Fifteen New Informal Advisory Opinion Summaries Published

 As determined by the Advisory Committee to the Supreme Court of Missouri, fifteen new informal opinion summaries have been published (see below). 

 Pursuant to Rule 5.30, written summaries of select informal opinions are published for informational purposes as determined by the Advisory Committee.  Informal opinion summaries are advisory in nature and are not binding.  The first four digits of the opinion summary number indicate the year the opinion was issued. The full text of attorneys’ requests and the Legal Ethics Counsel’s responses are confidential. 

 Informal advisory opinions are issued by the Legal Ethics Counsel pursuant to Missouri Supreme Court Rule 5.30.  The Legal Ethics Counsel issues opinions to members of the bar about Rules 4, 5 and 6 for prospective guidance about an attorney’s own conduct involving an existing set of facts.  Informal advisory opinions will not be issued about past conduct, hypothetical scenarios, or the conduct of an attorney other than the one asking for the opinion.

 For a searchable database and information about requesting an informal opinion, go to: www.mo-legal-ethics.org, click “For Lawyers,” and choose “Informal Advisory Opinions.” 

2018-01
Rule 4-1.15

Question: Attorney is holding in a trust account funds belonging to a client who is now deceased.  What should Attorney do with the funds?

Answer: Attorney must hold the funds in the trust account, make reasonable efforts to determine when an estate is opened, and then distribute the funds to the deceased client’s estate.  If no estate is opened, Attorney may consider whether applicable law permits the opening of an estate to allow for distribution of the funds. If no estate can be opened, or if the amount of the former client’s funds is insufficient to justify the opening of an estate, and if disbursement cannot otherwise be made in accordance with other law or court order, Attorney should follow the procedure in Formal Opinion 118, which directs Attorney to proceed in accordance with Missouri’s Uniform Disposition of Unclaimed Property Act.

2018-02
Rule 4-1.8

Question: May Attorney advance the cost of the affidavit and opinion by a health care provider required by statute to be provided in any action against a health care provider in a medical malpractice case and the cost of evaluation of the case by a medical expert in preparation for litigation?

Answer:  Rule 4-1.8(e) permits Attorney to advance these costs, repayment of which may be contingent on the outcome of the matter.

2018-03
Rule 4-1.12

Question: May Attorney represent Parent in a motion to modify visitation of a minor child, where Attorney’s current law partner, prior to practicing in partnership with Attorney, was Guardian Ad Litem of the child in two previous matters relating to paternity and custody of the child, and where the child now has a new Guardian Ad Litem?

Answer: Unless Attorney’s law partner obtains informed consent, confirmed in writing from all parties to the proceeding, pursuant to Rule 4-1.12(a), Attorney may not represent Parent unless, in accordance with Rule 4-1.12(c), Attorney’s law partner is timely screened from any participation in the matter and apportioned no part of the fee therefrom, and unless written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of Rule 4-1.12. See also Rule 4-1.12, Comments [4] and [5].

2018-04
Rules 4-1.10; 4-5.3; 4-1.0

Question: May Attorney hire a nonlawyer assistant who currently works for a law firm in which opposing parties are represented by a lawyer in the firm? If so, does Attorney have a conflict of interest because of the hiring?

Answer: Attorney may hire the nonlawyer assistant.  Attorney will not have a resulting conflict of interest, absent other facts, if the nonlawyer assistant is properly screened from the affected matters pursuant to the definition of screening in Rule 4-1.0(k) and supervised in accordance with Rule 4-5.3, Responsibilities Regarding Nonlawyer Assistants.  Comment [4] to Rule 4-1.10, Imputation of Conflicts of Interest: General Rule, explains that the rule does not prohibit representation of a client when the person prohibited from involvement in the matter is a nonlawyer, but the nonlawyer ordinarily must be screened in accordance with Rules 4-1.0(k) and supervised in compliance with Rule 4-5.3 to ensure the nonlawyer’s conduct is compatible with Attorney’s professional obligations.  See also Rule 4-1.0, Comments [10] and [11].

2018-05
Rules 4-1.5; 4-7.2

Question: May Attorney A share a percentage portion of an earned contingent fee with Attorney B, who practices in another firm and is not licensed in Missouri, and who referred the case to Attorney A?

Answer:  Attorney A may not pay a referral fee to Attorney B.  Rule 4-7.2(c) prohibits Attorney A from giving anything of value to Attorney B for recommending the lawyer’s services.  Attorney A may divide the fee with Attorney B only if the division of fee complies with Rule 4-1.5(e).  The rule allows the sharing of a fee if the division is in proportion to the services performed by each lawyer or if each lawyer assumes joint responsibility for the representation; if the client agrees to the association, confirmed in writing; and if the total fee is reasonable.

2018-06
Rules 4-1.6; 4-1.18

Question: May Attorney report to law enforcement authorities a purported prospective client who contacted Attorney with the apparent objective of defrauding the lawyer by sending Attorney a bogus check for deposit in Attorney’s trust account?

Answer:  If Attorney has formed a client-lawyer relationship with the individual, Rule 4-1.6 prohibits disclosure of the suspected trust account scam unless the client gives informed consent, Attorney is required by law or a court order to disclose the information, or another exception to Rule 4-1.6 exists.  Missouri has no crime-fraud exception in Rule 4-1.6.  Whether a client-lawyer relationship exists is a question of fact and law outside the scope of the Rules of Professional Conduct. If the individual is a prospective client under Rule 4-1.18, Attorney may not use or disclose information gained in the consultation, except as Rule 4-1.9 would permit with respect to information of a former client.  If no client-lawyer relationship was formed and the individual does not qualify as a prospective client under Rule 4-1.18, Attorney has no duty of confidentiality regarding the information and is free to report the information to appropriate law enforcement authorities.

2018-07
Rule 4-8.3; 4-1.1

Question: Does Attorney have an obligation to report opposing counsel to the Office of Chief Disciplinary Counsel (OCDC), where Attorney and opposing counsel had phone conversations about the representation during which opposing counsel had slurred speech and exhibited significant memory problems, where opposing counsel made a court appearance a few hours later smelling strongly of alcohol, and where Attorney knows another person has reported opposing counsel’s conduct to OCDC?

Answer:  Rule 4-8.3 requires Attorney to report opposing counsel to OCDC if Attorney “knows” opposing counsel was under the influence of alcohol while representing a client and if Attorney has the informed consent of his or her own client to disclose information related to the representation as required by Rule 4-1.6.  Rule 4-1.0(f) defines “knows” as “actual knowledge of the fact in question,” and actual knowledge may be inferred from circumstances.  An attorney’s duty per Rule 4-1.1 to provide competent representation to a client is impaired if attorney is intoxicated while engaging in activities related to the representation.  The violation raises a substantial question as to the attorney’s honesty, trustworthiness, or fitness as a lawyer in other respects.  If Attorney’s suspicions do not rise to the level of actual knowledge, including if Attorney reasonably believes the behavior of opposing counsel may have an alternative explanation, then Attorney is not obligated by Rule 4-8.3 to report opposing counsel.   If the report is mandatory under the circumstances, a similar report to OCDC by another attorney or judge does not eliminate Attorney’s duty to report under Rule 4-8.3.

2018-08
Rules 4-1.6; 4-1.9

Question: May Attorney respond to a negative online review about the representation of a former client if Attorney confines the response to comments directed to information already disclosed by the former client in the review?

Answer:  In most circumstances, Rules 4-1.9(c) and 4-1.6 prohibit Attorney from revealing information relating to the representation of a client in response to a negative online review, even where the client or someone writing on behalf of the client has posted criticism of the quality of Attorney’s representation. Per Rule 4-1.9(c), Attorney has a duty to a former client not to reveal confidential information except as would be permitted with respect to a client.  A negative online review generally does not constitute a “controversy” sufficient to trigger the exception in Rule 4-1.6(b)(3) and permit a lawyer to reveal confidential information to the extent reasonably necessary to establish a defense in a controversy between the lawyer and the client.  Even if the information is not privileged as a matter of law such that Attorney could be compelled to disclose it in a legal proceeding, Rule 4-1.6 does not permit the voluntary disclosure of confidential information by Attorney in response to an online review.  See Comment [3]. Rule 4-1.6 protects all information related to the representation, whatever its source.  Comment [3].  Also prohibited are disclosures by a lawyer that do not reveal protected information but could reasonably lead to the discovery of such information by a third person. Comment [4]. If Attorney chooses to post a response to an online review, the response may acknowledge an attorney’s obligation to comply with professional obligations and must reveal no information related to the representation in violation of Rule 4-1.6.

2018-09
Rules 4-1.1; 4-1.6; 4-5.3

Question: May Attorney use “cloud computing” in a way that is consistent with Attorney’s ethical obligations?

Answer: Attorney may use cloud computing in the practice of law without violating the Rules of Professional Conduct if Attorney maintains competence in the use of relevant technology (Rule 4-1.1) and makes reasonable efforts to safeguard confidential information from inadvertent or unauthorized disclosure or access, as warranted by the particular facts and circumstances of each client’s matter (Rules 4-1.6(c) and Comments [15] and [16]; Rule 4-5.3 and Comment [3]).  Attorney should read carefully the cloud computing provider’s terms and conditions of service.  Attorney should ensure adequate provider policies and practices as to (1) ownership and security of client information, and (2) attorney and provider access to client information. Reasonable efforts to safeguard confidential information may include (but are not limited to) ensuring adequate provider policies and practices regarding:

  • Security measures protecting confidentiality of client information during transmission and storage;
  • Prompt notification of Attorney in the event of a security breach or provider’s receipt of a subpoena for client information;
  • Ownership of data solely by Attorney or Attorney’s firm;
  • No access rights by the provider to client information, except as required by law;
  • Regular data backup by the provider;
  • Handling of client information in the event Attorney’s relationship with the provider is terminated;
  • Compliance with applicable law regarding data storage and transmission;
  • Reliable access to data by Attorney;
  • No access to data by third parties, including advertisers, except as required by law; and
  • Domestic storage of data, or, alternatively, storage in a jurisdiction subject to United States data protection laws or equivalent.

Because what constitutes adequate provider policies and practices in these areas may change as relevant technology evolves, Attorney is encouraged to consult with a qualified information technology professional, take continuing legal education courses on use of technology in practice, and/or engage in regular self-study of materials from reputable sources to maintain competence in the use of cloud computing in the practice of law.

2018-10
Rules 4-1.5; 4-1.6; 4-1.8; 4-1.15; 4-1.16; 4-4.1; 4-5.4; 4-7.1

Question: May Attorney use a crowdfunding platform to solicit donations to cover Attorney’s fees and/or expenses in a matter in which Attorney’s client cannot afford to pay Attorney?

Answer: Attorney’s use of a crowdfunding platform to solicit donations for a client’s fees and/or expenses must be in accord with a lawyer’s obligations not to accept compensation from a third party except in compliance with Rule 4-1.8(f); to hold client and third party funds in compliance with Rule 4-1.15 and Formal Opinion 128; to protect confidential information (Rule 4-1.6); to be truthful (Rule 4-4.1); to refund unreasonable or unearned fees and/or expenses at the termination of representation (Rule 4-1.16(d) and Rule 4-1.5); not to share legal fees with a non-attorney (Rule 4-5.4); and to make no false or misleading statements about the lawyer or the lawyer’s services (Rule 4-7.1).

Attorney may not accept compensation for representation from someone other than the client (including from donors to a crowdfunding platform) unless the requirements of Rule 4-1.8(f) are met.  The client must give informed consent, the donation model must not interfere with Attorney’s independent professional judgment or with the client-lawyer relationship, and confidential information must be protected as required by Rule 4-1.6.

If donations are used to fund an advanced payment of Attorney’s fee or expenses, the donations must be held in a client trust account in compliance with Rules 4-1.145 – 4-1.155 and Formal Opinion 128.  Attorney may not hold property belonging to a client or third persons in an account held by the crowdfunding platform, even temporarily.  See Rule 4-1.15(a).  Before using a crowdfunding platform, Attorney must ensure donations are refundable and can be proportionally issued.  Full or partial refunds must be provided to donors if all or part of an advanced payment of fees or expenses must be returned at the termination of the representation per Rule 4-1.16(d), or if upon the completion of the representation, the fees collected would constitute an unreasonable fee per Rule 4-1.5.

In soliciting donations, Attorney must fully disclose any payment processing fees the platform will charge donors, including whether the donations will be debited for the processing fees. Attorney must not use a crowdfunding platform to solicit donations for legal fees if the crowdfunding platform retains a percentage of the funds raised as compensation for the platform’s services.  See Rule 4-5.4(a).

In soliciting donations, Attorney must protect the confidentiality of client information as required by Rule 4-1.6; be truthful (Rule 4-4.1); and make no false or misleading communication (Rule 4-7.1).  Attorney must comply with applicable law, including, but not limited to, any tax law that may govern the reporting of donations.

2018-11
Rules 5.26; 4-1.6

Question:  Attorney has been contacted by the surviving spouse of another lawyer, a solo practitioner, who has recently passed away.  The surviving spouse is seeking Attorney’s help in contacting the deceased lawyer’s clients and in winding up the practice.  How should Attorney proceed?

Answer: The role Attorney can play in the winding up of decedent’s practice will depend on various factors, including whether the lawyer’s will contains provisions governing the handling of the law practice by the estate; the intent of the personal representative to sell, close, or liquidate the practice; whether the personal representative plans to hire counsel to assist in the handling of the law practice; and whether the deceased lawyer had designated another lawyer per Rule 5.26 for court appointment as trustee.  Unless the deceased lawyer had obtained clients’ informed consent for another lawyer outside the firm to access confidential client information in the event of the lawyer’s death, only a trustee appointed pursuant to Rule 5.26 has the authority to handle client files, examine confidential information in trust account records, and dispose of client funds and assets. See Rule 4-1.6.  Attorney may move for the appointment of a trustee per Rule 5.26 in the circuit court where the lawyer maintained an office, represent another lawyer in requesting appointment, or request the court to appoint Attorney as trustee. Rule 5.26 outlines the rights and duties of the trustee, including immunity from liability for conduct in performance of official duties.  With the consent of any client, Attorney may, but need not, accept employment to complete a legal matter.  Such employment is not subject to immunity under the Rule.

 2018-12
Rules 4-1.8; 4-1.15

Question: May Attorney accept payment of a client’s fee from someone other than the client?  If so, to whom should Attorney refund any unearned fee at the termination of representation?

Answer: Attorney must not accept compensation for representing a client from someone other than the client (including a co-client or indemnitor) unless Attorney complies with Rule 4-1.8(f).  The client must give informed consent, the arrangement must not interfere with Attorney’s independence of professional judgment or with the client-lawyer relationship, and the client’s confidential information must be protected as required by Rule 4-1.6.  In obtaining the client’s informed consent, Attorney should discuss with the client all information that will allow the client to make an informed decision, including, but not limited to: to whom any necessary refund should be issued at the termination of representation; that Attorney will follow the procedure in Rule 4-1.15(e) and Comment [8] for the handling of disputed funds if both the client and the third-party payer claim an interest in the funds; and the possible impact on the representation if the payer demands a return of the funds before the scope of the representation is concluded. If the fee arrangement creates a conflict of interest for Attorney, Attorney must comply with Rule 4-1.7(b).  It should be noted that not all conflicts of interest are consentable.  See Rule 4-1.8, Comments [11] and [12].

2018-13
Rules 4-7.3; 4-8.4

Question:  Attorney plans to present educational seminars about estate planning.  At the end of the seminar, a non-lawyer presenter will give information about costs of estate planning and offer audience members a discount certificate for Attorney’s estate planning services. Alternatively, Attorney is considering sending attendees a follow-up letter describing Attorney’s services and enclosing a discount certificate. May Attorney participate in the program?

Answer: Attorney may give educational seminars.  It is permissible for information about Attorney’s legal services to be available at the seminar for inquirers, but Attorney may not initiate the in-person solicitation of legal business.  The promotion of Attorney’s services or offering of a discount certificate at the seminar would constitute in-person solicitation prohibited by Rule 4-7.3.  Attorney may not violate Rule 4-7.3 through the actions of another, including a non-lawyer co-presenter at the seminar. See Rule 4-8.4(a).  Attorney may mail attendees a solicitation letter after the seminar if the written solicitation complies in all respects with Rule 4-7.3, Direct Contact with Prospective Clients.

2018-14
Rules 4-6.2; 4-1.1

Question: Attorney was appointed by the court to represent a client in a matter dealing with an area of the law in which Attorney has no prior experience. How should Attorney respond to the appointment?

Answer: Rule 4-6.2, Accepting Appointments, prohibits a lawyer from seeking to avoid appointment by a tribunal to represent a person except for good cause, such as where representing the client is likely to result in a violation of the Rules of Professional Conduct or other law; representing the client is likely to cause an unreasonable financial burden on the lawyer; or the client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.  Attorney has an obligation per Rule 4-1.1 to provide competent representation to the client.  Competent representation requires the legal skill, thoroughness, and preparation necessary for the representation.  Comment [1] to Rule 4-1.1 provides relevant factors for determining whether Attorney employs the requisite knowledge and skill in the particular matter. Attorney need not necessarily have special training or prior experience in order to handle unfamiliar legal problems with competence.  Rule 4-1.1, Comment [2].  Attorney should not seek to avoid the appointment based on Attorney’s unfamiliarity with the legal subject matter unless the requisite level of competence cannot be achieved through necessary study and reasonable preparation.  See Rule 4-1.1, Comments [2] and [4].

2018-15
Rules: 4-1.5; 4-1.15

Question 1: Attorney charges Client $2,500 in advance for representation in a matter.  May Attorney deposit any portion of the $2,500 directly in the operating account before fees are earned or expenses incurred?

Answer 1: (Note: This opinion is based on Rule 4-1.15(c) effective January 1, 2019.)  Rule 4-1.15(c) requires a lawyer to deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, except that an advanced flat fee which does not exceed $2,000 may be deposited into an account other than a client trust account. Unless Attorney has clearly communicated with the client, preferably in writing, that $2,000 or less of the advanced payment constitutes the flat fee covering the entire matter, the advanced payment of $2,500 must be deposited in the trust account, to be withdrawn only as fees are earned or expenses incurred.  See also Rule 4-1.5(b).  If Attorney has communicated with the client, preferably in writing, that $2,000 or less of the advanced payment constitutes the advanced flat fee covering the entire matter, Attorney may deposit in the operating account the advanced flat fee.  The advanced payment of expenses must be deposited in the trust account, to be withdrawn only as expenses are incurred.  All fee and expense payments are subject to refund to the extent the attorney-client relationship is terminated prior to the advanced flat fee being earned or expenses incurred.  Rule 4-1.15, Comment [20]; Rule 4-1.5; Rule 4-1.16(d).

Question 2: May Attorney deposit an advanced flat fee of $2,000 or less in the client trust account, to be withdrawn as fees are earned?

Answer 2: (Note: This opinion is based on Rule 4-1.15(c) effective January 1, 2019.) Yes. The exemption in Rule 4-1.15(c), allowing deposit in another account of advanced flat fees that do not exceed $2,000, is permissive rather than mandatory.

Question 3: Attorney charges Client a flat fee of $6,000 for representation in a matter.  Attorney charges the fee in three advanced payment installments throughout the representation.  May Attorney deposit each advanced fee installment of $2,000 in the operating account, per the exemption in Rule 4-1.15(c)?

Answer 3: (Note: This opinion is based on Rule 4-1.15(c) effective January 1, 2019.)  No.  Only an advanced flat fee which does not exceed $2,000 is exempted from the general rule that all unearned fees must be deposited in the trust account, to be withdrawn only as fees are earned.  Rule 4-1.15(c).  Installments of any amount toward an advanced flat fee of more than $2,000 must be deposited in the client trust account, to be withdrawn only as fees are earned.  Rule 4-1.15(c).

 Question 4:  Attorney charges Client $1,100 in advance for representation in a matter.  The advanced payment constitutes the flat fee, and it also will be used for expenses Attorney anticipates expending on behalf of Client.  The representation agreement does not designate what portion of the $1,100 constitutes the flat fee and what portion will be used for the payment of expenses.  May Attorney deposit the $1,100 directly in the operating account before the fees are earned or expenses incurred?

Answer 4: (Note: This opinion is based on Rule 4-1.15(c) effective January 1, 2019.)  No.  Because Attorney has not communicated to the client, preferably in writing, what portion of the advanced payment constitutes the advanced flat fee for the representation, no amount constituting an unearned fee or expense not yet incurred may be deposited in the operating account per Rule 4-1.15(c). See also Rule 4-1.5(b) and Rule 4-1.4.