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.”
2023-01
Rules: 4-1.14; 4-1.2; 4-3.4; 4-1.4
Question: Lawyer is appointed by the court as counsel for Client who is the respondent in a guardianship proceeding. Lawyer believes that the statute, RSMo 475.075.4, requires the court appointed counsel to represent the respondent’s desires regarding the guardianship, but that the statute requires Lawyer to obtain all possible aid from the respondent if Lawyer believes that respondent is capable of understanding the proceedings and can help advance the respondent’s interests. Lawyer seeks clarification as to the application of Rule 4-1.14 – Client with Diminished Capacity in this representation given the statutory requirements.
Answer: This office cannot interpret statutes or other sources of law, and can only provide guidance regarding Rules 4, 5, and 6. It is important to remember that “[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Rule 4, Scope [14]. As explained in Rule 4, Scope [15], a larger legal context outside of the Rules of Professional Conduct shapes the lawyer’s role, including court rules, laws defining specific obligations of lawyers, and substantive and procedural law in general. Additionally, “for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.” Rule 4, Scope [17].
It should be noted that a lawyer has an ethical duty to comply with court orders, and a lawyer is prohibited from knowingly disobeying an obligation under the rules of a tribunal. Accordingly, Lawyer should seek to follow any obligations imposed by a court order appointing the lawyer, statute or other law with respect to the representation. See, Rule 4-3.4(c) and Comment [4]. The interpretation of statutes or other law governing Lawyer’s obligations when appointed to represent a client in a matter governed by that statute is a matter of law for a court to decide and beyond the scope of an informal ethics opinion. Lawyer must use independent professional judgment, based on the facts and substantive law, to make a determination on a case-by-case basis as to when Lawyer may act pursuant to Rule 4-1.14 when representing a respondent in a guardianship proceeding.
As to the application of Rule 4-1.14 to this Question, Lawyer should consider that Client has presumably been alleged to have some degree of diminished capacity, which may or may not be true. Pursuant to Rule 4-1.14(a) if Lawyer believes that a client’s capacity to make adequately informed decisions in connection with the representation is diminished, Lawyer is required, as far as reasonably possible, to maintain a normal client-lawyer relationship. See also Informal Opinion 2020-27.
Rule 4-1.2(a) requires Lawyer to abide by a client’s decisions concerning the objectives of the representation and to consult with the client as to the means by which the client’s objectives are to be pursued. However, Comment [6] to Rule 4-1.2 provides guidance that “[a]n agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” It is the informal advisory opinion of this office that “other law” in the scope of representation context could include an order appointing an attorney to represent a client, specific statutory authority, or case law. Rule 4-1.4(b) requires Lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment [2] to Rule 4-1.4 states that the client “should have sufficient information to participate intelligently in the decisions concerning the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Therefore, a client who may have diminished capacity retains the right, to the extent that the client is able to do so, to determine the goals and objectives of the representation and to consult with Lawyer regarding the means by which those goals and objectives are pursued. However, as noted in the guidance provided in Comment [1] to Rule 4-1.14, “[w]hen the client …suffers from a diminished mental capacity, … maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions.”
As explained in Informal Opinion 2020-27, Rule 4-1.14(b) sets forth a continuum of potential protective actions which a lawyer may take in regard to a client with diminished capacity, beginning with those that involve minimal intrusion into the client’s decision-making autonomy and ending with the most intrusive. In considering the application of Rule 4-1.14(b), Lawyer appointed to represent a respondent in a guardianship proceeding must consider that requesting the appointment of a guardian is the most drastic action on the end of the continuum of possible protective actions involving the greatest intrusion into the client’s decision-making autonomy. When the appointment of a guardian for a client has been sought by a third party, the most drastic protective action on behalf of the client with diminished capacity has already been taken by a party other than Lawyer. Therefore, it may not make sense for Lawyer to take protective action authorized by Rule 4-1.14(b) when the client’s capacity is the subject of the proceeding and should only be considered by Lawyer for use when the high criteria of that Rule are met.
2023-02
Rules: 4-8.3
Question: Lawyer A represents Lawyer B in a contract dispute in which Lawyer B represented an LLC and is alleged to have filed actions on behalf of non-members of the LLC without their knowledge or consent. Lawyer B’s conduct is at issue in the underlying lawsuits. Lawyer A asks if there is a requirement to report Lawyer B’s alleged misconduct to the Office of Chief Disciplinary Counsel pursuant to Rule 4-8.3.
Answer: Missouri Rule of Professional Conduct 4-8.3, Reporting Professional Misconduct, provides guidance in Comment [4] that “[t]he duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.” Based on Comment [4] to Rule 4-8.3, Lawyer A does not have an obligation to report Lawyer B because Lawyer A has an attorney-client relationship with Lawyer B in which Lawyer B’s conduct is in question.
2023-03
Rules: 4-1.5; 4-5.4
Question: Lawyer receives payment of attorney fee for awards in permanent total disability cases or work-related death cases, and those fees are for work previously performed. Lawyer is considering retirement and asks if Lawyer may continue to receive those payments of attorney fees for work previously performed, and if those future attorney fee payments may be made to Lawyer’s heirs or a trust?
Answer: Based on Rules 4-1.5 and 4-5.4(a), if the fees were earned prior to Lawyer’s retirement, Lawyer may continue to receive those payments after retirement. See also Missouri Informal Opinions 2010-0005, 20000195, and 930079. This is true whether the Lawyer retires and remains on active status with a full Category 1 license pursuant to Rule 6.01, or inactive status pursuant to Rule 6.03. See also Informal Opinions 2022-02 and 2020-02. Rule 4-5.4(a) states that “[a] A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons….” In this scenario, future payments may be made to Lawyer’s heirs so long as it is permissible at law. This office cannot provide legal advice on the appropriate legal mechanisms to do so, as that is an issue outside the Rules of Professional Conduct. See also Informal Opinion 2011-02.
2023-04
Rules: 4-1.2; 4-3.7
Question: Lawyer represents Client in seeking an order of protection, and assisted Client in completing paperwork for the petition such that portions are in the handwriting of Lawyer. Opposing Counsel claims that Lawyer is now a necessary witness and files a Motion to Disqualify Lawyer. Lawyer asks if there is an issue in assisting future clients in drafting order of protection pleadings in a similar manner.
Answer: If Lawyer is representing Client, Lawyer may assist Client in carrying out the objectives of that representation pursuant to Rule 4-1.2 (Scope of Representation). Whether Lawyer will be considered to be a “necessary witness” for the purposes of Rule 4-3.7 (Lawyer as Witness) is really a question of law and fact outside the Rules of Professional Conduct and must be determined by the Court. See e.g., Missouri Informal Opinions 2015-06, 2014-03, 20040012, 20000234, 990148, 980098, and 950226. In examining whether Lawyer will be a “necessary witness” for the purposes of Rule 4-3.7, in addition to substantive law, Lawyer should consider the guidance provided in the Comments to Rule 4-3.7, specifically Comment [2] as it addresses the possibility of the tribunal being misled or confused by the lawyer’s role in the matter or opposing party’s right to object if the combination of roles by Lawyer may prejudice that party’s rights in the litigation. Comment [4] to Rule 4-3.7, provides factors to be considered in balancing the interest of client, tribunal and opposing party, and states: “[w]hether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer’s client.”