Missouri Supreme Court Rules
Frequently Asked Questions
Requesting an Informal Advisory Opinion
.Missouri Supreme Court Rules
- Rule 4-1.1, Competence
- Rule 4-1.3, Diligence
- Rule 4-1.4, Communication
- Rule 4-1.6, Confidentiality of Information
- Rule 4-1.7, Conflict of Interest: Current Clients
- Rule 4-1.9, Duties to Former Clients
- Rule 4-1.15, Trust Accounts and Property of Others
- Rule 4-1.16, Declining or Terminating Representation
- Rule 4-1.22, Retaining Client Files
- Rule 4-5.1, Responsibilities of Partners, Managers, and Supervisory Lawyers
- Rule 4-5.2, Responsibilities of a Subordinate Lawyer
- Rule 4-7.1, Communication Concerning a Lawyer’s Services
- Rule 4-8.4, Misconduct
.Cases (The following list of cases is intended as an aid for initial inquiry and is not a substitute for individualized legal research):
- In the Matter of Cupples (Cupples I), 952 S.W.2d 226 (Mo. banc 1997)
- In re Cupples (Cupples II), 979 S.W.2d 932 (Mo. banc 1998)
- Formal Opinion 115, as amended (1988)
.Informal Opinions (This list may be non-exhaustive):
- Informal Opinion 2020-04 (notice to current clients)
- Informal Opinion 2020-05 (limited disclosure of confidential information for conflicts checking)
- Informal Opinion 2020-06 (other obligations)
- Informal Opinion 2019-03 (files of clients of departing lawyer)
- Informal Opinion 2019-04 (disputes surrounding lawyer’s departure)
- Informal Opinion 20060060 (notice to clients required for departure of partner, associate, or “of counsel” lawyer)
- Informal Opinion 20030049 (withdrawal occasioned by lawyer’s departure)
- Informal Opinion 970197 (notice to clients)
- Informal Opinion 950184 (joint notice to clients preferred; disposition of files)
- Sandra J. Colhour, Ethics Obligations When a Lawyer Leaves a Law Firm, 76 Journal of The Missouri Bar 82 (2020).
.Frequently Asked Questions:
QUESTION: What are the sources of lawyers’ obligations to each other and to clients when a lawyer’s association with a law firm ends, either voluntarily or involuntarily?
ANSWER: In addition to complying with ethics obligations in the Rules of Professional Conduct and In the Matter of Cupples (Cupples I), 952 S.W.2d 226 (Mo. banc 1997), lawyers must also comply with their fiduciary duties to each other, valid obligations under employment or partnership agreements, and the substantive law of partnership, agency, property, contracts, unfair competition, and other applicable law. A discussion of duties under applicable law is outside the scope of this Resource Page.2) Duty to communicate with clients:
QUESTION: What is the nature of a lawyer’s communication duty to clients when a lawyer leaves a law firm, either because the lawyer is terminated or because the lawyer voluntarily ends the association?
ANSWER: Lawyers involved in the departure should review In the Matter of Cupples (Cupples I), 952 S.W.2d 226 (Mo. banc 1997). Additional information about communication with clients and other ethics obligations is available through published Informal Opinions, articles, and other ethics sources referenced above. Lawyers may contact the Legal Ethics Counsel Office for an informal advisory opinion about specific questions. What follows is a summary of lawyers’ communication duties with clients related to a lawyer’s departure from a firm:
- Notice to clients of material change in the representation: All current clients for whom the departing lawyer has provided material representation should be notified promptly of the lawyer’s departure from the firm in a professional manner consistent with the opinion of the Supreme Court of Missouri in Cupples I, 952 S.W.2d 226 (Mo. banc 1997). Informal Opinion 2020-04. The firm and the departing lawyer are not required to send a notification letter to the departing attorney’s former clients. Informal Opinion 2020-04. Notice should be timed to serve the client’s best interests rather than the interests of the departing lawyer or firm. Informal Opinion 2020-04. Clients must be notified of a material change in their representation regardless of whether the change is occasioned by the departure of a partner, shareholder, associate, or attorney associated with the firm “of counsel.” Informal Opinion 20060060.
- Joint notice: Ideally, the communication will be in writing, issued jointly by the departing lawyer and the firm. Informal Opinions 2020-04 and 950184. If circumstances will not allow for joint notice, both the firm and departing lawyer are obligated to ensure clients receive proper notice. Cupples I, 952 S.W.2d at 235-236; Informal Opinions 2020-04 and 970197.
- Notice to firm: Lawyers in a law firm have a fiduciary duty to treat each other fairly and honesty. Cupples I, 952 S.W.2d at 236. Therefore, a lawyer choosing to leave a firm is encouraged to notify the firm before notifying clients.
- Purpose: The purpose of the notice to clients is to obtain the client’s informed direction as to whether the client wishes to be represented in the matter by the law firm, the departing attorney, or new counsel of the client’s choosing. Cupples I, 952 S.W.2d at 235-36; Informal Opinion 2020-04. If the departing lawyer or firm is unable or unwilling to continue the representation post-departure, the client should be so informed, and the remaining available options for representation should be offered to the client. Informal Opinions 2020-04 and 950184. Clients should be notified of the expected date of departure and of the lawyer’s new contact information, if applicable. Informal Opinion 2020-04. The communication should explain who will be handling the client’s matter until the client affirmatively communicates the client’s choice of counsel. Informal Opinion 2020-04. The departing lawyer and the firm may wish to explain to the client that if the client wishes to be represented by the departing lawyer or new counsel, funds in the trust account will be refunded to the client or transferred per the client’s direction. The notice may also instruct clients as to whom the client should pay any balance due for fees or expenses. Informal Opinion 2020-04.
- Client file: Notice to the client should explain that a client’s original file will remain with the firm until or unless the client chooses to be represented by the departing attorney or new counsel. Informal Opinions 2020-04 and 2019-03.
- Format of notice: Communication with clients about the lawyer’s departure should be written, personal, or “by some other means,” provided it is “professional in nature and content.” Cupples I, 952 S.W.2d at 235. Given the Court’s warning in Cupples I that a lawyer’s or firm’s failure to fulfill its duties to clients in this context may justify disciplinary action, lawyers are advised to notify clients in writing if possible. See Cupples I, 952 S.W.2d at 235; see also Informal Opinions 2020-04 and 950184. If personal or telephone notice is necessary to protect a client’s interests, a follow-up writing to the client is encouraged.
- Nature of notice: The communication should be professional in nature and content, should contain no false or misleading information, and should not attempt to influence a client’s choice of counsel. Cupples I, 952 S.W.2d at 235.
QUESTION: An attorney is leaving a law firm. The departing attorney has been the lead attorney or assisted another attorney at the firm in a number of client matters. What should the firm’s remaining attorneys do with the files for those clients?
ANSWER: The file for each client matter belongs to the client, except for those items in the file for which the firm has borne uncompensated out-of-pocket expenses, such as, but not limited to, transcripts. Formal Opinion 115, as amended. Even if the attorney or firm has not been paid for services rendered, a firm or lawyer must comply with a client’s direction to transmit the file to the departing attorney or new counsel. A client who is notified of the departure of that client’s attorney should be informed that the client file will continue to be housed at the firm until and unless the client communicates his or her wishes as to the disposition of the file. The client file should not be removed or copied by the departing attorney unless the client so directs.
4) Other disputes:
QUESTION: What steps can be taken by a firm and departing attorney who find themselves in a dispute over compensation, professionalism, or other issues surrounding a lawyer’s departure from a firm?
ANSWER: Firm lawyers and a departing attorney who have a dispute about division of client fees have an obligation to cooperate as necessary to allow for the client’s timely receipt of funds in which the client has an undisputed interest. See Rule 4-1.15(d). If a dispute between the firm and departing lawyer over proper division of the fee cannot be resolved, the involved lawyers should consider taking part in The Missouri Bar’s Lawyer-to-Lawyer Dispute Resolution Program. Rule 4-1.5(e), which governs the division of fees between lawyers not in the same firm, does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a firm. Rule 4-1.5(e), Comment .
5) Disclosures to detect and resolve conflicts of interest:
QUESTION: Attorney is negotiating with a law firm for future employment. May Attorney make limited disclosure of a client’s confidential information in order to check for conflicts of interest?
ANSWER: Lawyers have an ethical obligation to protect against conflicts of interest. See Rules 4-1.7 and 4-1.9. Rule 4-1.6(b)(5) permits Attorney to reveal information relating to the representation of a client for the limited purpose of detecting and resolving conflicts of interest arising from Attorney’s change of employment, but only if doing so would not compromise the attorney-client privilege or otherwise prejudice the client. Whether the attorney-client privilege would be compromised is a question of law outside the scope of the Rules of Professional Conduct. See Rule 4-1.6, Comment . A disclosure pursuant to Rule 4-1.6(b)(5) should not be made until substantive discussions about the new relationship have occurred. Rule 4-1.6, Comment . Ordinarily, any such disclosure should be limited to “the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated.” Rule 4-1.6, Comment . Information disclosed may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Rule 4-1.6, Comment .
6) Termination of representation:
QUESTION: If a lawyer’s departure from a law firm occasions the need for one or more lawyers to withdraw from a representation, what standards govern the termination of the representation?
ANSWER: If a lawyer’s departure from a law firm occasions the need for the departing lawyer or one or more lawyers remaining at the firm to withdraw from a representation, the lawyer(s) withdrawing from the representation must comply with Rule 4-1.16, Declining or Terminating Representation. See Informal Opinion 20030049.
7) Other Obligations:Informal Opinion 2020-06
QUESTION: In addition to notifying clients for whom Attorney is providing material representation, what other steps should be taken by Attorney and the firm following Attorney’s departure from the firm?
ANSWER: Firm lawyers should promptly update advertising materials, the firm’s website, the firm’s name if necessary, and other communications to avoid false or misleading information as to the lawyers associated with the firm. Rules 4-7.1 – 4-7.5. Attorney’s access to the firm’s trust account(s) should be terminated upon departure. See Rule 4-1.15. Attorney should furnish the Supreme Court of Missouri with updated information as required by Rule 6.01(b) and provide updated contact information to The Missouri Bar. Other steps may be appropriate to protect the interests of clients as required by Rule 4-1.16, Declining or Terminating Representation, Rule 4-1.1, Competence, or Rule 4-1.3, Diligence.
.Requesting an Informal Advisory Opinion: Missouri attorneys may request an informal advisory opinion from the Legal Ethics Counsel. Guidelines for requesting an informal advisory opinion, in writing or by telephone, are at http://molegalethics.org/requesting-an-informal-advisory-opinion/. The Office of Legal Ethics Counsel may be reached by telephone at 573-638-2263.
Updated April 30, 2020