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West Virginia Rules of Professional Conduct

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West Virginia Rules of Professional Conduct Supreme Court of Appeals of West Virginia West Virginia Rules of Professional Conduct Final Engrossed Version Justices Hon. Robin Jean Davis, Chief Justice Hon. Brent D. Benjamin Hon. Margaret L. Workman Hon. Menis E. Ketchum II Hon. Allen H. Loughry II Effective January 1, 2015 As Amended by Order: September 29, 2014 The Court’s order and a PDF version of the proposed revisions are available online at: http://www.courtswv.gov/legal-community/court-rules.html Table of Contents Proposed Amendments to the Rules Rule 4.4 Respect for Rights of Third Persons…89 of Professional Conduct Law Firms and Associations Preamble: A Lawyer’s Responsibilities…1 Rule 5.1 Responsibilities of Partners, Managers, and Scope…2 Supervisory Lawyers…90 Rule 1.0 Terminology…4 Rule 5.2 Responsibilities of a Subordinate Lawyer…92 Rule 5.3 Responsibilities regarding Nonlawyer Client-Lawyer Relationship Assistance…93 Rule 1.1 Competence…8 Rule 5.4 Professional Independence of a Lawyer…95 Rule 1.2 Scope of representation and Allocation of Rule 5.5 Unauthorized Practice of Law; Authority Between Client and Lawyer…10 Multijurisdictional Practice of Law…96 Rule 1.3 Diligence…13 Rule 5.6 Restrictions on Right to Practice…100 Rule 1.4 Communication…14 Rule 5.7 Responsibilities Regarding Law-Related Rule 1.5 Fees…16 Services …101 Rule 1.6 Confidentiality of Information…18 Rule 5.8 Limited Liability Legal Practice …103 Rule 1.7 Conflict of Interest: Current Clients…23 Public Service Rule 1.8 Conflict of Interest: Current Clients: Specific Rules…30 Rule 6.1 Voluntary Pro Bono Publico Service…104 Rule 1.9 Duties to Former Clients…37 Rule 6.2 Accepting Appointments…107 Rule 1.10 Imputation of Conflicts of Interest: General Rule 6.3 Membership in Legal Services Rule…40 Organization…108 Rule 1.11 Special Conflicts of Interest for Former and Rule 6.4 Law Reform Activities Affecting Client Current Government Officers and Interests…109 Employees…42 Rule 6.5 Nonprofit and Court-Annexed Limited Legal Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Services Programs…110 Third-Party Neutral…45 Information About legal Services Rule 1.13 Organization as Client…47 Rule 1.14 Client with Diminished Capacity…51 Rule 7.1 Communications Concerning a Lawyer’s Rule 1.15 Safekeeping Property…54 Services…111 Rule 1.16 Declining or Terminating Representation…56 Rule 7.2 Advertising…112 Rule 1.17 Sale of Law Practice…58 Rule 7.3 Solicitation of Clients…115 Rule 1.18 Duties to Prospective Client…61 Rule 7.4 Communication of Fields of Practice and Specialization…118 Counselor Rule 7.5 Firm Names and Letterheads…119 Rule 2.1 Advisor…63 Maintaining the Integrity of the Rule 2.2 Intermediary (Deleted)…64 Profession Rule 2.3 Evaluation for Use by Third Persons…64 Rule 2.4 Lawyer Serving as Third-Party Neutral…66 Rule 8.1 Bar Admission and Disciplinary Matters…120 Rule 8.2 Judicial and Legal Officials…121 Advocate Rule 8.3 Reporting Professional Misconduct…122 Rule 3.1 Meritorious Claims and Contentions…68 Rule 8.4 Misconduct…124 Rule 3.2 Expediting Litigation…69 Rule 8.5 Disciplinary Authority; Choice of Law…125 Rule 3.3 Candor Toward the Tribunal…70 Rule 3.4 Fairness to Opposing Party and Counsel…74 * * * * Rule 3.5 Impartiality and Decorum in the Tribunal…76 Rule 3.6 Trial Publicity…77 Rule 3.7 Lawyer as Witness…79 Rule 3.8 Special Responsibilities of a Prosecutor…81 Rule 3.9 Advocate in Nonadjudicative Proceedings…84 Transactions with Persons other than Clients Rule 4.1 Truthfulness in Statements to Others…85 Rule 4.2 Communication with Persons represented by Counsel…86 Rule 4.3 Dealing With Unrepresented Person…88 West Virginia Rules of Professional Conduct Amended by Order September 29, 2014, Effective January 1, 2015 PREAMBLE: A LAWYER’S RESPONSIBILITIES [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others. [3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. [4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. [5] A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. [6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. West Virginia Rules of Professional Conduct — Amendments Effective January 1, 2015 [7] Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service. [8] A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. A lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. [9] In the nature of law practice, however, conflicting responsibilities are encountered. Many ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. [10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. [11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession’s independence from government domination.
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