Ethics: Thirteen new informal advisory opinion summaries published in 2021

2021-01

Rules: 4-1.6; 4-1.15

Question: Attorney met with Client regarding possible dissolution of marriage. Attorney deposited in the client trust account an advance payment of fees and expenses from Client. Client and Spouse reconciled, and the funds were not earned, nor expenses incurred. Attorney attempted to contact Client through means Attorney believed were confidential, but Client did not respond. Attorney is concerned that attempts to use other forms of communication or to deliver the funds to Client may result in Spouse learning of the dissolution-related consultation between Attorney and Client. Attorney asks what to do with the funds.

Answer: Attorney must use Attorney’s independent professional judgment to balance Attorney’s duty of confidentiality per Rule 4-1.6 and Attorney’s obligation per Rule 4-1.15(d) to promptly notify Client of the funds and promptly deliver the funds to Client as required by the Rule. Rule 4-1.6(c) requires Attorney to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client. Comment [16] provides guidance that if a method of communication affords a reasonable expectation of privacy, special security measures are not required, but that special circumstances may warrant special precautions.

Attorney should continue to hold the funds in the client trust account and make reasonable efforts to notify Client of the funds to arrange for delivery, if possible. Informal Opinions 2020-17; 20000129; 990102; 960053. Attorney should use methods of communication that afford a reasonable expectation of privacy under the circumstances. In taking action that complies with Attorney’s obligations under Rules 4-1.6 and 4-1.15, Attorney should be mindful of obligations under Rule 4-1.2(f) and (g), as well as applicable law addressing a lawyer’s obligations regarding client funds in a lawyer trust account and the nature of the relationship between the lawyer and client as it pertains to the funds. See State ex rel. Koster v. Cain, 383 S.W.3d 105 (Mo. Ct. App. 2012).

2021-02

Rules 4-1.1; 4-1.2; 4-1.4; 4-8.4; Scope

Question: May a lawyer represent individuals or businesses in conduct pursuant to Article XIV of the Missouri Constitution, entitled “Medical Cannabis,” which is also frequently referred to as medical marijuana?

Answer: Rule 4-1.2(f) states: “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The Comments accompanying each Rule of Professional Conduct “are intended as guides to interpretation, but the text of each Rule is authoritative.” Scope [21].

Comment [8] to Rule 4-1.2 states: “In counseling or assisting, if a state law conflicts with federal law, the lawyer should advise the client of that fact but cannot (1) undertake conduct that would violate federal law or (2) counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. See Rule 4-1.1 and 4-1.4.”

If a lawyer representing individuals or businesses in conduct pursuant to Article XIV of the Missouri Constitution, Medical Cannabis, would be in conflict with federal law, the lawyer should advise the client of that fact, but the lawyer cannot undertake conduct that would violate federal law or counsel or assist a client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. Whether such conduct would violate federal law is a question outside the Rules of Professional Conduct. Further, Rule 4-8.4(b) states that “It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Violation of federal law by a lawyer may rise to the level of misconduct under Rule 4-8.4(b).

2021-03

Rules: 4-1.6; 4-1.22; 4-5.3

Question: Attorney proposes to enter into a contract with a shredding company for regular collection and disposal of closed client files. Attorney is concerned about preserving confidentiality in doing so. May Attorney use an outside shredding company to dispose of closed files?

Answer: Provided Attorney has held the client files for the required period of time pursuant to Rule 4-1.22 such that the files are deemed abandoned by the clients, items of intrinsic value have been removed, and Attorney does not know or reasonably should know of the pendency of a malpractice claim, criminal or other governmental investigation, complaint under Rule 5, or other litigation related to the representation, Attorney may engage a shredding company vendor to dispose of closed files consistent with Rule 4-5.3. Rule 4-1.22 states that “[t]he file shall be destroyed in a manner than preserves confidentiality.” Attorney should select a vendor that will destroy the file in a manner to ensure confidentiality.

Attorney should select a vendor in accordance with Attorney’s supervisory responsibilities pursuant to Rule 4-5.3, as Attorney is required to make reasonable efforts to ensure that the vendor’s conduct is compatible with the professional obligations of Attorney, in this case making sure that the shredding company is able to preserve confidentiality of the files in the destruction process in accordance with Attorney’s responsibilities under Rules 4-1.22 and 4-1.6. Rule 4-5.3(b). Rule 4-5.3, Comment [3] provides guidance on use of vendors such as a shredding company and states: “When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.…When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyers conduct is compatible with the professional obligations of the lawyer.” Attorney may consider use of a confidentiality agreement to assist with ensuring those professional obligations are met. See Informal Opinions 20070008; 20050068. Further, Attorney is responsible for the conduct of the vendor that would be a violation of the Rules if engaged in by Attorney if Attorney orders or ratifies the conduct with knowledge of the specific conduct. Rule 4-5.3(c)(1). Similarly, Attorney is responsible for the conduct of the outside vendor related to the files subject to agreement with Attorney that would be a violation of the Rules if engaged in by Attorney if Attorney is a partner, has comparable managerial authority, or direct supervisory authority, and knows of such conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures. Rule 4-5.3(c)(2).

2021-04

Rules: 4-1.7; 4-1.16

Question: Attorney represents three siblings as clients in a pending partition action of a parcel, a family farm, subject to distribution from the estate of siblings’ surviving parent.  Originally, all three clients wanted the parcel partitioned equally so each could own a portion of the farm for their individual purposes. Attorney accepted the representations of Clients A, B, and C in the partition action. Client B has now decided to pursue a greater share and has asked Attorney to assist in this action. Clients A and C are opposed to Client B’s request for a greater share and now want the parcel to be sold and proceeds divided equally between A, B, and C. Should Attorney withdraw from the representation of any of Clients A, B, and C, or may Attorney proceed with representing Clients A and C?

Answer: Attorney is required to withdraw from representing Clients A, B, and C. When Attorney accepted the representation of Clients A, B, and C, all three clients wanted the parcel partitioned equally. Now, the objectives of Clients A, B, and C have changed, making their positions directly adverse pursuant to Rule 4-1.7(a). Comment [29] to Rule 4-1.7 provides guidance that a lawyer is “[o]rdinarily…forced to withdraw from representing all of the clients if the common representation fails.” Further, Comment [4] to Rule 4-1.7 provides additional guidance and states: “…whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 4-1.9. See also Comments [5] and [29].”  If Attorney withdraws from representing B, Attorney still cannot continue to represent Clients A and C because Attorney would be unable to comply with Rule 4-1.9 as it would relate to Client B as a former client. Continued representation of Clients A, B, or C would result in a violation of Rule 4-1.7, so Attorney is required to withdraw pursuant to Rule 4-1.16(a). Attorney must seek permission of the court to withdraw from the representation in accordance with Rule 4-1.16(c) by informing the court that professional considerations require termination of the representation Rule 4-1.16(c), Comment [3], and assist Clients A, B, and C upon withdrawal as provided in Rule 4-1.16(d).

2021-05

Rules: 4-1.0; 4-1.6; 4-1.7; 4-1.8; 4-1.13

Question: Company and Manager have been named as Defendants in a wrongful termination suit filed by Former Employee. Attorney represents Company in the matter through CEO as the duly authorized constituent of Company. Former Employee alleges misconduct by Manager, but Company denies such misconduct on the part of Manager. Company, through CEO, has asked Attorney also to represent Manager, and will pay Attorney’s fees for both representations. May Attorney represent both Company and Manager in the matter?

Answer: Attorney representing Company may also represent Manager subject to Rule 4-1.7 Conflict of Interest: Current Clients. Rule 4-1.13(e). Given the allegations of misconduct by Manager, a concurrent client conflict of interest exists because there is a significant risk that Attorney’s responsibilities to Company will be materially limited by Attorney’s responsibilities to Manager. Rule 4-1.7(a)(2). Pursuant to Rule 4-1.7(b)(1), Attorney may only undertake representation of Manager if Attorney has a reasonable belief at the outset of the representation that Attorney will be able to provide competent and diligent representation to both Company and Manager in a common representation. Attorney must resolve consentability as to both Company and Manager. Rule 4-1.7, Comments [14] and [15]. Because Company is paying for the representation of Manager, Attorney must comply with Rule 4-1.8(f), which prohibits Attorney from accepting compensation from someone other than the client, in this case Corporation paying for the representation of Manager, unless Manager gives informed consent to the arrangement, there is no interference with Attorney’s independent professional judgment or the client-lawyer relationship, and confidential information is protect by Rule 4-1.6. See also Rule 4-1.8, Comments [11] and [12]; Rule 4-1.7, Comment [13]. To engage in the common representation, Attorney shall seek informed consent, confirmed in writing, from both Company and Manager pursuant to Rule 4-1.7(b)(4). See Rule 4-1.7, Comments [14], [15], and [20]; see also Rule 4-1.0(e) defining “informed consent,” Comments [6] and [7]. In seeking informed consent, Attorney must discuss with Company and Manager the “implications of the common representation including the possible effects on loyalty, confidentiality, the attorney-client privilege and the advantages and risks involved. Rule 4-1.7, Comment [18]; see also Comments [30], [31], and [32].” Attorney should advise Company and Manager that Attorney will share with both clients’ information relevant to representation, and that Attorney will be required to withdraw if one of the jointly represented clients decides a material matter should be kept from the other. See Rule 4-1.7, Comment [31]. Further, Attorney should advise Company and Manager that, if the common representation fails because potentially adverse interests cannot be reconciled, Attorney will have to withdraw from representing both clients. See Rule 4-1.7, Comment [29]. Since Company’s consent to the dual representation is required by Rule 4-1.7, Rule 4-1.13(e) requires that the consent be given by an appropriate official of Company other than Manager who is seeking representation.

2021-06

Rules: 4-1.9; 4-1.11; 4-1.0

Question: A state agency, Governmental Entity, contracted with Private Attorney to represent the governmental entity in proceedings involving termination of parental rights. Private Attorney is not considered an employee of Governmental Entity. Once Private Attorney completes the termination of parental rights proceeding, may Private Attorney then represent Foster Parents who are seeking to adopt the minor child?

Answer: Since Private Attorney represents Governmental Entity by contract, and not as a current or former government lawyer, Rule 4-1.11 does not apply to future conduct of Private Attorney. Instead, Private Attorney must determine if a former client conflict of interest exists based on the prior representation of Governmental Entity. Rule 4-1.9(a) prohibits Private Attorney from representing Foster Parents in the same or substantially related matter in which Foster Parents’ interests are materially adverse to those of Governmental Entity unless Governmental Entity gives informed consent, confirmed in writing. Matters are substantially related per Rule 4-1.9 “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Comment [3]. It appears that there is such a substantial risk as to confidential factual information gained by Private Attorney while representing Governmental Entity that may materially advance Foster Parents’ interests in the adoption. If that is the case, depending on the underlying facts, per Rule 4-1.9(a), Private Attorney may not represent Foster Parents in the adoption proceeding absent informed consent, confirmed in writing, from Governmental Entity. See also Informal Opinion 20040059 (addressing governmental entity consent to conflict of interest). “Informed consent” is defined in Rule 4-1.0(e), and guidance is provided in Comments [6] – [8]. “Confirmed in writing” is defined in Rule 4-1.0(b), and guidance is provided in Comment [1]. If Governmental Entity provides informed consent, confirmed in writing, to the representation of Foster Parents by Private Attorney, Rule 4-1.9(c) prohibits Private Attorney from using or revealing information relating to any prior representation except as permitted or required by the Rules.

2021-07

Rule: 4-1.22

Question: Attorney asks if e-mail correspondence with the client, and e-mail correspondence related to the representation of the client, are part of the client’s file?

Answer: Yes, both e-mail correspondence with the client, and email correspondence related to the representation of the client, are part of the client’s file. Formal Opinion 115, as amended, states that it is the opinion of the Advisory Committee “that the file belongs to the client, from cover to cover, except for those items contained within the file for which the attorney has borne out-of-pocket expenses such as, but not limited to, transcripts. The attorney may retain those items until such time as he is reimbursed for the out-of-pocket expense and then they must be immediately delivered to the client. Those items which have commonly been denominated as “work product” of the attorney actually belong to the client because those are the result of services for which the client contracted.” Based on the Formal Opinion 115, e-mails would be part of the client’s file and must be retained in accordance with Rule 4-1.22, File Retention. Similarly, text messages or other electronic communications would also be part of the client’s file. 

2021-08

Rules: 4-8.3; 4-8.4; 4-1.0; 4-1.6

Question: Attorney A represents Wife in a dissolution of marriage case, and Attorney B represents Husband. Attorney A and Attorney B were negotiating on behalf of their respective clients, with their clients present, when Attorney A made a derogatory remark to Attorney B that was related to Attorney B’s gender and national origin. Is Attorney B required to report Attorney A’s conduct?

Answer: Rule 4-8.3 requires Attorney B to report Attorney A to the Office of Chief Disciplinary Counsel if Attorney B knows that Attorney A’s conduct is a violation of the Rules of Professional Conduct that raises a substantial question as to Attorney A’s honesty, trustworthiness, or fitness as a lawyer in other respects. “Knows” is defined in Rule 4-1.0(f) as actual knowledge of the fact in question, or it may be inferred from the circumstances.

In determining if Attorney A’s conduct rises to the level of misconduct that is reportable, Attorney B may consider Rule 4-8.4, Misconduct. Rule 4-8.4(g) provides that it is professional misconduct for a lawyer to “manifest by words or conduct, in representing a client, bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status.” Comment [4] to Rule 4-8.4 states: “Whether a lawyer’s conduct constitutes professional misconduct in violation of Rule 4-8.4(g) can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 4-8.4(g), “bias or prejudice” means words or conduct that the lawyer knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics.” 

If Attorney B believes, based on the facts and circumstances, that Attorney A’s conduct is a violation of Rule 4-8.4(g), Rule 4-8.3(a) would require it to be reported to the Office of Chief Disciplinary Counsel. However, Rule 4-8.3(c) requires informed consent of Attorney B’s client if the report would require disclosure of information otherwise protected by Rule 4-1.6.

2021-09

Rules: 4-1.0; 4-8.3; 4-1.6

Question: Does Attorney have an obligation to report a judge to the Commission on Retirement, Removal, and Discipline, where Client tells Attorney Judge made statements regarding Client off the record prior to the hearing indicating Judge is not impartial in a matter in which Attorney represents Client. Attorney was not present when the statements were allegedly made.

Answer:  Rule 4-8.3(b) requires Attorney to report Judge to the appropriate authority, the Commission on Retirement, Removal and Discipline, if Attorney “knows ” judge has made statements indicating lack of impartiality in a matter if that would be a violation of applicable rules of judicial conduct, the Code of Judicial Conduct under Rule 2. Rule 4-1.0(f) defines “knows ” as “actual knowledge of the fact in question ,” and actual knowledge may be inferred from circumstances. If Attorney does not have knowledge, Attorney is not obligated by Rule 4-8.3(b) to report Judge. If Attorney believes Attorney has knowledge of a violation of the applicable rules of judicial conduct such that a report is required, per Rule 4-8.3(c) Attorney must have the informed consent of Client to disclose any information related to the representation in making the report as required by Rule 4-1.6(a) .

2021-10

Rule 9.01; Rule 6.01

Question: A Missouri licensed lawyer who lives out-of-state and is registered as a Category 3 Non-Resident Member of The Missouri Bar, asks if it is permissible to practice law in Missouri?

Answer: While this office can only provide informal advisory opinions regarding Rules 4, 5, and 6, this opinion references Missouri Supreme Court Rule 9.01, Authorized Practice of Law, as it is directly related to interpretations of Rule 6.01(j) and (m) on registrations categories available to members of The Missouri Bar and fees associated therewith. Pursuant to Missouri Supreme Court Rule 9.01, a nonresident, active, lawyer who is a member of The Missouri Bar “may practice law or do a law business in this state” if the lawyer “is not currently suspended or disbarred and has paid or is exempt from the requisite enrollment fee pursuant to Rule 6.01.” If the lawyer has “paid a reduced annual enrollment fee pursuant to Rule 6.01(j)(3) because they do not practice or have employment in this state [the lawyer] must pay the remainder of the full annual enrollment fee required under Rule 6.01(m)(1) before being authorized to practice law or do a law business in this state.” Rule 9.01. The nonresident lawyer must change registration status with the Clerk of the Court from Category 3 to Category 1 and pay the proper fee to practice law or do a law business in Missouri.

2021-11

Rules: 4-4.2; 4-1.18

Question: Lawyer B has been contacted by Client regarding possible representation in a dissolution of marriage matter. Client is represented by Lawyer A in the dissolution of marriage but is seeking a second opinion as to the representation, as Client believes that matter should be moving faster. May Lawyer B meet with Client without the permission of Lawyer A?

Answer: Yes, Lawyer B may meet with Client regarding possible representation in the dissolution of marriage matter without the consent of Lawyer A. See also Mo. Informal Opinion 980173. Comment [4] to Rule 4-4.2 provides that this Rule 4-4.2 does not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.” Client may choose to engage the services of Lawyer B or remain with Lawyer A. Client is a prospective client pursuant to Rule 4-1.18 when meeting with Lawyer B and remains as such if no client-lawyer relationship ensues with Lawyer B for future conflicts of interest. If Client chooses to engage the services of Lawyer B, Lawyer A shall withdraw in accordance with Rule 4-1.16. Whether a lawyer-client relationship exists is a matter of fact and beyond the scope of the Rules of Professional Conduct. Scope [17].

2021-12

Rules: 4-1.6; 4-1.1, 4-1.3, 4-1.4; 4-5.1; 4-5.3; 6.01

Question 1: Missouri licensed lawyer asks if it is permissible to practice in Missouri from a virtual office, or is a physical office required?

Answer 1: A physical office, (i.e. a brick-and-mortar building), is not required for a Missouri licensed lawyer to practice law in Missouri from a virtual office. Rule 6.01(b)(1) requires, among other information, for a Missouri lawyer to register “[t]he lawyer’s current mailing address and e-mail address.” That mailing address may be an office, home, post office box, or similar location, so long as it is a place where the lawyer regularly receives mail. See Informal Opinions 950069 (practicing from a home office); 990213 (practicing from a mobile office).

Question 2: Missouri licensed lawyer asks if there are additional ethical considerations when practicing virtually?

Answer 2: The Missouri Rules of Professional Conduct apply equally to lawyers whether practicing virtually or in a physical office. Some ethical considerations include taking steps to ensure competence in using technology as provided in Comment [6] to Rule 4-1.1, continuing to ensure diligence in accordance with Rule 4-1.3, and maintaining regular client communication as required by Rule 4-1.4.

Missouri Lawyers are still required to maintain confidentiality of clients’ information and “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” Rule 4-1.6. Comment [15] to Rule 4-1.6 provides guidance that lawyers are required to act competently to safeguard client information from: (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; (3) and/or inadvertent or unauthorized disclosure by those who are subject to the lawyer’s supervision. Comment [15] to Rule 4-1.6 further provides factors to be considered in determining reasonable efforts to prevent such unauthorized access or disclosure, including, but not limited to, “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).” Further, Comment [16] to Rule 4-1.6 provides guidance on a lawyer’s reasonable precautions to take when transmitting confidential client information, including “the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”

Finally, lawyers should also pay extra attention to supervisory responsibilities over other lawyers in the firm as required by Rule 4-5.1, and nonlawyers, including vendors, as required by Rule 4-5.3. See Informal Opinion 2021-03 (supervision of vendor engaged for shredding services); Informal Opinion 2018-09 (use of cloud computing).

2021-13

Rules: 4-4.4; 4-1.6; 4-3.4

This informal opinion replaces informal opinion 2014-02, which is now withdrawn.

Question 1: Does Attorney have an ethical obligation regarding metadata in electronic documents sent by an opposing party or counsel to inform the sender that the document contains metadata of which the sender may or may not be aware?

Answer 1: Metadata embedded in an electronic document received by Attorney may constitute a document inadvertently sent, governed by Rule 4-4.4(b). Whether a lawyer “knows or reasonably should know” the inclusion of the metadata was inadvertent will depend on the facts and circumstances surrounding each transmission. If Attorney believes the metadata was inadvertently sent, Rule 4-4.4(b) requires Attorney to promptly notify the sender.

Question 2: Does Attorney have an ethical obligation regarding metadata in electronic documents sent by an opposing party or counsel to refrain from mining or reviewing and/or using the metadata?

Answer 2: According to Comment [3] to Rule 4-4.4, effective December 1, 2021, lawyers should see Rule 56.01(b)(9)(A)(ii). Interpretation of Rule 56.01(b)(9)(A)(ii) is a question of law and beyond the scope of this informal opinion.

Question 3: Does Attorney have an ethical obligation to make good faith efforts to prevent the inadvertent electronic transmission of embedded metadata to opposing party or counsel in the context of litigation?

Answer 3: Pursuant to Rule 4-1.6, Attorney must use reasonable care to ensure no information related to the representation of Attorney’s client is revealed without client consent, and this obligation requires Attorney to use reasonable care to ensure no confidential information is contained in embedded metadata. This may require “scrubbing” documents before transmitting them or using alternative methods of transmission. Efforts to protect confidential information must be exercised in light of Attorney’s obligation pursuant to Rule 4-3.4(a) not to unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal evidence. Removing metadata with evidentiary value before transmitting certain documents may constitute a violation of laws governing discovery and therefore violate Rule 4-3.4(a). This informal opinion does not render an opinion about the existence of discoverable evidence in particular metadata or about the effect on substantive legal privileges of the pre-transmission removal or lack of removal of metadata.