Five New Informal Advisory Opinion Summaries Published

As determined by the Advisory Committee to the Supreme Court of Missouri, five new informal opinion summaries have been published (see below). 

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

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

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

2021-01

Rules:  4-1.6; 4-1.15

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

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

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

2021-02

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

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

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

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

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

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

2021-03

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

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

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

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

2021-04

Rules: 4-1.7; 4-1.16

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

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

2021-05

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

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

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