Attorney Referral Fees in West Virginia - A Complete Guide

How to Ethically Share Fees With Other West Virginia Attorneys

Even among states classified as pure referral fee jurisdictions, West Virginia is unique. The allowance for attorneys to use a division of fees comes not from a rule within the Rules of Professional Conduct but from a comment. Attorneys can split fees without assuming joint responsibility or basing the split on work completed.

West Virginia Rule 1.5 Comment

In comparison to most states, West Virginia does not have an explicit rule governing the division of fees. That the state allows for a referral fee can be found in the comment to West Virginia Rules of Professional Conduct Rule 1.5:

When a lawyer refers a case to another lawyer or law firm, a division of fees may be made if the client agrees that the case may be referred to the other lawyer or law firm.

Unlike other jurisdictions, West Virginia has few requirements. Attorneys do not need to divide a fee proportional to work completed or assume joint responsibility. They also do not have to provide a written document or obtain a client signature as part of a referral fee.

All the same, attorneys may want to provide clients with a written overview of the division of fees and obtain signed client consent. Even if not required, other sections of the West Virginia Rules of Professional Conduct suggest the value of a written and signed document.

Reasonable Fees

Unlike other jurisdictions, West Virginia does not explicitly mention that a division of fees must be reasonable. The WVRPC do require reasonable fees, as stated in Rule 1.5(a):

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

1. the time and labor required, the novelty and difficulty of the questions involved, and skill requisite to perform the legal service properly;
2. the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8. whether the fee is fixed or contingent.

These factors are not conclusive. What meets the standard of reasonableness depends on the circumstances of each situation.

Competency

Again, while not explicitly mentioned in the rule itself, the comment to WVRPR Rule 1.1 addresses the matter of competency when referring a case or client to another attorney or law firm.

The relevant sections of the comment:

• An attorney “must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.”
• “The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.”
• “When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers must consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them.”

The Rule 1.1 Comments closely parallel other jurisdiction’s rules regarding referral fees. Namely, an attorney should only refer a case to an attorney they believe to be competent to handle the matter.

In a similar vein, as part of informing the client of the division of fees, attorneys should apprise a client of what each party’s responsibilities will be. In some cases, the referring attorney’s duties may end with the referral. Making a client aware of which attorney handles which parts of their case can establish clear communication with the client and minimize miscommunications.

Conclusion

West Virginia allows attorneys wide latitude for the division of fees. Attorneys may refer cases to other attorneys with few restrictions. Attorneys must inform clients of the division, and other sections of the WVRP suggest that the referred attorney must be competent to handle the case and that all fees should be reasonable.