10 new informal advisory opinion summaries published

As determined by the Advisory Committee to the Supreme Court of Missouri, 10 new informal opinion summaries have been published since the last publication of informal opinions in the September-October 2024 issue of the Journal of The Missouri Bar. 

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 lawyers’ 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 a lawyer’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 a lawyer other than the one asking for the opinion. 

For a searchable database and information about requesting an informal opinion, go to MO-legal-ethics.org, click “For Lawyers,” and choose “Informal Advisory Opinions.” 

2025-01 
Publication date: May 2, 2025
Rules: 4-1.22; 4-1.0 
Summary: handling client files upon retirement; handling client files upon leaving the practice of law 

Question: A lawyer is a solo practitioner and is winding up their practice with plans to retire at the end of the year. The lawyer asks what notifications need to be sent to current and former clients. Also, the lawyer has client files in paper format going back 40 or more years, and more recent files from the last five years, both paper and electronic format. The lawyer asks how to handle these files upon retirement, and if there are any steps the lawyer may ethically take at this point to minimize how many files the lawyer will have to maintain after retirement. 

Answer: As to notifications to current clients, the lawyer should provide notice to current clients regarding the lawyer’s upcoming retirement as part of the lawyer’s duty to communicate pursuant to Rule 4-1.4. To the extent that matters for current clients can be concluded, that should be done. As to matters for current clients that the lawyer will not be able to complete, the lawyer should provide notice so that current clients may find other representation consistent with Rule 4-1.16(d) and take other steps reasonably practicable to protect their interests. The lawyer should consider if applicable law requires notice or permission of a tribunal to terminate the representation in accordance with Rule 4-1.16(c). 

As to the client files, for former client files that are past the six or 10 years holding requirement of Rule 4-1.22, the files are deemed abandoned and may be destroyed in a manner that preserves confidentiality unless an exception exists per Rule 4-1.22(a)-(d).¹ However, items of intrinsic value shall never be destroyed pursuant to Rule 4-1.22. The lawyer should consult Missouri Formal Opinion 118 — Unused Funds Remaining in Trust Fund — to see if the item of intrinsic value may be appropriately handled as a matter of law that is beyond the scope of the Rules of Professional Conduct. 

For files of former clients that are within the six or 10 years holding requirement of Rule 4-1.22, the lawyer should be mindful that those files belong to the former clients pursuant to Missouri Formal Opinion 115 — Withholding Client Property. Rule 4-1.22 permits the lawyer and clients to reach agreements for a lawyer to hold files for a lesser period of time. For that to occur, the clients must provide informed consent, confirmed in writing, and the lawyer must maintain a copy of the agreement for the required six or 10 years that the files were to be held. Informed consent is a defined term under Rule 4-1.0(e) that requires the communication of adequate information to the clients, including the material risks and reasonably available alternatives to the proposed course of conduct. Similarly, Rule 4-1.0(n) defines what constitutes a writing and signing of the writing. Rule 4-1.22 allows this agreement to be made at any point after the completion or termination of the representations. The lawyer may wish to seek the informed consent, confirmed in writing, of the affected former clients to either have them take possession of the files or to permit the lawyer to securely destroy their files. The lawyer may wish to consult with the lawyer’s risk management carrier for any additional guidance. 

Further, since the lawyer has paper files that would fall within the holding requirement timeframes of Rule 4-1.22, the lawyer may wish to consider scanning those files consistent with Missouri Formal Opinion 127 — Scanning Client Files. As with paper files, the lawyer is required to consider the confidentiality of those electronic files consistent with Rule 4-1.6. If the lawyer will be backing those files up to a cloud-based system, the lawyer should consult Missouri Informal Opinion 2018-09 (cloud computing).

Finally, upon retirement, for former clients for whom the lawyer continues to securely hold files as required by Rule 4-1.22, the lawyer should provide contact information where the lawyer can be reached in the event files need to be requested. 

2025-02 
Publication date: May 2, 2025
Rule: 4-8.3 
Summary: timing of report to the Office of Chief Disciplinary Counsel of misconduct of another lawyer 

Question: A lawyer has determined that the lawyer must report the misconduct of another lawyer to the Office of Chief Disciplinary Counsel pursuant to Rule 4-8.3. However, the lawyer is concerned about the timing of that report, as the lawyer is representing a client in litigation that is near to trial, and the report pertains to the lawyer on the opposing side. Settlement negotiations are underway. May the lawyer wait to inform the Office of Chief Disciplinary Counsel as to the misconduct of opposing counsel pursuant to Rule 4-8.3? 

Answer: If the lawyer determines that the lawyer is required to report pursuant to Rule 4-8.3, that obligation exists regardless of the timing. While Rule 4-8.3 does not address the timing of the report, it is generally presumed that the report should be done as promptly as possible. This requirement derives from the need to safeguard the public and the profession from future misconduct by the offending lawyer. As stated in Scope [14], “[t]he Rules of Professional Conduct are rules of reason.” Comment [2] to Rule 4-8.3 references potential prejudice to a client’s interests in the context of seeking informed consent to disclose confidential information. This reference suggests that the lawyer may consider the adverse impact on the client when determining the timing of the report. While the lawyer may consider the interests of the client in the timing of filing a report, and prejudice to the client in the middle of settlement negotiations with a trial nearing may be such a factor, if an obligation to report exists pursuant to Rule 4-8.3, a report should be made reasonably promptly to the Office of Chief Disciplinary Counsel.² 

2025-03 
Publication date: May 2, 2025
Rule: 4-7.3 
Summary: SSM messages, or similar text messages, prohibited for solicitation pursuant to Rule 4-7.3 

Question: The lawyer asks whether SSM messages, or similar text messages, comply with Missouri Rule of Professional Conduct 4-7.3 — Direct Contact with Prospective Clients — for the solicitation of prospective clients who are persons known to need the kind of legal services provided by the lawyer. The lawyer asks if SSM messages, or similar text messages, should be classified as real-time electronic solicitation of legal business under Rule 4-7.3(a), or written solicitation under Rule 4-7.3(b).

Answer: It is the informal advisory opinion of this office that SSM messages would constitute real-time electronic solicitation of legal business pursuant to Missouri Rule of Professional Conduct 4-7.3(a) and thereby would be prohibited. Per Rule 4-7.3(a), real-time electronic contact for solicitation is limited to only “an existing or former client, lawyer, close friend, or relative.” Further, written solicitations contemplated by Missouri Rule of Professional Conduct 4-7.3(b) only permits written solicitations being mailed to clients by regular United States mail.³ SSM messaging, or similar text messaging, is not permitted by the Missouri Rule of Professional Conduct 4-7.3. 

2025-04 
Publication date: May 2, 2025 
Summary: A lawyer may accept cryptocurrency payment only for earned fees that are not to be placed in client trust account. 

Question: The lawyer would like to accept cryptocurrencies as payment of fees through the lawyer’s website. The lawyer would make an agreement with the client at the beginning of the representation that the client will pay the lawyer’s fees at the conclusion of the representation with cryptocurrency. The lawyer would like to use a service to convert those cryptocurrency payments into U.S. dollars at the point of sale and then transfer them to an appropriate account. The lawyer asks how to do so to comply with the Missouri Rules of Professional Conduct. 

Answer: The lawyer may accept cryptocurrency for payment of earned fees. Cryptocurrency should be handled the same as any other payment of fees through property, and the fee must meet the reasonableness standard of Rule 4-1.5(a). Rule 4-1.5, Comment [4], provides that “a fee paid in property instead of money may be subject to the requirements of Rule 4-1.8(a) because such fees often have the essential qualities of a business transaction with the client.” Since the value of the cryptocurrencies may fluctuate, the lawyer should ensure that the client receives the protections of Rule 4-1.8(a):

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: 
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; 
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and 
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The lawyer should also review Comments [1]-[4] of Rule 4-1.8 for additional guidance, as well as Missouri Informal Opinion 20050041. Since a third-party service must be used to convert the cryptocurrency to U.S. dollars for the payment to occur, such payments are only appropriate for earned fees that are not to be placed in a client trust account, not advance paid fees or expenses that would be held in a client trust account in accordance with Rule 4-1.15(a).⁴ 

2025-05 
Publication date: July 25, 2025 
Rules: 4-7.2(c); 4-9.1 
Summary: Lawyers may only use client lead generation services if the services are “qualified services” registered with the Office of Chief Disciplinary Counsel pursuant to Rule 4-9.1. 

Question: The lawyer asks whether it is permissible to pay an online marketing company for client lead generation services. The marketing company attracts potential legal clients through internet advertisements. The marketing company then obtains contact information for potential clients along with information regarding the potential clients’ legal needs. The company forwards a potential client’s information to a lawyer participating in the referral service and shows the potential client a profile of that lawyer. If the potential client wishes to hire the lawyer, the potential client can contact the lawyer directly by clicking on a link on the marketing company’s website. The marketing company charges the lawyer a particular dollar amount for the referral but characterizes the charge as advertising fees. 

Answer: The lawyer’s use of the lead generation service described above is permissible only if the service complies with Rule 4-9.1 — Lawyer Referral and Information Services. Rule 4-9.1 is applicable to all services that refer particular potential clients to particular lawyers, regardless of the name or characterization of the activities or fees used by the service.⁵ A lawyer’s use of a referral service that fails to comply with Rule 4-9.1 violates Rule 4-9.1(b). Any lawyer referral service used by a lawyer must be a “qualified service” in that it must conform to the requirements of Rule 4-9.1.⁶ This requires the service to register with the Office of Chief Disciplinary Counsel and “demonstrate [to the OCDC] its compliance with the other requirements of Rule 4-9.1 before commencing to operate.”⁷ Rule 4-7.2(c), which addresses referral fees, only permits the lawyer to pay the fee if the service is a “qualified service” registered with OCDC. If the marketing company is not a “qualified service” registered with OCDC, the lawyer’s use of the service violates both Rules 4-7.2(c) and 4-9.1(b). Before using the lead generation service described above, the lawyer should contact OCDC and ascertain whether the marketing company is a “qualified service” registered with OCDC pursuant to Rule 4-9.1.

2025-06 
Publication date: July 25, 2025 
Rule: Rule 4-8.4(d) 
Summary: It is prejudicial to the administration of justice to condition the settlement of a civil matter upon the condition that criminal charges be dismissed against one of the parties. 

Question: The lawyer represents a client in a dissolution action. The client has been charged with domestic assault concerning his spouse. The lawyer would like to condition dissolution settlement upon the client’s spouse requesting the dismissal of the domestic abuse charge and/or declining to cooperate in the criminal prosecution. The lawyer asks if it is permissible to request such conditions. 

Answer: The lawyer’s proposal would violate Rule 4-8.4(d) as conduct prejudicial to the administration of justice.⁸ This is because a civil settlement that requires the dismissal of criminal charges is contrary to public policy concerns of holding criminal perpetrators accountable and deterring repeated criminal offenses. 

2025-07 
Publication date: Aug. 27, 2025 
Rules: 4-1.7; 4-6.2 
Summary: lawyer serving as guardian ad litem for minor and minor’s infant 

Question: The lawyer has been appointed as guardian ad litem for a 16-year-old mother in an abuse and neglect proceeding. Can the lawyer also serve as guardian ad litem for the infant child of the 16-year-old mother in that same proceeding? 

Answer: Lawyers who are appointed to act as guardians ad litem are required to act in accordance with the Rules of Professional Conduct.⁹ In this situation, the lawyer needs to make a determination under Rule 4-1.7(a) whether the responsibilities of serving as guardian ad litem for the 16-year-old mother and the infant would be directly adverse to one another or materially limited by the responsibilities to each person. The lawyer must consider the relevant legal and factual issues as to each person. If the lawyer believes there is a conflict per Rule 4-1.7, the lawyer should decline the appointment as guardian ad litem for one or both of the individuals by following Rule 4-6.2(a), which addresses declining appointments if the appointment will result in the lawyer violating the Rules of Professional Conduct.¹⁰ 

2025-08 
Publication date: Aug. 27, 2025 
Rules: Scope; 4-1.1; 4-1.3; 4-1.4; 4-1.6; 4-1.15; 4-5.3; 4-8.3 
Summary: lawyers and scams 

Question: The lawyer received an unsolicited email from a potential prospective client seeking collection of a settlement agreement. The settlement agreement was with the potential prospective client’s former employer, a Missouri-based corporation with a website. The potential prospective client lives in another state far away from Missouri, so the lawyer only spoke with the potential prospective client over the phone, and they corresponded by email. An engagement agreement was signed with the lawyer and returned by email. The potential prospective client, now the client, asked the lawyer to work directly with the former employer to try to collect on the settlement before filing suit. The lawyer sent a demand letter to the former employer at the email address contained on the signature block of the former employer, and, within a few days, the lawyer received a cashier’s check that was for more than the funds required to satisfy the settlement agreement with the client, which were supposed to pay the lawyer’s fee. The lawyer deposited the cashier’s check into the client trust account and waited a few days. The client contacted the lawyer and asked for the funds to be wired immediately so the client could close on a house purchase the next day. Believing the cashier’s check to be valid, the lawyer wired the funds per the client’s instructions. A few days later, the lawyer received notice from the financial institution where the client trust account is held that the cashier’s check was fraudulent, and the account was now significantly overdrawn. The funds of several other clients are now gone from the trust account. The lawyer is seeking a loan to try to return the funds to the trust account for the other clients. The lawyer can no longer reach the client and has started doing more research on the alleged settlement agreement. The lawyer has found that the email address on the settlement agreement where lawyer sent the demand letter does not match the format of email addresses listed online for the employees of the former employer. The lawyer reached out to the former employer by a phone number listed on the former employer’s website and was told the person who signed the purported settlement agreement is not an employee, nor is the client a former employee. The lawyer asks the following questions:

1. May the lawyer report the client to law enforcement? 
2. Is the lawyer required to report the overdraft to the Office of Chief Disciplinary Counsel? 
3. Is the lawyer required to disclose to those impacted clients that the funds are gone? 
4. What steps could the lawyer take in the future to avoid such fraudulent representations that are really scams?

Answer 1: This question was addressed in Missouri Informal Opinion 2018-06. It is debatable as to whether an actual client-lawyer relationship formed in this scenario and is a question of fact and law outside the Rules of Professional Conduct Scope [17]. However, the lawyer may report the client to law enforcement regardless of whether an actual client-lawyer relationship was formed. Rule 4-1.6 addresses attorney confidentiality for clients and prospective clients. It implicitly permits the lawyer to disclose the crime to law enforcement.¹¹ This is because it is unreasonable for a lawyer to maintain confidentiality when the client has abused the relationship by committing a crime against the lawyer. In the alternative, if no client-lawyer relationship existed because the relationship was based upon a scam, no confidentiality attaches to the engagement.¹² 

Answer 2: Rule 4-8.3, which addresses reporting professional misconduct, does not require the lawyer to self-report the lawyer’s own misconduct to the Office of Chief Disciplinary Counsel.¹³ Whether the lawyer chooses to do so is a matter of the lawyer’s independent professional judgment. The Office of Chief Disciplinary Counsel will receive notice of the overdraft from the financial institution where the lawyer’s trust account is held.¹⁴ 

Answer 3: The loss of client funds should be reported to the impacted clients reasonably promptly as part of the duty to communicate with the client such that the client can make informed decisions regarding the representation in accordance with Rule 4-1.4(b).¹⁵ The lawyer may also wish to reach out to the lawyer’s risk management provider or private legal counsel for guidance that is beyond the scope of an informal opinion. 

Answer 4: In the future, the lawyer should be more diligent about scams. If it sounds too good to be true, it probably is. Scams have been around in a variety of forms for years, but lawyers need to train themselves and their nonlawyer staff to be mindful of scams, including cyber scams (i.e., phishing, social engineering, etc.). These responsibilities flow from the duties of competence per Rule 4-1.1, which, per Comment [6], includes keeping abreast of relevant changes in the law and its practice, including relevant technology.¹⁶ Lawyers should be aware of email solicitations that sound like easy matters — collecting a judgment or settlement, especially if one party is out-of-state or in another country, or if the request for services seems out of the ordinary. As part of the duty of diligence per Rule 4-1.3, lawyers should seek to verify who the client is and the legitimacy of the basis for the purported services requested. Another sign can be cashier’s checks from distant or foreign banks, often for more than the amount to be collected explained as fees or a bonus for the lawyer. Since cashier’s checks can be fraudulent, lawyers should work with their financial institutions to seek to verify validity of checks. Further, pursuant to Rule 4-1.15(a)(6), lawyers should not make disbursements from trust accounts if there is reasonable cause to believe the funds have not actually been collected by the financial institution (i.e. good funds) and until a reasonable period of time has passed for the funds to be collected by the financial institution.¹⁷ Lawyers should resist claims of urgency and pressure to make disbursements from trust accounts prematurely, otherwise lawyers may face overdraft and conversion of other client or third-person funds in the trust account if the cashier’s check is later dishonored. 

2025-09 
Publication date: Aug. 27, 2025 
Rules: Scope; 4-1.7; 4-1.11; 4-1.13; 4-1.16 
Summary: client and duly authorized constituents identification for city attorney 

Question: The lawyer works as a city attorney. The lawyer generally works with the mayor, but also with the city board and its members. One of the board members is asking the lawyer to take action contrary to the action directed by the mayor and the board as a whole. The lawyer asks to whom the lawyer owes a duty to follow instructions and is confused as to whom the lawyer has a lawyer-client relationship with — the city, mayor, city board, and/or its members. 

Answer: Whether a client-lawyer relationship exists is a question of fact and law beyond the scope of the Rules of Professional Conduct Scope [17]. This office is unable to provide an informal opinion as to who is the client of the lawyer, but the Rules of Professional Conduct do provide steps for the lawyer to follow to make that determination. First, Rule 4-1.13(a) provides that when the lawyer is employed or retained by an organizational client, which would include a governmental entity, the lawyer represents that organization by and through its duly authorized constituents.¹⁸ In this case, the lawyer represents the city. However, the lawyer is confused as to who is the duly authorized constituent the lawyer must follow for instructions regarding the representation, or if there is more than one duly authorized constituent. Per Comment [6] to Rule 4-1.13, guidance is provided as follows:

The duty defined in this Rule 4-1.13 applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole … This Rule 4-1.13 does not limit that authority. See Scope.

Additionally, Scope [18] states in relevant part:

Under various legal provisions, including constitutional, statutory, and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships …

With this guidance in mind, the lawyer should review any substantive law defining the role of the city attorney, as well as who is the duly authorized constituent, knowing that it may be more than one person or entity, such as the mayor or city board. That substantive law may set the scope of representation for the lawyer in accordance with Rule 4-1.2(a).¹⁹ While the lawyer may represent both the city as well as another party, such as a board member or employee, per Rule 4-1.13(e), such dual representation would be subject to Rule 4-1.7 and require the city’s informed consent, confirmed in writing, by an appropriate city official other than the individual who is to be represented.²⁰ Given the unique role of the lawyer in the role as a city attorney, it is critical that the lawyer be mindful of the obligations under Rule 4-1.13(d) to be clear to others that the lawyer represents the city, not other employees, members, or constituents when the lawyer knows or reasonably should know that the city’s interests are adverse to those others with whom the lawyer is dealing. If the lawyer has inadvertently formed a client-lawyer relationship with others such that a conflict of interest exists under Rules 4-1.11(d) and 4-1.7 that is not subject to waiver, the lawyer will be required to withdraw from the representation in accordance with Rule 4-1.16(a)(1). 

2025-10 
Publication date: Aug. 27, 2025 
Rule: 4-8.3 
Summary: reporting obligation for lawyer serving as a guardian ad litem 

Question: The lawyer is serving as a guardian ad litem for a minor child as to custody in a dissolution of marriage case for the minor child’s parents. The lawyer believes that counsel for one of the parents has engaged in misconduct that would rise to the level of required reporting to the Office of Chief Disciplinary Counsel pursuant to Rule 4-8.3. However, the lawyer is unsure whether the duty of reporting misconduct of another lawyer attaches when serving as a guardian ad litem. Does the lawyer serving as a guardian ad litem have a duty to report counsel for parent? 

Answer: Lawyers who are appointed to act as guardians ad litem are required to act in accordance with the Rules of Professional Conduct.²¹ Further:

A guardian ad litem shall comply with all statutes, rules, and regulations relating to the receipt of confidential or privileged information received as a guardian ad litem. A guardian ad litem shall not redisclose any confidential or privileged information without valid court order or as required by law except as permitted by Rules 4-1.6.²²

Since Rule 4-8.3(c) requires consent to reveal confidential information in making a report of another lawyer’s misconduct, absent a valid order of the court, the lawyer serving as a guardian ad litem may not report misconduct of counsel for one of the parents.

Endnotes

1 See Missouri Informal Opinion 2021-03 (contract with vendor for disposal of client files).
2 See also Missouri Informal Opinion 2019-02 (threat of criminal prosecution or disciplinary complaint; duty to report).
3 See Missouri Informal Opinion 20090040.
4 See Missouri Informal Opinion 2023-09.
5 See Rules 4-9.1(d) and 4-7.2(c).
6 In re Agron, 701 S.W.3d 623, 629 (Mo. banc 2024); See also Rule 4-9.1(b). 7 Id.
8 See also Missouri Formal Opinion 122 and Informal Opinion 2019-02.
9 See Standards with Comments for Guardians ad Litem in Juvenile and Family Court Division Matters, Standard 1.0, Comment.
10 See also Missouri Informal Opinions 2017-03 and 2018-14.
11 See Informal Opinion 2018-06.
12 If, in a factually different scenario, a valid client-lawyer relationship exists, but the form of payment is invalid, lawyer should work with client to resolve that payment and/or take other measures at law to collect the fees for services in accordance with Rule 4-1.6(b)(3), Comments [9] and [12]. See also Missouri Formal Opinion 115 and Informal Opinions 2023-06, 2020-22, 2013-02, and 970016.
13 See Missouri Informal Opinions 2023-05 and 2011-04.
14 See Rule 4-1.15(a)(2).
15 See also Missouri Informal Opinions 2022-07, 2020-26, 2017-02.
16 See also Rule 4-5.3.
17 See Rule 4-1.15 Comment [5]; Missouri Informal Opinion 2020-15.
18 See Rule 4-1.13, Comments [1] and [6].
19 See Missouri Informal Opinion 2023-01.
20 See Missouri informal Opinion 2021-05.
21 See Standards with Comments for Guardians ad Litem in Juvenile and Family Court Division Matters, Standard 1.0, Comment.
22 Standards with Comments for Guardians ad Litem in Juvenile and Family Court Division Matters, Standard 7.0.