As determined by the Advisory Committee to the Supreme Court of Missouri, four 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.”
Rules: 4-1.9, 4-1.6
Question: Attorney wishes to impeach Former Client who is a witness in another matter involving a current client and wants to know when information of a former client becomes generally known for purposes of Rule 4-1.9(c)(1)?
Answer: Rule 4-1.9(c)(1), in relevant part, prohibits a lawyer who has formerly represented a client in a matter from using “information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known.” In considering when information is generally known, it is important to note that Missouri Informal Advisory Opinion 2015-02 applies Rules 4-1.9(c) and 4-1.6 and states that “[e]ven if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed….” For the information of Former Client to be generally known pursuant to Rule 4-1.9(c)(1), it is the opinion of this office that it must be generally known outside just the public records, meaning it would be more recognizable by members of the public in the community, or in the industry of the former client, not simply because it was discussed in open court such that there are court records available through public repositories of such information, including Missouri Case.net. See also Missouri Informal Advisory Opinions 960248 and 960170. The generally known exception of Rule 4-1.9(c)(1) is restricted to use of the information of Former Client to Former Client’s disadvantage, but Rule 4-1.9(c)(2) still prohibits Attorney from revealing information relating to the representation of Former Client “except as these Rules would permit or require….” Therefore, Attorney may not use or reveal information of Former Client, but may use generally known information of Former Client for purposes of impeaching Former Client who is now a witness in another matter.
Rules 6.01, 6.03, 6.05, and 6.06
Question: Attorney is considering retiring from the practice of law and is trying to determine if Attorney should change Attorney’s license to inactive status. Attorney would still like to represent family and friends with legal issues, and maybe engage in pro bono work. What license status should Attorney maintain?
Answer: Since Attorney still would like to represent family and friends with legal issues, and maybe engage in pro bono work, Attorney should maintain a full Category 1 license pursuant to Rule 6.01. If Attorney were to seek inactive status pursuant to Rule 6.03, Attorney would not be permitted to represent family and friends, or engage in pro bono work, or Attorney would be engaged in the unauthorized practice of law pursuant to Rule 6.05 unless Attorney first sought to return to active status pursuant to Rule 6.06. If Attorney is over the age of seventy-five years or has been licensed to practice for fifty years or more, Attorney may be exempt from paying either a Category 1 or inactive fee pursuant to Rule 6.01(d). If Attorney only wishes to engage in pro bono work upon retirement, Attorney should review Rule 6.01(o) to determine if Attorney would like to seek a waiver of the annual enrollment fee to solely provide pro bono legal services to an approved legal assistance organization. Attorney should also consider MCLE requirements pursuant to Rule 15.
Rules 5.245, 5.27, and 5.28
Question: Attorney was just suspended pursuant to Rule 5.245 for failure to pay taxes or failure to file tax returns. May Attorney continue to practice while seeking reinstatement?
Answer: While Rule 5.28(k)(2) provides that reinstatement is retroactive for lawyers suspended pursuant to Rule 5.245 for three years or less who are reinstated under 5.28(j), Attorney must still comply with Rule 5.27 on the procedure following a suspension order while seeking such reinstatement. Attorney may not continue to practice law while suspended.
Question: Attorney wants to apply for a job, and the job posting asks for a writing sample. Is it permissible for Attorney to simply submit a copy of a recently filed Motion for Summary Judgment as a writing sample with the job application?
Answer: Attorney must fully consider confidentiality of client information pursuant to Rule 4-1.6 when considering whether to use a writing sample that is from the representation of a client. Even if the Motion for Summary Judgment is a matter of public record, it is nevertheless confidential information and cannot be disclosed by Attorney unless an exception to Rule 4-1.6 is met. See Missouri Informal Advisory Opinions 2015-02.
As a first option, Attorney should consider whether it is appropriate to seek informed consent from the client to permit Attorney to use the Motion for Summary Judgment as a writing sample. Informed consent is defined in Rule 4-1.0(e) and requires the lawyer to adequately communicate information and explanation about the material risks of the proposed course of conduct and reasonably available alternatives. See Rule 4-1.0, Comments , , and . If client provides informed consent, Attorney may use the Motion for Summary Judgment as a writing sample, but Attorney should still consider if any redactions are appropriate to protect the interest of the client. If client does not provide informed consent, Attorney should not use the client’s Motion for Summary Judgment as a writing sample.
As a second option, depending on the nature of the information contained in the Motion for Summary Judgment, Attorney may consider if information such as names, case numbers, and other personally identifiable information may be removed such that Attorney does not reveal protected information that could reasonably lead to the discovery of the client’s information by a third person. Rule 4-1.6, Comment . If such information may be removed, it would not be necessary to seek the informed consent of the client.
Finally, Attorney should consider submitting a writing sample that was not drafted as a result of a lawyer-client relationship, but instead consider submitting a writing sample such as an article that has been published, or a document that has been drafted by Attorney based on a hypothetical.