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 [6], [7], and [8]. 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 [4]. 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.

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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