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). 

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.

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