Ethics: Nine new informal advisory opinion summaries published in 2023
Vol. 79, No. 5 / Sept. - Oct. 2023
As determined by the Advisory Committee to the Supreme Court of Missouri, nine new informal opinion summaries have been 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 attorneys’ requests and the Legal Ethics Counsel’s responses are confidential.
Informal advisory opinions are issued by the Legal Ethics Counsel pursuant to Missouri Supreme Court Rule 5.30. The Legal Ethics Counsel issues opinions to members of the bar about Rules 4, 5 and 6 for prospective guidance about an attorney’s own conduct involving an existing set of facts. Informal advisory opinions will not be issued about past conduct, hypothetical scenarios, or the conduct of an attorney other than the one asking for the opinion.
For a searchable database and information about requesting an informal opinion, go to: Mo-Legal-Ethics.org, click “For Lawyers,” and choose “Informal Advisory Opinions.”
Question: Lawyer is appointed by the court as counsel for Client who is the respondent in a guardianship proceeding. Lawyer believes that the statute, RSMo 475.075.4, requires the court appointed counsel to represent the respondent’s desires regarding the guardianship, but that the statute requires Lawyer to obtain all possible aid from the respondent if Lawyer believes that respondent is capable of understanding the proceedings and can help advance the respondent’s interests. Lawyer seeks clarification as to the application of Rule 4-1.14 – Client with Diminished Capacity in this representation given the statutory requirements.
Answer: This office cannot interpret statutes or other sources of law, and can only provide guidance regarding Rules 4, 5, and 6. It is important to remember that “[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Rule 4, Scope . As explained in Rule 4, Scope , a larger legal context outside of the Rules of Professional Conduct shapes the lawyer’s role, including court rules, laws defining specific obligations of lawyers, and substantive and procedural law in general. Additionally, “for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.” Rule 4, Scope .
It should be noted that a lawyer has an ethical duty to comply with court orders, and a lawyer is prohibited from knowingly disobeying an obligation under the rules of a tribunal. Accordingly, Lawyer should seek to follow any obligations imposed by a court order appointing the lawyer, statute or other law with respect to the representation. See, Rule 4-3.4(c) and Comment . The interpretation of statutes or other law governing Lawyer’s obligations when appointed to represent a client in a matter governed by that statute is a matter of law for a court to decide and beyond the scope of an informal ethics opinion. Lawyer must use independent professional judgment, based on the facts and substantive law, to make a determination on a case-by-case basis as to when Lawyer may act pursuant to Rule 4-1.14 when representing a respondent in a guardianship proceeding.
As to the application of Rule 4-1.14 to this Question, Lawyer should consider that Client has presumably been alleged to have some degree of diminished capacity, which may or may not be true. Pursuant to Rule 4-1.14(a) if Lawyer believes that a client’s capacity to make adequately informed decisions in connection with the representation is diminished, Lawyer is required, as far as reasonably possible, to maintain a normal client-lawyer relationship. See also Informal Opinion 2020-27.
Rule 4-1.2(a) requires Lawyer to abide by a client’s decisions concerning the objectives of the representation and to consult with the client as to the means by which the client’s objectives are to be pursued. However, Comment  to Rule 4-1.2 provides guidance that “[a]n agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” It is the informal advisory opinion of this office that “other law” in the scope of representation context could include an order appointing an attorney to represent a client, specific statutory authority, or case law. Rule 4-1.4(b) requires Lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment  to Rule 4-1.4 states that the client “should have sufficient information to participate intelligently in the decisions concerning the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Therefore, a client who may have diminished capacity retains the right, to the extent that the client is able to do so, to determine the goals and objectives of the representation and to consult with Lawyer regarding the means by which those goals and objectives are pursued. However, as noted in the guidance provided in Comment  to Rule 4-1.14, “[w]hen the client …suffers from a diminished mental capacity, … maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions.”
As explained in Informal Opinion 2020-27, Rule 4-1.14(b) sets forth a continuum of potential protective actions which a lawyer may take in regard to a client with diminished capacity, beginning with those that involve minimal intrusion into the client’s decision-making autonomy and ending with the most intrusive. In considering the application of Rule 4-1.14(b), Lawyer appointed to represent a respondent in a guardianship proceeding must consider that requesting the appointment of a guardian is the most drastic action on the end of the continuum of possible protective actions involving the greatest intrusion into the client’s decision-making autonomy. When the appointment of a guardian for a client has been sought by a third party, the most drastic protective action on behalf of the client with diminished capacity has already been taken by a party other than Lawyer. Therefore, it may not make sense for Lawyer to take protective action authorized by Rule 4-1.14(b) when the client’s capacity is the subject of the proceeding and should only be considered by Lawyer for use when the high criteria of that Rule are met.
Question: Lawyer A represents Lawyer B in a contract dispute in which Lawyer B represented an LLC and is alleged to have filed actions on behalf of non-members of the LLC without their knowledge or consent. Lawyer B’s conduct is at issue in the underlying lawsuits. Lawyer A asks if there is a requirement to report Lawyer B’s alleged misconduct to the Office of Chief Disciplinary Counsel pursuant to Rule 4-8.3.
Answer: Missouri Rule of Professional Conduct 4-8.3, Reporting Professional Misconduct, provides guidance in Comment  that “[t]he duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.” Based on Comment  to Rule 4-8.3, Lawyer A does not have an obligation to report Lawyer B because Lawyer A has an attorney-client relationship with Lawyer B in which Lawyer B’s conduct is in question.
Question: Lawyer receives payment of attorney fee for awards in permanent total disability cases or work-related death cases, and those fees are for work previously performed. Lawyer is considering retirement and asks if Lawyer may continue to receive those payments of attorney fees for work previously performed, and if those future attorney fee payments may be made to Lawyer’s heirs or a trust?
Answer: Based on Rules 4-1.5 and 4-5.4(a), if the fees were earned prior to Lawyer’s retirement, Lawyer may continue to receive those payments after retirement. See also Missouri Informal Opinions 2010-0005, 20000195, and 930079. This is true whether the Lawyer retires and remains on active status with a full Category 1 license pursuant to Rule 6.01, or inactive status pursuant to Rule 6.03. See also Informal Opinions 2022-02 and 2020-02. Rule 4-5.4(a) states that “[a] A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons….” In this scenario, future payments may be made to Lawyer’s heirs so long as it is permissible at law. This office cannot provide legal advice on the appropriate legal mechanisms to do so, as that is an issue outside the Rules of Professional Conduct. See also Informal Opinion 2011-02.
Question: Lawyer represents Client in seeking an order of protection, and assisted Client in completing paperwork for the petition such that portions are in the handwriting of Lawyer. Opposing Counsel claims that Lawyer is now a necessary witness and files a Motion to Disqualify Lawyer. Lawyer asks if there is an issue in assisting future clients in drafting order of protection pleadings in a similar manner.
Answer: If Lawyer is representing Client, Lawyer may assist Client in carrying out the objectives of that representation pursuant to Rule 4-1.2 (Scope of Representation). Whether Lawyer will be considered to be a “necessary witness” for the purposes of Rule 4-3.7 (Lawyer as Witness) is really a question of law and fact outside the Rules of Professional Conduct and must be determined by the Court. See e.g., Missouri Informal Opinions 2015-06, 2014-03, 20040012, 20000234, 990148, 980098, and 950226. In examining whether Lawyer will be a “necessary witness” for the purposes of Rule 4-3.7, in addition to substantive law, Lawyer should consider the guidance provided in the Comments to Rule 4-3.7, specifically Comment  as it addresses the possibility of the tribunal being misled or confused by the lawyer’s role in the matter or opposing party’s right to object if the combination of roles by Lawyer may prejudice that party’s rights in the litigation. Comment  to Rule 4-3.7, provides factors to be considered in balancing the interest of client, tribunal and opposing party, and states: “[w]hether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client.”
Question 1: Lawyer is found guilty of felony driving while intoxicated (DWI) and asks if there is an obligation to self-report this to the Chief Disciplinary Counsel.
Answer 1: While Lawyer is not required by Rule 4-8.3 to self-report an alleged or actual violation of the Rules of Professional Conduct to the Office of Chief Disciplinary Counsel, a criminal conviction or discipline in another jurisdiction is different. See Informal Opinion 2011-04. In this matter, Lawyer is required to report the felony conviction for driving while intoxicated to the Chief Disciplinary Counsel within 10 days. Rule 5.21(a) requires a lawyer licensed in Missouri to report to the Chief Disciplinary Counsel within 10 days a guilty or nolo contendere plea, or a finding of guilt of a crime in this state, any other state, or the United States, whether a sentence is imposed or not. A crime for the purposes of Rule 5.21 is defined by Rule 5.21(c) to include:
(1) Any felony of this state, any other state, or the United States;
(2) Any misdemeanor of this state, any other state, or the United States involving interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or moral turpitude; or
(3) Any misdemeanor involving attempt, conspiracy, or solicitation of another to commit any misdemeanor of this state, any other state, or the United States as described in this Rule 5.21(c)(2).
Whether a misdemeanor plea or finding of guilt for driving while intoxicated is subject to required reporting pursuant to Rule 5.21(c)(2) or (3) is a question of law and should be considered by each lawyer on a case-by-case basis.
Additionally, Lawyer may wish to consider if the resources of the Missouri Lawyers’ Assistance Program of The Missouri Bar, or those available pursuant to Rule 16 on substance abuse intervention, may be helpful to Lawyer’s overall well-being.
Question 2: Lawyer is also licensed to practice law in another U.S. jurisdiction, State A, and is disciplined by State A. Does Lawyer have an obligation to report the discipline by State A to the Chief Disciplinary Counsel?
Answer 2: While Lawyer is not required by Rule 4-8.3 to self-report an alleged or actual violation of the Rules of Professional Conduct to the Office of Chief Disciplinary Counsel, discipline of Lawyer by another jurisdiction is different. See Informal Opinion 2011-04. Rule 5.20(a) requires a lawyer licensed in Missouri to report being disciplined by another jurisdiction to the Chief Disciplinary Counsel within 10 days. In this matter, Lawyer is required to report the discipline by State A to the Chief Disciplinary Counsel within 10 days.
Question: Client filed a complaint against Lawyer with the Office of Chief Disciplinary Counsel (OCDC) alleging misconduct that is being investigated by a Regional Disciplinary Committee (RDC). Lawyer has been asked by the Regional Disciplinary Committee to provide evidence related to financial records for the client trust account that includes information of numerous represented clients other than just Client who filed the complaint with the Office of Chief Disciplinary Counsel. May Lawyer provide evidence and a statement to the Regional Disciplinary Committee without receiving a waiver of confidentiality from the other clients who did not file the complaint?
Answer: The Legal Ethics Counsel cannot give Lawyer legal advice regarding any matter, specifically, in this inquiry, regarding a disciplinary investigation. Lawyer may choose to seek private legal counsel for legal advice regarding this matter. The Legal Ethics Counsel is limited to providing an informal advisory opinion pursuant to Rule 5.30(c) and cannot interfere with a pending proceeding, in this case an investigation by OCDC or a Regional Disciplinary Committee or division thereof.
With those considerations in mind, the Legal Ethics Counsel provides the following informal ethics opinion regarding the application of the Rules of Professional Conduct to the facts presented.
Pursuant to Rule 5.08(a), the Chief Disciplinary Counsel is authorized, with or without complaint, to investigate professional misconduct alleged to have been committed by a lawyer licensed to practice in this jurisdiction. Each regional disciplinary committee or division thereof may conduct an investigation upon request of the Chief Disciplinary Counsel. Rule 5.08(a); see also Rule 5.02.
Rule 4-8.1 states in relevant part that a lawyer in connection with a disciplinary matter shall not “knowingly fail to respond to a lawful demand for information from …[a] disciplinary authority, except that this Rule 4-8.1 does not require disclosure of information otherwise protected by Rule 4-1.6.” In Missouri, the disciplinary authority is the Office of Chief Disciplinary Counsel or a regional disciplinary committee. Failure to cooperate with the Chief Disciplinary Counsel or a regional disciplinary committee with regard to a disciplinary matter constitutes conduct prejudicial to the administration of justice and conduct that reflects adversely on a lawyer’s fitness to practice law. See Formal Opinion 117; Rule 4-8.4(d).
Rule 4-1.6 on confidentiality provides in relevant part that a lawyer shall not reveal information related to the representation of a client unless the client gives informed consent, or the disclosure is permitted by Rule 4-1.6(b).
Rule 4-1.6(b)(3) permits a lawyer to disclose information related to the representation to the extent the lawyer reasonably believes necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” (Emphasis added.) The plain language of Rule 4-1.6(b)(3) does not limit the exception to disclosure of confidential client information contained therein to a complaint by the client or a controversy between the lawyer and the client. Comment  to Rule 4-1.6 states in relevant part:
Where a … disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a … disciplinary… proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person…. The lawyer's right to respond arises when an assertion of such complicity has been made. Rule 4-1.6(b)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
As stated above, Rule 5.08(a) authorizes the disciplinary authority to investigate professional misconduct with or without complaint. Thus, Rule 4-1.6(b)(3) permits Lawyer to comply with a request from the Chief Disciplinary Counsel or a Regional Disciplinary Committee for information, including testimony, relating to the representation of a client regardless of whether that client has made a complaint to the Chief Disciplinary Counsel or whether the representation of that client was the subject of a complaint. Comment  to Rule 4-1.6 notes that some Rules, including Rule 4-8.1, “require disclosure only if such disclosure would be permitted by Rule 4-1.6(b).” Since Lawyer is permitted to disclose the information requested by the disciplinary authority, it is the informal advisory opinion of this Office that such disclosure is required by Rule 4-8.1.
It is important to note that Rule 4-1.6(b) only allows disclosure in a limited form by stating that the lawyer “may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary” to meet the exception permitted in (b)(1)-(5). Comment  to Rule 4-1.6 provides guidance that the disclosure pursuant to Rule 4-1.6(b) must be “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”
Question: Lawyer is planning to retire in a few months and is no longer holding funds in a client trust account. Does lawyer need to do anything besides close out the client trust account?
Answer: Upon retirement, Lawyer must do a reconciliation of the client trust account and ensure that all funds are accounted for and distributed appropriately. Rule 4-1.15(a)(7). Only if there are no undistributed funds may Lawyer close the trust account. Records of the client trust account, including of the final reconciliation, must be maintained for at least 6 years in accordance with Rule 4-1.15(f). Once the account is closed, Lawyer should contact the Missouri Lawyer Trust Account Foundation to notify it of the closure of the account and provide an appropriate certification as to Lawyer’s annual enrollment statement pursuant to Rule 4-1.15(h)(1) that Lawyer is not engaged in the practice of law.
If Lawyer has unidentified funds in the client trust account, Lawyer should follow Formal Opinion 118 and the guidance provided by Informal Opinions 2020-18, 2011-01, 990217, 960158, 940091. If Lawyer has funds of a missing client or third person in the trust account, Lawyer should follow Formal Opinion 118 and the guidance provided by Informal Opinions 2020-17, 20000129, 990102, and 960053.
Question: Lawyer is preparing estate planning documents for Client, an elderly individual with no immediate family members. Client will be named as trustee on a revocable living trust, but Client asks Lawyer to serve as successor trustee in the event Client dies or resigns as trustee. The revocable living trust would provide reasonable compensation for services rendered as successor trustee in the event Client dies or resigns as trustee. May Lawyer ethically prepare and participate in such an arrangement?
Answer: Lawyer must comply with the requirements of Rule 4-1.8(a) to agree to serve as successor trustee and receive reasonable compensation for such services in the event Client dies or resigns as trustee. See Missouri Informal Opinions 970138 and 970130.
Rule 4-1.8(a) provides:
A lawyer shall not enter into a business transaction with a client (…) unless:
(1) the transaction and terms on which the lawyer acquires an 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.
Lawyer should carefully review Comments  –  to Rule 4-1.8 for further guidance, as well as Missouri Informal Opinions 20050041 and 20030019.
Question: May Lawyer accept payment from a client through a third-party online payment program that holds the funds outside of a client trust account?
Answer: Rule 4-1.15(a) requires that a lawyer hold property of client’s or third persons that is in the lawyer’s possession in connection with a representation in a client trust account that is either an IOLTA account, non-IOLTA account, or exempt trust account. If a third-party online payment program holds funds belonging to a client or third party, such as advance paid fees or expenses, use of such platform is not permitted unless the funds constitute an advance paid flat fee that does not exceed $2,000 which may be deposited into another account per Rule 4-1.15(c). See Missouri Informal Opinions 2018-10 and 2018-05.
If Lawyer uses a third-party online payment provider that will allow client or third-party funds to be deposited directly into a client trust account, and ensures client confidentiality, Lawyer should handle such payments akin to the proper procedure for credit card transactions explained in Missouri Informal Opinions 2014-05, 2019-05, and 2020-22, and maintain appropriate records in accordance with Rule 4-1.15(f).