for imputed-disqualification purposes, so one assistant's individual disqualification does …
May a West Virginia lawyer serve part-time as a hearing examiner for the Human Rights Commission, and what conflicts apply to the lawyer's firm?
Yes, with safeguards. LEI 85-1 concluded a lawyer may serve as a part-time or temporary Human Rights Commission hearing examiner if reasonable effort is made to satisfy five conflict safeguards keepin…
Can assistant prosecutors who are also private law partners take opposing roles, such as one defending a bankruptcy debtor while another pursues the agency's claim against the estate?
LEI 84-5 concluded that an assistant prosecutor may not pursue a county or state agency's claim against a debtor whose bankruptcy is defended by his private law partner; serving as a Workers' Compensa…
Can a lawyer refuse to file or finalize a client's divorce decree until the client pays the legal fees that are owed?
LEI 84-4 concluded that a lawyer may not ethically delay completing a divorce action, such as refusing to file the final divorce decree, because the fee is unpaid; that refusal violates DR 5-101(A), D…
Can a corporation owned by lawyers provide legal research services to other attorneys and law firms without engaging in the corporate or unauthorized practice of law?
LEI 84-3 concluded that providing a legal research service through a corporation formed by West Virginia State Bar members is proper, so long as the service is limited to licensed attorneys and law fi…
Can a lawyer who is a plaintiff in a partition suit accept appointment as the special commissioner who sells the property, and sell it to a spouse?
LEI 83-12 concluded that a lawyer who is a party to an action should refuse appointment as special commissioner in that action, and that a court-appointed attorney-commissioner should not sell the pro…
Can a lawyer who is also a state legislator represent a private client in a claim before the West Virginia Court of Claims?
LEI 83-11 concluded that a lawyer who is a member of the Legislature may not represent a client before the Court of Claims, because that court is an arm of the Legislature and the lawyer would in effe…
Browse West Virginia State Bar (Lawyer Disciplinary Board) opinions by topic
Legal ethics opinions from the West Virginia State Bar (Lawyer Disciplinary Board) interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.