2023-10 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 2023-10

Adoption Date: October 18, 2023

Rules: 4–1.4, 4–1.6, 4–2.1, and 4–8.4(d)

Client- Lawyer Relationship, Counselor, Maintaining the Integrity of the Profession

Communication, Confidentiality, Advisor, Misconduct

Subject: Litigation Loans

Summary: litigation loans pursuant to the Missouri Consumer Legal Funding Act

Question: When Client seeks a loan through a consumer legal funding company pursuant to RSMo § 436.550 to §436.572, may Lawyer ethically comply with the client’s contractual agreement with the consumer legal funding company?

Answer: Prior Informal Opinions 20030022 and 20000229 note that lawyers should not participate in litigation loans that may be considered to constitute champerty or maintenance, as such conduct would violate Rule 4 dash–8.4(d) as conduct prejudicial to the administration of justice. This office cannot make a determination as to whether a loan pursuant to the Consumer Legal Funding Act would constitute champerty or maintenance under Missouri law. That is a question of law that is beyond the scope of the Rules of Professional Conduct.

If Lawyer determines that such consumer legal funding agreements do not constitute champerty or maintenance, Lawyer may ethically adhere to Client’s directions per the agreement Client entered into with the consumer legal funding company. However, Lawyer, upon receiving such direction from Client, should consider Lawyer’s role as an advisor pursuant to Rule 4 dash–2.1 by exercising independent professional judgment and rendering candid advice to the client. This includes clearly communicating to Client the impact of such an agreement on the representation such that client may make informed decisions regarding the representation in accordance with Rule 4 dash–1.4(b), including the impact on confidentiality pursuant to Rule 4 dash–1.6.

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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