Ethics: New informal advisory opinion summaries published in 2022

As determined by the Advisory Committee to the Supreme Court of Missouri, 10 informal opinion summaries were published in 2022. 

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.

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.

The full text of lawyers’ requests and the Legal Ethics Counsel’s responses are confidential.

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.”  
 

2022-01

Rules: 4-1.9, 4-1.6

Question: Attorney wishes to impeach Former Client who is a witness in another matter involving a current client and wants to know when information of a former client becomes generally known for purposes of Rule 4-1.9(c)(1)?

Answer: Rule 4-1.9(c)(1), in relevant part, prohibits a lawyer who has formerly represented a client in a matter from using “information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known.” In considering when information is generally known, it is important to note that Missouri Informal Advisory Opinion 2015-02 applies Rules 4-1.9(c) and 4-1.6 and states that “[e]ven if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed….”

For the information of Former Client to be generally known pursuant to Rule 4-1.9(c)(1), it is the opinion of this office that it must be generally known outside just the public records, meaning it would be more recognizable by members of the public in the community or in the industry of the former client, not simply because it was discussed in open court such that there are court records available through public repositories of such information, including Missouri Case.net. See also Missouri Informal Advisory Opinions 960248 and 960170.

The generally known exception of Rule 4-1.9(c)(1) is restricted to use of the information of Former Client to Former Client’s disadvantage, but Rule 4-1.9(c)(2) still prohibits Attorney from revealing information relating to the representation of Former Client “except as these Rules would permit or require….” Therefore, Attorney may not use or reveal information of Former Client, but may use generally known information of Former Client for purposes of impeaching Former Client who is now a witness in another matter. 

2022-02

Rules: 6.01, 6.03, 6.05, and 6.06

Question: Attorney is considering retiring from the practice of law and is trying to determine if Attorney should change Attorney’s license to inactive status. Attorney would still like to represent family and friends with legal issues and maybe engage in pro bono work. What license status should Attorney maintain?

Answer: Since Attorney still would like to represent family and friends with legal issues and maybe engage in pro bono work, Attorney should maintain a full Category 1 license pursuant to Rule 6.01. If Attorney were to seek inactive status pursuant to Rule 6.03, Attorney would not be permitted to represent family and friends or engage in pro bono work, or Attorney would be engaged in the unauthorized practice of law pursuant to Rule 6.05 unless Attorney first sought to return to active status pursuant to Rule 6.06. If Attorney is over the age of seventy-five years or has been licensed to practice for fifty years or more, Attorney may be exempt from paying either a Category 1 or inactive fee pursuant to Rule 6.01(d). If Attorney only wishes to engage in pro bono work upon retirement, Attorney should review Rule 6.01(o) to determine if Attorney would like to seek a waiver of the annual enrollment fee to solely provide pro bono legal services to an approved legal assistance organization. Attorney should also consider MCLE requirements pursuant to Rule 15.

2022-03

Rules: 5.245, 5.27, and 5.28

Question: Attorney was just suspended pursuant to Rule 5.245 for failure to pay taxes or failure to file tax returns. May Attorney continue to practice while seeking reinstatement?

Answer: While Rule 5.28(k)(2) provides that reinstatement is retroactive for lawyers suspended pursuant to Rule 5.245 for three years or less who are reinstated under 5.28(j), Attorney must still comply with Rule 5.27 on the procedure following a suspension order while seeking such reinstatement. Attorney may not continue to practice law while suspended.

2022-04

Rule: 4-1.6

Question: Attorney wants to apply for a job, and the job posting asks for a writing sample. Is it permissible for Attorney to simply submit a copy of a recently filed Motion for Summary Judgment as a writing sample with the job application?

Answer: Attorney must fully consider confidentiality of client information pursuant to Rule 4-1.6 when considering whether to use a writing sample that is from the representation of a client. Even if the Motion for Summary Judgment is a matter of public record, it is nevertheless confidential information and cannot be disclosed by Attorney unless an exception to Rule 4-1.6 is met. See Missouri Informal Advisory Opinions 2015-02.

As a first option, Attorney should consider whether it is appropriate to seek informed consent from the client to permit Attorney to use the Motion for Summary Judgment as a writing sample. Informed consent is defined in Rule 4-1.0(e) and requires the lawyer to adequately communicate information and explanation about the material risks of the proposed course of conduct and reasonably available alternatives. See Rule 4-1.0, Comments [6], [7], and [8]. If client provides informed consent, Attorney may use the Motion for Summary Judgment as a writing sample, but Attorney should still consider if any redactions are appropriate to protect the interest of the client. If client does not provide informed consent, Attorney should not use the client’s Motion for Summary Judgment as a writing sample.

As a second option, depending on the nature of the information contained in the Motion for Summary Judgment, Attorney may consider if information such as names, case numbers, and other personally identifiable information may be removed such that Attorney does not reveal protected information that could reasonably lead to the discovery of the client’s information by a third person. Rule 4-1.6, Comment [4]. If such information may be removed, it would not be necessary to seek the informed consent of the client.

Finally, Attorney should consider submitting a writing sample that was not drafted as a result of a lawyer-client relationship, but instead consider submitting a writing sample such as an article that has been published or a document that has been drafted by Attorney based on a hypothetical.

2022-05

Rules: 4-1.7; 4-1.16

Question: Attorney represents Client in a dissolution of marriage. After several months of negotiation with Opposing Counsel, Attorney believes an agreement has been reached regarding matters of custody of minor children and pets, sale of the marital home, division of property, support, etc. Client is unhappy with the proposed agreement and files a disciplinary complaint against Attorney without telling Attorney. Attorney continues to represent Client, and Client never expresses dissatisfaction with Attorney, just with the proposed agreement. A few weeks later, Attorney receives a letter from the Office of Chief Disciplinary Counsel (OCDC) asking for Attorney to respond to Client’s complaint. A hearing is scheduled in two weeks on Client’s dissolution matter. Attorney is upset that Client filed a complaint with OCDC but never expressed dissatisfaction with Attorney directly. Attorney asks if Attorney must withdraw from representing client due to the filing of the complaint with OCDC.

Answer: Just because Client filed a disciplinary complaint against Attorney with the Office of Chief Disciplinary Counsel, Attorney is not necessarily required to withdraw from representing Client in this matter. Attorney must continue to communicate directly with Client regarding the representation. See Missouri Informal Opinion 20050059. Sometimes the lawyer-client relationship may continue despite the filing of a disciplinary complaint, depending on the nature and severity of Client’s allegations of misconduct and the overall health of the lawyer-client relationship. Attorney should assess if a material limitation conflict exists pursuant to Rule 4-1.7(a)(2) based on Attorney’s personal interest in refuting the allegations of misconduct. In making such assessment, Attorney should consider if there is a significant risk as to Attorney’s ability to consider, recommend, and carry out an appropriate course of action for Client. Rule 4-1.7, Comment [8]. Attorney must also assess if Attorney’s own personal interest in refuting the misconduct allegations will have an adverse effect on the representation of Client. Rule 4-1.7, Comment [9].

If Attorney determines Attorney has a material limitation conflict based on Attorney’s personal interest, Attorney may not continue with the representation and must withdraw pursuant to Rule 4-1.16(a)(1), provide notice or seek permission of the tribunal pursuant to Rule 4-1.16(c), and assist Client upon withdrawal pursuant to Rule 4-1.16(d). If Attorney has a reasonable belief that Attorney may proceed with representing Client without it impacting the professional judgment of Attorney, Attorney may proceed with the representation.

2022-06

Rules: 4-5.4; 4-1.0

Question: May Attorney A, Attorney B, and Attorney C form a law firm with Physician as a partner?

Answer: No. Rule 4-5.4(b) prohibits a lawyer from forming a “partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.” It is the informal advisory opinion of this Office that the term “partnership” as used in Rule 4-5.4(b) which would include any kind of “firm” or “law firm” as defined by Rule 4-1.0(c), to be “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.” Further, Rule 4-5.4(d) prohibits a lawyer from practicing with, forming a professional corporation, or other association authorized to practice law for a profit if there is a nonlawyer owner, corporate director, or office with a similar responsibility, or a nonlawyer can control the professional judgment of the lawyer. However, Physician may be a nonlawyer employee of a law firm owned by Attorney A, Attorney B, and Attorney C.

2022-07

Rules: 4-1.4; 4-1.6; 4-5.3

Question: Attorney’s Administrative Assistant sent an email to Client at the direction of the Attorney that contained a letter regarding an upcoming meeting with Client. Administrative Assistant accidentally sent the email to the incorrect email address. Recipient contacted Attorney regarding receipt of the information. Upon learning of this error, what responsibilities does Attorney have under the Rules of Professional Conduct?

Answer: Attorney should first assess the nature of the letter as to what confidential information it contained other than the name of the client and the upcoming meeting. See Informal Opinions 2015-09 and 2015-02. Attorney is responsible for the conduct of Administrative Assistant since the email was sent at the direction of Attorney, so Attorney must take reasonable remedial action to mitigate the consequences to Client pursuant to Rule 4-5.3(c)(2). Attorney should disclose to Client the breach of confidential information to the extent reasonably necessary such that Client may make informed decisions regarding the representation. See Rule 4-1.4; Informal Opinions 2020-26, 2019-06, and 2017-02. Depending on the contents of the letter, Attorney must consider if there are other obligations under applicable state or federal law pursuant to Rule 4-1.6(c), Comments [15] and [16].

2022-08

Rules: 4-1.15; 4-1.6

Question: May Attorney deposit a check into a trust account electronically by sending the bank a photo of the check through the bank’s website or application?

Answer: Attorney has an obligation under Rule 4-1.6(c) to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, a client’s confidential information. So long as the bank’s website or application provides for reasonable security over the transmission of the check by photo, and appropriate trust account records can be maintained in accordance with Rule 4-1.15(f)(1), (2), (7), and (8), Attorney may deposit a check into a trust account electronically so long as the records of such deposit are sufficiently detailed as to each check deposited. See Rule 4-1.15(a)(4).

2022-09

Rule: 4-1.15

Question: Attorney has recently been notified by Bank of its receipt of a check that appears to be from the Attorney’s client trust account but is actually a fraudulent document from someone who tried to duplicate the check of Attorney’s trust account to access the funds. Bank advises Attorney that the current trust account should be closed and that a new trust account should be opened with a different account number and with a different style of check. Attorney has outstanding checks payable to clients drawn on that trust account. What steps should Attorney take to ensure that this change of trust account is in compliance with the Rules of Professional Conduct?

Answer:  Attorney should work together with Bank to ensure the security of the funds in the client trust account. One option may be to ensure that no checks can be drawn on the existing account without authorization from Attorney, and that only the outstanding checks payable to clients can be drawn on the existing trust account. With such safeguards in place, Attorney may leave funds in the existing trust account to pay the outstanding checks that have already been sent to clients. Another option is to move all funds in the existing client trust account to a new account, stop payment on the outstanding checks payable to clients, notify clients as to such, and reissue new checks payable to clients on the new client trust account. Other options may also be appropriate under the Rules of Professional Conduct, as determined by Attorney and in cooperation with the Bank.

Regardless of the option taken to safeguard the funds in the client trust account and eliminate the threat, Attorney should ensure that there is appropriate record keeping pursuant to Rule 4-1.15(f), and that clients are not responsible for any service charges when trying to negotiate their outstanding checks. See Rule 4-1.15(b). Finally, Attorney should contact the Missouri Lawyer Trust Account Foundation to notify it of the change in the account and provide appropriate certification as to Attorney’s annual enrollment statement pursuant to Rule 4-1.15(h).

2022-10

Rules 4-1.22; 4-1.6; 4-1.4; 4-1.16; 4-5.3

Question: Attorney maintains original closed client files in paper format at a local storage facility. Some of those files may have contained items of intrinsic value. Those paper files were severely damaged in a recent natural disaster that resulted in record flooding in the area where the storage unit is located. Files have been submerged in flood waters and are rotting and molding such that the files cannot be salvaged. Attorney does not maintain electronic copies of the closed client files that were in storage. Attorney asked what steps need to be taken under the Rules of Professional Conduct.

Answer: Attorney has an obligation to maintain client files, even those that are closed, in accordance with Rule 4-1.22, as client owns the original file, cover-to-cover, as detailed in Formal Opinion 115, as amended. Attorney must identify which closed files were in the storage facility and notify the clients or former clients as to the destruction of the original file since Attorney is required to maintain those files for the requisite period of time. See Rules 4-1.22 and 4-1.4. Attorney should assist clients or former clients to the extent reasonably practicable. See Rule 4-1.16(d). Since these original files have been lost, as well as items of intrinsic value, Attorney should consider consulting with Attorney’s malpractice insurance provider or private legal counsel for additional guidance.

Although the files are unable to be salvaged, they still must be disposed of in a manner that preserves confidentiality in accordance with Rule 4-1.22. Attorney may need to seek the assistance of a professional in disaster recovery to dispose of the damaged client files appropriately and ethically in accordance with Rules 4-1.6 and 4-5.3. See Informal Opinion 2021-03.

While Rule 4-1.22 does not specify in what format Attorney must store client files (i.e., paper or electronic), it provides that such files “except for items of intrinsic value, may be maintained by electronic, photographic, or other media provided that printed copies can be produced. These records shall be readily accessible to the lawyer.” In the future, Attorney may wish to consider implementing redundancy of client files to prevent such a loss, as well as additional security measures over items of intrinsic value. See also Rule 4-1.6 (a) and (c), Comments [15] and [16], Formal Opinion 127, and Informal Opinions 2020-09 and 2018-09.