Missouri Supreme Court Rules
Frequently Asked Questions
Requesting an Informal Advisory Opinion
Missouri Supreme Court Rules:
Link to Rule 4
• Rule 4-8.3 – Reporting Professional Misconduct
• Rule 4-8.4 – Misconduct
• Rule 4-1.6 – Confidentiality of Information
Link to Formal Opinions
• Formal Opinion 117 (October 21, 1983): Failure to Cooperate with Disciplinary Committee
• Formal Opinion 122 (March 8, 2006): Settlement Term Prohibited That Requires Withdrawing, Refraining from Filing, or Declining to Cooperate Regarding a Complaint
Informal Opinions (this list may be non-exhaustive):
Link to Informal Advisory Opinions (You will be redirected to the website of The Missouri Bar where Informal Advisory Opinions are published as issued by the Office of Legal Ethics Counsel. You may search by key word, opinion number, or topical index (rule number)).
• Informal Opinion 2019-02 (threat of criminal prosecution or disciplinary complaint; duty to report)
• Informal Opinion 2018-07 (duty to report possible impairment of another lawyer)
• Informal Opinion 2011-04 (no duty to self-report misconduct)
• Informal Opinion 20060074 (continued use of lawyer biographical information after leaving a law firm)
• Informal Opinion 20050051 (conflict of interest and possible misconduct)
• Informal Opinion 20030089 (prosecuting attorney’s knowledge of criminal acts of another attorney)
• Informal Opinion 20010039 (duty to report regarding possible improper limitation of malpractice claim)
• Informal Opinion 20000132 (solicitation)
• Informal Opinion 970029 (notarization)
• Informal Opinion 960249 (malpractice)
• Informal Opinion 950165 (disclosure of confidential information)
• Informal Opinion 950089 (negotiation of settlement after client deceased)
• Informal Opinion 950075 (possible unauthorized practice of law)
• Informal Opinion 940088 (conflict of interest)
Frequently Asked Questions:
1) Duty to report related to threat to file criminal or disciplinary complaints:
Informal Opinion: 2019-02
Attorney represents Employer in the defense of a civil employment matter related to the employment and subsequent discharge of Plaintiff. Employer believes Plaintiff engaged in criminal conduct during employment. Based on information Attorney has learned during discovery, Attorney has reason to believe evidence of Plaintiff’s criminal conduct during employment, which was in the possession of Plaintiff’s counsel, has been destroyed.
Question 1: Is it permissible for Attorney to inform Plaintiff’s counsel that unless Plaintiff dismisses the civil matter or enters into a settlement as proposed by Employer, Attorney will refer Plaintiff’s employment-related conduct to the prosecutor for possible criminal charges?
Answer 1: Attorney’s threat to refer the employment-related conduct of Plaintiff for criminal prosecution would constitute conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d) unless Attorney has actual intent to refer the matter for prosecution if the matter is not dismissed or settled (see Rule 4-4.1); the conduct underlying the alleged criminal offense is related to the civil action and the use of the threat does not constitute a crime (see Rule 4-8.4(b)); Attorney has a non-frivolous, good faith belief based in law and fact that the employment-related conduct of Plaintiff was unlawful (see Rule 4-3.1); and Attorney’s use of the threat would not lack a substantial purpose other than to embarrass, delay, or burden the Plaintiff or another person (see Rule 4-4.4(a)). See also Informal Opinions 990042 and 20010149. Because some jurisdictions consider the use of a threat to file criminal charges to gain leverage in civil litigation to be a violation of the Rules of Professional Conduct regardless of the circumstances, Attorney should use caution if the conduct could be judged by the rules of professional conduct of another jurisdiction. See Rule 4-8.5.
Question 2: In the course of settlement negotiations, may Attorney inform Plaintiff’s counsel that a lawyer’s unlawful destruction of documents with potential evidentiary value is unethical, and unless Plaintiff dismisses the lawsuit or reaches a settlement as proposed by Employer, Employer or Attorney will file a disciplinary complaint or report against Plaintiff’s counsel?
Answer 2: If Attorney has a duty under Rule 4-8.3 to report the conduct of Plaintiff’s counsel to the Office of Chief Disciplinary Counsel, any offer by Attorney to forego the complaint or report would violate Rule 4-8.4(a) as an attempt by Attorney to violate the Rules of Professional Conduct or to do so through the acts of another. Attorney’s threat may violate Rule 4-3.1 if Attorney lacks a well-founded basis for believing Plaintiff’s counsel violated the Rules of Professional Conduct. Attorney’s threat is likely to violate Rule 4-4.4, Respect for Rights of Third Persons, and/or Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice, if threatening to file a disciplinary report or complaint in order to extract settlement concessions is likely to be a factor Plaintiff or Plaintiff’s counsel will have to consider in the representation. Finally, a threat which itself constitutes criminal conduct would violate Rule 4-8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Attorney should also be mindful of the Scope paragraph of Rule 4 at , which explains that the Rules are to provide guidance for lawyers and a structure for regulating conduct through discipline, but “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.”
2) Duty to report possible impairment of another lawyer
Informal Opinion: 2018-07
Question: Does Attorney have an obligation to report opposing counsel to the Office of Chief Disciplinary Counsel (OCDC), where Attorney and opposing counsel had phone conversations about the representation during which opposing counsel had slurred speech and exhibited significant memory problems, where opposing counsel made a court appearance a few hours later smelling strongly of alcohol, and where Attorney knows another person has reported opposing counsel’s conduct to OCDC?
Answer: Rule 4-8.3 requires Attorney to report opposing counsel to OCDC if Attorney “knows” opposing counsel was under the influence of alcohol while representing a client and if Attorney has the informed consent of his or her own client to disclose information related to the representation as required by Rule 4-1.6. Rule 4-1.0(f) defines “knows” as “actual knowledge of the fact in question,” and actual knowledge may be inferred from circumstances. An attorney’s duty per Rule 4-1.1 to provide competent representation to a client is impaired if attorney is intoxicated while engaging in activities related to the representation. The violation raises a substantial question as to the attorney’s honesty, trustworthiness, or fitness as a lawyer in other respects. If Attorney’s suspicions do not rise to the level of actual knowledge, including if Attorney reasonably believes the behavior of opposing counsel may have an alternative explanation, then Attorney is not obligated by Rule 4-8.3 to report opposing counsel. If the report is mandatory under the circumstances, a similar report to OCDC by another attorney or judge does not eliminate Attorney’s duty to report under Rule 4-8.3.
3) No duty to self-report misconduct
Informal Opinion: 2011-04
Question: Does Attorney have an obligation to self-report Client’s allegation of misconduct by Attorney toward Client?
Answer: No. Rule 4-8.3 does not require an attorney to self-report a violation of the Rules of Professional Conduct or an allegation of a violation by that attorney.
4) Conflicts of Interest
Informal Opinion: 20050051
QUESTION: Attorney represents a health care provider in a medical malpractice case. Client is being sued for professional negligence. Attorney discovered from Client that the attorney representing the plaintiffs in the case had previously represented Client in a disciplinary proceeding before the state licensing board. The previous representation ended in a number of years ago. The disciplinary proceeding did not involve the plaintiffs in the pending malpractice claim, but there are allegations in the malpractice action that Client is incompetent, and that Client’s alleged employer was negligent in employing Client due to incompetence. Confidential information gained in the prior representation could be used against Client in the present litigation. Attorney filed a motion to disqualify plaintiff’s counsel. Does Attorney have an obligation to report this pursuant to Rule 4-8.3?
ANSWER: The responses to the motion to disqualify and the evidence at any hearing on the motion should serve to clarify the facts of the situation. (1) If the court specifically finds that there is no conflict, or further facts lead Attorney to believe that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (2) If the court disqualifies opposing counsel, but Attorney believes that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (3) If the court disqualifies opposing counsel and Attorney believes that opposing counsel did not have a good faith belief that there was no conflict, Attorney has an obligation to report opposing counsel. However, under Rule 4-8.3(c), that duty is conditioned on consent by Client. In any event, as part of Attorney’s duty under Rule 4-1.4, Attorney should advise Client of the option to file a complaint with OCDC.
5) Prosecuting attorney’s knowledge of criminal acts of another attorney
Informal Opinion 20030089
Reference Note: Effective July 1, 2007, Rule 4-8.1 was amended. This opinion is based on Rule 4-8.1 in effect prior to that date.
QUESTION: Attorney is a prosecuting attorney and has information that another attorney has committed criminal acts. The other attorney has not pleaded guilty or been convicted. Is Attorney obligated to report the other attorney’s acts? Would Attorney’s obligation change if the other attorney pleads guilty or is convicted?
ANSWER: Attorney has an obligation under Rule 4-8.3(a) to report the information to the Office of the Chief Disciplinary Counsel. Under Rule 4-8.1(b), Attorney has an obligation to report the ultimate outcome to OCDC, if requested by that office.
Requesting an Informal Advisory Opinion:
Missouri attorneys may request an informal advisory opinion from the Legal Ethics Counsel. Guidelines for requesting an informal advisory opinion, in writing or by telephone, are at http://molegalethics.org/requesting-an-informal-advisory-opinion/. The Office of Legal Ethics Counsel may be reached by telephone at 573-638-2263.
Updated June 23, 2021