Ten New Informal Advisory Opinion Summaries Published

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

2019-01
Rules 4-1.2; 4-1.4; 4-1.6; 4-1.8; 4-4.4; 4-3.4; 4-8.4

Question:  Attorney’s Client in a pending dissolution sent Attorney electronic copies of email correspondence between opposing party and various third persons, including opposing party’s counsel.  Client obtained access to the information through opposing party’s email account, for which Client possesses login information. What is Attorney required to do with the information?

Answer:  Whether Client inappropriately or wrongfully obtained opposing party’s communications with others is a question of law and fact outside the scope of an informal ethics opinion.  If Attorney knows or should know the information was inadvertently sent, Rule 4-4.4(b) requires Attorney to promptly notify the sender.  If the information was inappropriately or wrongfully obtained, use of the information by Attorney may violate Rule 4-4.4(a), Respect for Rights of Third Persons, and/or Rule 4-8.4(c), which forbids engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.  See also Rule 4-4.4, Comment [1]. Attorney should review applicable law as to Attorney’s legal duties regarding inappropriately or wrongfully obtained information, including whether to notify the sender to allow protective action to be taken, and whether to return, delete, destroy or otherwise make inaccessible any inappropriately or wrongfully obtained information. See Rule 4-1.2, Comment [2].  If Attorney has an ethical or legal duty to disclose Attorney’s possession of the information, failure to do so could violate Rule 4-3.4, Fairness to Opposing Party and Counsel.  But see Rules 4-1.6 and 4-1.8(b).  Attorney should consult with the client about Attorney’s professional obligations related to the information and aspects of the matter that are in Attorney’s professional judgment per applicable law and court rules.  See Rule 4-4.4, Comment [3]; see also Rules 4-1.2 and 4-1.4.

2019-02
Rules 4-3.1; 4-4.1; 4-4.4; 4-8.3; 4-8.4; 4-8.5; Scope

Attorney represents Employer in the defense of a civil employment matter related to the employment and subsequent discharge of Plaintiff.  Employer believes Plaintiff engaged in criminal conduct during employment.  Based on information Attorney has learned during discovery, Attorney has reason to believe evidence of Plaintiff’s criminal conduct during employment, which was in the possession of Plaintiff’s counsel, has been destroyed.

Question 1: Is it permissible for Attorney to inform Plaintiff’s counsel that unless Plaintiff dismisses the civil matter or enters into a settlement as proposed by Employer, Attorney will refer Plaintiff’s employment-related conduct to the prosecutor for possible criminal charges?

Answer 1:  Attorney’s threat to refer the employment-related conduct of Plaintiff for criminal prosecution would constitute conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d) unless Attorney has actual intent to refer the matter for prosecution if the matter is not dismissed or settled (see Rule 4-4.1); the conduct underlying the alleged criminal offense is related to the civil action and the use of the threat does not constitute a crime (see Rule 4-8.4(b)); Attorney has a non-frivolous, good faith belief based in law and fact that the employment-related conduct of Plaintiff was unlawful (see Rule 4-3.1); and Attorney’s use of the threat would not lack a substantial purpose other than to embarrass, delay, or burden the Plaintiff or another person (see Rule 4-4.4(a)). See also Informal Opinions 990042 and 20010149.  Because some jurisdictions consider the use of a threat to file criminal charges to gain leverage in civil litigation to be a violation of the Rules of Professional Conduct regardless of the circumstances, Attorney should use caution if the conduct could be judged by the rules of professional conduct of another jurisdiction.  See Rule 4-8.5.

Question 2: In the course of settlement negotiations, may Attorney inform Plaintiff’s counsel that a lawyer’s unlawful destruction of documents with potential evidentiary value is unethical, and unless Plaintiff dismisses the lawsuit or reaches a settlement as proposed by Employer, Employer or Attorney will file a disciplinary complaint or report against Plaintiff’s counsel?

Answer 2: If Attorney has a duty under Rule 4-8.3 to report the conduct of Plaintiff’s counsel to the Office of Chief Disciplinary Counsel, any offer by Attorney to forego the complaint or report would violate Rule 4-8.4(a) as an attempt by Attorney to violate the Rules of Professional Conduct or to do so through the acts of another.  Attorney’s threat may violate Rule 4-3.1 if Attorney lacks a well-founded basis for believing Plaintiff’s counsel violated the Rules of Professional Conduct.  Attorney’s threat is likely to violate Rule 4-4.4, Respect for Rights of Third Persons, and/or Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice, if threatening to file a disciplinary report or complaint in order to extract settlement concessions is likely to be a factor Plaintiff or Plaintiff’s counsel will have to consider in the representation.  Finally, a threat which itself constitutes criminal conduct would violate Rule 4-8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.  Attorney should also be mindful of the Scope paragraph of Rule 4 at [20], which explains that the Rules are to provide guidance for lawyers and a structure for regulating conduct through discipline, but “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.” 

2019-03
Rules 4-1.4; 4-1.15; 4-1.16; 4-1.22; 4-8.4

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.

2019-04
Rules 4-1.15; 4-1.5

Question: What steps can be taken by a firm and departing attorney having 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.  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 [8].

2019-05
Rules 4-1.6; 4-1.14

Question: Attorney’s Client has left Attorney voice mail messages that can be interpreted as containing threats of bodily harm against Attorney and others.  May Attorney report the threats to law enforcement?

Answer: The fact that Client has left threatening voice mail messages with Attorney is information related to the representation governed by Rule 4-1.6, Confidentiality of Information.  Attorney is not permitted by Rule 4-1.6 to report the threats to law enforcement unless Client gives informed consent to the report or Attorney is revealing the information to the extent Attorney reasonably believes necessary to prevent death or substantial bodily harm reasonably certain to occur, in accordance with Rule 4-1.6(b)(1).  Comment [6] to Rule 4-1.6 provides guidance that “such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date” if Attorney fails to take necessary action to eliminate the threat.  The decision as to whether Attorney reasonably believes disclosure to law enforcement is necessary to accomplish the purpose specified in Rule 4-1.6(b)(1) will require the use of Attorney’s professional judgment in light of all the circumstances known to Attorney.  Any report to law enforcement should be no greater than Attorney reasonably believes necessary to accomplish the purpose under Rule 4-1.6(b)(1).  See Comment [12].  A decision by Attorney not to report the threats would not violate Rule 4-1.6.  See Comment [13].  If Attorney believes Client is suffering from diminished capacity because of mental impairment, or for some other reason, Attorney should review Rule 4-1.14, Client With Diminished Capacity.  Rule 4-1.14 may permit Attorney to take other reasonably necessary protective action to protect Client from substantial physical, financial, or other harm if Client is unable to act in his or her own interest.

2019-06
Rules 4-1.4; 4-1.6; 4-1.7; 4-1.8; 4-4.1; 4-4.3

Question 1: Client hired Attorney several months ago to represent Client in negotiations with, and possible litigation against, a potential defendant.   Attorney did not discuss with Client the impending impact of the statute of limitations, and Attorney neglected to file suit.  Client’s action is now time barred. Negotiations are ongoing with the potential defendant, who is unrepresented, and Attorney believes a settlement favorable to Client is imminent.  Must Attorney disclose the mistake to Attorney’s Client?

Answer 1: Attorney is obligated to keep Client reasonably informed about the status of Client’s matter and to explain the matter to the extent reasonably necessary to permit Client to make informed decisions about the representation, including decisions by Client as to continued representation by Attorney.  See Rule 4-1.4.  Attorney must explain to Client the impact of the statute of limitations, Attorney’s failure to file suit, and other relevant facts.  If Attorney reasonably believes the mistake may constitute grounds for a malpractice claim, Attorney should advise Client that there is a statute of limitations for malpractice claims and that it may be advisable for Client to consult with independent counsel about a potential malpractice claim.  Attorney should not advise client as to whether a valid claim for malpractice exists.  See Rule 4-1.7 and Comment [10].  Attorney need not make an admission of liability to Client.  Attorney is not permitted to settle a claim or potential claim for malpractice unless Client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek independent counsel on the matter.  See Rule 4-1.8(h).  Attorney may consider reporting the error to Attorney’s malpractice provider if Attorney can do so in accordance with Rule 4-1.6, Confidentiality of Information.

Question 2: May Attorney continue to negotiate with the potential defendant on behalf of Client?

Answer 2: Attorney is not permitted to advise the opposing party of the facts related to the statute of limitations if the disclosure would disadvantage Attorney’s Client, unless Client grants informed consent.  See Rule 4-1.8(b).  Attorney should deal with the unrepresented opposing party in accordance with Rule 4-4.3, which precludes the giving of legal advice by Attorney to the opposing party other than the advice to secure counsel.  Attorney must not make a false statement of material fact to the opposing party.  Rule 4-4.1.  Attorney is not required to terminate the representation of Client due to a conflict of interest caused by Attorney’s error unless there is a significant risk Attorney’s representation of Client will be materially limited by a personal interest of Attorney.

2019-07
Rules 4-1-6; 4-1.10; 4-7.1

Question: Attorney has an Of Counsel relationship with Law Firm.  Attorney also plans to provide pro bono representation at a nonprofit entity serving low income clients.  Attorney will have access at the nonprofit entity only to the client files of those clients Attorney represents.  To what extent will Attorney’s conflicts of interest be imputed to the other attorneys in Law Firm and to the other attorneys associated with the nonprofit entity?

Answer: Attorney’s conflicts of interest from Law Firm will not be imputed to the other lawyers at the nonprofit entity if Attorney’s association at the entity is as a contract lawyer only.  To work as a contract lawyer, Attorney’s representation of clients must be on a case-by-case basis, and Attorney must not have access to confidential information, electronically stored or otherwise, of clients Attorney does not represent at the nonprofit entity. See Informal Opinion 20030020.  Attorney must avoid any communication with other lawyers at the nonprofit entity about other representations at the entity, and Attorney must protect the confidentiality of all information related to Law Firm representations.  Because Attorney is associated Of Counsel with Law Firm, Attorney’s conflicts of interest will be imputed to all lawyers at Law Firm. Rule 4-1.10.  Provided Attorney works at the nonprofit entity exclusively as a contract lawyer, as described above, the firm-wide conflicts of the nonprofit entity will not be imputed to the other lawyers at Law Firm.  Only the conflicts arising from Attorney’s representations at the nonprofit entity will be imputed to the other lawyers at Law Firm.  If Attorney were to become associated with the nonprofit entity in a capacity that allows Attorney access to client files or information generally, both Law Firm and the nonprofit entity would share all conflicts of interest as if they are a single firm, and both Law Firm and the nonprofit entity would be required to disclose Attorney’s dual association in all materials in which they hold themselves out to the public.  Rules 4-1.10 and 4-7.1.  See Informal Opinion 980143.

2019-08
Rules 4-1.0; 4-1.4; 4-1.15

Question: Attorney accepts payments from clients using credit cards.  Is it permissible for Attorney to pass on the credit card processing fees to clients?

Answer: Attorney may pass on credit card processing fees to a client provided the charges are clearly communicated to the client in advance (ideally, at the outset of the representation), the additional charges reflect no more than the actual processing fees, the client gives informed consent to the arrangement (see Rule 4-1.0(e)), and the arrangement is consistent with the processor’s terms and conditions and with applicable law.  If Attorney chooses to pay the credit card processing fee rather than pass the fee on to the client, Attorney must ensure that the processing fee is not deducted from Attorney’s trust account.  Attorney is not permitted to deposit Attorney’s funds in the trust account for the purposes of paying credit card processing fees.  See Rule 4-1.15(b).  See also Informal Opinion 2014-05 regarding the ethics of accepting credit card payments for legal services.

2019-09
Rules 4-1.0; 4-1.2; 4-1.4; 4-8.4

Question 1: May Attorney assist Client in submitting an application for a state license to cultivate or dispense medical marijuana or manufacture medical marijuana-infused products?

Question 2: May Attorney assist Client in forming a corporate entity and provide other legal services to assist Client in cultivating or dispensing medical marijuana or manufacturing medical marijuana-infused products if the client is licensed to do so under applicable state law?

Answers 1 and 2: Whether any of Client’s conduct as described in Questions 1 and 2 would violate federal law, including but not limited to the federal Controlled Substances Act, is a question of law outside the scope of this opinion. In accordance with Rule 4-1.2(f) Attorney is prohibited from counseling or assisting Client in conduct Attorney knows is criminal or fraudulent. Whether Attorney’s assistance of Client as described above constitutes a separate criminal act by Attorney in violation of the federal Controlled Substances Act or other law also is a question of law outside the scope of this opinion. If Attorney’s assistance would constitute a criminal act, Attorney’s conduct also could be found to violate Rule 4-8.4(b), which prohibits certain acts of criminal conduct by an attorney.  If any of the conduct for which Client seeks assistance would violate no applicable federal or state law, Attorney may limit the scope of the representation and Attorney’s role pursuant to Rule 4-1.2(c) such that Attorney is providing assistance only with such legally permissible conduct. Limited scope representation per Rule 4-1.2(c) requires Client’s informed consent (see Rule 4-1.0(e)) in a writing (see Rule 4-1.0(n)) signed by Client to the essential terms of the representation and Attorney’s limited role. Nothing in this informal opinion purports to restrict the appropriate disciplinary authority from prosecuting an attorney for a violation of applicable Rule(s) of Professional Conduct.  See also Informal Opinion 2014-04.

Question 3: Would the answer to Question 1 or Question 2 be affected by the promulgation, existence, or withdrawal of formal or informal federal policy indicating persons whose medical marijuana-related activities comply with applicable state law will not be prosecuted by federal authorities?

Answer 3: No.  However, in accordance with Rule 4-1.2(f), a lawyer may discuss with a client the legal consequences of any proposed course of conduct and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.  In keeping with Rule 4-1.4(b), if Attorney is providing legal services to Client as described in Question 1 or Question 2, Attorney should explain to Client any inconsistencies between state and federal law to the extent reasonably necessary to allow Client to make informed decisions about the representation. See Informal Advisory Opinions 2014-04 and 2019-10 for additional guidance regarding other marijuana-related representations.

2019-10
Rule 4-8.5

Question:  May Attorney, licensed to practice law in Missouri and Other State, provide legal services to a marijuana-related business in Other State if Attorney would be providing those services while in Missouri?  Attorney’s firm has offices in both Missouri and Other State where Attorney also is licensed, and no matter related to the representation is pending before a Missouri tribunal

Answer:  Attorney should consider the rules of Other State if Attorney reasonably believes the predominant effect of Attorney’s conduct will occur there and consider seeking an informal ethics opinion from Other State.  Rule 4-8.5(b)(2) provides that “[a] lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.  “Reasonable belief” is defined in Rule 4-1.0(i) and in this scenario would require that Attorney believe the matter in question and that the circumstances are such that Attorney’s belief is reasonable.  Further, Comment [3](c) to Rule 4-8.5 provides guidance that Rule 4-8.5(b) is intended to provide protection “for lawyers who act reasonably in the face of uncertainty.”  “Reasonably” is defined in Rule 4-1.0(h) as conduct of a reasonably prudent and competent lawyer.  If Attorney has a reasonable belief that the predominant effect of Attorney’s conduct will be in Other State, and if Attorney’s conduct will conform to the rules and laws in Other State, Attorney may provide legal services from Attorney’s Missouri office.  See Informal Advisory Opinions 2014-04 and 2019-09 for additional guidance regarding other marijuana-related representations.