REQUESTING INFORMAL ADVISORY OPINIONS FROM THE LEGAL ETHICS COUNSEL
Supreme Court Rule 5.30(c) gives the Legal Ethics Counsel the authority to issue non-binding informal opinions on “matters of special concern to the lawyer” requesting the opinion. The Legal Ethics Counsel issues written and oral informal advisory opinions. The Legal Ethics Counsel cannot provide opinions or advice regarding legal, rather than ethical, questions.
An informal advisory opinion does not affect the authority of a judge to rule on an issue pending before the judge. It also does not affect the authority of other officials, such as the Attorney General or a prosecuting attorney. If a complaint or report is filed with the Chief Disciplinary Counsel regarding the matter, it may be necessary for the Chief Disciplinary Counsel to investigate the complaint or report and determine the facts, independently.
Under Rule 4-1.6(b)(2), it is permissible to disclose confidential information, to the extent reasonably necessary, to obtain an informal advisory opinion.
Oral Informal Advisory Opinions
Most questions can be answered over the telephone. Questions should be in writing under three circumstances:
- when the question is complex or the quantity of information is large,
- when the ethical question is new or presents an entirely new twist, or
- when the requesting attorney needs a response in writing.
When requesting an oral or written informal advisory opinion, the attorney should review the Rules of Professional Conduct first. The Rules of Professional Conduct are found collectively in Supreme Court Rule 4, which is included in Missouri Rules of Court. Reviewing the rules will assist the attorney with phrasing the specific question(s) that relate to the particular situation. General questions cannot be answered in an informal advisory opinion. It may also be possible to find the answer or further define the question by researching existing opinions.
An attorney requesting an oral informal advisory opinion should call personally or have another attorney within the firm call. The Legal Ethics Counsel does not issue advisory opinions to nonattorneys. To request an oral informal opinion, call the Legal Ethics Counsel at 573-638-2263 and inform the person who answers that you are a Missouri attorney and you are calling for an informal opinion. You will need to provide your name and bar number.
The Legal Ethics Counsel office is not staffed as a hotline. As a result, it is often several days and sometimes more than a week before a call is returned. If an attorney has specific time constraints related to the ethical question, the attorney should explain those time constraints when leaving a message.
Written Informal Advisory Opinions
An attorney requesting a written informal advisory opinion should allow one month to receive an answer. If the request is truly urgent, the attorney should identify and explain the urgency in the opening paragraph of the request. A letter acknowledging receipt will be mailed to the requesting attorney.
- The request should contain specific facts but first names, initials or other designations should generally be used instead of specific names.
- The request should be concise but must contain all facts upon which the opinion will be based. Additional or different facts could change the conclusion reached in any opinion.
- The request must indicate that the person requesting the opinion is the attorney, or a member of the firm, whose conduct is in question. Informal opinions will not be given regarding the conduct of an attorney or firm other than the one requesting the opinion.
- The request must relate to future conduct rather than conduct which has already occurred.
A summary of the written request and answer may be published. Although the actual request letter must be specific, the summary will be generalized. Only summaries are available. To request a written informal opinion, write: Legal Ethics Counsel, 3335 American Avenue, Jefferson City, MO 65109. Facsimile: 573-635-8806.
A request for a formal opinion is the appropriate way to address a matter of general importance, not necessarily related to a specific fact situation. The Advisory Committee may issue formal opinions under Supreme Court Rules 5.30(a). Requests for formal opinions should be addressed to the Chair of the Missouri Supreme Court Advisory Committee, 3335 American Ave., Jefferson City, MO 65109.