Informal Opinion Number: 20050059

QUESTION: Attorney was hired to get Client’s sick leave benefits from former employer and to apply them retroactively to Client’s retirement. Client was advised that the retainer would not cover filing fees. Attorney offered to prepare a petition and first set of discovery, after which Client would have 60 days to decide if more legal assistance was needed. Attorney immediately prepared the documents and sent them to Client. When Client later inquired about the status of the case, Attorney advised Client of the situation over the phone and again in writing. Client replied with a letter stating that Attorney was to file the petition. Attorney informed Client that Attorney’s office would not be further involved. Client responded by threatening to file a bar complaint against Attorney if Client’s retainer fee was not refunded. Attorney feels uncomfortable with further direct contact with Client and solicits advice and guidance.

ANSWER: The Rules of Professional Conduct do not prohibit Attorney from having further direct contact with Client, based on the information presented. Even if Client files a fee dispute or bar complaint, Attorney is not prohibited from direct contact unless Client is represented by counsel in that matter. In that event, any contact would have to be through Client’s counsel or with the counsel’s consent, under Rule 4-4.2. Under 4-4.2, Client would not be considered to be represented by disciplinary counsel in a bar complaint, nor would Client be considered to be represented by the fee dispute program if Client filed a fee dispute. There are no “nonrefundable” fees in Missouri. The only fee where a client is not entitled to a refund is a fee that has been earned by the attorney. In determining whether the fee has been earned, all factors set forth in Rule 4-1.5(a) may be considered.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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