Jeff Benoist became administrator/counsel for the Commission on Retirement, Removal and Discipline on April 1, 2025. Prior to that, Benoist spent 25 years handling insurance litigation while successfully trying over 50 jury trials and 75 bench trials in every corner of Missouri. He has practiced in front of hundreds of judges in more than half of the counties in Missouri. He graduated from the Saint Louis University School of Law in 2000.

The Commission on Retirement, Removal and Discipline ensures Missouri’s judiciary remains fair, impartial, and accountable to the public by investigating complaints against judges and enforcing disciplinary actions when necessary. The commission’s function is vital in upholding public trust in the judicial system, reinforcing the idea that no judge is above the law.¹ 

What is the CRRD? 

The CRRD was established in 1972 when Missouri voters approved § 24 of Article 5 of the Missouri Constitution to oversee the ethical conduct and fitness of judges.² It serves as a check and safeguard against judicial misconduct and incompetence. 

The CRRD consists of six volunteer members who serve six-year, staggered terms. The CRRD includes two members of the public appointed by the governor who are not members of The Missouri Bar; two members of The Missouri Bar selected by the bar’s Board of Governors; one judge of the Missouri Court of Appeals selected by a majority of the appellate judges (rotates from the Eastern to Western to Southern District); and one circuit judge selected by a majority of the Missouri circuit judges. 

The CRRD investigates complaints against judges of the Supreme Court of Missouri, Missouri Court of Appeals, circuit and associate circuit courts, and municipal courts, as well as members of the judicial nominating commissions that fill vacancies in accordance with Missouri’s Non-Partisan Court Plan.³ 

The CRRD also oversees judicial retirement and removal. Missouri’s judges are subject to mandatory retirement at the age of 70. 

Additionally, judges can be removed from office if they are found unfit due to incompetence or inability to perform their responsibilities. 

Supreme Court of Missouri Rule 12.21(A) requires the CRRD to keep all proceedings confidential until the CRRD files a recommendation with the Court that the judge or member of a judicial commission be retired, removed, or disciplined. Rule 12.21(B) details exceptions to the rule of confidentiality. Further, a complainant may choose to waive confidentiality and request that the complaint be sent to the judge. 

How does the CRRD disciplinary process work? 

Members of the public, lawyers, and judges can submit complaints about judges to the CRRD by mail or by emailing CRRD@courts.mo.gov. Rule 4-8.3(B) of the Rules of Professional Conduct requires a lawyer to inform the appropriate authority (CRRD) if they know that a judge has committed a violation of Rule 2 (Code of Judicial Conduct) that raises a substantial question as to the judge’s fitness for office. Rule 2-2.15 requires a judge who has knowledge that another judge committed a violation of Rule 2 to inform the appropriate disciplinary authority (CRRD). 

In 2024, the CRRD investigated 303 complaints, and that number rose to 405 complaints in 2025. Each year, approximately 45% of judges receive a complaint.

The CRRD follows a structured process when handling cases of judicial discipline. If a complaint is found to have merit, the CRRD writes a request to the judge for a response regarding the allegations. The CRRD may then recommend an informal disposition, such as a meeting with the judge or an informal reprimand by the commission, or it may proceed to a formal hearing pursuant to Rule 12. 

At a formal hearing, a judge is allowed to be represented by counsel, may call witnesses, and may introduce evidence. 

Upon completion of the hearing, the CRRD can recommend disciplinary actions such as formal reprimands, suspensions, or even removal from office. If formal proceedings are initiated and at least four members of the CRRD find that the judge should be disciplined in some manner, the CRRD then publicly files its findings of fact, conclusions of law, and recommendations with the Supreme Court of Missouri. 

The Court has the final authority to determine and impose disciplinary measures. This system creates a balanced approach where oversight is exercised while still allowing due process for judges accused of misconduct. 

Conclusion 

The CRRD helps foster transparency and accountability within the judiciary.

By providing a formal avenue for complaints and ensuring judges adhere to ethical guidelines, the CRRD enhances the legitimacy of Missouri's courts. 

For more information about the CRRD, including a link to a complaint form, visit the Commission on Retirement, Removal and Discipline's webpage at Courts.mo.gov.

Endnotes 
1 Commission on Retirement, Removal and Discipline, Mo. Ct., https://www.courts.mo.gov/page.jsp?id=230 (Feb. 19, 2026). 
2 Id. 
3 Id.

Hon. Zel Fischer is a judge on the Supreme Court of Missouri.

Andrea K. Spillars is chief disciplinary counsel at the Office of Chief Disciplinary Counsel.

On Feb. 24, 2026, the Supreme Court of Missouri issued new rules restructuring the disciplinary system in Missouri. These new rules, effective Jan. 1, 2027, consolidate all complaint investigations within the Office of Chief Disciplinary Counsel. Full-time staff employed by OCDC will be responsible for investigating complaints in a timely and efficient manner under the supervision of the chief disciplinary counsel. 

The process for adjudicating cases based on complaint investigations will otherwise remain unchanged. Lawyer and non-lawyer volunteers appointed by the Court will continue to serve as disciplinary hearing officers,¹ conducting proceedings and recommending appropriate sanctions for misconduct. The Advisory Committee,² also comprised of both lawyer and non-lawyer volunteers appointed by the Court, will continue to serve its important role as an administrative and advisory body within the disciplinary system. Ultimately, final orders of discipline remain within the purview of the Court.³ 

The new rules eliminate the bifurcated system that has existed for disciplinary investigations since 1991. That system originated in 1934 when the Court created Circuit Bar Committees comprised of volunteers to conduct investigations, make probable cause determinations, and prosecute alleged misconduct before the Court. Amendments in 1991 created OCDC under the Court’s direct supervision and authorized that office to investigate professional misconduct or assign the matter to one of the committees to investigate. 

After 1991, Circuit Bar Committees (later renamed Regional Disciplinary Committees) continued to operate in some, but not all, geographic areas. Thus, since 1991, complaints against lawyers domiciled in Kansas City, St. Louis, and Springfield have been investigated by volunteers serving on Regional Disciplinary Committees located in those jurisdictions. Full-time OCDC staff handle investigations for the remaining complaints, which represent slightly less than half the total number of complaint investigations opened per year. 

Initiating disciplinary action is a serious matter and necessarily requires a thorough investigative effort to determine whether a complaint is supported by evidence demonstrating a rule violation. A disciplinary system that centralizes oversight of those investigative efforts is important to promote the fair and consistent application of the Rules of Professional Conduct. Resourcing those efforts with full-time staff is similarly important to facilitate timely and efficient resolution of complaint investigations. 

Currently, both complainants and lawyer respondents may have different experiences during the investigative process, dependent upon the entity responsible for the complaint investigation. However, consistent statewide enforcement of the Rules of Professional Conduct is foundational to the goal of protecting the public and the integrity of the profession. To that end, the new rules promote consistency in both process and outcomes. 

With these changes, it is important to recognize the individuals who have offered their time, expertise, and ethics as members of the Regional Disciplinary Committees. Volunteerism is a hallmark of the legal profession, and those individuals serve as exemplars of the Missouri legal profession. Current committee members will be particularly instrumental to ensuring a smooth transition during 2026 and will hopefully offer their expertise in other capacities. To all those who volunteer in the disciplinary system, including those contemplating that path, your service is greatly appreciated.

Lawyers practicing in Missouri enjoy a profession that is largely selfgoverning, and with that privilege comes special responsibility. Ensuring the standards are consistently enforced for the benefit of the public and the integrity of the profession is the most fundamental duty. To fulfill that duty requires continually re-examining existing structures. It also requires instituting reforms when necessary. The changes implemented by the Court will serve that purpose by fostering consistency in how investigations are conducted and the Rules of Professional Conduct are applied. 

Read the full order about the new rules at Courts.mo.gov.

Endnotes 
1 Rule 5.04. 
2 Rule 5.01. 
3 Rule 5.17.

Melinda J. Bentley is legal ethics counsel for the Office of Legal Ethics Counsel and Advisory Committee of the Supreme Court of Missouri.

Correction: This article was updated on March 9, 2026, to correct the statement: “Second, funds subject to this exception are only advance paid fees, and advanced paid expenses must still be held in a client trust account.”

Have you ever heard a colleague say something is required, or not required, by the Missouri Rules of Professional Conduct and wondered, “Is that right?” This article examines 10 scenarios to help you separate fact from fiction when complying with the Missouri Rules of Professional Conduct. 

Scenario 1: The Supreme Court of Missouri does not require lawyers to have a statement as to confidentiality in the footer of emails. Fact or fiction? 

Answer: Fact. 

The rules do not require that a lawyer place a statement as to confidentiality in the footer of emails, although such a statement may be a best practice.¹ While there can be practical reasons for including such a statement, or disclosures required by other law, statements that start with “The Supreme Court of Missouri requires,” “The Missouri Bar requires,” “The Office of Chief Disciplinary Counsel requires,” or “The Legal Ethics Counsel requires” are not accurate. 

Confidentiality is the key ethical consideration for lawyers in determining if email is an appropriate means for communicating matters with clients, and a lawyer should discuss such concerns with the client prior to using email.² 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 regarding reasonable efforts to prevent unauthorized access or inadvertent disclosure. Factors lawyers should consider include, but are 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 regarding reasonable precautions to prevent client information from reaching unintended recipients. Lawyers should consider factors including “the reasonableness of the lawyer’s expectation of confidentiality … the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.” 

In applying these considerations, lawyers should discuss with clients as to whether emails should be used to communicate about the representation. They should also consider the nature and sensitivity of the information that may be exchanged, what protective measures can be utilized to preserve confidentiality, and how the client may be accessing email and who else might also have access to that email (i.e. the client’s employer or family members).³

Scenario 2: A lawyer must withdraw immediately from representing a client and not contact them if the client files a complaint with the Office of Chief Disciplinary Counsel or a fee dispute resolution program. Fact or fiction? 

Answer: Fiction. 

Just because a client files a complaint with the Office of Chief Disciplinary Counsel or seeks assistance from a fee dispute resolution program does not mean the lawyer is prohibited from contacting the client unless the client is represented by counsel in that matter.⁴ Neither the Office of Chief Disciplinary Counsel nor the fee dispute resolution program would be representing a client such that contact would be prohibited pursuant to Rule 4-4.2. 

A conflict of interest is not always present just because a complaint is filed. Sometimes the filing of such a complaint stems from a simple lack of communication or miscommunication. The lawyer should consider whether the lawyer’s personal interest materially limits their ability to represent the client’s interests.⁵ Specifically, consideration should be given to “if there is a significant risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests,”⁶ or “if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.”⁷ 

Additionally, such circumstances do not automatically require that the lawyer withdraw from the representation. In this scenario, Rule 4-1.16 would only require withdrawal if the client discharges the services of the lawyer,⁸ or if continuing the representation would cause the lawyer to violate the Rules of Professional Conduct or other law.⁹ The lawyer may be permitted to withdraw if the criteria of Rule 4-1.16(b) are met. 

Whether the lawyer is required or permitted to withdraw, they still must provide notice to or seek the permission of the tribunal and continue with the representation when ordered to do so, notwithstanding other good cause for terminating the representation.¹⁰ If the representation is terminated, to the extent reasonably practicable, the lawyer is required to take steps to protect the client’s interests.¹¹ 

Scenario 3: A lawyer moving from Law Firm A may be screened from any conflicts of interest when joining Law Firm B. Fact or fiction?

Answer: Fiction.

Missouri does not recognize screening when it comes to conflicts related to Rule 4-1.10, addressing imputed disqualification of law firms; and Rule 4-1.9, addressing former clients and lawyers moving between law firms.¹² While screening may be helpful in persuading a client to waive a conflict, such conflicts must be addressed pursuant to those specific rules.¹³ 

Instead, “screened” is a defined term pursuant Rule 4-1.0(k):

[T]he isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

Screening is only permitted in appropriate circumstances pursuant to Rule 4-1.11, 4-1.12, 4-1.18, and 4-6.5. 

Scenario 4: Flat fees must always go into the client trust account. Fact or fiction?

Answer: Fiction.

Pursuant to Rule 4-1.15(c), which requires a lawyer to deposit legal fees and expenses that have been paid in advance into a client trust account, there is an exception that if the advanced paid flat fee does not exceed $2,000, it may be deposited into another account. 

There are a few important notes about this exception. First, although it is permissive for the lawyer to choose to keep advance paid fees that do not exceed $2,000 in another account, it is not required.¹⁴ Second, funds subject to this exception are only advance paid fees, and advanced paid expenses must still be held in a client trust account.¹⁵ Finally, this exception applies only to advance paid fees that do not exceed $2,000, not installment payments for a larger sum.¹⁶ 

Scenario 5: A lawyer may respond to negative online reviews posted by clients, because clients waived confidentiality by posting information regarding the representation. Fact or fiction?

Answer: Fiction.

Rule 4-1.6(b)(3) only permits a lawyer to make a limited disclosure of confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client …” An online review does not constitute a controversy between the lawyer and the client, so the lawyer may not respond and disclose confidential information in that public forum.¹⁷ 

Scenario 6: A lawyer may not withhold a client’s file for nonpayment of legal fees. Fact or fiction? 

Answer: Fact. 

Missouri Advisory Committee Formal Opinion 115 provides that a lawyer may not withhold a client’s file for nonpayment of legal fees. Instead, the client owns the file “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.”¹⁸ It is important to note that there may be some limited exceptions to the content of materials to be provided to the client as part of the file, such as information subject to a protective order or settlement agreement,¹⁹ or information subject to a discovery agreement.²⁰ 

Lawyers should consider Rule 4-1.22, Missouri Advisory Committee Formal Opinion 115, substantive law, and other Missouri informal opinions when determining the contents of the client file.²¹ 

Scenario 7: Lawyer A may not pay a referral fee to Lawyer B for sending a new client to Lawyer A. Fact or fiction? 

Answer: Fact.²² 

Rule 4-7.2(c) prohibits a lawyer from giving “anything of value to a person for recommending a lawyer’s services.” That includes a “referral fee” from one lawyer to another. However, Rule 4-1.5(e) permits lawyers who are not in the same firm to divide fees so long as certain conditions are satisfied:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the association and the agreement is confirmed in writing; and (3) the total fee is reasonable.²³

Scenario 8: Lawyer A prepared a will and deeds for a client who is now deceased. The personal representative’s lawyer, Lawyer B, requested that Lawyer A turn over a copy of the client’s file. Lawyer A may not disclose information, other than the actual will the lawyer considers still valid, or a deed that has been recorded, without a court order, unless the client gave express consent to permit disclosure. Fact or fiction?

Answer: Fact.²⁴

Rule 4-1.6 provides that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b).” In this scenario, it is impliedly authorized that Lawyer A may provide Lawyer B with the client’s will so the client’s estate planning wishes may be followed. However, the entire file may not be provided absent informed consent of the client prior to the client’s death, consistent with Rule 4-1.6(a) and 4-1.0(e); or a limited disclosure to comply with other law or a court order, consistent with Rule 4-1.6(b)(4).²⁵ 

Scenario 9: A lawyer may disclose information contained in public court records the lawyer filed on behalf of the client without the client’s consent. Fact or fiction?

Answer: Fiction.²⁶

Rule 4-1.6 prohibits disclosure of confidential client information unless a valid exception is met, and Rule 4-1.9(c) does likewise for confidential information of a former client. Even though information may be contained in a public record or available on Case.net, it is still confidential as to the lawyer. Comment [3] to Rule 4-1.6 notes that confidentiality

… not only applies to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

Further, Comment [4] explains that confidential information includes protected information that could reasonably lead to the discovery of such information by a third party. This would include information that could lead to the discovery of the client’s identity or of the situation involved.

Scenario 10: Lawyer A has been contacted by the surviving spouse of Lawyer B, a solo practitioner, who recently passed away. Lawyer A may not review the files of Lawyer B at the request of surviving spouse. Fact or fiction? 

Answer: Fact.²⁷ 

Unless Lawyer B obtained the informed consent of clients for another lawyer outside the firm to access the clients’ confidential information in the event of Lawyer B’s death or incapacitation, Lawyer A may not review the client files of Lawyer B absent appointment as a trustee pursuant to Rule 5.26. 

Conclusion 

If lawyers have questions about the Missouri Rules of Professional Conduct in their practice, they can contact the Office of Legal Ethics Counsel via MO-Legal-Ethics.org to seek an informal advisory opinion about their prospective conduct.²⁸

Endnotes
1 See Mo. Informal Opinion 2012-01.
2 See Melinda J. Bentley, “The Ethical Implications of Technology in Your Law Practice: Understanding the Rules of Professional Conduct Can Prevent Potential Problems,” 76 J. Mo. B. 20, at 22 (2020) (discussing application of the Rules of Professional Conduct to email and other electronic communications with clients). 
3 Id.
4 See Mo. Informal Opinions 2022-05 and 20050059.
5 Rule 4-1.7(a)(2).
6 Rule 4-1.7, Comment [8].
7 Rule 4-1.7, Comment [10].
8 Rule 4-1.16(a)(3).
9 Rule 4-1.16(a)(1).
10 Rule 4-1.16(c).
11 Rule 4-1.16(d).
12 See Mo. Informal Opinion 2017-07.
13 See Mo. Informal Opinions 20060003, 20050030, and 20030007.
14 Rule 4-1.15(c).
15 See Mo. Informal Opinion 2018-15.
16 Id.
17 See Mo. Informal Opinion 2018-08.
18 Mo. Formal Opinion 115; See also In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997); McVeigh v. Fleming, 410 S.W.3d 287, 289 (Mo. Ct. App. E.D. 2013).
19 See Mo. Informal Opinion 2020-07. 
20 See Mo. Informal Opinion 2020-08.
21 See also Missouri Office of Legal Ethics Counsel and Advisory Committee of the Supreme Court of Missouri Resource Page: File Retention Resources, https://mo-legal-ethics.org/for-lawyers/resources/file-retention-resources/. 
22 See Missouri Informal Opinion 2018-05. 
23 See also Rule 4-1.5, Comments [7] and [8] (providing further guidance on division of fees). 
24 See Missouri Informal Opinion 20040004. 
25 See also Rule 4-1.6, Comments [10]-[13]; Missouri Informal Opinions 2017-04, 2015-02, 20070016, 20060004, 20010154; 20000165; 990146; 990118; 980080; 970100; 960130; 950264; 950018. 
26 See Missouri Informal Opinion 2015-02. 
27 See Missouri Informal Opinion 2018-11. 
28 See Rule 5.30(c).

Pursuant to Rule 5.30, written summaries of select informal opinions are published for informational purposes as determined by the Advisory Committee. Informal opinion summaries are advisory in nature and are not binding. The first four digits of the opinion summary number indicate the year the opinion was issued. The full text of lawyers’ requests and the Legal Ethics Counsel’s responses are confidential. 

Informal advisory opinions are issued by the Legal Ethics Counsel pursuant to Missouri Supreme Court Rule 5.30. The Legal Ethics Counsel issues opinions to members of the bar about Rules 4, 5, and 6 for prospective guidance about a lawyer’s own conduct involving an existing set of facts. Informal advisory opinions will not be issued about past conduct, hypothetical scenarios, or the conduct of a lawyer other than the one asking for the opinion. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additionally, Scope [18] states in relevant part:

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

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

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

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

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

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

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

Endnotes

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

Annual Law Update: June 13, 18, 23, 26

10.0 MCLE | 1.0 Ethics

7:40 a.m.-6:07 p.m.| Virtual

This virtual program covers key legal areas such as appellate, civil trial, employment, workers' compensation, family, bankruptcy, real estate, probate, torts, criminal law, and ethics. Industry professionals from prominent Missouri firms will provide updates and insights, making it an essential opportunity for lawyers to fulfill their MCLE needs. Register for 2025 Annual Law Update

CLE Express: June 11, 17, 21, 25

15.5 MCLE | 4.1 ethics | 1.0 Elimination of Bias 

7 a.m.-8:42 p.m. | Virtual

Lawyers can earn all 15 hours of MCLE for the compliance year in this one-day virtual program. Learn about updates to various areas of law, U.S. Supreme Court Highlights, and ethical dilemmas. 

Register for 2025 CLE Express

Ethics Express: June 12, 24, 28, 30

3.0 MCLE | 3.0 Ethics | 1.0 Elimination of Bias

9-11:44 a.m. (June 12, 24, 28, and first June 30 session); Second June 30 session: Noon-2:44 p.m. | Virtual

Need to complete your MCLE ethics requirements? This virtual program is the perfect opportunity to take care of your ethics credits in less than three hours. 

Learn from these topics:

- Shakira, secrets and scandals: Attorney ethics and the world of offshore deals
- The rise and fall of Rudy Giuliani: Lessons in legal ethics from a public scandal
- Harmony in justice: Using R&B to address bias and diversity in the legal profession

Register for 2025 Ethics Express

Pre-litigation investigations: June 11

1.1 MCLE

9-9:54 a.m. | Virtual

Refresh your knowledge and skills in this virtual program on an overview of what lawyers should consider investigating prior to filing suit or taking a case. This program will cover steps to take to set your client and case up for success when first receiving a potential claim, including saving evidence, securing witness information, determining expert needs, and defining a strategy early. Register for virtual program

Cognitive biases and their effect on negotiations and decision-making: June 16, 26

1.1 MCLE | 1.1 Ethics | 1.1 Elimination of Bias 

June 16: 10-10:54 a.m. and June 26: noon-12:54 p.m. | Virtual

As human beings, our brains are wired to make cognitive shortcuts based on our previous experiences and unconscious assumptions. Learn how implicit cognitive biases can negatively affect the ability of lawyers and their clients to effectively interpret information and make objective decisions in the mediation context, including way to improve decision-making abilities. Register for virtual program

YLS Trial Skills Workshop: June 20

8.0 MCLE

9 a.m.-3:49 p.m. | Virtual

Join this virtual program focused on essential trial skills! Whether you’re new to the profession or a seasoned pro, you’ll learn from a distinguished panel of speakers who will cover everything from voir dire to closing statements.

Register for 2025 YLS Trial Skills Workshop

Successful succession: Make a plan for your firm: June 25

1.0 MCLE | 1.0 Ethics

9-9:52 a.m. | Virtual

Plan ahead for your firm and safeguard your professional legacy. Without proactive planning, the abrupt sale or closure of a firm can have disastrous consequences — not only for your clients but also for your family and colleagues.

In this program, you'll learn:

- Ethical considerations surrounding proper client communication in the event of sale or incapacity
- Proper retention and destruction policies for client files
- How to designate a trustee in the event of incapacity or inability to continue practicing
- What to consider when you want to sell your practice

Register for 2024 Successful succession

Bots and boundaries: Ethical considerations in a world of rapidly evolving legal AI usage: June 27 

1.0 MCLE | 1.0 Ethics 

noon-12:50 p.m. | Virtual

Hear about the importance of carefully considering ethical rules and risks in making AI choices as it rapidly evolves in the legal industry. Register for 2025 Bots and Boundaries

Click here for a full list of MoBarCLE programs in June. Visit MoBar.org/MCLE to record your hours, file your My MCLE annual compliance report, and read frequently asked questions.

Ready to put your legal knowledge to the test — again? These round two trivia questions will challenge your understanding of Supreme Court of Missouri Rule 4 — Rules of Professional Conduct. Correct answers are at the bottom of the page. Note: More than one answer may be correct. Find round one of the trivia quiz here.

Answers

B. and C. 
See Rule 4-1.1 (Competence). Comment [2] states: “A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”

D. 
See Rule 4-7.4 (Communication of Fields of Practice or Specialization), which states that “a lawyer shall not state or imply that the lawyer is a specialist unless the communication contains a disclaimer that neither the Supreme Court of Missouri nor The Missouri Bar reviews or approves certifying organizations or specialist designations.”

A. and C. 
See Rule 4-1.5(b) (Fees): “The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation[.]” (emphasis added).

B. 
See Rule 4-1.16(d) (Declining or Terminating Representation): Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

B. and C. 
See Rule 4-1.22: “A lawyer shall securely store a client’s file for six years after completion or termination of the representation absent other agreement between the lawyer and client through informed consent confirmed in writing.”

A. and B. 
See Rule 4-1.8(e) (Conflict of Interest: Prohibited Transactions): A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, including medical evaluation of a client, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

B. 
See Rule 4-1.2(a) (Scope of Representation): “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” See also Rule 4-1.8(f) (Conflict of Interest: Prohibited Transactions): A lawyer shall not accept compensation for representing a client from one other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 4-1.6.

D. 
See Rule 4-4.2 (Communication with a Person Represented by Counsel): In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Comment [4] adds, “Rule 4-4.2 does not prohibit communication with a represented person … concerning matters outside the representation.”

Editor’s note: This article was originally published in the Journal of The Missouri Bar in 2019.

Lawyers often face circumstances where Rule 4-4.2 seems counter to their client’s best interests. Some may see an ethical dilemma between their professional duty under Rule 4-4.2 and their duty to their client. This article uses a hypothetical to consider the Office of Chief Disciplinary Counsel’s application of Rule 4-4.2 in those settings. 

Lawyer represents doctor in an employment matter

A lawyer represented a doctor who was employed by and practicing at a hospital. Over many months, the hospital received complaints that the doctor engaged in repeated inappropriate conduct. A supervisor, on behalf of the hospital, warned the doctor several times, eventually imposing sanctions including a salary reduction and a demotion. The hospital required the doctor to attend an anger management course, warning him that if more episodes occurred, he would be dismissed.

Offended by the hospital’s demands, the doctor consulted with a lawyer. In response, the lawyer wrote to the hospital’s general counsel. He asked for more information about the anger management course. The hospital lawyer replied, directing the other lawyer to the course director. Sixteen months later, the hospital suspended the doctor. His supervisors announced the suspension by email to a group of doctors and administrators at the hospital. 

The doctor went back to the lawyer. He was concerned that word of his suspension might spread to peers at a national conference scheduled for the next day. The lawyer immediately sent a letter to the doctor’s department chief and the chief ’s boss, bypassing the hospital lawyers. Both the lawyer and client believed the situation was made more difficult by the impending national conference. 

In his letter, the lawyer told hospital leadership they had reported the suspension to people who didn’t need to know. And, he said, the hospital violated his client’s privacy rights. He also declared they had breached hospital policies on confidentiality. His letter described the suspension as a deprivation of his client’s right to due process. Finally, he directed them to cease further dissemination of information about his client’s suspension.

Did the lawyer violate Rule 4-4.2?

May a lawyer justify ex parte contact if compliance with the rule is contrary to a client’s interests? 

Suppose the lawyer argued he acted in his client’s best interests when bypassing the hospital lawyers. The hospital executives followed his direction — they stopped disseminating information about his client’s suspension. What if he believed that by contacting the non-lawyer executives instead of the hospital lawyers, he could expedite the hospital’s reaction, thereby better protecting the doctor? 

Under that argument, a lawyer who persuades the opposing party to accede to ex parte demands would not violate Rule 4-4.2. Under that theory, a lawyer could easily justify a decision to ignore Rule 4-4.2, or several other rules of professional conduct, in almost any situation. That can’t be the rule’s intent. 

Courts applying the rule in situations where lawyers sought to justify ex parte contact by pointing to client benefit have clarified its purpose: “The rule is … fundamentally concerned with duties of attorneys, not with the rights of parties.”¹ 

Does a lawyer’s duty of diligence supersede duties imposed by Rule 4-4.2?

Consider an ethical dilemma. Did the lawyer violate Rule 4-4.2 if he considered that rule but decided his obligations under it were outweighed by his duty of diligence under Rule 4-1.3? Does it matter that his client’s career would be at greater risk if he didn’t quickly stop the hospital from further publication of the doctor’s suspension? 

Explaining that question another way, are there exigent circumstances, such as the doctor’s next-day conference, that could warrant ex parte contact with the represented individuals? Under that analysis, a lawyer could act contrary to the tenets of Rule 4-4.2 without violating it because the client was facing exigent circumstances. 

Comment 1 to Rule 4-1.3 (diligence) reminds lawyers to represent clients with zeal and commitment. But that comment limits the scope of the diligence obligation to “lawful and ethical measures.” Nothing in Rule 1.3 overrides lawyers’ obligations under Rule 4-4.2.

Do previous tardy responses from opposing counsel justify ex parte contact with opposing parties?

Occasionally, opposing lawyers don’t promptly respond. What if the hospital lawyers had ignored the lawyer’s correspondence about earlier sanctions imposed on the doctor? Rule 4-4.2’s Comment 6 recognizes circumstances might occur where direct contact may be warranted. But the comment merely allows lawyers to seek court authority to contact opposing parties in “exceptional circumstances.” Nothing in the comments permits breach of the rule based on opposing counsel’s failure to respond. Nothing in the rule or comments permits lawyers to exercise their own judgment in ignoring Rule 4-4.2. 

Does an opposing party’s acquiescence to direct contact authorize further ex parte contact? 

Suppose the lawyer had routinely communicated directly with represented parties, including the same hospital leadership, without notice to opposing counsel. Would the hospital staff’s historical acquiescence relieve him of the responsibility of working through the hospital’s lawyers?

The rule itself answers the question. Consent to talk with a represented person cannot come from the person; it can only be acquired through that person’s counsel. Comment 3 to Rule 4-4.2 restates the point:

“Rule 4-4.2 applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule 4-4.2.”

Is it permissible for a lawyer to talk directly to opposing parties if they don’t “overreach”? 

The lawyer might try to justify his actions by arguing he did not overreach or ask for information from his client’s supervisor. In Comment 1, the term “overreaching” helps define the rule’s purpose. Did the lawyer violate Rule 4-4.2 if he simply told the supervisor to stop spreading information about the doctor’s suspension? 

Nothing in the rule permits lawyers to unilaterally decide what constitutes overreaching. Comment 1 defines the purpose of the rule to prohibit both overreaching and “interference with the client-attorney relationship.” At a minimum, a lawyer interferes with an attorney-client relationship when — without consent of counsel — they tell represented individuals what the law is, what the individuals should or shouldn’t do, or seeks information from the represented individuals. 

Does Rule 4-4.2 prohibit contact with employees of the opposing party?

Comment 7 to Rule 4-4.2 answers this question:

“In the case of a represented organization, Rule 4-4.2 prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule 4-4.2. Compare Rule 4-3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4-4.4.”

Does it matter if the lawyer doesn’t know whether the opposing party is represented? 

Comment 8 explains that the rule applies only if the “lawyer knows that the person is in fact represented in the matter.” “Actual knowledge” is required, but the comment adds: “actual knowledge may be inferred from the circumstances,” and “the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.” 

Can an opposing party’s behavior justify ex parte communication? 

Does the hospital’s publication of the doctor’s suspension the day before a national conference justify ex parte communication? Clients routinely retain lawyers because they feel mistreated by the opposing party. Most clients, like the doctor, believe the opposing party created the problem. Permitting an exception to Rule 4.2 based on that theory would thoroughly undermine the rule. 

Does Rule 4.2 apply to both sides? 

The lawyer suggested he should be permitted to weigh his duty of diligence, exigent circumstances, the hospital’s actions, and his client’s best interests against his professional obligation to seek consent from the general counsel before communicating with the hospital. Consider that balancing approach in a mirror image of the doctor’s situation. Think of a lawyer representing a plaintiff against a large corporation. Assume the corporate lawyer communicated directly to the represented plaintiff without the consent of the plaintiff’s counsel. Would corporate counsel overreach or interfere with their attorney-client relationship if they sent an ex parte letter to the plaintiff/client? Assume corporate counsel sent an ex parte letter stating, “We represent Company X. We have analyzed the legal issues and determined Company X did not violate your rights. You created this problem. We expect you to report our action to no one. Only we can decide who needs to have this information.” 

Under Rule 4-4.2, what exigent circumstances might justify corporate counsel’s ex parte correspondence? It should be clear: The rule must be applied to both sides.

Would these arguments justify ex parte communication in family law matters?

Consider the potential application of these questions in one corner of family law cases. On any given weekend, hundreds of Missouri lawyers deal with custody disputes, facing dilemmas as important to their clients as the one the lawyer and doctor faced. Sometimes, opposing parents act unfairly. On some weekends, lawyers might believe opposing counsel must not have fully explained a court order to their clients. Occasionally, opposing counsel isn’t immediately available. Maybe a client/parent just wants to briefly extend visitation — for a good reason. 

Should family lawyers be allowed — or required — to weigh their client’s immediate interests against their Rule 4-4.2 obligations? Under which of those circumstances should it be okay for a family lawyer to bypass opposing counsel and send an email to the opposing parent? What would justify an ex parte phone call or email to the opposing parent?

Upon consideration, it becomes evident that exceptions would quickly swallow the rule if family law practitioners could engage in ex parte communication with a represented person whenever they believed that approach was better for their clients, was justified by an exigent circumstance, was excusable because the opposing party created the situation, or that opposing counsel made everything difficult. 

Further, an exception based on a represented person’s previous acquiescence to ex parte communication is inherently unreasonable. As noted earlier, consent can only be granted by the represented person’s lawyer. The rule is applicable throughout the profession. 

Fortunately, lawyers neither must nor may weigh those interests. Rule 4-4.2 is straightforward:

“In representing a client, a lawyer shall not communicate with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.”

Beyond the hypothetical 

A 2014 federal case in Illinois offers key analysis as to whether a lawyer could properly weigh a client’s interests in deciding if they should communicate with the client’s manager. In Goswami v. DePaul University,² a lawyer represented a professor in a discrimination matter after DePaul University denied the professor’s request for tenure. The professor’s lawyer wanted to contact university administrators and other professors, including those who had managerial authority over her client. She argued her need to prepare by interviewing fact witnesses predominated the university’s desire to “shield its employees from access in order to ensure its effective representation.” The court rejected her theory, describing it as “one-sided,” and noting that her argument “begs the question and ignores the reality of our adversary system.” The Illinois court rejected the plaintiff ’s “contention that unless her lawyers had untrammeled access to [the manager] they could not effectively represent her.”³ 

When dealing with unrepresented individuals, including unrepresented parties whose interests may conflict with a client’s, lawyers should look to Rule 4-4.3. That rule reflects concepts similar to those found in Rule 4-4.2. Though practical reality requires that some communication may occur with unrepresented opposing parties, Rule 4-4.3 prohibits lawyers from explaining the law to those individuals. Lawyers may suggest that unrepresented individuals seek counsel. 

Some variation of Rule 4.2 is found in every state. The concept can be traced to English common law.⁴ The American Bar Association issued a comprehensive ethics opinion addressing the issues considered in this article in ABA Formal Opinion 95-396. The Missouri Legal Ethics Counsel also answers calls and emails, helping lawyers navigate ethical issues — including Rule 4-4.2. Extensive academic analysis and ethics advice about Rule 4.2 is readily available.

Endnotes

1 United States v. Lopez, 4 F3d 1455, 1462 (9th Cir. 1993). 

2 F. Supp. 3d 1004 (U.S. Dist. Ct. N.D. Il. 2014).

3 Id. at 1014.

4 See Lopez, supra note 2.

Ready to put your legal knowledge to the test? These trivia questions will challenge your understanding of the Supreme Court of Missouri Rule 4 — Rules of Professional Conduct (RPC). Correct answers to the questions are at the bottom of the page. Note: More than one answer may be correct.

Answers

C. Supreme Court Rule 5.08 authorizes the chief disciplinary counsel to investigate professional misconduct.

D. The RPC do not have an email disclosure requirement for Missouri lawyers, although lawyers are advised to take reasonable precautions to prevent the unintended interception of confidential information. See Informal Opinion 2012-01 at mo-legal-ethics.org for more information.

D. Nonrefundable fees are generally not considered “reasonable” because the client is entitled to a refund of the unearned portion if the attorney-client relationship terminates prematurely; that is, prior to the conclusion of the representation. For a more robust discussion, see Amended Formal Opinion 128 at mo-legal-ethics.org.

A. Lawyers may not disburse deposited funds from a client trust account “until a reasonable time has passed for the funds to be actually collected by the financial institution[.]” Rule 4-1.15(a)(6)(B). “It is not sufficient to wait only until the deposit is ‘cleared’ or ‘available’ according to financial institution records … Waiting 10 days after the date the bank records the deposit is presumed to be a reasonable period [though a] shorter period may be reasonable, in some circumstances.” Comment [5].

C. “ A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject the provisions of Rule 4-1.7. If the organization’s consent to the dual representation is required by Rule 4-1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented or by the shareholders.” Rule 4-1.13(e) – Organization as Client. Rule 4-1.7 addresses conflicts of interest involving current clients.

C. Rule 4-1.15 states: “(a) A lawyer shall hold property of clients or third persons … separate from the lawyer’s own property … (b) A lawyer may deposit the lawyer’s own fund in a client trust account for the sole purpose of paying … service charges … but only in an amount necessary for that purpose.”

A and C. “A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, except that an advanced flat fee which does not exceed $2,000 is exempted from this requirement and may be deposited into another account.” Rule 4-1.15(c) – Trust Accounts and Property of Others. So, while the attorney fees in this example may fit this exemption, and may be deposited into the operating account, the expenses have not yet been incurred and those funds must be deposited into the client trust account. Note: The $2,000 exemption in this rule applies to the entire fee. For example, if a lawyer receives two separate $1,500 payments toward a $3,000 flat fee, both payments must be deposited into the client trust account because the total fee exceeds $2,000.

C. “Loyalty to a current client prohibits undertaking representation directly adverse to that client without the client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.” Rule - 1.7 – Conflict of Interest: Current Clients, Comment [6]. See Rule 4-1.0 – and related comments – for the definitions of “informed consent” and “confirmed in writing.”

The state director of revenue is authorized to notify the clerk of the Supreme Court of Missouri of lawyers who are delinquent or who haven’t filed tax returns with the Missouri Department of Revenue (MoDOR).¹ The legislature has a similar provision which applies to many licensed professionals – for example, physicians, accountants, barbers, tattoo artists, and private investigators.² 

Process 

Within 30 days after the clerk of the Court receives notice of lawyers who haven’t filed Missouri tax returns or paid their state taxes, the clerk notifies each lawyer on the list that their license to practice law is subject to automatic suspension unless the matter is “satisfactorily resolved within 30 days of the last notice sent by the Clerk.”³ That notice is sent by first class United States mail.⁴ The clerk sends those letters to the address lawyers have provided on their annual enrollment statement and/or the last address they have provided to the clerk. 

Lawyers may “satisfactorily resolve” the matter in two ways: if MoDOR “revises its report to the Clerk of this Court by removing the name of the lawyer from the report;” or if the lawyer “provides an affidavit setting out facts showing that the liability is being contested in appropriate administrative or judicial proceedings.”⁵ This isn’t a situation where lawyers must pay incorrect tax bills to maintain their licenses. Rather, lawyers must address the tax assessments and formally contest the liability or pay their taxes. Lawyers are removed from the list if they timely enter a payment plan with MoDOR. If the matter is not “satisfactorily resolved” within 30 days, the Court will issue an order suspending the lawyers on the list. 

Often, lawyers report they never received notice their license would be automatically suspended. The clerk, however, forwards the notice to the most recent address the lawyer provided pursuant to Rule 6.01(b). It is the lawyer’s responsibility to provide the clerk “every change” in the lawyer’s mailing address or email address.⁶ If the lawyer did not keep their address updated as required by Rule 6.01(b), the notice might not have reached the lawyer. 

If the notice letter is returned, the clerk will next email it to the email address on file, also pursuant to Rule 6.01(b), or call the phone number, if any, on the official roll of attorneys maintained by the attorney enrollment office of the Court.⁷ 

Reinstatement 

Rule 5.245(c) contemplates actions taken by the lawyer to resolve the tax matter before the Court enters its order. After the order is entered, generally, the only way to be reinstated is via Rule 5.28.⁸ Even if a lawyer obtains a “Certification of Tax Compliance” from MoDOR after being suspended, that alone will not result in reinstatement. The certification is merely a prerequisite. Petitioners usually are not required to pay all tax liabilities before MoDOR issues a certification. The Office of Chief Disciplinary Counsel understands that MoDOR will issue a “Certification of Tax Compliance” if the petitioner has entered into a payment plan with MoDOR.⁹ 

Under Rule 5.28, the reinstatement process begins with a petition filed with the Supreme Court of Missouri “substantially in the form as set forth in Disciplinary Form A,” entitled “Petition for Reinstatement to Practice Law Pursuant to Rule 5.28.” 

Thereafter, the Court refers the petition to OCDC for a character and fitness investigation of the petitioner, a report, and a recommendation.¹⁰ OCDC sends the petitioner an “Application for Character and Fitness Report” to complete and an “Authorization for Release of Information” to execute. The process is similar to the bar admission process and designed to elicit information needed to assess whether the petitioner is of good moral character and fit to practice law, and if the best interests of the public will be served by the reinstatement of the petitioner’s license. 

Reinstatement after tax suspension may differ from other reinstatements in that, if the suspension has been in place for three years or less, the petitioner “shall be reinstated as a matter of course 45 days after the petition for reinstatement is referred to the Chief Disciplinary Counsel for report and recommendation.”¹¹ However, if OCDC determines within the 45-day period that further investigation is necessary, or if the petitioner does not provide OCDC the information required to make a determination as to whether further investigation is required, OCDC will file a motion to respond to the petition for reinstatement, and “the license shall not issue and the matter shall proceed as otherwise provided in” Rule 5.28(k).¹² 

OCDC endeavors to investigate petitions for reinstatement after tax suspension within the 45-day window; however, it can only investigate quickly when it receives all the necessary information from the petitioner. OCDC, therefore, asks petitioners to provide the necessary information within a fairly short time frame. The time frame benefits the petitioner as much as it does OCDC. If OCDC can investigate the petition within the 45-day period, and its findings are favorable, it will inform the Court that it has no objection to the reinstatement of the petitioner’s license to practice. The Court’s turnaround after such a filing of no objection, historically, has been short. If, however, the petitioner does not provide the requested information quickly, OCDC will file the motion to respond with the Court. OCDC will then complete its investigation and prepare a report and recommendation that it will send to the Court. The report and recommendation take time, and when a report and recommendation from OCDC, and possibly a response from the petitioner, are filed, the Court has not ruled as quickly. During this time, the petitioner remains suspended. 

So, while petitioners may chafe at a requested 10-day turnaround for submission of the requested information, that short period is to their benefit. The petitioner may take longer but that extends their suspension and makes it more likely the character and fitness investigation cannot be accomplished within 45 days. 

The reinstatement rule also includes a twist regarding continuing legal education credits. Rule 5.28(d) requires that, “within one year prior to the date of the filing of the petition for reinstatement, the [petitioner] has completed at least 15 hours of continuing legal education credit, including at least three hours of ethics credit, one of which must be on the elimination of bias.” Yearly MCLE compliance through the preceding June may not be enough because the credits must have been completed within the year prior to the date the petition for reinstatement was filed. For example, if a lawyer petitions for reinstatement Oct. 1, 2024, pursuant to Rule 5.28(d), they need to have earned the required CLE credits between Sept. 30, 2023, and Oct. 1, 2024. Even if they were compliant for the July 1, 2023, through June 30, 2024, annual reporting year, they still need the Rule 5.28(d) required CLEs to have been between Sept. 30, 2023, and Oct. 1, 2024. If a lawyer attended CLEs between July1, 2023, and Sept. 29, 2023, those credits would not count toward the Rule 5.28(d) requirement. 

OCDC reviews petitions for reinstatement after tax suspension (and for three years or less) on an expedited bases, but the burden of proof to establish fitness remains on the petitioner. Requirement 11 of “Disciplinary Form A” reads: “I understand that I carry the burden to establish, by clear and convincing evidence, that I have good moral character and that the best interest of the public will be served by my reinstatement to practice law.” Rule 5.28(i) provides that a petitioner for reinstatement “must establish, by clear and convincing evidence, that the person is of good moral character, is fit to practice law, and the best interest of the public will be served by reinstatement of the person’s license to practice law.” 

Subsection (i) of Rule 5.28 also provides 11 factors to consider in determining whether the petitioner has met this burden. These factors, applicable after the tax suspension and in all disciplinary reinstatement cases, include: 

– Acceptance of responsibility for wrongdoing with sincerity and honesty; 
– The extent of rehabilitation as shown by good current reputation for character and moral standing in the community; 
– The nature and severity of the misconduct leading to discipline; – The person’s conduct since discipline; 
– The time elapsed since discipline; 
– Other instances of dishonesty, criminal behavior, professional discipline, unauthorized practice of law, academic and employment misconduct, financial responsibility or involvement in or neglect of legal and professional matters; – The cumulative effect of all misconduct; 
– The person’s current competency and qualifications to practice law; 
– Restitution; 
– Candor in the discipline and reinstatement processes; and 
– Positive social contributions since the misconduct. 

Of course, application of these factors is on a case-by-case basis. Many tax-suspended lawyers obtain a “Certification of Tax Compliance” the same day or same week the order is handed down. In that instance, “conduct since discipline,” or “positive social contributions since the misconduct” aren’t particularly telling; however, other misconduct, criminal behavior, professional discipline, unauthorized practice of law, and financial responsibility are scrutinized. Further, “candor in the discipline and reinstatement process” is key. 

Rule 5.28(c)(2) also provides: “A person automatically suspended under Rule5.245 for three years or less who is reinstated under this Rule 5.28(c) is retroactively reinstated if the person is then in compliance with Rules 6.01 and 15.” Tax-suspended lawyers, however, must still comply with Rule 5.27 and may not continue practicing law while suspended.¹³ 

Conclusion 

Perhaps the biggest takeaway here, other than “file and pay your taxes,” is that lawyers must keep the clerk of the Court updated as to their current addresses – don’t wait until the next enrollment period, don’t count on someone forwarding your mail, and don’t register a mailbox that isn’t checked regularly. Getting the notice provides lawyers time to address the issue and, hopefully, prevent the suspension. Lawyers who fail to complete the easy task of updating their address may end up with a suspension.

Endnotes

1 Rev.Mo.Stat. § 484.053 (2003). 

2 Rev.Mo.Stat. § 324.010 (2004). 

3 Rule 5.245(b).

4 Id.

5 Rule 5.245(c).

6 Rule 6.01(b).

7 Rule 5.245(b).

8 There have been exceedingly rare instances where the Court amends its order to remove a lawyer from the tax suspension list. OCDC is not involved in such a removal and is only notified after the fact. OCDC is aware of the removal of a lawyer from the tax suspension list when MoDOR confirmed to the clerk that MoDOR incorrectly included the lawyer on the suspension list, and when a notice from the clerk of the Court was returned to clerk by the U.S. Postal Service after the suspension order was entered and after the lawyer had resolved their tax issue. 

9 OCDC has been informed by petitioners that they had entered a tax payment plan with MoDOR. OCDC is not involved in the preparation or details of such agreements.

10 Rule 5.28(k).

11 Rule 5.28(c)(2).

12 Rule 5.28(c)(2).

13 See also, Office of Legal Ethics Counsel Informal Opinion 2022-03.

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.

There are numerous actions, and in some cases inactions, which violate the Rules of Professional Conduct and can lead to an admonition. This article will hopefully remind you of, and encourage you to review, the Rules of Professional Conduct so you may avoid complaints that may result in an admonition. 

Receiving an admonition 

The Office of the Chief Disciplinary Counsel is authorized to investigate – with or without complaint – allegations of professional misconduct.¹ If the investigation leads to a determination that there is sufficient probable cause to believe the lawyer is guilty of professional misconduct, Rule 5.12 provides that the matter may be resolved by the administration of an admonition or the filing of an information. An admonition is appropriate if the misconduct is of such a nature that further proceedings are not warranted. 

Rule 4-1.3: Diligence and Rule 4-1.4: Communication 

Rule 4-1.3 requires a lawyer to act with commitment and dedication in representing a client. The lawyer should manage their workload and not procrastinate so they can competently and promptly handle client matters to avoid adversely affecting a client’s legal position. 

Rule 4-1.4 requires a lawyer to keep clients reasonably informed, promptly comply with clients’ requests for information, inform clients about limitations to assistance that are not permitted by law or Rules of Professional Conduct, and adequately explain matters to clients so they may make informed decisions regarding representation.

Consider these real-life examples of admonitions:

• A lawyer was retained in July 2022 for a traffic matter. The lawyer e-filed the Entry of Appearance in July 2022 but failed to confirm its acceptance by the court. It was not until the client contacted the lawyer in early February 2023 about the client’s suspended license that the lawyer learned the Entry of Appearance was never accepted. The lawyer further failed to advise the client of the proper steps necessary to accept a recommendation.
   
• A lawyer agreed to perform an investigation into a potential client’s medical malpractice case. The lawyer failed to keep the potential client informed of the status of the matter, and the lawyer did not inform the potential client of the investigation results. The lawyer further failed to respond to the potential client’s calls. It was determined that although the lawyer did not enter into an employment agreement with the client, the lawyer’s actions were in violation of Rule 4-1.1 (Competence), 4-1.3, and 4-1.4. 

Rule 4-1.15: Trust accounts and property of others 

The rules regarding lawyer trust accounts and requirements to safely keep the property of others are quite detailed. Consider these real-life examples of violation of Rule 4-1.15:

• A review of a client complaint and records provided to OCDC revealed the lawyer’s “Retainer Agreement” used the terms “non-refundable” and “earned in full upon its payment” when referring to an advanced fee payment made by the client. Rule 4-1.15(c) requires a lawyer to deposit advanced fees and expenses into the client trust account and withdraw them as they are earned. Rule 4-1.15(a) prohibits a lawyer from making an agreement for, charging, or collecting an unreasonable fee. 
   
• An investigation revealed a lawyer commingled client funds in the client trust account by transferring funds from other business or personal accounts into the client trust account. The lawyer also did not delay the disbursement of client funds from the client trust account until a reasonable period of time had passed for the funds to be collected by the financial institution and the deposited funds became “good funds.”

Rule 4-5.3: Responsibilities regarding nonlawyer assistants 

Lawyers with managerial authority within a law firm must make reasonable efforts to ensure the firm has measures in effect that ensure nonlawyers working in the firm and nonlawyers working on firm matters outside the firm comply with the lawyer’s ethical obligations. A lawyer must give such assistants appropriate instruction and supervision, and the lawyer should be responsible for the nonlawyers’ work product.

In one admonishment, the lawyer allowed nonlawyers under the lawyer’s supervision to engage in the unauthorized practice of law by handling all communication with a client and negotiating a potential settlement on behalf of the client. 

Rule 4-3.3: Candor toward the tribunal

"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; 

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer 
may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false."²

Consider these admonitions that resulted from Rule 4-3.3 violations:

• A lawyer represented a client in several legal matters, including an adult order of protection matter and a child order of protection matter. These matters were filed on Jan. 4, 2023, by the client’s wife. Nine days later, the lawyer filed a “Petition for Dissolution of Marriage” on behalf of the client against the client’s wife. The petition filed by the lawyer stated in relevant part: “Petitioner knows of no proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings related to domestic violence, protective orders, termination of parental rights and adoptions.” The lawyer admitted that this statement in the petition was made with knowledge of the two pending protective order actions and was a false statement to the court. 
   
• A lawyer filed a Petition and Application Requesting Withdrawal of Candidacy and Removal from the Ballot on behalf of a candidate for a board of aldermen seat. The lawyer appeared before the court two days later on behalf of the candidate and obtained a consent order and judgment removing the candidate from the ballot. The lawyer represented to the court that an attorney-client relationship existed between the lawyer and the candidate. However, at no time did the candidate retain the lawyer or consent to the lawyer representing him in the legal proceeding. The lawyer was paid by the city for the legal services to the candidate.

Rule 4-8.2: Judicial and legal officials 

“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office.”³ 

In one example, during the lawyer’s legal representation of a client in a domestic matter, the lawyer posted a link on their social media to a website that promoted the lawyer’s support of a law regarding guardian ad litem liability and child custody and visitation disputes. The link contained the lawyer’s name and contact information at the bottom. Within that website were posts that impugned the integrity of the opposing counsel and the judge associated with the representation in a grotesque fashion. The lawyer was admonished for violation of Rule 4-8.2 and Rule 4-8.4(d) (Misconduct) because allowing the lawyer’s name to remain associated with the site, while a client’s litigation was pending, was irresponsible, prejudiced the administration of justice, and recklessly called into question the integrity of the judge.

Rule 4-8.4: Misconduct 

Rule 4-8.4 outlines numerous ways lawyers could perform professional misconduct, from violating or attempting to violate the Rules of Professional Conduct to engaging in dishonesty and harassment. 

In one example, the lawyer repeatedly called, texted, and left voicemails on the lawyer’s former girlfriend’s phone. When she refused to respond, the lawyer went to her house at least twice, prompting her to call the police. In a text message, the lawyer threatened to embarrass her. A subsequent voicemail threatened to create problems for her at her job. The lawyer was admonished for violation of Rule 4-8.4(d) because the conduct was prejudicial to the administration of justice in that it negatively impacted the image and perception of lawyers, who are officers of the court. 

Conclusion 

Although an admonition is the least severe sanction in the disciplinary system, upon its acceptance, it is available to the public and becomes part of the lawyer’s record. It establishes a disciplinary history and may also be used to assist in evaluating the lawyer’s future conduct. Admonitions should be viewed as informative and as a warning to the lawyer that they should be more careful to ensure compliance with the Rules of Professional Conduct in the future.

Endnotes

1 Rule 5.07.

2 Rule 4-3.3.

3 Rule 4-8.2.

Kelly Dillon is a certified fraud examiner and an investigative examiner for the Missouri Office of Chief Disciplinary Counsel. In her 23 years with OCDC, Kelly has conducted thousands of audits, testified as an expert witness in disciplinary cases involving safekeeping property violations, and provided instruction to lawyers on trust accounting.

As an investigator with the Office of Chief Disciplinary Counsel, I’ve been asked to share some of my more interesting cases and impart a few words of wisdom on the topic of lawyer trust accounting. The information here is all based on actual cases, running the gamut from minor accounting mistakes to outright criminal activity. 

When and why does the OCDC conduct audits?

When OCDC receives an insufficient funds notification from the bank

There are many reasons the OCDC might decide to audit a lawyer’s accounts. Most obvious is, of course, an insufficient funds notice on a client trust account. An overdraft is usually due to an accounting error. And while an accounting error on its own may be best remedied through additional education and support to the lawyer, sometimes a quick review reveals bigger problems.

That was the case with JM. JM’s overdraft was simply the product of a premature disbursement to a favored client. Rules require a lawyer wait a reasonable period of time after depositing client funds prior to disbursing against them. JM disbursed against uncollected funds; by failing to wait, he used other clients’ money. 

However, my review of JM’s client trust account revealed a bigger issue. We noticed that JM had been writing checks to his bank with a note in the memo line with the client’s name and/or their medical provider in an exact amount due to the provider. That practice suggested the checks were being converted to cashier’s checks to pay third-party providers. However, when copies of the cashier’s checks were obtained from the bank, they revealed the checks were payable to JM’s creditors instead of the third-party providers. 

When OCDC gets a client complaint 

The OCDC may also audit if it receives a complaint or report alleging the lawyer failed to return unearned fees or failed to disburse client or third-party funds. In these instances, the OCDC must determine whether the client funds remained in the client trust account as required by the rule. The OCDC investigators — and lawyers holding client funds — must take into consideration that the client trust account is a pooled account. It contains not only the funds of the client in question, but in most cases, it also contains other clients’ funds. It is the OCDC’s duty to conduct an audit that considers all those clients and to learn whether the balance was sufficient for each client whose funds were to be held in trust. 

In the case with LH, we found that the lawyer maintained funds in trust for more than one client, but when we looked at all of the clients whose funds should have been held in trust, the account fell short. 

When statements submitted to the OCDC don’t reconcile with bank records 

When the OCDC audits lawyer accounts, the lawyer is asked to produce copies of monthly bank statements, cancelled checks, and deposit slips with the items deposited. Those are among the records that Rule 4-1.15 requires lawyers to keep as a routine. 

When we asked SW for his records, we entered them into a spreadsheet for reconciliation. The statements SW sent did not reconcile. A visit to SW’s office revealed the statements he submitted to OCDC were altered. His altered bank statements excluded payments he was making to himself. SW’s altered statements constituted additional serious violations. 

Two sets of books? 

Once the bank records are received, OCDC may request additional required client records such as settlement statements, fee agreements, and others to support deposits and disbursements. We then use those records to reconcile the individual client account ledgers within the pool of trust account funds. 

In JA’s case, during that reconciliation process, we found that he was not making complete disbursements of client settlement funds and he produced copies of settlement statements. He claimed the undisbursed funds were fees for representing the same clients in additional legal matters, but he had no supporting documentation. 

Further investigation revealed that JA created two settlement statements for many of his clients. One statement reflected a lesser gross settlement amount than JA actually received on behalf of the client, thus resulting in a lesser amount due to the client. That first statement contained the actual signature of the client. The second statement contained the actual gross settlement amount (which the client was unaware of) and a client signature forged by JA.

What’s wrong with mixing personal or operating funds in trust accounts? 

Client funds must be held separately from lawyers’ business and personal funds. That means that business funds, such as earned fees, must be removed from trust accounts, and client funds should never be in an operating account. Commingling in either account violates Rule 4-1.15(a). It creates a significant risk to client funds because lawyers’ creditors (such as the IRS) can and will collect from any account holding any personal funds. 

When lawyers don’t separate operating funds from personal accounts, problems and embarrassments can result. If during an audit it is discovered that funds required to be held in trust are being transferred to or directly deposited into another account, the OCDC must also audit the receiving account. 

Are “non-refundable fees” enforceable? 

A few lawyers are still depositing flat fees of more than $2,000 to their operating accounts. Even though Missouri Supreme Court Advisory Committee Formal Opinion 128 dates back to 2010,¹ we still frequently see lawyers treating larger flat fees as “earned upon receipt.” A few lawyers wrongly believe they may lawfully deposit them to their operating account by describing them as “nonrefundable” in their contracts. Depositing these funds to an operating account or spending them before they are earned can lead to charges of misappropriation. 

In the case of RJ, the lawyer had a large-volume criminal practice. The lawyer deposited all flat fees, even advanced flat fees, into the operating account. Because RJ considered these advanced fees “earned upon receipt,” he kept no record of when or how the fees were earned. When audited, it was determined that in many cases, RJ had spent the advanced fees prior to earning them, misappropriating client funds. 

Removing earned fees from the client trust account is an important part of the process. Not only does it keep the lights on and provide a paycheck, but it prevents the lawyer from commingling in the client trust account. A common and very serious mistake we see when a lawyer withdraws earned fees from the client trust account is the removal of fees with no basis in an actual accounting. 

Like others, RJ routinely transferred funds to himself when he needed the income. Too often, lawyers base the withdrawals on an “estimation” of fees earned, believing they are taking less than what was earned. In reality, they often take more, resulting in the misappropriation of client funds. 

Fees might be earned on an hourly basis or by benchmark of the case, but no matter the method or agreement with the client, each withdrawal from the client trust account must come with a ledger accounting showing the withdrawal, the associated client, and purpose. A general journal of transactions and ledgers for each client are requirements of the rule. They are also essential to an effective reconciliation process.

What do I do if I’m audited? 

Respond promptly and honestly. 

I’ve seen many lawyers incur additional rule violations for failing to cooperate with an audit. Ignoring a request for records will not make it go away; it will simply lead to issuance of investigative subpoenas to the bank and/or the lawyer to complete the audit. The OCDC will follow up when lawyers ignore requests for records. 

Honesty is the best policy during an audit. If records are requested that the lawyer is not maintaining, it’s best to advise the auditor. With that information, we can work together to gather what is necessary to reconcile the account. In my experience, lawyers who try to create documents after the fact almost never reconcile to the bank account records. 

Also, bank records leave an absolute trail of where the money went. Lawyers who try to rewrite history eventually face the consequences when records reveal the truth.

In closing 

While I could go on and on with cautionary tales of trust accounting breakdowns, I’m told that too long of an article may cause drowsiness, fatigue, and, in rare cases, anxiety. For more detailed information, I encourage every lawyer to visit the OCDC and Missouri Legal Ethics Counsel websites and study Missouri Supreme Court Rule 4-1.15. Also, consider reaching out for an in-person CLE for your group or organization.

Endnotes 

1 Missouri Supreme Court Advisory Committee Formal Opinion 128 was amended in 2018 to allow advance fees under $2,000 that are not payments towards a larger flat fee into an operating account.

This flow chart depicts the Rule 5 procedures for routine complaints against Missouri lawyers. It indicates options and respective consequences available at various stages to complainants, lawyer respondents, the OCDC and Regional Disciplinary Committees, Disciplinary Hearing Panels, and the Supreme Court of Missouri. Anyone involved in or more curious about a disciplinary proceeding should study Supreme Court of Missouri Rule 5. 

The process generally begins with the OCDC’s analysis of complaints. If the OCDC determines it has jurisdiction, the OCDC or Regional Disciplinary Committees conduct investigations. If complaints are closed with a finding of insufficient probable cause to justify discipline, complainants may seek review by the Missouri Supreme Court Advisory Committee (Rule 5.11). 

The OCDC and Regional Disciplinary Committees resolve many disciplinary matters with an admonition or a diversion – with the consent of the lawyer (Rule 5.12 and Rule 5.105). When formal charges (Informations) are filed under Rule 5.12, a Disciplinary Hearing Panel conducts a hearing under Rules 5.14 and 5.15, and then makes findings and recommendations to the Supreme Court of Missouri under Rule 5.16. That rule permits the parties to decide whether to accept or reject the panel’s recommendation and sets the procedures following those decisions. 

Except for dismissals accepted by all parties, the Court decides all formal disciplinary cases. Rules 5.17 and 5.19 establish the process for the Supreme Court’s analysis of those cases.

Editor's note: The original flow chart incorrectly stated Rule 5.04 outlined OCDC receiving a complaint, OCDC initiating an investigation, and screenings by OCDC. Complaints and investigations initiated by OCDC are outlined in Rule 5.08, and OCDC screenings are outlined in Rules 5.08 and 5.09.

Oct. 24 | The ethics fight of the century: Hoffman vs. Sharswood
1.0 MCLE / 1.0 E | $120 | Online webinar

Join Stuart Teicher as he talks about how the paradigm of zealous advocacy continues to reverberate through the practice of law today.

Topics discussed:

•    Rule 8.4, and the role of deception in advocacy

•    Rule 1.3 and the reference to zeal in advocacy

•    Various Preamble sections of the ethics code

Oct. 26 | (No-cost) Psychological safety: The key to high-performing legal teams

1.0   MCLE / 1.0 E | $0 | Online webinar

According to research, psychological safety is a critical component of any high-functioning team. Psychological safety occurs when team members can comfortably admit mistakes, voice concerns, brainstorm off-the-wall ideas, share honest opinions, and ask questions – all without fear of judgment or reprisal. Without it, workplace interactions become dysfunctional and workplace engagement suffers, leading to decreased productivity and efficiency.

In this session, we’ll discuss the important role of psychological safety in the legal profession and explore strategies and tools to create or boost the level of psychological safety in your offices, teams, and one-on-one interactions.

Speaker: Erin McClernon, Ogletree Deakins Nash Smoak & Stewart PC, Kansas City

Nov. 2 | 28th Annual Missouri Lawyers’ Assistance Conference

7.0 MCLE / 7.0 E | $54 | Hybrid at The Bar Center

This is the 28th Annual Missouri Lawyers’ Assistance Conference, which is sponsored by The Missouri Bar, The Bar Plan, and The Missouri Bar Foundation. Featured programs include: 

·         Don’t lose your personal identity! You are more than just a lawyer

·         The importance of sleep to our overall health 

·         The 12 steps of recovery, as worked through the Rules of Professional Conduct 

·         Addressing silent disabilities in the workplace

·         Trauma in the legal profession

·         The righting reflex: Stress management and well-being for attorneys and other human beings

Recipients of the 2023 Dorothy Kaiser Award, James T. Britt Memorial Award, and Warren Welliver Award will also be recognized.

Nov. 9 | Stuart travels to England! What Liverpool and the Beatles teach about attorney ethics

1.0   MCLE / 1.0 E | $120 | Online webinar

In this travel-journal style program, Teicher visits historical sites in Liverpool and talks about the Beatles, the City of Liverpool, and attorney ethics.

Topics include:

•    Why being a paradigm shifter is about competence, Rule 1.1.

•    The Beatles and their representation: (1) The rules always apply, Rule 3.4; (2) Tough negotiating tactics and Rule 4.1; (3) Zealous representation and professionalism.

•    Rule 8.4, two ways: (1) What the In re Apple case teaches about lawyer investigation, (2) The lawyer controversy around “Paul is Dead,” Rule 7.1.

•    What lawyers can learn about elimination of bias from the City of Liverpool

Speaker: Stuart Teicher, The CLE Performer

Nov. 15 | From Bonnie and Clyde, to Bernie Madoff: What the biggest thieves in history teach about attorney ethics

1.0   MCLE / 1.0 E | $120 | Online webinar

The ethics rules are all about deterring bad conduct, and who has conducted themselves worse than some of the most infamous thieves in history? Stuart Teicher unearths the stories of some of the worst crooks in history and reveals the ethics lessons that lie beneath their actions.

Topics include:

•    Assisting in wrongdoing and Rule 8.4(a)

•    Rule 1.6(b), financial crimes and frauds

•    What criminal gangs teach about Rule 1.10 (imputing conflicts)

Speaker: Stuart Teicher, The CLE Performer

Register for CLE programs to earn MCLE hours by June 30

The deadline for lawyers practicing in Missouri to complete a total of 15 MCLE hours is June 30. June has over 100 opportunities to complete these hours including, the 2023 MOSOLO Small Firm Conference, a no-cost live performance of “The Milly Project”, and the 2023 Annual Bankruptcy Institute. Additionally, The Missouri Bar will launch CLE Express in June. CLE Express gives lawyers a chance to earn all 15 MCLE credits in one day. There will be three days in June for lawyers to take advantage of this opportunity.

The Missouri Bar Young Lawyers’ Section hosts final performances of the Milly Project

On May 25, YLS presented a CLE program including a showing of the film “The Milly Project” at the Saint Louis University School of Law. This showing was one of the last, with the final performance being on June 17 at the Medallion Theater in Kansas City.

The Milly Project follows the case of Milly Sawyers, an enslaved woman who fought for and won her freedom in Springfield prior to the Civil War and the U.S. Supreme Court’s Dred Scott decision. It was originally written and directed by teacher Kendra Chappell and her advanced acting high school students for an annual high school production. The play has gained national recognition and continues to be commissioned for performances across the state and the country. It was recently adapted into a film that had been nominated for three awards.

Ethics: More than just staying out of trouble

In this article, Stuart Teicher discusses his take on ethics in the legal profession. Teicher teaches seminars and webinars such as CLE Express and Ethics Express; provides ethics training to law firms and legal departments; and presents at conferences such as the upcoming Solo and Small Firm Conference and law firm events.

“Every lawyer, every day, is going to deal with some sort of behavioral or professional issue,” he said. “And because it’s such an important part of every practice every single day, it also allows us to be the best at what we do. It’s not just a boundary of, ‘How do we stay out of trouble?’”

Remote public access launch to have roll-out implementation

Starting July 1, the public will have access to public court records from personal electronic devices. Implementation will occur over four months due to the size of the project. The goal of gradual implementation is to help circuit courts transition to this wider access and not overwhelm Case.net. Once a circuit court offers remote public access, citizens will be allowed to view public records dating back to July 1. Public records filed before July 1 will not be accessible remotely.

Most popular story

As usual, the bar’s most popular articles were The Missouri Bar’s weekly case summaries, followed by April’s In Memoriam.

The bar provides links to all hand-downs by the Supreme Court of Missouri and the Missouri Court of Appeals each week online. There are headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

Those wanting to pay tribute to a Missouri lawyer can submit an obituary here.

The Missouri Bar makes every effort to provide valuable information and resources through MoBar.org and MissouriLawyersHelp.org. To stay up to date, follow The Missouri Bar on Facebook, LinkedIn, Instagram, and Twitter.

“Something about how the rules govern lawyer behavior and the combination of setting the boundaries and talking about proper behavior just fascinates me,” he said.

The self-named “CLE Performer” and legal educator has been teaching ethics law and writing instruction since 2009, after practicing as a solo and small firm lawyer for more than two decades. Teicher teaches seminars and webinars such as CLE Express and Ethics Express; provides ethics training to law firms and legal departments; and presents at conferences such as the upcoming Solo and Small Firm Conference and law firm events.

From his first year teaching and attending the Association for Continuing Legal Education (ACLEA) onward, Teicher said he knew teaching ethics “is what I should be doing.”

“When we teach professional responsibility in law school, we don’t teach ethics,” he said. “The rules are only part of professional responsibility. There’s the ethics portion, which sets the boundaries of our behavior, but there are also concepts of professionalism, which is how we’re supposed to aspire higher.”

Lawyers use the concepts of ethical responsibility every day regardless of practice area, he said.

“Every lawyer, every day, is going to deal with some sort of behavioral or professional issue,” he said. “And because it’s such an important part of every practice every single day, it also allows us to be the best at what we do. It’s not just a boundary of, ‘How do we stay out of trouble?’”

Although Teicher teaches all areas of practice, he said he feels his programs resonate particularly well with solo and small firm lawyers.

“Ethics and professional rules of conduct affect small firm lawyers more than large firm lawyers because they’re on their own,” he said. “Big-size law firms have a support system and resources to use when there are issues, whereas the solo and small firm lawyers — and I was solo and small firm for a long time — you’re on your own.”

Between one-on-one communication with clients, office staff supervision, increased direct responsibilities, and fewer resources to turn to when ethical questions arise, solo lawyers face a different set of issues than professionals at large law firms Teicher said.

“I was the lawyer who was up to my nose in work early in my career, and you feel as though sometimes you’re living on the edge of an ethics breach your entire career,” he said. “And I think because I could identify with what they’re going through, it drives me to try to help them get through that.”

Teicher even started a “Lawyer Survival Center,” a Facebook page that he created to give lawyers direction on how to help protect them from malpractice their practice. He also records a podcast called, “Ethics is Cool” to provide additional resources for lawyers who are struggling to find assistance.

One of his most recent programs, “What The Song of the Century Teaches About Inclusion in the Law,” strives to help lawyers foster inclusion and belonging in their practice. Although programs focusing on diversity have become commonplace when teaching ethics programs, Teicher believes that inclusion and elimination of bias are a step beyond diversity.

“Diversity is about having a diverse group of individuals who are going to be a part of the practice,” he said. “But inclusion and belonging are about retaining those individuals, giving them access to opportunities and resources, and bringing them up the ladder into leadership positions.”

“What The Song of the Century Teaches About Inclusion in the Law” discusses the relevance the 1939 song, “Strange Fruit,” has to lawyers in the 21st century fight for inclusion and belonging. The song, originally a poem written by Abel Meeropol in 1937, was recorded by Billie Holiday to protest the lynching of Black Americans around the turn of the century. Although protest music existed before “Strange Fruit,” the song was revolutionary due to its open rebellion against racism and violence.

The song was so moving that it eventually became known as the “Song of The Century.”

“What I find so interesting about it is that there are so many different things that had to happen for that song to become what it is,” Teicher said. “There had to be collaboration, there had to be individual accountability, there had to be daring people who were willing to take risks. “All those concepts that helped the song become what it is are relevant to lawyers in our fight for inclusion and belonging.”

Most recently, Teicher traveled to the Mississippi Delta, where he filmed his ethics program, “What the Mississippi Delta Teaches About Bias in the Legal Profession.” The Mississippi Delta is the northwest portion of Mississippi (along with sections of Louisiana and Arkansas) with distinctive racial and cultural history.

In his research to connect the history of the Delta with lawyer ethics, he found that people leave Mississippi for the same reasons that minority lawyers leave law firms – they don’t have access to opportunity and resources that are vital when building relationships. “And when you don’t have access to opportunity and resources, people leave,” he said.

Teicher wants more inclusion programs to focus enough on love, friendships, and building relationships.

“When you look at the need for active mentors, you look at the need for sponsorship,” he said. “How does that happen? It happens when you as a lawyer care individually enough about someone else to go out of your way to give them access to opportunities and resources. You can’t fake inclusion. You’ve got to have that individual drive to want it to happen.”

Ultimately, Teicher said, it’s about individual lawyers being accountable for change and coming together to create the community they want to see in the world.

“That’s why I like teaching about inclusion and belonging,” he said. “It’s about getting better, being better, and moving forward and creating relationships.”

Register for Teicher’s CLE programs individually online at MoBarCLE.org, or sign up for Ethics Express to fulfill all your ethics and elimination of bias minimum continuing legal education requirements.

“'The Milly Project' is an exploration into the early success and failure of the Missouri legal system and our collective memory,” says Kamillia Scott, YLS council member for District 3, Kansas City. “It’s time to have the tough conversations about the legacy of these events in an effort to improve our craft as attorneys.”   

The Milly Project was inspired by the 2017 discoveries of a local archivist, who unearthed handwritten court documents and manuscripts from the 1830s. Originally written and directed by teacher Kendra Chappell and her Advanced Acting high school students for an annual high school production, the play has blossomed into a nationally recognized production. In addition, the play has continued to be commissioned for performances across the state and country, and was recently adapted into a film production that was nominated for three awards at the New York International Film Festival including Best Screenplay (winner), Best Social Justice Film (winner), and Best Acting Ensemble. 

The film adaptation of the production was written and directed by Kendra Chappell, the author of the original play. The drama details the many trials and tribulations of Sawyers based on information regarding her life that was collected from handwritten court manuscripts only recently uncovered by local archivists. Click here to view a trailer of the film. 

YLS previously hosted CLE programs featuring the live play and entered into a licensing agreement for the film production of 'The Milly Project' to continue to widen the reach of Sawyers' unique story for continuing legal education purposes.

Both the film and the live performance qualify for elimination of bias and ethics credit. To receive CLE credit, participants must stay for the discussion of the film. 

St. Louis film
May 25
Held at the St. Louis University School of Law
2.2 MCLE / 2.2 E / 2.2 B
$0.00

6 p.m. | Reception (food and drinks provided)  
6:30-7:30 p.m. | Film Presentation The Milly Project (2021) 
7:30-7:40 p.m.   Break
7:40-8:30 p.m.   Panel discussion 

Panelists: Judge David C. Mason, 22nd Judicial Circuit, St. Louis; Annette Slack, Director of Missouri Baptist University/BJC Partnership & Asst. Prof. Business Administration & Healthcare Management; Michelle Bonner, Director of Diversity, Inclusion, and Belonging, Missouri Botanical Garden, St. Louis.

Attendees must stay for the ethics discussion to receive MCLE credit.

Kansas City performance
June 17
Held at the Medallion Theater in Kansas City
2.2 MCLE/ 2.2 E / 2.2 B
$0.00

2 p.m. | Welcome and introduction by Christa Moss
2:05-3:10 p.m. | Performance
3:10-3:20 p.m. | Break
3:20-4:10 p.m. | Panel discussion
4:10 p.m. | Thank you by Missouri Bar YLS/dismissal

Lobby reception to follow

Panelists: Hon. Duane Benton, United States Court of Appeals, 8th Circuit, Kansas City; Hon. Patricia A. Breckenridge, Missouri Supreme Court, Jefferson City; Adora Snead, Milly Project Lead Actress; Mayor Quinton Lucas, Kansas City

Moderator: Hon. Jalilah Otto, 16th Judicial Circuit, Kansas City

Attendees must stay for the discussion to receive MCLE credit.

We know that many Missouri lawyers have questions about COVID-19 and how it will impact your firms, clients and other business matters. As lawyers adapt their workplaces and prepare for various outcomes, keep the Rules of Professional Conduct in mind. The Bar Plan

If you are choosing to work remotely from home or another space, confidentiality, diligent representation and client communication should continue uninterrupted. As noted by The Bar Plan, firms should ensure that lawyers working remotely “are able to communicate with clients, the court, other lawyers, firm staff, and vendors in a thorough and timely manner.” Additionally, The Bar Plan advises that lawyers take special care when it comes to matters of cybersecurity and maintaining client files. Specific tips and recommendations for these matters are available here.  

As COVID-19 continues to spread, now is also a good time to discuss your firm’s disaster recovery and lawyer succession planning, including making use of Missouri’s Rule 5.26. It provides for a trustee to be appointed by a court to “protect the interests of the clients and other affected parties” and requires attorneys to take whatever action deemed necessary to protect those interests. These plans will vary based on firm size and type, but general strategies and considerations are available here through The Bar Plan. You can download The Missouri Bar’s Planning Ahead Guide for planning for disasters or illness through our Practice Management online center.  

If you have questions about ethics or tricky situations, you can contact The Bar Plan’s Risk Management Department at 1-800-843-2277 x171. You may also contact the Missouri Legal Ethics Counsel at 573-638-2263. 

The Missouri Bar is continuing to monitor the COVID-19 situation and will respond based on the advice of governments, public health authorities and medical professionals. Stay up to date on related Missouri Bar notices here.  

We look forward to continuing to serve you and the citizens of Missouri as we all work together to do what is best for everyone’s safety and well-being in these uncharted times.