Twelve New Informal Advisory Opinion Summaries Published

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

2020-01
Rule 4-1.18

QUESTION:  Is Attorney permitted to represent Husband in filing a motion to modify a judgment of dissolution against Wife, where Wife consulted with Associate in Attorney’s firm about representation in the dissolution, but no client-lawyer relationship ensued? 

ANSWER:  Wife is a prospective client of Associate per Rule 4-1.18, Duties to Prospective Client.  A motion to modify a judgment of dissolution is substantially related to the dissolution, so Rule 4-1.18(c) governs.  Attorney would be prohibited from representing Husband in filing the motion to modify if Associate received information from Wife that could be significantly harmful to Wife in the motion to modify.  Rule 4-1.18(c).  If Associate would be disqualified from representing Husband, all lawyers with whom Associate is associated in a firm would be prohibited from representing Husband except as provided in Rule 4-1.18(d).  If Associate would be disqualified under 4-1.18(c), Attorney may only represent Husband if both Wife and Husband grant informed consent, confirmed in writing, or if Associate took reasonable measures to avoid receiving more disqualifying information than was reasonably necessary to determine whether to represent Wife in the dissolution and Associate is timely screened from any participation in the matter.  Rule 4-1.18(d).  See Rules 4-1.0(e) (“informed consent), 4-1.0(b) (“confirmed in writing”), and  4-1.0(k) (“screened”).

2020-02
Rules 6.03; 6.05; 6.06
Rule 15

QUESTIONS: Is a retired lawyer exempt from paying the annual enrollment fee? Is a retired lawyer able to work as a paralegal? Is a retired lawyer exempt from reporting Continuing Legal Education hours?  

ANSWER: There is no “retired” enrollment status in Missouri.  A Missouri lawyer who ceases to practice law in Missouri may elect to become inactive pursuant to Rule 6.03 and pay an annual inactive fee. Inactive lawyers are prohibited from engaging in the practice of law or the doing of a law business in Missouri. Rule 6.05. 

Whether work as a paralegal by a lawyer whose license is inactive constitutes the unauthorized practice of law is a question of law and fact outside the scope of the Rules of Professional Conduct.  In Missouri the judiciary is the sole arbiter of what constitutes the practice of law. Generally, a lawyer who is not permitted to practice law because the lawyer’s license is inactive is permitted to do law-related work that a nonlawyer, such as a paralegal, is permitted to perform. However, inactive lawyers working as paralegals must exercise caution. It can be difficult for an experienced lawyer to refrain from providing legal services, even when the lawyer’s title is that of legal assistant or paralegal.

An inactive lawyer may apply for return to active status under Rule 6.06.

A Missouri lawyer in good standing is exempt under Rule 6.01(d) from paying annual enrollment fees or inactive fees if the lawyer has been licensed to practice in Missouri for fifty years or more or has reached the age of seventy-five years. 

Rule 15, Continuing Legal Education, governs whether a lawyer is required to complete or report Continuing Legal Education (CLE) credit hours.  Questions about what constitutes the active practice of law in Missouri for purposes of Rule 15 should be directed to The Missouri Bar.

2020-03
Rules 4-1.6; 4-1.14; 4-2.1

QUESTION: In a conversation with Attorney, Client has threatened suicide.  What is Attorney ethically obligated or permitted to do?

ANSWER: In representing Client, Rule 4-2.1, Advisor, permits Attorney to refer not only to law but to other considerations such as moral and social factors that may be relevant to Client’s situation.  Comments [4] and [5] to Rule 4-2.1 provide guidance that where consultation with a professional in another field is something a competent lawyer would recommend, Attorney should make such a recommendation.  Although an attorney ordinarily has no duty to give advice the client has indicated is unwanted, Attorney may initiate such advice to Client if doing so appears to be in Client’s interest.

Client’s statements to Attorney are confidential per Rule 4-1.6.  If Client grants specific informed consent for Attorney to disclose client’s threats to one or more individuals or entities who may be able to assist Client, Attorney may do so.  See Rule 4-1.6, Comment [2]; see also Rule 4-1.0(e) and Comments  [6] – [8] regarding “informed consent.” 

Without Client’s informed consent, Rule 4-1.6 permits Attorney to disclose Client’s threats to the extent required by other law or a court order. Rule 4-1.6(b)(4).  Whether Attorney has any such legal obligation is a question of law outside the scope of the Rules of Professional Conduct.

Rule 4-1.6(b)(1) permits Attorney to disclose Client’s threats to the extent reasonably necessary to prevent death or substantial bodily harm that is reasonably certain to occur.  Death or substantial bodily 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 the lawyer fails to take action necessary to eliminate the threat. Rule 4-1.6, Comment [6].  The decision as to whether Attorney reasonably believes disclosure 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. See Informal  Opinion 2019-05; see also Rule 4, Scope, at [14];

Rule 4-1.6 permits, but does not require, disclosure in accordance with paragraph (b).  Rule 4-1.6, Comment [13].  Any disclosure per 4-1.6(b) should be no greater than what Attorney reasonably believes is necessary to accomplish the specified purpose.  Rule 4-1.6, Comment [12].

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.

2020-04
Rule 4-1.4

QUESTION: To which clients must Attorney and Attorney’s law firm provide notice of Attorney’s departure from the firm, and what information should the notice include?

ANSWER: All current clients for whom Attorney has provided material representation should be notified promptly of Attorney’s departure from the firm in a professional manner consistent with the opinion of the Supreme Court of Missouri in In the Matter of Cupples, 952 S.W.2d 226 (Mo. banc 1997). Notice should be timed to serve the client’s best interest rather than the interests of the departing lawyer or firm.  Ideally, the communication will be in writing, issued jointly by Attorney and the firm.  Informal Opinion 950184.  If circumstances will not allow for joint notice, both the firm and Attorney are obligated to ensure clients receive proper notice.  Informal Opinion 970197; In the Matter of Cupples, 952 S.W.2d at 235-236. The firm and Attorney are not required to send a notification letter to Attorney’s former clients.  Whether Attorney has a current client-lawyer relationship with a client or former client is a question of fact and law outside the scope of an informal advisory opinion.  See Rule 4, Scope, at [17].  

The communication should seek the client’s informed direction as to whether the client wishes to be represented in the matter by Attorney, the law firm, or new counsel of the client’s choosing.  If Attorney or the firm is unable or unwilling to continue the representation, the client should be so informed, and the remaining available options for representation should be offered to the client.  Informal Opinion 950184.

Clients should be notified of the expected date of the departure and Attorney’s new contact information, if applicable.  The communication should explain who will be handling the client’s matter until the client affirmatively communicates the client’s choice of counsel. The notice should explain that a client’s original file will remain with the firm until or unless the client elects to be represented by Attorney or new counsel.  Informal Opinion 2019-03.

Attorney and the firm may choose to explain to the client that if the client wishes to be represented by Attorney 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.

2020-05
Rule 4-1.6

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 [3].  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 [18].  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 [18].  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 [19].

2020-06
Rules 4-1.1; 4-1.3; 4-1.15; 4-1.16; 4-7.1; 4-7.2; 4-7.3; 4-7.4; 4-7.5; 6.01

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.

2020-07
Rules 4-1.2; 4-1.15; 4-1.16; 4-1.22; 4-3.1; 4-3.4; 4-5.6

QUESTION: May Attorney comply with a protective order or participate in a settlement agreement requiring return or destruction of documents produced during discovery?

ANSWER: Documents in Attorney’s possession acquired during discovery are part of the client file.  The file belongs to the client, with limited exception.  Formal Opinion 115 as amended.  Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.”  Rule 4-1.16(d).  Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.”  Rule 4-1.22, Retaining Client Files, permits a lawyer to destroy a client file, or portions of the file, prior to the expiration of the six-year or ten-year default retention period, but only if the client grants informed consent, confirmed in writing; the items are not of intrinsic value; and none of the conditions in paragraphs (a) through (d) of Rule 4-1.22 exist.  See Rule 4-1.0(e), defining “informed consent,” and Rule 4-1.0(b), defining “confirmed in writing.” 

Protective Orders: In the event a client refuses to grant informed consent, confirmed in writing, to Attorney’s handling of file documents in accordance with a protective order, Attorney should seek to modify the order if Attorney can do so in compliance with Rule 4-3.1, Meritorious Claims and Contentions.  If unsuccessful, Attorney is permitted by Rules 4-1.15(d) and 4-1.16(d) to comply with the terms of the protective order. See also Rule 4-3.4(c).  Attorney must deliver to the client the remainder of the file or maintain the remainder of the file in accordance with Rule 4-1.22. 

Settlements: A lawyer is to abide by a client’s decision whether to accept an offer of settlement, subject to the limits imposed by the lawyer’s professional obligations.  Rule 4-1.2(a) and Comment [1].  A lawyer is prohibited from participating in a settlement agreement restricting the lawyer’s right to practice. Rule 4-5.6(b).  If Attorney obtains the client’s informed consent, confirmed in writing, to destroy portions of the file, or obtains the client’s agreement to return to another party portions of the file, in accordance with the proposed settlement agreement, Attorney may participate in the settlement agreement on behalf of the client. See Rules 4-1.22 and 4-1.15(d).

2020-08
Rules 4-1.2; 4-1.4; 4-1.15; 4-1.22; 4-3.1; 4-3.4; 4-5.6

QUESTION: May Attorney representing Client charged with a crime in federal court enter into an agreement by which the prosecutor will provide discovery to Attorney under circumstances advantageous to Client in return for Attorney’s agreement not to turn over discovery to Client?

ANSWER: Attorney must consult with Client about the means by which Client’s objectives for the representation are to be pursued, including whether to enter into a discovery agreement that would prevent Client from obtaining the entire client file.  See Rule 4-1.2(a).  Attorney should explain the proposed agreement to the extent reasonably necessary to allow Client to make an informed decision.  See Rule 4-1.4(b).  Comment [1] to Rule 4-1.2 provides guidance that a lawyer is not required to employ particular means in pursuing Client’s objectives simply because a client so directs, and the lawyer should assume responsibility for technical and legal tactical issues while deferring to the client regarding questions such as expense and concern for third persons. The file belongs to the client, with limited exception.  Formal Opinion 115, as amended. Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” When a discovery agreement is in place, whether other law would permit Attorney to deny a request from Client to obtain the entire file, including discovery, is a question of fact and law outside the scope of the Rules of Professional Conduct.

2020-09
Rules 4-1.16; 4-1.22

QUESTION: Attorney stores client files electronically.  In what format should Attorney provide the client file to Client upon request?

ANSWER: The client file belongs to the client. Formal Opinion 115, as amended; In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997). If a client requests an electronically maintained file during the file retention period, Formal Opinion 127 requires the file be “provided to the client in a manner in which the client will be able to access it using commonly used, relatively inexpensive, software and hardware . . . . Alternatively, the attorney may provide the file to the client in paper format, unless that is contrary to an agreement between the attorney and client.” Upon termination of representation, Rule 4-1.16(d) requires a lawyer to take steps to the extent reasonably practicable to protect the client’s interests, including surrendering papers and property to which the client is entitled. If Client has requested the file in a particular format, Attorney should prioritize protection of Client’s interests and take all reasonably practicable steps to accommodate Client’s format request.

2020-10
Rules 4-1.13; 4-4.2; 4-4.3; 4-4.4

QUESTION: May Attorney communicate with a witness who is a former member and director of an association without the consent of the association’s counsel about facts related to Client’s defamation claim against the association? The witness was a member of the association at the time of the allegedly defamatory statements but had resigned from its board of directors prior to the date the statements were made.  Counsel for the association asserted a client-lawyer relationship with all members of the association, including the witness by name, but the membership of the witness in the association has since been terminated.

ANSWER: The association is a represented organization.  See Rules 4-1.13 and 4-4.2, Comment [7].  Rule 4-4.2 prohibits direct contact about the subject of the representation with a person Attorney knows to be represented by another lawyer in the matter, unless Attorney has consent of the other lawyer or is authorized to do so by law or court order.  The witness’s status as a former constituent of the organization does not place the witness within a category of individuals with whom communication is prohibited without consent of the organization’s lawyer, per the guidance in Comment [7] to Rule 4-4.2.   See Informal Opinion 2013-01. However, if Attorney knows the witness is represented in this matter by the association’s lawyer or another lawyer, Rule 4-4.2 prohibits Attorney from communicating with the witness without the consent of the other lawyer, authorization by law, or a court order. See Rule 4-1.0(e), Terminology (defining “knows” as “actual knowledge, which can be inferred from the circumstances”). Whether a client-lawyer relationship exists between counsel for the association and the witness is a question of fact and law outside the scope of the Rules of Professional Conduct.  If Attorney communicates with the witness, the lawyer must not use methods of obtaining evidence that violate the legal rights of the organization, such as engaging in unwarranted intrusions into a privileged relationship. See Rule 4-4.2, Comment [7], and Rule 4-4.4 and Comment [1]. If Attorney knows the witness is not represented by counsel in the matter, any communication with the witness must comply with Rule 4-4.3, Dealing With Unrepresented Person.

2020-11
Rules 4-1.0; 4-1.10; 4-7.1

QUESTION: Attorney is retiring from the full-time practice of law, will maintain an active Missouri law license, and is considering associating with a firm Of Counsel.  What are the elements of an Of Counsel relationship between Attorney and the firm?

ANSWER: Attorney’s association with the firm is accurately characterized as an Of Counsel relationship if Attorney’s relationship with the firm is close, regular, and personal; Attorney is not a partner, associate, or shareholder in the firm; Attorney’s involvement with the firm is not limited to forwarding or receiving business, acting in only a single case, providing only occasional collaboration, or acting as an outside consultant; and Attorney’s Of Counsel relationship with the firm is disclosed in all materials in which the firm and Attorney hold themselves out to the public.  Rule 4-7.1; Informal Opinion 980143. Attorney must maintain an active license to practice law.  In an Of Counsel relationship, Attorney is associated with the firm for purposes of mutual imputation of conflicts of interest per Rule 4-1.10.  Informal Opinion 2019-07; see Rule 4-1.0(c) (defining “firm” or “law firm”); see also Rule 4-1.0, Comment [2].

2020-12
Rule 4-1.5

QUESTION: What requirements govern a firm’s division of fees with Attorney who is associated with the firm in an Of Counsel relationship?

ANSWER: If Attorney’s association with the firm is accurately characterized as an Of Counsel relationship (see Informal Opinion 2020-11), Rule 4-1.5(e) does not regulate the division of a fee between the firm and Attorney.  Instead, the fee must comply with the remaining provisions of Rule 4-1.5, as must any fee charged by any other lawyer associated with the firm.