Ethics: Fourteen new informal advisory opinion summaries published

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 Office of Legal Ethics Counsel’s responses are confidential. 

Informal advisory opinions are issued by the Office of Legal Ethics Counsel pursuant to Missouri Supreme Court Rule 5.30. The Office of 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.” 

2023-10 
Adoption date: Oct. 18, 2023 
Rule: 4-1.4, 4-1.6, 4-2.1, and 4-8.4(d) 
Summary: litigation loans pursuant to the Missouri Consumer Legal Funding Act 

Question: When client seeks a loan through a consumer legal funding company pursuant to RSMo § 436.550 to §436.572, may lawyer ethically comply with the client’s contractual agreement with the consumer legal funding company? 

Answer: Prior Informal Opinions 20030022 and 20000229 note that lawyers should not participate in litigation loans that may be considered to constitute champerty or maintenance, as such conduct would violate Rule 4-8.4(d) as conduct prejudicial to the administration of justice. This office cannot make a determination as to whether a loan pursuant to the Consumer Legal Funding Act would constitute champerty or maintenance under Missouri law. That is a question of law that is beyond the scope of the Rules of Professional Conduct. 

If lawyer determines that such consumer legal funding agreements do not constitute champerty or maintenance, lawyer may ethically adhere to client’s directions per the agreement client entered into with the consumer legal funding company. However, lawyer, upon receiving such direction from client, should consider lawyer’s role as an advisor pursuant to Rule 4-2.1 by exercising independent professional judgment and rendering candid advice to the client. This includes clearly communicating to client the impact of such an agreement on the representation such that client may make informed decisions regarding the representation in accordance with Rule 4-1.4(b), including the impact on confidentiality pursuant to Rule 4-1.6. 

2024-01 
Adoption date: Jan. 23, 2024 
Rules: 4-7.5 and 4-7.1 
Summary: law firm name and retirement of lawyer 

Question: Lawyer is retired from a law firm in which lawyer’s name is included in the name of the law firm. Lawyer is no longer participating in, or affiliated with, the law firm. May law firm continue to use lawyer’s name in the name of the law firm? 

Answer: Pursuant to Rule 4-7.5, the name of a retired lawyer who is no longer participating in, or affiliated with, the law firm may not be used to identify that law firm unless the name has become so well known that it is considered to be a trade name. See Rule 4-7.5, Comment [1], Missouri Informal Opinions 980185, 950138, 20000057, 20000231, 20010065, and 960108. A law firm name may not be false and misleading per Rule 4-7.1 and must comply with substantive law. 

2024-02 
Adoption date: Jan. 23, 2024 
Rules: 4-5.5, 8.105, and 8 
Summary: virtual practice by in-house counsel located outside Missouri for corporation located in Missouri; Missouri license required 

Question: Lawyer is licensed in State A and will be working virtually from State A for a corporation that is located in Missouri. Is lawyer required to seek admission in Missouri? 

Answer: Yes. Rule 4-5.5(b)(1) prohibits a lawyer from establishing an “office or other systematic and continuous presence in this jurisdiction for the practice of law.” Comment [4] to Rule 4-5.5 notes that “[p]resence may be systematic and continuous even if the lawyer is not physically present here.” Per Rule 4-5.5(d), a lawyer not licensed in Missouri that is providing legal services to the lawyer’s employer or organizational affiliates may seek a “limited license pursuant to Rule 8.105 or a general license pursuant to other provisions of Rule 8.” See also Informal Opinions 20030078, 980219, 980062, 980010, 970098, 960276, 960055, 940092, and 930152. 

2024-03 
Adoption date: Jan. 23, 2024 
Rules: 4-5.5 
Summary: virtual practice of law of another jurisdiction from Missouri, but not licensed in Missouri; Missouri license required 

Question: Lawyer is licensed in State A but lives in Missouri. Lawyer is not licensed in Missouri. Lawyer plans to work for a law firm located in State A from lawyer’s home office in Missouri. Is lawyer required to seek admission in Missouri? 

Answer: Yes. Rule 4-5.5(b)(1) prohibits a lawyer from establishing an “office or other systematic and continuous presence in this jurisdiction for the practice of law.” That includes the practice of law of State A from Missouri. Lawyer does not meet any of the exceptions in 4-5.5(c) and is required to seek admission in Missouri. See also Informal Opinions 20030078, 980219, 980062, 980010, 970098, 960276, 960055, 940092, and 930152. 

2024-04 
Adoption date: Jan. 23, 2024 
Rules: 4-5.5; 9.03 
Summary: out-of-state lawyer representing client in deposition for lawsuit pending in Missouri; pro hac vice admission for a visiting attorney in a particular case 

Question: Lawyer is licensed in State A and represents corporate client in State A. Corporate client has offices in Missouri. Employee of corporate client is set to be deposed in a lawsuit that is pending in Missouri. Lawyer has been asked by corporate client to represent employee in the deposition for the lawsuit pending in Missouri. Lawyer is not licensed in Missouri. What steps is lawyer required to take to represent employee in the deposition in Missouri? 

Answer: Pursuant to Rule 4-5.5(c)(1) and (c)(2), lawyer may be permitted to represent employee at the deposition in Missouri so long as lawyer gains admission pursuant to Rule 9.03, Visiting Attorney Appearing in a Particular Case, to gain pro hac vice status in a matter. 

2024-05 
Adoption date: Jan. 23, 2024 
Rules: 4-5.5 and 4-8.5 
Summary: out-of-state lawyer reviewing purchase documents 

Question: Lawyer is licensed in State A, and lawyer represents client in State A on a number of business matters. Client lives in State A. Client is purchasing a portion of a business located in Missouri with another buyer who is also located in Missouri. A Missouri lawyer for the seller of the business is preparing the purchase documents. May lawyer in State A review the purchase documents from State A for client? 

Answer: Pursuant to Rule 4-5.5(c)(5), lawyer is permitted to review the documents for client in State A, as such conduct may be considered to be “reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted and authorized to practice.” However, lawyer must disclose to client that lawyer is not licensed in Missouri, and that client may wish to seek legal counsel from a lawyer licensed in Missouri. See also Informal Opinions 970073 and 940177. Lawyer should consult the rules of State A to ensure that such conduct is not considered to be the unauthorized practice of law in State A. See also Rule 4-8.5(b)(2). 

2024-06 
Adoption date: Jan. 23, 2024 
Rules: 4-1.18, 4-1.22, 4-1.15, 4-1.16, and Scope [17]  
Summary: prospective client entitled to return of papers and properties provided to lawyer during initial consultation; prospective client not entitled to client file if representation is declined 

Question: Prospective client met with lawyer to discuss representation in a property dispute matter with a neighbor. Prospective client brought in some photos and a copy of the deed for prospective client’s property for the initial consultation and left those with lawyer. Lawyer took a few notes during the initial consultation and prospective client also completed an intake worksheet that was left with lawyer. Lawyer did some preliminary research and sent an engagement agreement to prospective client. Prospective client refused to sign the engagement agreement, so lawyer declined to undertake the representation and returned the photos and copy of the deed to prospective client. Prospective client is now asking lawyer for prospective client’s “file,” including the initial research completed by lawyer. Is lawyer required to provide prospective client with lawyer’s initial research and provide a “file” to prospective client? 

Answer: No, prospective client is only entitled to the photos and copy of the deed left with lawyer during the initial consultation. See Informal Opinion 970182. 

Rule 4-1.18 on prospective clients provides guidance in Comment [1] that prospective clients may provide documents or other property to lawyers and rely on the lawyer’s advice. It notes that consultations with prospective clients usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded to clients. 

Rule 4-1.18, Comment [8] provides for a lawyer’s duties when a prospective client entrusts valuables or papers to the lawyer’s care and references Rule 4-1.15, which requires lawyers to safeguard property of clients or third persons and to return it. Rule 4-1.22 specifically governs client files, as does Formal Opinion 115. 

Since Comment [8] to Rule 4-1.18 references Rule 4-1.15 on safekeeping property as to prospective client documents, and Comment [1] to Rule 4-1.18 notes some, but not all, of the protection afforded to clients are received by prospective clients, it is the informal opinion of this office that that prospective clients do not receive file retention rights since they never technically become clients as required by Rule 4-1.22. Thus, documents or property of prospective clients should be returned to the prospective clients if the representation is declined by either the lawyer or the prospective client in accordance with Rule 4-1.15. Rule 4-1.22 and Formal Opinion 115 protections do not attach to prospective clients. Additionally, in accordance with Rule 4-1.16(d), when declining or terminating representation, papers and property should be returned. 

In this matter, lawyer is not required to provide initial notes or research to prospective client since no client-lawyer relationship ensued from the initial consultation. See also Scope [17]. 

2024-07 
Adoption date: April 25, 2024 
Rules: 4-1.1, 4-3.1, 4-3.4, 4-4.4, 4-8.4 and Court Operating Rule 2.02 
Summary: over redaction as failure to comply with Court rules and/or lack of competence 

Question: Lawyer is getting ready to file a pleading, but lawyer is unsure what to redact as required by Missouri Supreme Court Operating Rule 2.02, related Missouri Supreme Court Rules, and Missouri statutes, or other law, hereinafter referred to collectively as “redaction requirements.” May lawyer simply redact the text of the pleading after the caption to ensure compliance? Lawyer states that lawyer does not have time to determine what needs to be redacted, and lawyer does not want to run afoul of the redaction requirements. Lawyer states that lawyer thinks that redacting everything is the safest way to comply. 

Answer: No, lawyer may not simply redact the text of the pleading after the caption to ensure compliance because Rule 4-1.1 on competence requires lawyer to take steps to determine how to appropriately comply with the redaction requirements. Pursuant to Rule 5.30(c), this office may only provide informal opinions regarding a lawyer’s prospective conduct pursuant to Rules 4, 5, and 6. This office cannot interpret other Rules or law, including the redaction requirements, nor can it provide legal advice. However, compliance with the redaction requirements is certainly part of a lawyer’s responsibilities pursuant to Rule 4, the Missouri Rules of Professional Conduct. 

Rule 4-3.4 provides that “[a] lawyer shall not:…(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists….” Comment [4] to Rule 4-3.4 states that “[l]awyers have an ethical duty to comply with court orders in both their professional and personal capacities.” The redaction requirements are Rules of the Court which must be followed by lawyers. 

Further, Rule 4-4.4(a), requires a lawyer in representing a client to respect the rights of third persons, so lawyer must also consider if the information in question relates to a third person, such as an opposing party or witness, and whether that information will “embarrass, delay, or burden a third person or use methods of obtaining evidence that violate the legal rights of such a person.” See also Rule 4-4.4(a), Comment [1] and Informal Opinion 2021-13. If lawyer puts information regarding an opposing party, witness, or third person that should be redacted into a public filing, lawyer may violate Rule 4-4.4(a), but that is certainly not a justification for disregarding the redaction rules by simply redacting everything. Unless lawyer has a meritorious claim or contention in accordance with Rule 4-3.1, meaning that lawyer has “a basis in law or fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law[,]” Lawyer would violate Rule 4-3.4(c) by simply failing to attempt to comply with the redaction requirements. Lawyer would also violate Rule 4-1.1 by failing to comply with the competency requirements of representing a client. As part of a duty of competency to represent a client pursuant to Rule 4-1.1, lawyer should understand how to use Missouri’s e-filing system, Case.net, including proper selection of the type of document being filed and the security setting for that document. Additionally, lawyer should understand what is required to be redacted as a matter of law as part of the duty of competence pursuant to Rule 4-1.1. Finally, lawyer’s proposed conduct would also violate Rule 4-8.4(a) by violating or attempting to violate the Rules of Professional Conduct, and Rule 4-8.4(d) by engaging in conduct prejudicial to the administration of justice. 

2024-08 
Adoption date: April 25, 2024 
Rules: 4-3.1, 4-3.4, 4-4.4 and Court Operating Rule 2.02 
Summary: redaction by lawyer when meritorious claim or contention information is subject to redaction requirements 

Question: Lawyer is getting ready to file a pleading, but lawyer is unsure what to redact as required by Missouri Supreme Court Operating Rule 2.02, related Missouri Supreme Court Rules, and Missouri statutes, or other law, hereinafter referred to collectively as “redaction requirements.” Lawyer has complied with the redaction requirements but is unsure as to whether a certain piece of information contained in the pleading is required to be redacted. Lawyer has a good faith basis in law to believe that information is protected by law and subject to redaction. Lawyer asks if lawyer may ethically redact the piece of information in question and let the court make a determination as to whether lawyer is correct. 

Answer: Yes, lawyer may ethically redact a piece of information lawyer has a good faith basis of fact or law to believe is subject to the redaction requirements. In doing so, lawyer must ensure that lawyer meets the standards of Rule 4-3.1, meaning that lawyer has “a basis in law or fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law[,]” as to why such information is subject to the redaction requirements. If lawyer does so, lawyer will fulfill the obligation of Rule 4-3.4(c) on compliance with rules of a tribunal, as well as Rule 4-4.4(a) addressing a lawyer’s responsibility in representing a client to respect the rights of third persons if the information in question relates to an opposing party, witness, or other third person. See also Rule 4-4.4(a), Comment [1] and Informal Opinion 2021-13. 

It is important to note that pursuant to Rule 5.30(c), this office may only provide informal opinions regarding a lawyer’s prospective conduct pursuant to Rules 4, 5, and 6. This office cannot interpret other Rules or law, including the redaction requirements, nor can it provide legal advice. However, compliance with the redaction requirements is certainly part of a lawyer’s responsibilities pursuant to Rule 4, the Missouri Rules of Professional Conduct. 

2024-09 
Adoption date: April 25, 2024 
Rules: 4-1.1, 4-1.4, 4-1.6, 4-3.4, 4-5.3 and Court Operating Rule 2.02
Summary: competence and supervision issued related to redaction requirements 

Question: Lawyer does not know how to use PDF software to redact information in pleadings. Missouri Supreme Court Operating Rule 2.02, related Missouri Supreme Court Rules, and Missouri statutes, or other law, hereinafter referred to collectively as “redaction requirements,” must be fulfilled when pleadings are filed. May lawyer simply rely on a member of lawyer’s nonlawyer staff to perform the redactions and e-file pleadings? 

Answer: Lawyer may not entirely rely on nonlawyer staff to perform redactions and e-file pleadings, as lawyer is responsible for documents e-filed on behalf of lawyer at lawyer’s direction per Rule 4-5.3. 

Rule 4-5.3(c) – Responsibilities Regarding Nonlawyer Assistants, provides that the lawyer is responsible for the conduct of the nonlawyer if that conduct would be a violation of the Rules of Professional Conduct if the lawyer had engaged in that conduct. Rule 4-3.4(c) requires that lawyer comply with rules of a tribunal, which would include fulfilling the requirements of the redaction rules. Further, Rule 4-5.3(c) goes on to state that if “(1) the lawyer orders, or with the knowledge of the specific conduct, ratifies the conduct involved; or (2) …knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action[,]” the lawyer is ethically responsible for the conduct of that nonlawyer. 

Rule 4-1.1– Competence states: “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [6] to Rule 4-1.1 provides guidance on maintaining competence, and notes that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” As part of the duty of competence, lawyer should understand the relevant technology used in lawyer’s practice, including PDF software used for preparing documents for e-filing through Case.net. See also Informal Opinion 2018-09. While lawyer may not use that technology day-to-day and may employ various nonlawyer assistants who work with that PFD software and assist lawyer with e-filing, lawyer is still responsible for understanding what information is required to be redacted and ensuring that the filings and redactions are completed in accordance with the redaction requirements as part of the duty of competence per Rules 4-1.1 and 4-5.3. 

If lawyer asks a nonlawyer assistant to e-file a document on the lawyer’s behalf, pursuant to Rule 4-5.3(c)(1), lawyer is responsible for the contents of that filing whether it is redacted properly or not. Lawyer should appropriately train and supervise nonlawyer support staff assisting with document creation and e-filing on behalf of lawyer, and lawyer should review documents prior to e-filing with the court to ensure accuracy. In the event an improperly redacted filing is made, pursuant to Rule 4-5.3(c)(2), lawyer should take reasonable remedial measures both within the applicable Rules to remove and or correct that filing, and, depending on the circumstances, possibly to advise the client as to a breach of confidentiality in accordance with Rules 4-1.4 and 4-1.6, Comments [15] and [16]. See also Informal Opinions 2022-07, 2021-03, 2020-26, and 2017-02. 

Pursuant to Rule 5.30(c), this office may only provide informal opinions regarding a lawyer’s prospective conduct pursuant to Rules 4, 5, and 6. This office cannot interpret other Rules or law, including the redaction requirements, nor can it provide legal advice. However, compliance with the redaction requirements is certainly part of a lawyer’s responsibilities pursuant to Rule 4, the Missouri Rules of Professional Conduct. 

2024-10 
Adoption date: April 25, 2024 
Rules: 4-1.0, 4-1.6, 4-8.3 and Court Operating Rule 2.02 
Summary: redaction requirements and duty to report professional misconduct 

Question: Lawyer A represents plaintiff, and Lawyer B represents defendant. Lawyer B has filed a pleading on behalf of defendant containing personal information of plaintiff that should be protected and subject to redaction as required by Missouri Supreme Court Operating Rule 2.02, related Missouri Supreme Court Rules, and Missouri statutes, or other law, hereinafter referred to collectively as “redaction requirements.” Lawyer A asks if there is an obligation to raise this issue with the court to seek to protect plaintiff’s personal information. Lawyer A also asks whether there is a duty to report Lawyer B to the Office of Chief Disciplinary Counsel? 

Answer: Lawyer A should seek to preserve plaintiff’s personal information which may be subject to the redaction requirements even though Lawyer A did not file the pleading containing such information. Lawyer A has an interest per Rule 4-1.6 in maintaining plaintiff’s client confidential information and should communicate with plaintiff regarding the nature of the personal information that was disclosed and steps that may be taken to protect that personal information. Lawyer A should follow the rules of the court that address mistakes in e-filing or protocols for insufficiently redacted confidential information. Pursuant to Rule 5.30(c), this office may only provide informal opinions regarding a lawyer’s prospective conduct pursuant to Rules 4, 5, and 6. This office cannot interpret other Rules or law, including the redaction requirements, nor can it provide legal advice. However, compliance with the redaction requirements is certainly part of a lawyer’s responsibilities pursuant to Rule 4, the Missouri Rules of Professional Conduct. 

As to Lawyer A’s question regarding a possible duty to report Lawyer B, Rule 4-8.3(a) requires a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.” “Knows” is a defined term per Rule 4-1.0(f), and “denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” If Lawyer A knows that Lawyer B violated the Rules of Professional Conduct such that the failure to properly redact raises a substantial question as to Lawyer B’s honesty, trustworthiness, or fitness as a lawyer in other respects, then Rule 4-8.3(a) would require Lawyer A to inform the Office of Chief Disciplinary Counsel, which is the “appropriate professional authority” refenced in Rule 4-8.3(a). See also Informal Opinions 2021-08, 2019-02, 2018-07, 2011-04, 20060074, 20050051, 20010039, 20000132, and 950165. This office cannot provide an opinion as to another lawyer’s conduct, so whether a duty to report exists will be a matter of the independent professional judgment of Lawyer A. In reaching such a determination, Lawyer A should consider the high standard of Rule 4-8.3(a), “substantial question,” including the facts and circumstances surrounding the conduct, and the seriousness of conduct in question. See Rule 4-8.3, Comment [3]. Lawyer A should also consider which acts are considered to be misconduct pursuant to Rule 4-8.4. Additionally, Rule 4-8.3(c) provides that Lawyer A is not required to disclose information to the Office of Chief Disciplinary Counsel otherwise protected by Rule 4-1.6, which addresses confidentiality of client information. If a report cannot be made without including such client confidential information, and plaintiff will not consent to such disclosure, Lawyer A may not inform the Office of Chief Disciplinary Counsel as to the conduct of Lawyer B. 

2024-11 
Adoption date: April 25, 2024 
Rules: 4-1.1, 4-1.6, 4-3.3, 4-3.4, 4-5.1, 4-5.3, and 4-5.4 
Summary: lawyer’s use of generative artificial intelligence (AI) 
Question: Lawyer would like to use generative artificial intelligence (AI) platforms and services in lawyer’s practice and asks for guidance regarding whether lawyer may ethically use this emerging technology. What ethical issues should lawyer consider in developing a policy to use this technology in lawyer’s practice within law firm? 

Answer: Various forms of artificial intelligence are used by lawyers every day. However, lawyer rightly has distinguished that generative artificial intelligence, a type of AI wherein the platform being used is learning and further developing from each query or task to generate new content and produce an appropriate response in this context to assist lawyer, requires an examination of ethical considerations just as any other new technology service or device does that is being considered for implementation into law firm’s use. In developing a policy to use generative artificial intelligence platforms within law firm, this office provides the following initial guidance as an Informal Opinion on the subject of generative artificial intelligence. The Informal Opinion is not intended to be an exclusive list of ethical considerations, as all of the Missouri Rules of Professional Conduct pursuant to Rule should be considered, but it is intended to address key ethical considerations to the question presented. Lawyer should also analyze other legal considerations outside the scope of an informal opinion. 

It is important to note that this is not the first time that an Informal Opinion has addressed technology considerations for lawyers. Lawyer may also gain guidance and understanding from reviewing other technology-related Informal Opinions including: 2023-09 (lawyers may not use third-party payment programs where advance paid legal fees or expense are not deposited directly in a client trust account); 2021-13 (metadata); 2020-26 (theft of laptop, cell phone, bar card, and credit cards; loss of client confidential information); 2018-10 (crowdfunding); 2018-09 (cloud computing); and 990007 (email). 

First, lawyer must consider the duty of competence in the appropriateness of use of generative AI. Rule 4-1.1 – Competence, states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [6] to Rule 4-1.1 provides guidance that part of that duty of competence by stating that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” [emphasis added.] Lawyer should get education and training to ascertain what types of generative AI are and are not appropriate for use by law firm. Not all generative AI platforms and services are intended for use by lawyers, and lawyer must understand the risks and benefits of implementing use of these technologies. 

Second, lawyer must consider confidentiality. Rule 4-1.6(a) on confidentiality generally prohibits a lawyer from revealing information related to a representation of a client unless an exception is met. That means that lawyer needs to carefully assess any generative AI platforms or services that will be used by law firm to ensure confidentiality of client information is maintained. Lawyer should carefully consider such factors as the terms and conditions of using a generative AI platform or service to understand the security of the information being inputted, how that information is being used by the platform or service, and what data sources the platform or service is using to produce responses to prompts or queries. See Informal Opinion 2018-04 (cloud computing) and Informal Opinion 2021-12 (virtual practice). 

Additionally, Rule 4-1.6(c) states that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” Comment [15] to Rule 4-1.6 provides guidance that lawyers are required to act competently to safeguard client confidential information and creates three categories for doing so: (1) unauthorized access by third parties; (2) inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client; and (3) inadvertent or unauthorized disclosure by those subject to the lawyer’s supervision. In describing these categories, Comment [15] to Rule 4-1.6 references Rule 4-1.1 (Competence), Rule 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), and Rule 4-5.3 (Responsibilities Regarding Nonlawyer Assistants). Comment [15] to Rule 4-1.6 also provides factors that lawyers should consider as to the reasonableness of efforts to safeguard client confidential information, and it includes a reference that state or federal data privacy laws outside the Rules of Professional Conduct may require additional safeguards over client confidential information or notification in the event of a loss of, or unauthorized access to, such information. In considering the use of a generative AI platform or service, lawyers are required to make reasonable efforts to safeguard client confidential information in accordance with Rule 4-1.6(c) and lawyer should consider the guidance of Comment [15] as to how client confidential information will be safeguarded. 

Further, Comment [16] to Rule 4-1.6 provides guidance as to reasonable precautions “[w]hen transmitting a communication that includes information relating to the representation of a client….” Lawyer should consider the guidance from Comment [16] to Rule 4-1.6 to the extent use of a generative AI platform or service may include transmission of client confidential information. 

Third, to the extent court orders or court rules implicate the use of any generative AI platform or service, Lawyer should be mindful of the obligation pursuant to Rule 4-3.4(c) that prohibits knowingly disobeying an obligation under the rules of a tribunal. 

Fourth, lawyer and law firm must protect and maintain professional independence and independent professional judgment as required by Rule 4-5.4 and not rely solely on content created by a generative AI platform or service. 

Fifth, if lawyer or members of law firm use content produced with the assistance of a generative AI platform or service, just as any other time a lawyer is being assisted by a nonlawyer, there is a professional responsibility to verify the accuracy and content of the product in accordance with Rule 4-5.3. Professional responsibilities regarding nonlawyers outside the firm, including service providers, are addressed by guidance in Comments [3] and [4] to Rule 4-5.3. See Informal Opinion 2021-12 (virtual practice); Informal Opinion 2021-03 (contract with vendor for disposal of client files); and Informal Opinion 2018-04 (cloud computing). Per Rule 4-5.3(c), if lawyer has managerial authority or supervisory authority, lawyer is ethically responsible for conduct that would be a violation of the Rules of Professional Conduct if engaged in by lawyer if lawyer orders or with specific knowledge of the conduct ratifies it, or knows of the conduct at a time when its consequences could have been avoided or mitigated, but lawyer failed to take reasonable remedial measures. See Informal Opinion 2022-07 (email sent to incorrect address); Informal Opinion 2021-12 (virtual practice); and Informal Opinion 2017-02 (lawyer’s responsibilities when a nonlawyer assistant breaches confidentiality). 

Sixth, in developing this generative AI use policy, lawyer and law firm should also consider supervisory responsibilities in relation to Rule 4-5.1, which requires managers and supervisors to ensure that other lawyers in the firm conform to the Rules of Professional Conduct. Per Rule 4-5.1(c), a lawyer with such responsibility within law firm is responsible for the conduct of another lawyer’s violation of the Rules of Professional Conduct if the lawyer orders, or with specific knowledge of the conduct ratifies it or otherwise fails to take reasonable remedial action at a time when the lawyer knows of the conduct and consequences can be avoided or mitigated. See Informal Opinion 2021-12 (virtual practice). An ethical framework for the use of generative AI, if lawyer and law firm decide to use it, should be developed, and, just as with any other resource or tool used in the practice of law, appropriate training should be provided to educate lawyers and nonlawyers. See Rule 4-5.1 and 4-5.3. 

Seventh, lawyer and law firm should consider how use of generative AI may impact the reasonableness of fees pursuant to Rule 4-1.5(a). 

Finally, use of a product of generative AI can also implicate Rule 4-3.3 – Candor Toward the Tribunal. Rule 4-3.3(a) states that “[a] lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” At this point, generative AI tools are not always accurate, thereby requiring the careful attention to competence and supervision as outlined above to avoid any false statement of material fact or law to a tribunal. See Informal Opinion 2020-25 (remedial measures when lawyer learns of false information filed in connection with dissolution matter) and Informal Opinion 2020-24 (false testimony of client at deposition). 

2024-12 
Adoption date: Aug. 8, 2024 
Rules: 4-5.5 
Summary: retiring lawyer winding up practice from another state 

Question: Lawyer is planning to retire after a long career of practicing law in Missouri. Lawyer is moving to another state, but lawyer plans to continue to wind up lawyer’s practice in Missouri and occasionally participate virtually in meetings with clients and appear virtually in Missouri courts. Is lawyer permitted to wind up lawyer’s practice in Missouri from another state? 

Answer: Lawyer needs to determine if the other state from which lawyer plans to wind up lawyer’s Missouri practice and occasionally participate virtually in client meetings and appearances in Missouri courts constitutes the unauthorized practice of law in the other state. Rule 4-5.5(a) provides that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction….” If the other state would determine lawyer’s conduct to be the unauthorized practice of law, then lawyer may not proceed without violating Rule 4-5.5(a). 

2024-13 
Adoption date: Aug. 8, 2024 
Rules: 4-8.5 
Summary: lawyer should consider choice of law when practicing pro hac vice in another jurisdiction 

Question: Lawyer represents client in a litigation matter pending before a state court in a neighboring jurisdiction. Lawyer is licensed to practice in Missouri and has obtained a limited admission pro hac vice for the matter in neighboring jurisdiction. Lawyer asks whether to follow the Missouri Rules of Professional Conduct or the rules of the neighboring jurisdiction. 

Answer: Lawyer is subject to the disciplinary authority of Missouri regardless of where the conduct occurs and may be subject to the disciplinary authority of the neighboring jurisdiction pursuant to Rule 4-8.5(a). Rule 4-8.5 states as follows: (b) In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: 
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and 
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction. 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. In this matter, lawyer should follow the rules of the neighboring jurisdiction, as that is where the tribunal is located, and that is where the matter is pending before a state court in the neighboring jurisdiction.