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OCDC Article: Recently Published Missouri Informal Advisory Opinions

Published: Jul 1, 2017

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.

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.

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."

2017-01
Rules 4-1.5; 4-1.145; 4-1.15; 4-1.155

Question 1: Where Attorney serves as an expert witness and receives an advance deposit for fees and expenses, may Attorney place those funds in Attorney's trust account and bill against the funds for work done as an expert witness?

Answer 1: Attorney may put the funds in Attorney's trust account, following the procedures in Rules 4-1.145-4-1.155, and Formal Opinion 128 for deposit and disbursement. See also Informal Opinion 20030001.

Question 2: Where Attorney A and Attorney B (who are not in the same firm) agree to share fees pursuant to Rule 4-1.5(e), may Attorney A hold the fees due Attorney B in Attorney A's trust account before disbursing them to Attorney B?

Answer 2: Rule 4-1.15(a) requires Attorney A to hold in Attorney A's trust account any fees in Attorney A's possession in connection with representation which are the property of a client or third person, including another attorney (in this case, Attorney B). If the other attorney with whom fees are being shared pursuant to 4-1.5(e) has an interest in the property, Rule 4-1.15(d) requires Attorney A to promptly notify Attorney B and promptly deliver to Attorney B any funds Attorney B is entitled to receive, except as provided in Rules 4-1.145-4-1.155 or otherwise permitted by law or by agreement with the client.

2017-02
Rules 4-5.3; 4-1.4

Question: What are Attorney's ethical duties upon learning that a nonlawyer assistant who was under Attorney's supervision disclosed client confidences to third parties and possibly to opposing parties, and how can Attorney prevent future breaches of confidentiality?

Answer: Attorney's ethical responsibilities regarding nonlawyer assistants are governed by Rule 4-5.3. Attorney is obligated to make reasonable efforts to ensure the law firm has in effect measures giving reasonable assurance that all conduct of Attorney's nonlawyer assistants is compatible with Attorney's professional obligations. Rule 4-5.3(a). Attorney must make reasonable efforts to ensure an assistant's actual conduct is compatible with Attorney's professional obligations. See also Comment [1] to Rule 4-5.3. Attorney is responsible for the nonlawyer assistant's misconduct if Attorney ordered or ratified the conduct or if Attorney knew of the conduct at a time when consequences could have been avoided or mitigated but failed to take reasonable remedial action. Mitigating actions required by the rule depend on the nature and recipients of the disclosures and the possible results. Attorney may be required to contact third parties if doing so would work to avoid or mitigate the breach's consequences. Attorney also may have duties governed by substantive law about which this office cannot give an opinion. Pursuant to Rule 4-1.4, Attorney must disclose the confidentiality breach to all affected clients and explain the matter to the extent reasonably necessary to permit the client(s) to make informed decisions about the representation(s).

2017-03
Rule 4-1.7

Question: In a child abuse and neglect case, may Attorney serve as guardian ad litem for a Father where Attorney is also counsel for Father's duly appointed guardian?

Answer: First, if the best interests of Father as asserted by Guardian are inconsistent with the best interests of Father as identified and asserted by Attorney as guardian ad litem, the simultaneous service presents a direct adversity conflict of interest per Rule 4-1.7. The conflict would not be one to which Father could consent under the circumstances. See Rule 4-1.7, Comment [15]. Second, the duties and powers of a guardian ad litem and the duties and powers of a guardian of a person are defined and enumerated at law. Therefore, this office cannot issue an informal opinion as to whether Attorney's obligation at law to Father as guardian ad litem would materially limit Attorney's ability to represent Guardian, or vice versa, constituting a material limitation conflict of interest under Rule 4-1.7.

2017-04
Rules 4-1.4; 4-1.6; 4-3.4

Question: May Attorney comply with a court Order directing Attorney to provide to law enforcement information related to the representation of Client, where Client declines to give informed consent for Attorney to provide the confidential information?

Answer: Rule 4-1.6(b)(4) allows Attorney to reveal confidential information to the extent reasonably necessary to comply with other law or a court order. Rule 4-3.4(c) forbids a lawyer from knowingly disobeying an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no obligation exists. Before complying with the Order, and absent informed consent from Client to do otherwise, attorney should assert on Client's behalf all non-frivolous claims that the Order is not authorized by other law or that the information is protected by the attorney-client privilege or other applicable law. See Rule 4-1.6, Comment [11]. If Attorney's challenge is denied, Attorney must consult with Client about the possibility of appeal, to the extent required by Rule 4-1.4. See Rule 4-1.6, Comment [11]. If review is not sought, or if Client is no longer Attorney's current client at the time of the adverse ruling, Attorney is free to comply with the Order. Rule 4-1.6(b)(4). If Attorney lacks a good faith basis for an original or further challenge to the Order, Attorney is free to comply with the Order and may be required to do so pursuant to Rule 4-3.4(c).

2017-05
Rule 4-5.4

Question: Is Attorney permitted to pay an attorney's lien filed on behalf of a lawyer, now deceased, where no estate has been opened for the deceased lawyer?

Answer: Rule 4-5.4(a) prohibits Attorney from sharing legal fees with a nonlawyer, with certain exceptions. A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer a proportion of the fee that fairly represents the services rendered by the deceased lawyer. Rule 4-5.4(a)(2). Where Attorney is not the lawyer who has undertaken to finish the business of the deceased lawyer, and where no estate has been opened for the deceased lawyer, Attorney may not share legal fees with someone claiming a right to a portion of the legal fees on behalf of the deceased lawyer.

2017-06
Rules 4-1.7; 4-1.10; 4-1.11

Question: Would lawyers in Attorney's private firm in County B have a conflict of interest in criminal defense representations if Attorney is employed as a part-time prosecuting attorney in County A; the firm defends clients against criminal charges in County B; the firm defends no clients against criminal charges in County A; and Attorney will engage only in the civil practice of law for the firm?

Answer: This office gives no opinion as to whether Attorney's association with the firm while Attorney is a part-time prosecuting attorney comports with applicable law, including any statute(s) prohibiting employment in criminal cases by prosecuting attorneys, nor is any opinion issued as to whether any disqualification at law for Attorney would be imputed by applicable law to other lawyers in the firm. If the proposed arrangement is unlawful, lawyers in the firm may not ethically participate. From the standpoint of the Rules of Professional Conduct, the disqualification of lawyers associated in the firm with Attorney under these circumstances is governed by Rule 4-1.11(e)(2). See also Rule 4-1.10(d). No lawyer in the firm can defend clients against criminal charges in County B unless Attorney is screened in the manner set forth in Rule 4-1.11(b). See also Rule 4-1.0(k). In addition, representation by firm lawyers of criminal defendants against charges in County B will constitute a material limitation conflict of interest for firm lawyers under Rule 4-1.7(a)(2). Firm lawyers may represent those clients notwithstanding the conflict only if the subparagraphs of Rule 4-1.7(b)(1-4) are met in each representation. Finally, specific facts in a particular representation could give rise to an additional conflict of interest that may or may not be consentable under Rule 4-1.7. See Rule 4-1.7, Comment [14].

2017-07
Rules 4-1.9; 4-1.10

Question: Does Attorney have a conflict of interest in joining a firm that represents Client B, where Client B has interests adverse to Client A represented by Attorney's current firm, while Attorney has not entered an appearance on behalf of Client A, and Attorney did not handle Client A's matter on a day-to-day basis or communicate with Client A, but Attorney represented Client A at depositions and filed motions on behalf of Client A?

Answer: Because Attorney has represented Client A, Rule 4-1.9(a) governs Attorney's duty to Client A after Attorney leaves the firm representing Client A and joins the firm representing Client B. Rule 4-1.9(a) prohibits Attorney from representing Client B in the same or substantially related matter in which Client B's interests are materially adverse to those of Client A unless Client A gives its informed consent, confirmed in writing. Unless Client A gives that consent, Attorney's conflict of interest will be imputed to the other lawyers at the new firm by Rule 4-1.10(a). Missouri does not recognize screening under Rules 4-1.10 or 4-1.9. The new firm's disqualification may be waived by Client A under the conditions stated in Rule 4-1.7. See Rule 4-1.10(c).