Seventeen New Informal Advisory Opinion Summaries Published

As determined by the Advisory Committee to the Supreme Court of Missouri, seventeen new informal opinion summaries have been published (see below). 

Pursuant to Rule 5.30, written summaries of select informal opinions are published for informational purposes as determined by the Advisory Committee.  Informal opinion summaries are advisory in nature and are not binding.  The first four digits of the opinion summary number indicate the year the opinion was issued. The full text of attorneys’ requests and the Legal Ethics Counsel’s responses are confidential. 

Informal advisory opinions are issued by the Legal Ethics Counsel pursuant to Missouri Supreme Court Rule 5.30.  The Legal Ethics Counsel issues opinions to members of the bar about Rules 4, 5 and 6 for prospective guidance about an attorney’s own conduct involving an existing set of facts.  Informal advisory opinions will not be issued about past conduct, hypothetical scenarios, or the conduct of an attorney other than the one asking for the opinion.

For a searchable database and information about requesting an informal opinion, go to: www.mo-legal-ethics.org, click “For Lawyers,” and choose “Informal Advisory Opinions.” 

2020-13

Rule 4-1.15

QUESTION: May Attorney maintain in the trust account funds belonging to Attorney or Attorney’s law firm to be used as a “cushion” to protect client funds in the event of a mistake or fraudulent transaction regarding the trust account?

ANSWER:  No.  Rule 4-1.15(b) allows a lawyer to “deposit the lawyer’s own funds in a client trust account for the sole purpose of paying financial institution service charges on that account, but only in an amount necessary for that purpose.”  Comment [6] to Rule 4-4.15 provides guidance that accurate records must be kept as to which part of the funds belong to Attorney.  Attorney would be engaging in prohibited commingling of funds if Attorney were to allow funds belonging to the law firm or to Attorney to be maintained in the trust account for any other purpose.  See In re Coleman, 295 S.W.3d 857, 866 (Mo. banc 2009).  Funds in the trust account belonging to Attorney must be disbursed to Attorney reasonably promptly after the fee is earned or the expense paid, in accordance with the guidance in Rule 4-1.15, Comment [6]. 

2020-14

Rule 4-1.15

QUESTION: Once Attorney has earned a fee or paid an expense such that funds in the trust account belong to Attorney, may Attorney pay personal or firm expenses directly from the trust account?

ANSWER: No.  A trust account is not to be used to pay a lawyer’s personal or business expenses.  See In re Coleman, 295 S.W.3d 857, 866 (Mo. banc 2009); see also In re Ehler, 319 S.W.3d 442, 450-451 (Mo. banc 2010). Once funds are “good funds” per Rule 4-1.15(a)(6) and Comment [5], any funds belonging to Attorney should be transferred reasonably promptly from the trust account to Attorney’s personal or business account.  Rule 4-1.15(a) and (c) and Comment [6].  Only then may Attorney use the funds for personal or business expenses. In re Coleman, 295 S.W.3d at 866.

2020-15

Rule 4-1.15

QUESTION: Attorney deposited a settlement check in the trust account.  When should Attorney distribute the client’s portion and Attorney’s fees from the settlement?

ANSWER: Rule 4-1.15(a)(6) prohibits Attorney from disbursing funds deposited in the trust account if Attorney has reasonable cause to believe the funds have not actually been collected by the financial institution and until a reasonable period of time has passed for the financial institution to collect the funds.  Comment [5] provides guidance that “good funds” should be distinguished from funds from a deposit that has “cleared.”  What constitutes a reasonable period of time may vary depending, but ten days after the date the deposit is recorded is presumed to be reasonable, unless Attorney has notice of a reason to wait longer on a specific deposit. A shorter period of time may be reasonable in some circumstances.  If Attorney has information that causes doubt about the collection of the deposit, Attorney should delay disbursement and take additional measures to ensure collection.  Rule 4-1.15, Comment [5].  Once Attorney has reason to believe the funds have been collected by the financial institution, Attorney should disburse the funds promptly to the client.  Rule 4-1.15(d).  As to disbursement of Attorney’s fees, Comment [6] provides it should occur “reasonably promptly” after the settlement funds in the trust account become “good funds,” the client has been billed, and the client has had an opportunity to dispute the disbursement or otherwise has agreed to the disbursement.  See Rule 4-1.15, Comment [6].  Disbursing Attorney’s portion of the funds within a period of one month shall be presumed to be reasonably promptly.  Rule 4-1.15, Comment [6].

2020-16

Rule 4-1.15

QUESTION: What action should Attorney take when Attorney has notice of an apparently valid lien against settlement funds in Attorney’s trust account and Client directs Attorney not to pay the lienholder from the settlement funds?

ANSWER: Attorney should promptly distribute any funds in which the interests are not in dispute; hold the disputed funds in trust; refrain from distributing the disputed funds until the dispute between Client and the lienholder is resolved; and, if necessary, file an action to have a court resolve the dispute.  Rule 4-1.15(e) and Comment [8]; see Informal Opinions 970075 and 20000023.

2020-17

Rules 4-1.15; 4-1.155

Formal Opinion 118

QUESTION: Attorney is holding in the trust account funds to distribute to Client, but Client cannot be located for distribution. What should Attorney do with Client’s funds?

ANSWER: Attorney should continue to make reasonable efforts to locate Client so the funds can be distributed.  If the efforts are unsuccessful after a reasonable period of time, Attorney should hold the funds in an IOLTA or non-IOLTA trust account per Rules 4-1.15 and 4-1.155 and follow the requirements of Missouri’s Uniform Disposition of Unclaimed Property Act.  Formal Opinion 118; Informal Opinion 20000129.

2020-18

Rule 4-1.15

QUESTION: Attorney is holding funds in the trust account, but Attorney is unable to determine to whom the funds belong. What should Attorney do with the funds?

ANSWER: Attorney should continue to make reasonable efforts to identify the client or third person to whom the funds belong so the funds can be distributed.  If the efforts are unsuccessful after a reasonable period of time, Attorney should hold the funds in an IOLTA or non-IOLTA trust account per Rules 4-1.15 and 4-1.155 and follow the requirements of Missouri’s Uniform Disposition of Unclaimed Property Act.  Formal Opinion 118; Informal Opinion 2011-01.

2020-19

Rules 4-1.15; 4-5.1; 4-5.3

QUESTION: May a nonlawyer be a signatory on Attorney’s trust account or authorize electronic transfers from the trust account?

ANSWER: Only a lawyer admitted to practice in Missouri or a person under the lawyer’s direct supervision is permitted to be an authorized signatory or to authorize electronic transfers from the trust account.  Rule 4-1.15(a)(3).  Comment [2] provides guidance that if nonlawyer access to the trust account is granted, it should be “limited and closely monitored by the lawyer.”  Comment [2] provides additional guidance that a Missouri lawyer has a “non-delegable duty to protect and preserve the funds in a client trust account and can be disciplined for failure to supervise subordinates who misappropriate client funds. See Rules 4-5.1 and 4-5.3.”  See also In re Farris, 472 S.W.3d 549, 561 (Mo. banc 2015).  Attorney should establish proper trust account policies and properly train and supervise nonlawyers and subordinate lawyers in the firm to ensure reasonable measures are being taken to ensure the trust account is being handled in a way that is compatible with Attorney’s professional obligations.  See Rules 4-5.1 and 4-5.3.

2020-20

Rules 4-1.7; 4-1.9; 4-1.10

QUESTION: Attorney is associated with a firm in an Of Counsel relationship.  Is the  firm permitted to undertake representation of a client if Attorney is prohibited from doing so by Rule 4-1.7 or 4-1.9, provided Attorney is screened from any involvement in the matter?

ANSWER:  In an Of Counsel relationship, Attorney is associated with the firm for purposes of mutual imputation of conflicts of interest per Rule 4-1.10.  Informal Opinion 2019-07.  Rule 4-1.10 does not provide for screening to eliminate imputation of a lawyer’s disqualification. Informal Opinion 2017-07.

2020-21

Rules 4-7.1; 4-7.5

QUESTION: Attorney is associated with Firm One and Firm Two in Of Counsel relationships.  Are Attorney and both firms required to disclose the Of Counsel relationships in advertising materials, letterhead, and other materials?

ANSWER: In all advertising materials, websites, letterhead, business cards, and other materials in which Attorney is held out to the public, or in which the firms list their attorneys, the Of Counsel relationship of Attorney with both firms must be disclosed.  See Rules 4-7.1 and 4-7.5.  For example, in all of Firm One’s advertisements, letterhead, website listings, and other materials in which Firm One lists its attorneys or in which Firm One holds Attorney out to the public, Firm One must disclose clearly that Attorney is associated with Firm One in an Of Counsel relationship. All such materials also must disclose that Attorney is associated in an Of Counsel relationship with Firm Two. Similarly, in all of Firm Two’s advertisements, letterhead, website listings, and other materials in which Firm Two lists its attorneys or in which Firm Two holds Attorney out to the public, Firm Two must disclose clearly that Attorney is associated with Firm Two in an Of Counsel relationship.  All such materials also must disclose that Attorney is associated in an Of Counsel relationship with Firm One.  Attorney’s business cards, online profiles, and other materials must disclose that Attorney is associated with both firms in Of Counsel relationships.  Informal Opinion 980143; see Informal Opinion 2019-07. 

2020-22

Rules 4-1.5; 4-1.6; 4-1.15

QUESTION: Attorney received notice that Client is disputing a credit card payment for legal fees. If Attorney wishes to dispute the chargeback, Attorney is required to provide documentation of legal services rendered to Client.  What information may Attorney provide?

ANSWER: Information relating to the representation of Client, including information about legal services provided and fees charged, may not be disclosed without the informed consent of Client.  See Rule 4-1.6; see also Informal Opinion 2015-09.  Rule 4-1.6(b)(3) permits a lawyer to reveal confidential information to the extent reasonably necessary to establish a claim or defense in a controversy between the lawyer and client, such as an action against a former client to collect a fee.  However, a credit card chargeback dispute is not such a controversy. See Rule 4-1.6, Comment [9].  To dispute the chargeback, Attorney is permitted to provide an affidavit or statement that professional services were provided to Client.  Attorney also may state that professional obligations prevent Attorney from providing additional information.  Attorney should ensure that chargebacks for disputed credit card payments cannot be processed as transfers out of the trust account.  Informal Opinion 2014-05; see Rule 4-1.15(b)(3).  To address the fee dispute, Rule 4-1.5(f) requires Attorney to conscientiously consider participating in the appropriate fee dispute resolution program.

2020-23

Rules 4-1.145; 4-1.15

QUESTION: How can a lawyer determine if a particular financial institution is an approved institution for holding trust accounts?

ANSWER: A lawyer must hold property of clients or third persons that is in the lawyer’s possession in a client trust account located in an “approved institution.” Rule 4-1.15(a)(2). Approved financial institutions must be deemed as both “eligible institutions” per Rule 4-1.145(a)(5) and “approved institutions” by the Advisory Committee of the Supreme Court of Missouri. Rule 4-1.145(a)(2); see Rule 4-1.15(h). The Advisory Committee is responsible for publishing a list of approved financial institutions for lawyer trust accounts.  See Advisory Committee Regulation to Rule 4-1.15, paragraph (c).  The list of approved institutions is available on the Legal Ethics Counsel website.

2020-24

Rules 4-1.2; 4-1.4; 4-1.6; 4-3.3; 4-1.16

QUESTION: Client testified at a deposition that Client was currently employed and testified as to the income Client was earning.  The testimony was consistent with what Client had told Attorney before the deposition.  A few days after the deposition, Client informed Attorney that Client had not been employed for at least three months.  Documentation of Client’s employment has not been requested in discovery. If Client testifies truthfully about the issues at an upcoming hearing, does Attorney have an ethical duty to take any action regarding the deposition testimony?   

ANSWER: Rule 4-3.3, Candor Toward the Tribunal, governs the conduct of a lawyer representing a client in the proceedings of a tribunal, including ancillary proceedings conducted pursuant to a tribunal’s adjudicative authority, such as a deposition.  Rule 4-3.3, Comment [1].  Rule 4-3.3(a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false.  “Knows” denotes actual knowledge of the fact in question and may be inferred from the circumstances.  Rule 4-1.0(f).  Attorney should resolve any doubts about the veracity of Client’s testimony in favor of Client, but Attorney cannot ignore an obvious falsehood.  Rule 4-3.3, Comment [8].  If Attorney has come to know that material evidence offered by Client in the deposition is false, Rule 4-3.3(a)(3) requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”  Attorney should remonstrate with Client, advising Client of Attorney’s duty of candor toward the tribunal and seeking Client’s cooperation in withdrawing or correcting the false testimony.  See Comment [10]; see also Rules 4-1.2(g) and 4-1.4.  If Client will not cooperate, and if withdrawing from the representation will not undo the effect of Client’s false testimony, Attorney must take further remedial measures, including, if necessary, disclosure to the tribunal, even if the disclosure requires Attorney to reveal information that otherwise would be protected by Rule 4-1.6.  Rule 4-3.3(c) and Comment [10].  Any disclosure to the tribunal would be limited to what is reasonably necessary to remedy the situation.  Rule 4-1.6(c) and Comment [10].  Client’s agreement to testify truthfully about the issue at an upcoming hearing does not relieve Attorney of the duty to take reasonable remedial measures as to the deposition testimony, as required by Rule 4-3.3(a)(3).  Normally, Attorney’s compliance with Rule 4-3.3 does not thereafter require Attorney to seek leave to withdraw from the representation.  See Rule 4-3.3, Comment [15]. However, if the remedial measures result in an extreme deterioration of the client-lawyer relationship such that competent representation cannot be provided, Rule 4-1.16(a) requires Attorney to seek leave to withdraw.

2020-25

Rules 4-1.1; 4-1.2; 4-1.4; 4-1.6; 4-1.16; 4-3.3

QUESTION: Based on information provided by Client, Attorney submitted to the court in a dissolution matter information in a required form stating that four children primarily reside in Client’s custody.  Shortly thereafter, the Guardian Ad Litem appointed for the children told Attorney that three of the children listed on the form had not lived with Client for several months.  What is Attorney’s ethical obligation regarding the submission? 

ANSWER: Rule 4-3.3(a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false.  If Attorney has come to “know” that information submitted to the tribunal on behalf of Client is false, Rule 4-3.3(a)(3) requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”  “Know” denotes actual knowledge of the fact in question and may be inferred from the circumstances.  Rule 4-1.0(f).  Attorney should consult with Client and may take other reasonable steps as necessary to determine the truth or falsity of the information.  Attorney should resolve any doubts about the veracity of the statements in favor of Client, but Attorney cannot ignore an obvious falsehood.  Rule 4-3.3, Comment [8].  If Attorney comes to know the evidence is false, Attorney should remonstrate with Client, advising Client of Attorney’s duty of candor toward the tribunal and seeking Client’s cooperation in withdrawing or correcting the false evidence.  See Rule 4-3.3, Comment [10]; see also Rules 4-1.2(g) and 4-1.4.  If Client will not cooperate, and if withdrawing from the representation will not undo the effect of the false evidence, Attorney must take further remedial measures, including, if necessary, disclosure to the tribunal, even if the disclosure requires Attorney to reveal information that otherwise would be protected by Rule 4-1.6.  Rule 4-3.3(c) and Comment [10].  Any disclosure to the tribunal would be limited to what is reasonably necessary to remedy the situation.  Rule 4-1.6(c) and Comment [10].  Normally, Attorney’s compliance with Rule 4-3.3 does not thereafter require Attorney to seek leave to withdraw from the representation.  See Rule 4-3.3, Comment [15]. However, if the remedial measures result in an extreme deterioration of the client-lawyer relationship such that competent representation cannot be provided, Rule 4-1.16(a) requires Attorney to seek leave to withdraw.

2020-26

Rules 4-1.1; 4-1.4; 4-1.6; 4-1.15

QUESTION: Attorney’s office laptop, cell phone, bar card, and credit cards were stolen out of Attorney’s locked vehicle. What do the Rules of Professional Conduct require Attorney to do?

ANSWER: If a stolen electronic device contains, or provides potential access to, information related to the representation of clients or former clients, Attorney must take all steps reasonably necessary to prevent unauthorized access to the information.  See Rules 4-1.6(c) and 4-1.1.  These steps may include, but may not be limited to, deactivating the cell phone; taking appropriate steps to secure Attorney’s law firm network and/or data in offsite storage; changing all passwords that may be stored on the electronic device; and consulting with a qualified information technology professional if appropriate.  Attorney must communicate with affected clients to the extent reasonably necessary to allow each client to make informed decisions about the representation.  Rule 4-1.4; see Rule 4-1.9(c) and Informal Opinion 2017-02.  Attorney must comply with any applicable law requiring notice to affected persons regarding disclosure of their personal information.  See Preamble to Rule 4 at [5].  Attorney must take all necessary steps to protect the funds in the client trust account from unauthorized transfers and should monitor the trust account closely.  See Rule 4-1.15(a)(3) and Comment [2]. To address the stolen bar card, Attorney may contact the Office of Attorney Enrollment of the Supreme Court of Missouri.  Attorney may also consider taking steps to protect the security of Attorney’s e-filing account with applicable courts and consulting Attorney’s malpractice insurance carrier for additional advice. 

2020-27

Rules 4-1.4; 4-1.6; 4-1.14; 4-1.16

QUESTION: Three years ago, Attorney drafted a will for an elderly client.  Last month Client met with Attorney to discuss executing a durable power of attorney appointing Client’s adult daughter as attorney-in-fact.  Client exhibited signs of mental decline, but after a lengthy discussion, Attorney believed Client was capable of making informed decisions about the representation if matters were explained clearly.  Before Client returned to execute the document, Attorney received a letter signed by Client discharging Attorney and requesting Client’s file be mailed to an adult son.  What are Attorney’s ethics obligations?

ANSWER: A lawyer is required to withdraw from a representation if discharged by the client.  Rule 4-1.16(a).  Upon termination of the representation, a lawyer is to surrender the file to the client and take other reasonably practicable steps to protect the client’s interests.  Rule 4-1.16(d); Formal Opinion 115.  However, if a client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and the lawyer should consider whether reasonably necessary protective action is warranted by Rule 4-1.14, Client With Diminished Capacity.  Rule 4-1.16, Comment [6]; see Informal Opinion 960169. 

If Attorney believes Client’s capacity to make adequately considered decisions in connection with the representation is diminished, Rule 4-1.14 requires Attorney to maintain as normal a client-lawyer relationship as is reasonably possible.  Rule 4-1.14(a) and Comments [1] and [2].  Attorney should attempt to communicate directly with Client about the discharge letter and explain to client how the discharge may affect Client’s interests.  See Rule 4-1.4.  In determining the extent of Client’s diminished capacity, Attorney should consider and balance the factors listed in Comment [6] to Rule 4-1.14, including Client’s ability to articulate reasoning and appreciate consequences, the variability of Client’s state of mind, and the consistency of Client’s decisions with the long-term commitments and values of Client.  Rule 4-1.14, Comment [6].  If appropriate, Attorney may seek guidance from an appropriate diagnostician.  Comment [6]. 

Rule 4-1.14(b) authorizes, but does not require, Attorney to take “reasonably necessary protective action” if Attorney reasonably believes Client “has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken; and cannot adequately act in the client’s own interest.”  If taking protective action authorized by the rule, Attorney is impliedly authorized under Rule 4-1.6(a) to make necessary disclosures of confidential information, even if Client directs Attorney to the contrary, but only to the extent reasonably necessary to protect Client’s interests.  Rule 4-1.14(c) and Comment [8]. What constitutes reasonably necessary protective action depends on the circumstances.  Attorney should be guided by factors including what Attorney knows of Client’s wishes and values, Client’s best interests, minimal intrusion into Client’s decision-making autonomy and capacities, and respect for Client’s family and social connections.  Rule 4-1.4, Comment [6].  Reasonably necessary protective action may include consulting with family members, consulting with adult-protection agencies or other entities that have the ability to take action to protect Client, or using a reconsideration period.  Rule 4-1.14(b) and Comments [5] and [7]. 

If protective action is necessary and less drastic measures are inadequate, Attorney may request the appointment of a legal representative for Client, such as a next friend, guardian ad litem, limited guardian, guardian, or conservator, but only as a last resort.  Rule 4-1.14(b) and Comment [7]; Informal Opinion 990095.  Normally, Attorney should not seek to be appointed Client’s legal representative, nor should Attorney represent a third person in the action. See Rule 4-1.7.

2020-28

Rules 4-1.2; 4-1.4; 4-3.4; 4-8.4

QUESTION: Attorney received in the mail a check for payment of fees and expenses related to defending Client against pending drug-related criminal charges.  Included in the envelope in a small plastic bag was what appears to be an illegal substance with a note reading “thank you.”  What are Attorney’s ethics obligations?

ANSWER: Attorney should exercise caution in transferring, disposing, or retaining what Attorney may reasonably believe is an illegal substance.  Rule 4-3.4(a) prohibits unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying, or concealing material with potential evidentiary value.  If concealing or destroying the substance would be unlawful, Attorney may not do so.  See Rule 4-3.4, Comment [2]. If applicable law permits Attorney to have temporary possession of evidence of a crime for the purpose of conducting a limited examination that will not alter or destroy the substance, Attorney may do so.  Rule 4-3.4, Comment [2].

Attorney must comply with applicable law regarding the knowing possession or transfer of an illegal substance.  See Rule 4-8.4(b).  Whether applicable law permits Attorney to return the substance to Client is a question of law outside the scope of the Rules of Professional Conduct.  Attorney may not counsel Client to engage in, or assist Client, in conduct Attorney knows is criminal, nor may Attorney suggest to Client how the conduct might be concealed.  Rule 4-1.2(f) and Comment [9]. 

Applicable law may require Attorney to turn the evidence over to police or other prosecuting authority.  See Rule 4-3.4, Comment [2]. Whether the law so requires is a question of law outside the scope of the Rules of Professional Conduct.  If so, Attorney must do so in a way that limits the disclosure of Client’s identity and other information related to the representation to what Attorney reasonably believes necessary to comply with other law.  Rule 4-1.6(b)(4). 

Attorney must keep Client reasonably informed about the representation, including Attorney’s professional and legal obligations regarding the substance, and consult with Client about the potential impact on the interests of Client.  Rules 4-1.2(g) and 4-1.4. 

2020-29

Rules 4-1.4; 4-1.5; 4-1.16

QUESTION:  Attorney has a medical condition that will prevent Attorney from conducting upcoming depositions in a pending matter, attending a pre-trial hearing, and participating in the trial on the scheduled date.  Must Attorney withdraw from the representation?

ANSWER: Rule 4-1.16, Declining or Terminating Representation, requires a lawyer to withdraw from the representation if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.  Rule 4-1.16(a).  In determining whether withdrawal is required, Attorney should consider such factors as the expected duration of Attorney’s condition, the impact of a requested continuance on the interests of the client, and the possibility of involving other lawyers in Attorney’s firm or associating with counsel outside Attorney’s firm.  Attorney must communicate with the client about the limitations imposed by Attorney’s medical condition and explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.  See Rule 4-1.4.  If, in consultation with the client, it is determined that reasonable steps can be taken to prevent Attorney’s physical condition from materially impairing the representation, Attorney is not required to withdraw.  If the client agrees to the association of additional counsel in the matter, Attorney may not divide the fee with a lawyer not in Attorney’s firm unless the requirements of Rule 4-1.5(e) are met: the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; the client agrees to the association and the agreement is confirmed in writing; and the total fee is reasonable.  See Rule 4-1.0(b) (defining “confirmed in writing”); see also Rule 4-1.5(a) (factors to consider in determining the reasonableness of a fee).