Can a West Virginia lawyer accept credit cards for payment of legal fees and expenses?

Plain-English summary

The Committee on Legal Ethics had received numerous inquiries about the use of credit cards for payment of legal fees and expenses. It noted that, before this formal opinion, it had advised an inquiring bank and stated in its report at the October 1975 annual meeting that strict observance of ABA Formal Opinion 338 would not expose a subscribing attorney to discipline if the plan were ultimately disapproved, provided the attorney ceased using it upon disapproval. The Committee described the use of credit cards as an innovation that should not be discouraged when the participating lawyer complies with appropriate safeguards, because it fills a need for a segment of the public that might not otherwise have access to legal services, and it directed participating attorneys to keep EC 2-9, EC 2-10, EC 2-17, EC 5-2, EC 5-21, and EC 5-22 firmly in mind.

The Committee concluded that, under the Code of Professional Responsibility, an attorney's participation in a credit-card plan would not be improper if the plan met seven conditions: (1) the bank or card issuer must waive holder-in-due-course defenses, and the client must be able to assert against the issuer any defense he has against the attorney regarding the professional employment; (2) the attorney must fully and fairly disclose, orally and in writing before the transaction, that such defenses may be asserted against the issuer as well as the attorney, and must advise the client of the interest rate and when it applies if the account is delinquent; (3) no directory of individual attorney plan members may be printed or published; (4) the plan is accepted only as a convenience for clients who desire it, and the lawyer may not increase his fee for participating; (5) lawyers may charge only for services rendered or cash paid on a client's behalf; (6) the attorney must scrupulously preserve client confidences and secrets; and (7) publicity and advertising for the plan are subject to prior approval by the State Bar, and there may be no display of a credit-card emblem or window decal in the office, which the Committee deemed undignified and a form of improper solicitation. The Committee expressly disapproved participation in non-complying plans and warned that continued use of a non-complying plan could subject an attorney to disciplinary action.

Currency note

This opinion was issued in 1976, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. Its treatment of a credit-card emblem as improper solicitation reflects pre-modern advertising and solicitation restrictions that postdate Bates v. State Bar of Arizona (1977) and have since been substantially revised; a later opinion, LEI 78-16, restated the emblem prohibition and is itself marked rescinded. Treat this page as historical context, not current guidance. Verify against current rules before relying on any rule, condition, or characterization mentioned here.

Common questions

Q: Could a West Virginia lawyer accept credit cards for fees under this opinion?

A: Yes. The opinion concluded that an attorney's participation in a credit-card plan for paying legal fees and expenses is not improper, provided the plan meets the seven conditions the Committee specified.

Q: Could the lawyer charge more for clients who paid by credit card?

A: No. Condition (4) provided that the plan is to be accepted only as a convenience for clients desiring it and that the lawyer may not increase his fee because of his participation in the plan.

Q: Could the lawyer display a credit-card emblem or decal in the office?

A: No. Condition (7) provided that there shall be no display of an emblem or window decal in the lawyer's office relating to the credit card, treating such display as undignified and a form of improper solicitation.

Q: What happened to lawyers already using a non-complying plan?

A: The opinion expressly disapproved participation in non-complying plans and advised attorneys already using one to ascertain compliance and, if the plan did not comply, to cease its use, warning that continued use could subject an attorney to disciplinary action.

Background and rules framework

The opinion rests on the Code of Professional Responsibility and directs participating attorneys to the Ethical Considerations governing fees and the lawyer-client financial relationship (EC 2-9, EC 2-10, EC 2-17, EC 5-2, EC 5-21, and EC 5-22). It builds on the Committee's earlier interim guidance keyed to ABA Formal Opinion 338, formalizing the conditions under which credit-card payment of fees is permissible.

Citations and references

Rules of Professional Conduct (as cited):

• EC 2-9, EC 2-10, EC 2-17 (fees and making legal services available)
• EC 5-2, EC 5-21, EC 5-22 (a lawyer's independent professional judgment, free of third-party influence)

Other opinions cited:

• ABA Formal Opinion 338 (interim guidance the Committee had observed before issuing this formal opinion)

See also

• WVSB Ethics Op. 78-16: Credit cards for legal fees and solicitation
• WVSB Ethics Op. 78-7: Finance charges on delinquent fee accounts
• WVSB Ethics Op. 80-1: Referral of overdue accounts to a collection agency

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e688d5e64b416162c.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

WEST VIRGINIA STATE BAR JOURNAL
Winter, 1976
Volume 2, Number 4

USE OF CREDIT CARDS

FORMAL OPINION 76-4

The Committee on Legal Ethics of The West Virginia State Bar has received numerous inquiries concerning the use of credit cards for payment of legal fees and expenses. While the Committee has not heretofore adopted any formal opinion with respect to the use of credit cards, an inquiring bank was advised and the Committee stated in its report filed at the annual meeting held in October, 1975, that a strict observance of the American Bar Association's Formal Opinion 338 would not expose an attorney subscribing to the plan to disciplinary action should the plan be ultimately disapproved by the Committee, provided the attorney using the plan ceased doing so upon the plan's disapproval.

The use of credit cards to pay for legal fees is an innovation which should not be discouraged when the participating lawyer complies with appropriate safeguards since the use of such cards fills a need for a segment of the public that conceivably might not otherwise have access to legal services. Attorneys participating in a credit card plan should have the provisions of EC 2-9, EC 2-10, EC 2-17, EC 5-2, EC 5-21 and EC 5-22 firmly in mind in connection with credit card transactions.

The Committee is of the opinion that under the provisions of the Code of Professional Responsibility an attorney's participation in a plan providing for the use of credit cards in the payment of attorney fees and expenses would not be improper if the plan meets the following conditions:

(1) The bank or credit card issuer in any possible suit against the client must waive all defenses a holder in due course might have, and the client must have the right to assert against the bank or credit card issuer any defense he may have against the attorney with regard to the professional employment giving rise to the credit card transaction.

(2) The attorney shall fully and fairly disclose to the client, both orally and in writing prior to the consummation of such credit card transaction, that any defenses the client may have regarding the professional transaction may be asserted against the bank or credit card issuer as well as the attorney. The client must be expressly advised prior to execution of any credit card arrangement the rate of interest that will be charged and after what period of time it will be charged if the account remains delinquent.

(3) No directory shall be printed or published of individual attorney members of the plan.

(4) The plan is to be accepted only as a convenience for clients desiring it, and the lawyer may not increase his fee because of his participation in the plan.

(5) Lawyers participating in the plan may charge only for services rendered or cash paid on behalf of a client.

(6) The attorney shall scrupulously observe his obligation to preserve the confidences and secrets of his clients.

(7) Publicity and advertising for the plan is subject to prior approval by The West Virginia State Bar. There shall be no display of an emblem or window decal in the lawyer's office relating to the credit card. Such display is undignified and is a form of improper solicitation.

Participation by attorneys in plans which do not comply with the above conditions is hereby expressly disapproved. Attorneys who are presently using a credit card plan should ascertain that the plan meets the foregoing conditions. If it does not, they are advised to cease its use. Continued use of a plan not meeting the above requirements may subject an attorney to disciplinary action.

Dated: June 18, 1976.

John O. Kizer, Chairman