CONFIDENCES OF CLIENT


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FORMAL OPINION 28

ATTORNEY AND CLIENT PROFESSIONAL CONFIDENCE

IMPROPER FOR ATTORNEY REPRESENTING INSURANCECOMPANY TO DIVULGE INFORMATION ACQUIRED FROMCOMPANY'S ASSURED WITH REFERENCE TO THEMATTERS IN WHICH ASSURED, AS WELL AS THECOMPANY, WAS INTERESTED

QUESTION: A lawyer representing a casualty insurance companyobtains a complete statement from an assured with reference to anaccident. The statement contains facts showing negligence on the part ofthe assured. Thereafter, the attorney settled the action so that his companyand the assured obtained complete releases. Thereafter, the assured asrepresentative of his minor child filed a suit against other parties involvedin the accident. The statement of the assured would be valuable to thedefendant in the suit filed by him as representative of his minor child.Would it be ethical upon request for the attorney who represented theinsurance company to disclose the information so obtained from the assuredto attorneys representing the defendant in the suit filed by the assured asrepresentative of his minor child?

ANSWER: The Advisory Committee is of the opinion that it wouldbe improper for the attorney who represented the casualty insurancecompany to give the statement that he obtained from the assured toattorneys representing the defendant in another suit filed by the assuredas the representative of his minor child against such defendant. While theattorney when he obtained the information from the assured was in theemploy of the insurance company he was also the attorney for the assuredto the extent that if suit was filed he would represent the assured of recordin court. He certainly occupied a confidential relationship to the assured.Any information that assured imparted to him was as between attorney andclient. It would have been unethical for him to have represented thedefendant in the suit brought by the assured as representative of his minorchild. His obligation to retain in confidence the facts given by the assuredto him was as binding on the attorney as though he had been employeddirectly by the assured and paid by him.

Canon 4 DR4 101 (B) and (C)

[Rule 4 1.6]

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FORMAL OPINION 51

ATTORNEYS

DUTY TO PRESERVE CLIENT'S CONFIDENCE OUT-LIVESLAWYER'S EMPLOYMENT.

QUESTION: "A" employs "X" as her attorney in a suit to set asidesome deeds made to "B". "A" and "B" are sisters. Prior to her employmentof "X", "A" went to another city and employed an attorney to prepare herwill. In preparation of the will, "A" divulged to this attorney certain factsand circumstances in connection with the transfer of the property involvedin the suit to set aside deeds referred to above. After suit is filed, defendant"B" employs this same attorney to represent her, who had prepared the willfor "A". "A" complains that the attorney violated Rule 4 in that he hadobtained information at the time of drafting said will which would now beused by him as a defense of the suit to set aside the deeds. Is said attorneyguilty of the violation of Rule 4?

ANSWER: Yes. Canon 4 DR4-101 (B)

[Rule 4 1.6]

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FORMAL OPINION 111

CAMPAIGN SPENDING REFORM PROPOSAL ATTORNEYSETHICAL CONSIDERATIONS

(Withdrawn 12/31/94).

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(Opinion omitted. See Notes on Use.)

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QUESTION: Does the requirement of the Internal RevenueService that attorneys retain a list of names of taxpayer and his socialsecurity number of tax returns prepared by the attorney for three yearsviolate the attorney-client privilege?

ANSWER: No. Committee can see no violation since therequirement doesn't give the Service any information they don't alreadyhave on the face of filed returns. Rendered March 7, 1977.

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(Opinion omitted. See Notes on Use.)

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(Opinion omitted. See Notes on Use.)

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(Opinion omitted. See Notes on Use.)

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QUESTION: An attorney (court appointed) is sued by a client foralleged violation of the constitutional rights of the client. He has reportedthis suit to his professional liability insurance carrier. Is it proper for theattorney to furnish information to his insurance carrier?

ANSWER: Yes. DR4-101(C) (4) specifically authorizes the attorneyto divulge any information in his file necessary to defend the attorney in thesuit filed against him by his former client. Rendered April 6, 1978.

[Rule 4 1.6(b)(2)]

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(Opinion omitted. See Notes on Use.)

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(Opinion omitted. See Notes on Use.)

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(Opinion omitted. See Notes on Use.)

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(Opinion omitted. See Notes on Use.)

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QUESTION: The following hypothetical question was submitted:

Lawyer X has evidence that lawyer Y acted in violation of Rule 1(Code of Professional Responsibility).

The violation was in the course of X's and Y's representation oftheir respective clients. X's information is confidential and X's client has notauthorized its disclosure.

Under these facts, is X acting properly in not disclosing theincriminating evidence to either the Advisory Committee or the Circuit BarCommittee?

ANSWER: Yes. It is the Committee's conclusion that a lawyerhaving confidential information is acting properly in not disclosing theevidence if the client has not authorized this disclosure. However, thelawyer should attempt to get authorization from his client to reveal theinformation to the proper authorities. Rendered October 20, 1978.

[Rule 4 1.6; 8.3(a) and (c)]

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QUESTION: A county prosecuting attorney submits a questionconcerning his duties as legal advisor to various county officers and apossible conflict with his duties as prosecuting attorney, if the countyofficers act improperly and engage in misconduct in their official duties.

ANSWER: It is the opinion of the committee that there is noattorney-client relationship established as a matter of law between aprosecuting attorney of a county and other county officials. Thatrelationship depends upon confidential consultation between the officials.

The prosecuting attorney would be free to make such investigationsof improper conduct of a public official which he deemed advisable, in hisofficial capacity as prosecuting attorney of the county. Rendered October20, 1978.

[Rule 4 1.6; 1.13]

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QUESTION: An attorney is consulted by clients regarding realestate subdivision development in the state of Virginia and possibleinvolvement of Federal Inter-State Land Sales Act. The attorney at therequest of the clients on two occasions in 1977 and 1978 went to theVirginia area and met with the clients' local attorney there and also withindividual developers of the corporation; and, on one occasion, met withindividual property owners in the development.

Subsequent to those visits, certain individual developers wereindicted on federal charges of mail fraud and on state charges of fraud.

The attorney is contacted by federal and state authorities fromVirginia with the request that he informally discuss his knowledge with theauthorities, without the presence of counsel for his former clients. TheMissouri attorney has taken the position that for him to discuss the matterwith federal and state authorities would violate the attorney-client privilegewith his former clients and that he could not ethically discuss same with thefederal and state authorities without the former clients' attorneys beingpresent to invoke the privilege. The government's position is that they donot desire to take his formal deposition now.

The government has given notice to the attorney-witness that theywant to discuss the case with him and has given notice to the clients'defense attorneys that they intend to so do. The attorney-witness hascontacted attorneys for the client-defendants, who have taken the positionthat they will not attend an informal meeting with the authorities tointerview the witness but they would attend a formal deposition.

The attorney submits the following three questions:

1. Should he meet with government officials on an informal basiswithout the presence of the defense attorneys and determine for himselfwhat issues are protected by the attorney-client privilege?

2. Should he meet with the government attorneys, only if thedefense attorneys are given notice of the meeting and allowed to attend themeeting if they so desire, and if the defense attorneys do not desire toattend the meeting, take it upon himself to determine what testimony isprotected by the attorney client privilege?

3. Should he meet with the government authorities only in a formalsituation such as a deposition, where the defense attorneys would bepresent and could raise the attorney-client objection as they wish?

ANSWER:

1. The Committee's opinion is that he should not meet with thegovernment officials on an informal basis without the presence of thedefense attorneys.

2. He should meet with the government attorneys, only if thedefense attorneys have been given notice of the meeting and are allowed toattend the meeting.

3. The Committee believes a formal deposition would be preferable,in order that the attorneys now representing the client would have anopportunity to assert any attorney-client privilege they deemed advisable.However, if the government officials do not desire to take a formaldeposition, the Committee suggests that the attorney-witness request thatthey submit to him the questions in writing so that any question of privilegecan be determined by the attorneys presently representing the client priorto his submitting to the questioning. This approach would seem toaccomplish both purposes which the attorney-witness has, i.e., cooperatingas far as possible with the State of Virginia and the federal government andat the same time protecting the attorney's former clients' right to assert theattorney-client privilege, if their present attorneys deem it is advisable todo so.

Rendered April 19, 1979.

[Rule 4 1.6]

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(Opinion omitted. See Notes on Use.)

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QUESTION: Attorney A originally consulted with individualplaintiffs and the school district plaintiff and participated in the drafting oforiginal petition involving class action litigation. In a ruling of the court onpreliminary matters, the parties are realigned by order of court and theoriginal party plaintiff school district represented by Lawyer A wasrealigned as a party defendant.

Lawyer B is then retained by individual plaintiffs to draft and filethe first amended petition. Lawyer A has conferred with Lawyer B in thedrafting of the amended petition and Lawyer A now seeks to enter hisappearance as additional counsel for the individual plaintiffs.

A. Is Lawyer A in a position of conflict of interest if he undertakesto represent the individual party plaintiffs in the above action?

B. Is Lawyer B in a position of conflict because of his conferringwith Lawyer A?

ANSWER:

A. It is the opinion of the Advisory Committee that Lawyer A wouldbe in a position of conflict if he undertakes representation of the individualplaintiffs in the action.

B. It is the further opinion of the Committee that Lawyer B is alsoin a position of conflict because of his association and consultation withLawyer A. Rendered August 3, 1979.

[Rule 4 1.6; 1.9(a)]

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(Opinion omitted. See Notes on Use.)

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QUESTION: Attorney A was appointed to represent a criminaldefendant. Attorney A talked with the criminal defendant on numerousoccasions concerning the facts of the case. Attorney A attempted tonegotiate plea bargaining; criminal defendant refused to accept prosecutor'soffer. Attorney A filed numerous motions regarding the particular chargeand after client obtained money, client retained Attorney B, Attorney Awithdrawing from the case. Subsequently, two years later Attorney A isemployed by a city to defend a policeman charged with violation of theformer client's constitutional rights with regards to an unrelated incidentwhich occurred after Attorney A had withdrawn from representation of theformer client.

Can Attorney A represent the policeman, when Attorney A's formerclient becomes the government's prosecuting witness against thepoliceman?

ANSWER: It is the opinion of the Committee that it is permissiblefor Attorney A to defend the policeman charged with the violation of formerclient's constitutional rights, unless information obtained in the course ofthe attorney-client relationship with the former client could be used againsthim on cross-examination.

If that were true, then the representation would be improper.Rendered August 29, 1979.

[Rule 4 1.6; 1.9(b)]

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(Opinion omitted. See Notes on Use.)

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QUESTION: A law firm is retained as attorneys for a pre-paid legalplan. A participant of the plan consults the firm seeking advice on adifferent plan which the client was intending to sell which would assistpersons in the evasion or nonpayment of federal income taxes. The law firmadvised the client that such scheme was illegal and that he should notattempt to go through with it.

Thereafter, the client formed a corporation and sold his plan whichincluded a pre-paid legal plan for that plan's members.

Can the law firm represent persons who have claims against itsformer client or are they prevented from the possible conflict of interest sothey must decline such employment?

ANSWER: It is the opinion of the Advisory Committee that the lawfirm may not represent persons in civil actions against an individual wherethe firm has previously advised that individual, even though the firm'sadvice to him was that the scheme was illegal and he should not attempt togo through with it. Rendered February 29, 1980.

[Rule 4 1.6; 1.9(b)]

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QUESTION: In October of 1978 firm "AB" split into two firms, onebeing headed by "A" and the other being headed by "B". Since that time, thenew firms "A" and "B" continue to share the same building and act entirelyseparate from one another.

In 1977 firm "AB" represented a client in a real estate transactionand auto accident. After the firm split, a new client contacted "A" firm topursue a claim against a former client of "AB". The defendant soughtservices of the new firm headed by "B". The firm now headed by "B" haswithdrawn from representing the defendant. "A" has knowledge from priorrepresentation which is potentially damaging to former client. The new firmheaded by "A" submits the following questions, as representing plaintiff:

1. Is "A" in conflict in any way by representing the potentialplaintiff?

2. Is "A" in conflict in any way with the potential defendant andformer client of "AB"?

3. If "A" is in conflict with the potential defendant as a result ofinformation that has come to light since their representation of plaintiff, is"A" ethically bound not to disclose any information in "AB" file in referringthe individual to another attorney, even if withholding the informationmight seriously jeopardize a potential recovery for the plaintiff?

ANSWER:

1. Yes.

2. Yes.

3. Yes.

It is the opinion of the Advisory Committee that the firm headedby "A" cannot represent the potential plaintiff in the matter about whichadvise is requested. Having represented the potential defendant in a realestate transfer in question while the firm of "AB" was in existence, the firmnow headed by "A" cannot fully represent the plaintiff as against thatdefendant. Neither can the firm headed by "A" reveal to the plaintiff or anyother attorney representing him any information which he might prove tobe a detriment to the defendant growing out of the real estate transfer inwhich "A" and "B" represented him. In short, the Committee believes all theanswers to the three questions propounded is "Yes." Rendered March 7,1980.

[Rule 4 1.6; 1.9(b)]

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(Unrelated parts a, b, and c are not included).

QUESTION: d. In a contested dissolution case, Attorney A is toldby his client that he intends to file a bankruptcy immediately after thedissolution is over, and the client had agreed to pay certain debts, attorneyfees, etc., in order to obtain the dissolution. The client states to AttorneyA that he does not intend to pay those items in view of his prospectivebankruptcy.

Is Attorney A required to disclose to the other attorney his client'sintention of filing bankruptcy?

ANSWER: The attorney is required to disclose to the otherattorney his client's intentions of filing a bankruptcy action. Failure to doso would make the attorney a party to an action of fraud upon the attorneyand the court.

[Rule 4 1.2(d); 1.6]

QUESTION: e. Attorney A and Attorney B both represent thesame client in unrelated litigation. Attorney A become aware, throughdiscussions with the mutual client, that Attorney B has, in his opinion,committed serious legal malpractice and is still mishandling the otherlitigation.

Must or should Attorney A advise the client concerning his opinionof Attorney B's mishandling of the other case? Should Attorney A advise orconfer in any way with Attorney B?

ANSWER: We believe that Attorney A should advise or confer withAttorney B if he believes Attorney B's handling of the matter is improperprior to disclosing his conclusions to his client. We further believe that ifAttorney A does so, he should not take over representation of the client inthe matter. Rendered April 11, 1980.

[Rule 4 1.4]

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QUESTION: A retained criminal lawyer submits the followingfactual situation for guidance:

1. Client A retained the firm to file a petition for a dissolution ofmarriage which is presently pending in State Court and Client A iscurrently charged with various crimes in Federal Court, among which isbank robbery.

2. Client B is presently charged in Federal Court with havingharbored A and being a participant in at least one of the bank robberies forwhich A is charged, and the firm is also retained to represent B in StateCourt proceedings in the State of Kansas and the firm has appeared onbehalf of B at an omnibus hearing in Federal Court on the harboringcharge.

3. The same firm is retained to represent C at a Grand Juryhearing C is a friend of A who has testified before a Grand Juryinvestigation on the charges pending against A.

The investigating federal authorities have requested the law firmto furnish information concerning payments made to it by or on behalf ofclients A, B and C and have specifically requested information on whetherthe money has been offered to the firm as payment for representation of B,which was rejected by this firm because of the suspicion that the moneyconstituted proceeds obtained from a bank robbery. The investigatingofficers have likewise inquired whether the firm has been paid forrepresentation of clients A, B and C and, if so, the dates on which themonies were paid, the amounts, and the nature of the payment whether incash, check, or payment by a third party.

The law firm submits this request to determine whether all or anypart of the above information is privileged information since it deals withthe names of clients and the payment of fees for legal representation.

ANSWER: The committee suggests that the law firm obtainauthority from clients A, B and C to reveal the information, then it can berevealed without any violation of the ethical duties.

If authority cannot be obtained from the clients, then whether theinformation is privileged is a legal question to be ruled by a court ofcompetent jurisdiction and is not an ethical question.

In that connection, the law firm is referred to the case of HowardChamberlin and William Bryan Miller v. Missouri Elections Commission,510 S.W.2d 876. If the information is privileged, then its revelation wouldbe an ethical violation. Rendered May 23, 1980.

[Rule 4 1.6]

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QUESTION: A law firm submits the following inquiry to determinewhether a conflict of interest exists:

The attorney has represented the Board of Realtors for aconsiderable period in an advisory capacity only. No representation inlitigation was ever performed by Attorney A for the Board of Realtors.

The only files of the Board in Attorney A's office pertain to gen.advice to the Board and incorporation of that Board itself and the "Multi-List Committees" of the Board. Attorney A received a letter discharging himas attorney for the Board of Realtors on X date and directed him to allowa representative of the Board to take possession of its files he had in hispossession.

On the same date, Realtor R requested Attorney A to representhim before the Grievance Committee of the Board of Realtors withreference to expulsion of Realtor R from the local Board of which AttorneyA had no knowledge prior to his discharge. In addition, the Board ofRealtors did not request any advice from Attorney A with regard to thecomplaint against Realtor R or with regard to any other complaint againstany other realtor.

Under these circumstances can Attorney A properly representRealtor R before the Grievance Committee of the Board of Realtors and inpossible further litigation?

ANSWER: It is the opinion of the Committee that Attorney A canproperly represent Realtor R before the Grievance Committee of the Boardof Realtors and in possible future litigation. This assumes that Attorney Ahas received no confidential information concerning this matter through hisrepresentation of the Grievance Committee in times past. Rendered May23, 1980.

[Rule 4 1.6; 1.9(b)]

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(Opinion omitted. See Notes on Use.)

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QUESTION: Attorney "A" is the attorney charged with collectionof child support for "X" County. He obtains a support order againstDefendant Jones. Jones at the time is represented by Attorney "B".

Attorney "B" joins the staff of "X" County Prosecuting Attorney'soffice. Attorney "A" is seeking a Citation Order against Jones for failure topay the ordered child support. Attorneys "A" and "B" have agreed not todiscuss the Jones case.

Does the fact that Jones' former Attorney "B" is on the prosecutor'sstaff prevent Attorney "A" from proceeding against Jones?

ANSWER: No. It is the conclusion of the Committee that Attorney"B" is not in a position of conflict in his present employment as a member ofthe Prosecuting Attorney's staff. Since no information or discussion of theJones case has occurred or will occur between Attorney "A" and Attorney"B", the Committee can see no conflict in "A" proceeding in the above case.Should Jones believe that a conflict does exist, then Jones has a right to filea motion to disqualify Attorney "A" and have the motion ruled by the Courthaving jurisdiction of the matter. Rendered September 3, 1981.

[Rule 4 1.6; 1.11]

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QUESTION: Attorney A now represents a client who desires a suitbe brought against Y, who is X's husband in an unrelated matter.

Can Attorney A represent the new client in the unrelated matteragainst the husband of a former client?

ANSWER: Yes. In the Committee's view, there is nothing toprevent Attorney A from filing this lawsuit against his former client'shusband on the unrelated case unless the attorney obtained information inthe course of his representation of the wife which could be used against herinterest. Rendered December 10, 1981.

[Rule 4 1.6; 1.9(b)]

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QUESTION: A bar association has established a committee tointerview and counsel lawyers who suffer from drug or alcohol abuse witha view toward their rehabilitation. In the course of such counseling, thelawyers may divulge to committee members information establishinginstances of the lawyers' misconduct stemming from such abuse.

Under DR1-103(A) are the committee members obligated to reportsuch information to a tribunal or other authority empowered to investigateor act upon the misconduct.

ANSWER: No. It is the opinion of the Committee that informationrevealed to a member of the Bar acting as a rehabilitation counselor byanother member of the Bar who he is attempting to aid in rehabilitationcould be held in confidence and not revealed to any Circuit Bar Committeeor the Advisory Committee without the counseling attorney being inviolation of DR1-103(A) of Rule 4 of the Supreme Court of Missouri.Rendered June 3, 1982.

[Rule 4 8.3(a); see also Rule 16]

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INFORMAL OPINION 930078

QUESTION: Attorney prepared a will for client A. During somewill drafting conferences, A's adult child was present. The will is beingcontested. Does the attorney client privilege apply to the conversations ifthe child or others were present or could hear the conversations. If thecourt determines the privilege has been waived, is attorney obligated toseek review.

ANSWER: The attorney client privilege is a statutory privilege notwithin Rule 4. However, Rule 1.6 also relates to the question. That rulerequires attorney to assert the confidentiality of any information relatingto representation of a client. If ordered by a court to testify, attorney wouldnot violate the rule by testifying as long as attorney had adequatelypresented the issue to the court.

[Rule 4 1.6]

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INFORMAL OPINION 930111

QUESTION: Client has presented attorney with a sealed containerwhich attorney has reason to believe contains drug paraphernalia andpossibly illegal drugs. The materials belonged to another person with whomclient is now in litigation. Attorney wants to use the materials as evidencein this litigation.

ANSWER: Attorney must return the container to the client or,with the client's permission, to the police or prosecuting attorney.

[Rule 4 1.6; 8.4]

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INFORMAL OPINION 930129

QUESTION: Attorney represents several individual clients who arealso clients of a business client of attorney. Another client tells attorneyconfidentially that business client has committed acts which are criminaland may adversely affect one or more of the individual clients. (1) Whatobligation does attorney have to tell business client? (2) What obligationdoes attorney have to individual clients? (3) What information can attorneytell law enforcement officials if they request it?

ANSWER: (1) Attorney may not tell the business client informationobtained from the other client. Attorney must withdraw fromrepresentation of business client and follow requirements of Rule 1.16. (2)Attorney may not tell the individual clients the information obtained fromthe other client. Attorney may not disclose to the individuals informationobtained from law enforcement if the contact with law enforcement relatesto attorney's representation, past or present, of the business client. (3)Attorney must not disclose any information related to representation of anyclient to law enforcement unless attorney has been ordered to do so afterthe issue of confidentiality has been fully presented to the court.

[Rule 4 1.6; 1.16]

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INFORMAL OPINION 930131

QUESTION: Attorney represented adoptive parents in anadoption. Natural mother and adoptive parents now have a dispute.Natural mother wants copies of documents she signed. May attorneyprovide them to her?

ANSWER: Only with the consent of the adoptive parents orthrough a subpoena or other lawful discovery if a lawsuit is filed.

[Rule 4 1.6]

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INFORMAL OPINION 930135

QUESTION: Attorney represents guardian and conservator andhelped her file annual settlement. Attorney obtains information fromconservator to file next settlement. The information indicates thatconservator may have misappropriated funds. Conservator resigns. Whatshould attorney do about filing settlement and communicating theinformation to the court or the bonding company?

ANSWER: Attorney may not communicate the information to thecourt or the bonding company unless conservator consents. Attorney mayinform the bonding company that the conservator resigned. Under Rule 3.3attorney may not file anything with the court which is false or containsomissions. Therefore, attorney must either refrain from filing thesettlement or must file it with complete and accurate information. Attorneymust try to persuade conservator to file a complete and accuratesettlement. If conservator will not do so, attorney must withdraw.

[Rule 4 1.6; 3.3]

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INFORMAL OPINION 930142

QUESTION: Attorney was prosecuting attorney. A private clienttold Attorney that the client had information about the county which theclient indicated was the basis for a lawsuit. The client assisted anotherindividual to bring suit against the county and county officials. Attorneyhas been asked to testify on behalf of the county regarding thisconversation.

ANSWER: The communication from the private client isconfidential under Rule 4-1.6. This opinion does not relate to theattorney-client privilege which is statutory and legal in nature. Thatprivilege is not the same as the confidentiality referred to in Rule 4-1.6. Attorney may only testify regarding that communication if the private clientconsents or if Attorney is ordered to do so by a court after the issue is fullypresented to the court.

[Rule 4 1.6]

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INFORMAL OPINION 930149

QUESTION: Attorney is president of a small corporation (not a lawfirm). Attorney does not provide legal representation to the corporation. All of the records and business transactions of the corporation are keptseparate from Attorney's law practice. May Attorney have the executiveoffices of the corporation housed within Attorney's law offices? This wouldinclude notation on the door and the building directory as well as the officeaddress being listed on the corporation's letterhead.

ANSWER: Sharing space with another business is permitted butthe two businesses must be maintained separately. The corporation musthave a separate phone number answered for the business and not the lawoffice. The files and other information must be separately maintained toensure confidentiality of information related to the law practice. Thephysical arrangement should be one which enables clients of bothbusinesses to understand that the businesses are separate. Also, aside fromthe executive office question, Attorney should be very careful to takeAttorney's relationship to the corporation into account in Attorney'sconflicts checking system.

[Rule 4 1.6; 1.7; 7.1]

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INFORMAL OPINION 930172

QUESTION: Attorney accepts referrals for estate planning frominsurance agents. Attorney is available in person or by telephone to answerlegal questions. The agent is not obligated to recommend Attorney. Theagent obtains basic estate planning information using a form and sends itto Attorney. Attorney is paid directly by the client and pays no part of thefee to the agent. Attorney reviews the information and contacts the client. Attorney prepares estate planning documents. Attorney gives thedocuments to the agent for delivery to the client. The agent assists theclient with execution and transfer of assets. Clients are told to contactAttorney with que

ANSWER: It appears the agent is engaging in in person solicitationon Attorney's behalf in violation of Rule 4-7.3(b). Based on a review of theforms, it appears legal advice would be needed to fill them out. Since theyare filled out by the agent and the client, it appears the agent is engaged inthe unauthorized practice of law and Attorney is violating Rule 4-5.5 byassisting the unauthorized practice. Because the agent does not have arelationship with Attorney and is not supervised by Attorney, giving thedocuments to the agent for delivery would create problems withconfidentiality under Rule 4-1.6 and would further involve the unauthorizedpractice of law.

[Rule 4 1.6; 5.5; 7.3(b)]

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INFORMAL OPINION 930173

QUESTION: Would it solve the confidentiality problem in OpinionNo. 930172 if the client were asked to sign a waiver of confidentialitystatement before the information is gathered by the agent and sent toAttorney?

ANSWER: No. An attorney should not be encouraging clients towaive confidentiality without first advising them of the ramifications of thataction. Since the attorney will not be present at that time, this wouldconstitute further unauthorized practice of law by the agent.

[Rule 4 1.6; 1.7]

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INFORMAL OPINION 930179

QUESTION: Attorney was contacted by Wife regarding herintention to file for divorce. Attorney declined to discuss the matter withWife because of Attorney's personal relationship with Husband's family. Husband has now contacted Attorney for representation in the divorce. May Attorney represent Husband?

ANSWER: Yes, if Attorney did not obtain any information fromWife that would be confidential under Rule 1.6.

[Rule 4 1.6; 1.9]

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INFORMAL OPINION 940006

QUESTION: Attorney represents insureds on behalf of aninsurance company. To whom does Attorney owe the duty of candidcommunication and confidentiality?

ANSWER: Attorney has an attorney client relationship with theinsured. Attorney owes a duty of candor and confidentiality to the insured.Those duties can only be limited with the express consent of the insuredafter full disclosure. Attorney also owes a duty of candor and confidentialityto the insurance company unless that duty has been limited with theexpress consent of the insurance company. This dual representation canresult in irreconcilable conflicts of interest requiring withdrawal fromrepresentation of both.

[Rule 4 1.4; 1.6; 1.7]

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INFORMAL OPINION 940009

QUESTION: Attorney represented a client who entered a plea ofstealing from an employer. The employer has now asked Attorney torepresent it in an action against a person who should have detected thetheft. The employer says it has no interest in bringing an action againstAttorney's former client.

ANSWER: Attorney may only represent the employer if the formerclient consents after full disclosure. The situation will be furthercomplicated if the former client is brought in as a defendant by the otherdefendant. In that situation, Attorney will have to withdraw.

[Rule 4 1.6; 1.9]

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INFORMAL OPINION 940010

QUESTION: Office manager of a law firm wants to set up aseparate business which would be run out of the same space as the lawfirm. The business would be a placement service for law firm support staff.The placement would be permanent (not a temporary service). The feewould be a flat fee paid by the employer.

ANSWER: The proposed arrangement would not violate the rules.Care should be taken to ensure confidentiality of the law firm's records.Steps should be taken to make sure that all signs, etc. reflect theseparateness of the two businesses.

[Rule 4 1.6; 1.7]

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INFORMAL OPINION 940013

QUESTION: Attorney prepared a will for a decedent. Thedecedent's heirs and their attorney want to discuss it with Attorney relatedto a will contest action. (1) Does Rule 1.6 apply after the client's death? (2)May Attorney discuss decedent's competency without a court order? (3)May the interested parties sign a consent for Attorney to discuss and testifywithout a court order? (4) What is the proper procedure for Attorney totestify under court order? (5) Is Attorney's file open for inspection or mustit be covered by the court order?

ANSWER: Yes, confidentiality under Rule 1.6 is different than theattorney-client privilege. (2) No. (3) No. (4) The procedure does not matterunder the rules as long as the issue is fully presented to the court. (5) Thecourt order should be specific. Attorney may only disclose confidentialinformation covered by the court order.

[Rule 4 1.6]

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INFORMAL OPINION 940020

QUESTION: Attorney represented a criminal defendant who wasfound not guilty by reason of insanity. Attorney no longer represents thisperson. The former client continues to contact Attorney and, based on pastactions, Attorney believes these communications indicate that the formerclient is still dangerous and, possibly, dangerous to Attorney. The formerclient is in a mental health institution. May Attorney disclose thisinformation to the mental health personnel?

ANSWER: Even though the person is a former client, thesecircumstances give rise to an obligation of confidentiality under Rule 4-1.6.However, Rule 4-1.6(b)(1) allows Attorney to disclose that informationAttorney reasonably believes is necessary to prevent this person fromcommitting a criminal act that "is likely to result in imminent death orsubstantial bodily harm."

[Rule 4 1.6(b)(1)]

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INFORMAL OPINION 940027

QUESTION: Attorney's client is receiving Medicaid. Attorney hasobtained agreement from an insurance company to settle a personal injurycase. Statutes require both Attorney and client to notify Social Services ofthe settlement. Client has withdrawn authority to settle and dischargedAttorney after Attorney informed client of this obligation. May Attorneyreport to Social Services?

ANSWER: If Attorney reports without client's consent, Attorneywill violate the confidentiality obligation under Rule 4-1.6. Attorney shouldcounsel client regarding the obligations under the statutes prior towithdrawing. If client will not consent to reporting, Attorney must remainsilent and withdraw under Rule 4-1.16(a)(1).

[Rule 4 1.6; 1.16(a)(1)]

Confi.-47

INFORMAL OPINION 940032

QUESTION: A legal services program asks about two situations.In both situations, two people who are married may each qualify forservices and may seek a dissolution of their marriage. When each potentialclient comes in, they will elicit information from the person regarding thecircumstances. Situation 1: May the legal services program pay for anattorney for both parties? The legal services program would have aninterest in keeping litigation costs to a minimum. Situation 2: In the samegeneral situation, but one of the staff attorneys began representing one ofthe parties and then transferred the case to an outside attorney. May thelegal services program pay for an attorney for both parties?

ANSWER: Both situations would involve conflicts under Rules 4-1.7and 4-1.8(f). They would also create problems involving confidentiality.Although these problems are not necessarily insurmountable, we must bepresented with a specific plan before we can give an opinion. Also, it is clearthat the legal services program will not be able to retain financial controleven if the other conflict issues can be handled.

[Rule 4 1.6; 1.7; 1.8(f)]

Confi.-48

INFORMAL OPINION 940043

QUESTION: Attorney is a criminal defense attorney. Attorney'sclient met with another criminal defense attorney and Attorney to discussthe client of the other criminal defense attorney. Attorney's client madestatements that would be exculpatory for the other criminal defenseattorney's client. Attorney's client now refuses to testify to thesestatements or to allow Attorney to testify to them. If Attorney issubpoenaed, what must attorney do?

ANSWER: If Attorney is called to testify, Attorney must assert theduty of confidentiality under Rule 4-1.6, which is separate from, and muchbroader than, the statutory attorney-client privilege. After Attorney hasasserted the duty of confidentiality and fully presented the issue to thecourt, Attorney may comply with the court's order without violating therule.

[Rule 4 1.6]

Confi.-49

INFORMAL OPINION 940050

QUESTION: Federal tax law requires legal fees in excess of$10,000 to be reported on IRS Form 8300. That form requires the attorneyto disclose the identity of the client. Does compliance violate the Rules ofProfessional Conduct?

ANSWER: In Missouri, the question of whether client identity isconfidential is fact dependent.Chamberlin v. Missouri Elections Comm'n,540 S.W.2d 876, 880 (Mo. banc 1976). This question would have to beresolved by a review of the relationship with each client.

[Rule 4 1.6; Chamberlin v. Missouri Elections Comm'n, 540 S.W.2d 876,880 (Mo. banc 1976)]

Confi.-50

INFORMAL OPINION 940055

QUESTION: Attorney would participate in a living trust programrun by a separate company. Non-attorneys who are not under thesupervision of an attorney would contact the clients and gather informationto prepare the living trust and would obtain a check for the company anda check for the attorney. Attorney would be a review attorney fordocuments sent by the company and advising the company of any changesneeded to comply with Missouri law. Attorney will be compensated by theclients at a rate set by the company. Attorney is encouraged to make directcontact with the clients. Attorney will send the approved trust documentor recommendations to the company. The company will send the finaldocument to the client.

ANSWER: This program would violate the following rules withinRule 4: 1.6, 1.7(b), 5.3, 5.4, 5.5, 7.3(b) and 8.4(a).

[Rule 4 1.6; 1.7(b); 5.3; 5.4; 5.5; 7.3(b); 8.4(a)]

Confi.-51

INFORMAL OPINION 940082

QUESTION: Attorney has been retained to represent anotherattorney in connection with a tax problem. As a part of the settlement, theIRS has asked for an itemized list of the names, addresses, and telephonenumbers of the clients of the attorney with the tax problem. Wouldproviding this information be a breach of confidentiality?

ANSWER: In Missouri, the question of whether client identity isconfidential is fact dependent. See Chamberlin v. Missouri ElectionsComm'n, 540 S.W.2d 876, 880 (Mo. banc 1976). It may be possible toresolve the issue by obtaining consent of the clients in some instances.

[Rule 4 1.6; Chamberlin v. Missouri Elections Comm'n, 540 S.W.2d 876,880 (Mo. banc 1976)]

Confi.-52

INFORMAL OPINION 940093

QUESTION: Attorney has recently learned that a conservatorwhom attorney represents may have attempted to misappropriate funds. Attorney has come into possession of a check representing money belongingto the estate which the conservator has attempted to improperly obtain.Attorney also has received information that the conservator may havemisappropriated estate funds in a previous year. What may attorney dowith the check? What may attorney do regarding notifying theconservator's bonding company? What are Attorney's duties to the subjectof the conservatorship?

ANSWER: The information is covered by Rule 4-1.6, clientconfidentiality. Attorney may not communicate the information to anyoneother than the conservator unless the conservator has consented or givesconsent in the future. Attorney must attempt to persuade the conservatorto remedy these problems. If conservator is unwilling to remedy theseproblems, Attorney must return the check to the court without explanationand withdraw from the representation. Attorney may inform the bondingcompany of Attorney's Motion for Leave to Withdraw. Attorney's duties tothe subject of the conservatorship are discharged by persuading theconservator to rectify the wrongful conduct. Alternatively, Attorney'sduties are discharged by seeking to withdraw and returning the check tothe court.

[Rule 4 1.2; 1.6; 1.16(b)]