Seven New Informal Advisory Opinion Summaries Published

 As determined by the Advisory Committee to the Supreme Court of Missouri, seven 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.