MISCELLANEOUS


Misc.-1

FORMAL OPINION 41

ATTORNEYS

NOT IMPROPER TO BE IN EMPLOY OF CORPORATION ATSTATED ANNUAL SALARY.

QUESTION: Is it permissible to be in the employ of a corporationat a stated annual salary and represent the corporation on occasion inCourt, without receiving additional compensation for the Court appearance?

ANSWER: Yes.

[Rule 4 5.4]

Misc.-2

FORMAL OPINION 58

PROSECUTING ATTORNEY

IMPROPER TO DEFEND CRIMINAL CASES IN OTHERCOUNTIES IN MISSOURI.

QUESTION: Is it proper for a Prosecuting Attorney in the Stateof Missouri to defend any criminal cases in other counties than that ofwhich he is elected Prosecuting Attorney for, so long as the County forwhich he acts is not interested in the prosecution?

ANSWER: No.

[Rule 4 1.7]

Misc.-3

FORMAL OPINION 61

ENROLLMENT FEE

APPLICANTS PASSING BAR EXAMINATION PRIOR TOJANUARY 20, BUT NOT TAKING OATH UNTIL AFTERJANUARY 20, NOT REQUIRED TO PAY ENROLLMENT FEEUNTIL ON OR BEFORE JANUARY 20th OF THE FOLLOWINGYEAR.

QUESTION: Under Supreme Court Rule 6.01 and 8.07, when areapplicants passing the Bar Examination prior to January 20, 1948 but nottaking the oath until after January 20, 1948, required to pay theirenrollment fee?

ANSWER: On or before January 20, 1949.

[Rule 6.01; Rule 8.07]

Misc.-4

FORMAL OPINION 67

ATTORNEYS

NOT IMPROPER FOR MISSOURI LAWYER OR LAW FIRM TOUSE LETTERHEADS AND LEGAL CAP PAPER WITH FIRM'SOR INDIVIDUAL LAWYERS' NAMES WATERMARKEDTHEREIN.

QUESTION: May a Missouri lawyer or law firm properly useletterheads and legal cap paper with the firm's or individual lawyers' nameswatermarked in such letterheads and legal cap paper?

ANSWER: Yes.

[Rule 4 7.1]

Misc-5

FORMAL OPINION 68

ADVERTISING

NOT IMPROPER FOR A MISSOURI LAWYER OR LAW FIRMENGAGED IN PATENT, TRADEMARK AND COPYRIGHTPRACTICE TO SO STATE ON THEIR LETTERHEADS.

QUESTION: Patent lawyers are usually engineers or chemists, notengaged in the general practice of law. For many years throughout theUnited States, the patent lawyers who are registered under 35 U. S. Code11 as patent attorneys entitled to practice before the United States PatentOffice. (U.S. Constitution, Article 1, Section 8 and 35 U.S. Code) haveusually stated on their letterheads that fact, or a conventional abbreviationthereof such a Patent Law. Patent Lawyers usually practice also before theother (Trade-Mark) section of the United States Patent Office (15 U. S.Code 1051 et seq.) and before the other United States Government office(Copyright Office, 17 U. S. Code 47) which exists under said section of theUnited States Constitution, and such lawyers have usually stated on theirletterheads those facts, or a conventional abbreviation thereof such asTrade-Mark and Copyright Law. Is there any impropriety in this?

ANSWER: No. Canon 2 DR2-105(A)(1)

[Rule 4 7.4]

Misc.-6

FORMAL OPINION 69

ADVERTISING

LISTING OF LAWYERS SPECIALIZING IN PATENT,TRADEMARK AND COPYRIGHT LAW IN A CITY ANDTELEPHONE DIRECTORY UNDER "PATENT LAWYERS" ORSOME SIMILAR APPROPRIATE CLASSIFICATION NOTIMPROPER.

QUESTION: Referring to amended Advisory Opinion 26, is itproper for a Missouri lawyer or law firm, engaged in the patent, trademarkand copyright practice to permit his or her name or law firm to be insertedin the city and telephone directory once in the body, once in one appropriategeneral classification chosen by the publisher as "Lawyers" or"Attorneys-at-Law" and once in one classified section of publication under"Patent Lawyers" or some similar appropriate classification?

ANSWER: Yes. Canon 2 DR2-105(A)(1) [Rule 4 7.4]

Misc-7

FORMAL OPINION 70

ATTORNEYS

PROPRIETY OF SERVING AS SOLE EXECUTOR OR SOLETRUSTEE WITHOUT BOND.

QUESTION: Lawyers are frequently named as sole executors ofwills without bond and sole trustees of trusts without bond. In many ofthese instruments broad powers are given these lawyers freed largely fromsupervision of courts. Is it proper for a lawyer so named to serve withoutbond:

(a) When the instrument is drawn by others than the lawyer andhis firm?

(b) When the instrument is drawn by himself?

ANSWER: (a) and (b) While the statutes and decisions do notrequire such a bond, the Committee is of the opinion that it is better for theBar as a whole and better practice for the lawyer individually, except inunusual cases which are disclosed to the court, that the lawyer so namedgive bond if the Court deems it advisable.

[Rule 4 8.4(d)]

Misc.-8

FORMAL OPINION 75

ATTORNEYS

IMPROPER TO ACCEPT EMPLOYMENT BY RADIO STATIONTO ANSWER QUESTIONS OF LEGAL NATURE INVOLVINGINDIVIDUAL RIGHTS.

QUESTION: Is it proper for a Missouri lawyer to acceptemployment by a Radio Broadcasting Station for the purpose of answeringquestions of a legal nature submitted to a program devoted to theanswering of questions submitted by the public; or in effect a "question andanswer program"?

ANSWER: The Advisory Committee is of the opinion that underthe rules of the Supreme Court of Missouri, a Missouri lawyer cannotproperly accept employment by a Radio Broadcasting Station for thepurpose of answering questions of a legal nature involving individual right,nor in answering any questions based upon any particular set of facts.

Canon 3 DR3-101

[Rule 4 1.6; 1.8(f); 5.4]

Misc.-9

FORMAL OPINION 78

PROSECUTING ATTORNEYS

NOT PROPER TO DISCUSS PROSECUTIONS WITH TRIALJUDGE.

QUESTION: Is it proper for a prosecuting officer prior to the trialof a case, to discuss the prosecution thereof with the Judge who will handlethe Grand Jury in connection therewith, and preside at the trial?

ANSWER: No. However, the Advisory Committee is of the opinionthat it is not improper for a prosecuting officer to discuss with such Judgegeneral conditions pertaining to law violations in his jurisdictions.

[Rule 4 3.5]

Misc.-10

FORMAL OPINION 81

ATTORNEYS

IMPROPER TO ACCEPT EMPLOYMENT OF PAY CLIENTSFROM FREE LEGAL AID BUREAU WHILE SERVING ONBUREAU STAFF.

QUESTION: Applicants at a municipally maintained Free Legal AidBureau lacking qualification entitling them to legal assistance by theBureau, are told to employ an outside lawyer. When they ask to be referredto a lawyer, in some cases are told to consult a lawyer who is connected withthe bureau on a part time voluntary basis, without compensation. Thislawyer is sometimes the one to whom the applicants first apply forassistance at the Bureau. Such reference frequently results in the applicantemploying the lawyer, who then represents him in his private capacity fromhis own office. Is it proper for the lawyer to accept employment under thesecircumstances?

ANSWER: No.

[Rule 4 1.7(b)]



Misc.-11

FORMAL OPINION 85

ATTORNEYS

NOT IMPROPER TO HOLD INTEREST IN ABSTRACTCOMPANY.

QUESTION: Is there anything improper or unethical about anattorney holding an interest in an Abstract Company without making ageneral public announcement of same?

ANSWER: No. The answer would be the same even though (a) theattorney's interest was purely an investment with no active participation inthe management; or (b) the attorney devoted some time and took someactive part in the management; or (c) the fact the public generally does notknow of his connection with the Abstract Company.

Canon 3

[Rule 4 1.7]

Misc.-12

FORMAL OPINION 86

(Withdrawn 12/31/94).

Misc.-13

FORMAL OPINION 92

(Withdrawn 12/31/94).

Misc.-14

FORMAL OPINION 102

PROFESSIONAL CORPORATIONS

IT IS PERMISSIBLE FOR A NON-LAWYER TO HOLD THEOFFICE OF SECRETARY IN A MISSOURI PROFESSIONALCORPORATION FOR THE PRACTICE OF LAW.

Although DR5-107(C)(2) of Rule 4 of the Code of ProfessionalResponsibility provides a lawyer may not practice as a professionalcorporation if a non-lawyer is a corporate director or officer, subdivision (D)authorizes the practice of law in the form of a professional corporationorganized under The Professional Corporation Law of Missouri. TheProfessional Corporation Law, Section 356.080, provides that no personmay be a director or officer "other than Secretary" of a professionalcorporation. Thus officers and directors must be lawyers, but a non-lawyermay serve as Secretary. The purpose of Rule 4, DR5-107(d) is to authorizepractice of law by a Missouri lawyer in the form of a Chapter 356professional corporation. The exception with respect to a non-lawyerholding the office of Secretary enables a sole practitioner to form a Chapter356 corporation with a non-lawyer Secretary, and this does not violate DR5-107(C) (2).

[Rule 4 5.4(d)]

Misc.-15

FORMAL OPINION 116

USE OF TRUST ACCOUNT

It is the opinion of the Advisory Committee that issuance of aformal opinion on this subject will be helpful to the practicing bar.

DR9-102 of Rule 4, Missouri Supreme Court, specifically providesas follows:

(A) All funds of clients paid to a lawyer or law firm, other thanadvances for costs and expenses, shall be deposited in one or moreidentifiable bank accounts maintained in the state in which the law officeis situated and no funds belonging to the lawyer or law firm shall bedeposited therein except as follows:

(1) Funds reasonably sufficient to pay bank charges may hedeposited therein.

(2) Funds belonging in part to a client and in part presently orpotentially to the lawyer or law firm must be deposited therein, but theportion belonging to the lawyer or law firm may be withdrawn when dueunless the right of the lawyer or law firm to receive it is disputed by theclient, in which event the disputed portion shall not be withdrawn until thedispute is finally resolved.

(B) A lawyer shall:

(1) Promptly notify a client of the receipt of his funds, securities, orother properties.

(2) Identify and label securities and properties of a client promptlyupon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.

(3) Maintain complete records of all funds, securities, and otherproperties of a client coming into the possession of the lawyer and renderappropriate accounts to his client regarding them.

(4) Promptly pay or deliver to the client as requested by a client thefunds, or other properties in the possession of the lawyer which the Clientis entitled to receive.

We will endeavor to set forth specific examples to aid the lawyer tofulfill the ethical requirements under DR9-102. The examples are notintended to exhaust all possible factual situations that may arise.

In this connection, we submit that the lawyer must not commingleany "funds in which the client has an interest" with those belonging solelyto the lawyer. The lawyer should never put in the law office account anyfunds in which the client can claim an interest. In making that statement,we consider the law office account funds to be those which are used to payexpenses for operation of the office or personal expenses. In re Montrey.(Mo. Sup., Banc 1974) 511 S.W.2d 805(3).

The lawyer has two duties under DR9-102. One is to keep the fundsof the client separate and apart from the practitioner's own personal fundsand two, to account to the client for all funds received on behalf of theclient.

To properly account to the clients the practitioner must establishan accounting system whereby a permanent record is kept on all amounts,incoming and outgoing, from the Trust Account.

Each probate estate or trust should have its bank account separatefrom the general Trust Account.

It should be first noted that under DR9-102, that "advances forcosts and expenses" are exempted from the general requirement that"funds in which the client has an interest" be deposited in the TrustAccount. The practitioner may well desire to place "unexpended expensefunds advanced for a specific purpose" in the Trust Account. In a recentcase styled Dillard v. Payne, et al., (1981) Mo. Sup. 615 S.W.2d 53, theCourt held where the funds were placed for a specific purpose by the clientand used for other than such specified purpose, such action subjected theholder to liability for conversion and possible punitive damages.

We here set forth examples involving use of the Trust Account.They are not intended to exhaust all possible factual situations that mayarise:

1. Client Jones retains lawyer A to represent him in a pendingdissolution action on an agreed upon set fee of $350.00. Jones pays lawyerA the agreed upon fee. Does the lawyer have to put the fee into the TrustAccount or can it be put in the law office account?

ANSWER: The fee can be put in the law office account. (Seeinformal opinion No. 3, rendered April 4, 1980, Summary of InformalOpinions 4/1/1980 to 6/30/1980.) The Committee held when the attorneyreceives an attorney fee in advance of the work being done, it may bedeposited directly into the law office account. If the entire fee is not earnedbefore severing the attorney-client relationship, then an appropriate refundmust be made to the client.

2. Client Jones retains the lawyer under an employment contractwhereby the agreed upon compensation hourly rate was to be "$100.00 perhour plus expenses" and Jones would deposit the sum of $5,000.00 with theattorney, who was authorized to deduct the fee as earned and makeperiodic reports to Jones. Under this type of employment, clearly the fundsdeposited with the lawyer must be deposited in the Trust Account untilearned by the attorney. It appears that the deposit was to secure futurebillings of the attorney and at the time of placing the funds in the hands ofthe attorney, the fees remain unknown and unearned.

3. A common case involving use of the Trust Account is the personalinjury case. In most cases a written fee contract will exist but often is notspecific enough. Disputes can arise between the attorney and the client onhow the recovery is to be distributed. The proceeds should definitely bedeposited in the Trust Account and no division made until a proposedwritten settlement distribution has been prepared for the client andapproved by him. Then the settlement checks should be drawn in accordwith that settlement distribution to the client, creditors and the attorney.If a dispute arises, the disputed amount must remain in the Trust Account.The Trust Account is used when funds are received for a client in form ofa check from a debtor and it is not known whether the check will behonored if run through the Trust Account it will delay disbursement to theclient only a few days. This will avoid problems caused by prematuredisbursement to the client, if the check is not honored.

4. When dealing in real property transfers, the attorney isfrequently called upon to act as an escrow agent under a written escrowagreement.

When funds are received in such a capacity, the attorney mustdeposit such funds in the Trust Account. Distribution should be made instrict accordance with the escrow agreement.

If disputes arise, the amount in dispute should remain in the TrustAccount until the dispute is resolved by agreement or by legaldetermination.

If the amount of funds is sufficient and the length of time the fundswill be held is long, the attorney should consider deposit of the funds in aninterest bearing account.

The attorney should follow such procedure whether he representsone of the parties or whether he represents no party to the escrowagreement.

Adopted September 11, 1981

Advisory Committee en banc

[Rule 4 1.15]

Misc.-16

FORMAL OPINION 117

ATTORNEY, WHO FAILS TO COOPERATE WITH ADISCIPLINARY COMMITTEE, MAY BE CHARGED WITHADDITIONAL GROUNDS OF MISCONDUCT UNDER RULE 4,DR1-102(A) (5) & (6).

QUESTION: May a Missouri attorney, who fails to respond to arequest of a disciplinary committee or who fails to appear at a scheduledhearing at the request of said committee or who fails to furnish documentsupon request of said committee, be charged with that conduct as anadditional grounds for discipline in Formal Notice or Information filedunder Rule 5?

ANSWER: It is the opinion of the Advisory Committee that suchconduct by the attorney is grounds for additional charge under DR1-102(A)(5 & 6), Rule 4, Supreme Court of Missouri. Such failure to cooperate withthe disciplinary committee does constitute conduct that is "prejudicial to theadministration of justice" and is "conduct that adversely reflects on theattorney's fitness to practice law."

The aforesaid provisions of Rule 4 have not heretofore beenconstrued by the Missouri Supreme Court. The Court has stated:

"We do not find that respondent violated DR1-102(A)(6).Undoubtedly, as the Special Master found, the conduct of respondent reflects on respondent's fitness to practice law. However, this subsection ofDR1-102(A) refers by its terms to any other conduct which reflectsadversely on fitness to practice law. In other words, it seems to contemplateconduct other than that described in the preceding numbered subsections.It is not simply another method proscribing the same conduct." In reConnaghan, 613 S.W.2d 626 (5) (Mo. banc 1981) l.c. 632.

Our research has not found any case in which the MissouriSupreme Court has interpreted the phrase "conduct that is prejudicial tothe administration of justice."

In the following cases, the Court has used its contempt powers topunish attorneys who failed to appear and produce records beforedisciplinary committees after being properly served with a subpoena. SeeTwenty-first Judicial Circuit Bar Committee v. Brian J. Fahey, 583 S.W.2d171 (Mo. Sup. en banc 1979); In re West, 152 S.W.2d 69, 70 (Mo. Sup. enbanc 1941); In re Fenn, 128 S.W.2d 657 (Mo.App. 1939); In re H____ S____,69 S.W.2d 325 (Mo. App. 1934).

In West, supra, where the attorney failed to appear before theAdvisory Committee after being subpoenaed, the Court expressly held "thedisobedience of a lawful order of a court is such an interference with theadministration of justice as to constitute a contempt (citing cases)." At thattime under Rule 35, Sec. 22, the attorney had a professional obligation of"fairness to the Court."

In the Fenn case, supra, the attorney appeared but did not testifyat his disciplinary hearing.

In re H___ S___, supra, the Court said at p. 327, (4):

"Now while a lawyer is not a public officer in the constitutional orstatutory sense of the term he is an officer of the court, and as such, owesa definite obligation to the public as a whole in the matter of the properadministration of justice. His license to engage in the practice of the law ishis, not of right, but as a privilege granted him by the state which comes tohim burdened with conditions of subsequent good behavior and professionalintegrity."

Research of out state authorities reveals many cases in which thecourts have considered the problem of attorneys who fail to cooperate withdisciplinary authorities and the courts.

It appears that in 26 states, the Court will entertain, as additionalcharge of misconduct, the failure to cooperate with disciplinary authorities.

One of the leading cases on the point is Disciplinary Proceedingsagainst Kennedy, 309 N.W.2d 83 (Wis. Sup. Ct. 1981).

In Kennedy, the attorney had previously been given a publicreprimand for his failure to respond to complaints against him and hisfailure to appear before a district grievance committee during aninvestigation conducted by the State Bar of Wisconsin. State vs. Kennedy,123 N.W.2d 449 (Wis. Sup. Ct. 1963).

Thereafter in the 1981 proceeding, the same attorney was beinginvestigated on additional charges of neglect and for failure to appearbefore a Judge. The attorney failed to answer the written complaint filedby the Board of Attorneys professional Responsibility and failed to answerwritten inquiries of the Board.

On appeal, after referee recommended a reprimand for failure tocooperate, the Board charged that respondent with repeated violations ofthe rules requiring an attorney to cooperate with the inquiries of the Board. . . The Board also argued "that failure to impose discipline more severethan a public reprimand . . . will have a detrimental effect on the legalprofession . . . by leading other attorneys to conclude they may ignorerequests for cooperation from the Board with the assurance that, ifdisciplined, they will receive merely a public reprimand."

The Court suspended respondent's license for 60 days and assessedcosts "because the respondent had a history of failing to respond to theBoard and because he failed to cooperate in the disposition of an actionpending in circuit court by failing to respond to correspondence from bothopposing counsel and the presiding judge."

See also in Matter of Norlin, 310 N.W.2d 789, 795 (Sup. Ct. of Wis.1981). The Court affirmed the referee's finding of an additional ground ofmisconduct at page 795;

"We are also in agreement with the conclusions that the appellant'snumerous failures to respond to inquiries and correspondence from thedistrict grievance committee and the Board constitutes professionalmisconduct. Our rule requiring an attorney being investigated forprofessional misconduct to fully and fairly disclose all facts andcircumstances pertaining to the alleged misconduct states, in pertinentpart, `Failure to provide information or misrepresentation in a disclosureis misconduct.' SCR 22.07(2). Cooperation with disciplinary investigationsconducted by district grievance committees and the Board is essential to theeffectiveness of such investigations, and a lawyer's failure to cooperateconstitutes serious misconduct. Cite Kennedy case, supra."

In Minnesota, the Supreme Court has adopted a similar rule to thatadopted in Wisconsin and Washington. In a very clearly worded per curiamopinion in Matter of Cartwright, 2X2 N.W.2d 548 (Minn. Sup. Ct. 1979), therespondent did not respond to several separate complaints sent to him bythe Board of Lawyers Professional Responsibility.

In fact, that Board had on several prior occasions notifiedrespondent that the Board considered such uncooperation to be violationsof DR1-102(A) (5) & (6). A formal complaint was filed with the Board andformal hearing was held before a Referee.

The only issue presented on appeal "was whether respondent'srepeated refusals to cooperate with the appropriate disciplinary authoritiesconcerning ethical complaints deserved discipline."

The Court at page 551 stated:

"This question is not new to the court. We have long recognizedthat it is incumbent upon an attorney to cooperate with disciplinaryauthorities in their investigation and resolution of complaints against him.In re Discipline of Douglas Larson, 210 Minn. 414, 298 N.W. 707 (1941); Inre Disbarment of I. A. Chmelik, 203 Minn. 156, 280 N.W. 283 (1938); In reDisbarment of A. M. Breding, 188 Minn. 367, 247 N.W. 694 (1933); In reDisbarment of George P. Gurley, 184 Minn. 450, 239 N.W. 149 (1931). Aswas summarized by the Court in the case of In re Breding:

`Relative to the complaint of said client and the complaint ofanother aggrieved client, which is also involved in her proceedings, butconcerning which the referee has substantially exonerated counsel, thechairman of the ethics committee of the state bar association, the secretaryof the state board of law examiners, and the secretary of the ethicscommittee of the Hennepin county bar association wrote counsel manyletters which were ignored by him. They asked him to come before certaincommittees and make explanation, but this he failed to do. They weregiving their time and services to maintain a high standard in the legalprofession and were entitled to expect at least a courteous response and aprompt cooperation. Counsel failed in his duty toward these officials. 188Minn. 368, 247 N.W. 694 (emphasis added).

Here respondent's conduct throughout the various investigations. . . shows a complete disdain for the disciplinary process. Not only did hechoose to ignore the bulk of the correspondence coming to him from thevarious authorities, hut on those occasions when he did promisecooperation, his promises were never fulfilled. Accordingly, the referee wascorrect in concluding that respondent's complete failure to cooperate withthe disciplinary authorities constituted a separate act of professionalmisconduct.

We note that Minnesota is not alone in imposing a duty uponattorneys to cooperate in investigations of their alleged professionalmisconduct. See e.g. In re Draper, 317 A.2d 106 (Del. 1974); In re Talbot,78 Wash.2d 295, 474 P.2d 88 (1970); In the Matter of DisciplinaryProceedings against Elliott, 83 Wis.2d 904, 266 N.W.2d 430 (1970). In fact,other courts have expressly adopted rules requiring cooperation by anattorney under investigation and providing that failure to do so is aseparate act of misconduct. For example, Rule 2.6 Discipline Rules forAttorney, 10 Washington Court Rules (1978), provides that:

`. . . It shall be the duty and the obligation of an attorney who is thesubject of a disciplinary investigation to cooperate with the LocalAdministrative Committee, State Bar Counsel or bar staff as requested,subject only to proper exercise of his privilege against self-incriminationwhere applicable by:

(a) Furnishing any papers or documents;

(b) Furnishing in writing a full and complete explanation coveringthe matter contained in such complaint; and

(c) Appearing before the Committee at the time and placedesignated.'

Such a rule is desirable in that it clearly delineates the scope of theattorney's duty and we suggest that the Lawyers ProfessionalResponsibility Board draft such a rule for submission to this court."

See also Matter of Ojala, 2X9 N.W.2d 108 (Sup. Ct. of Minn. 1979).In that case, the Court affirmed the opinion of referee finding failure tocooperate with Disciplinary Authorities as a separate ground for discipline.For similar holding see Matter of Larson, 324 N.W.2d 656 (Sup. Ct. ofMinn. 1982).

In order to keep this opinion within the bounds of brevity, pleasesee appendix for citation to cases having similar holdings.

Based on the above cases, it is the opinion of the AdvisoryCommittee, that failure of respondent to cooperate with the disciplinarycommittee constitutes a separate act of misconduct under DR1-102(A) (5)& (6).

Adopted October 21, 1983.

[Rule 4 8.1]



APPENDIX

1. In re Minor, 658 P.2d 782(3) (Sup. Ct. Ak. 1983)

2. Sullivan v. State Bar of California, 326 P.2d 138 (Sup. Ct. Ca.)

McGrath v. State Bar of California, 135 P.2d 1 (Sup. Ct. Ca. 1943)

3. People v. Davis, 620 P.2d 725 (Sup. Ct.Colo. 1980)

People v. Kendrick, 619 P.2d 65, 646 P.2d 337 (Sup. Ct. Colo. 1980)

People v. Lanza, 613 P.2d 337 (Sup. Ct. Colo. 1980)

4. Matter of Reed, 429 A.2d 987 (Sup. Ct. Del. 1981)

In Re Draper, 317 A.2d 106 (Sup. Ct. Del. 1974)

5. Florida Bar v. Brigman, 307 So.2d 161, 322 S.2d 556 (Sup. Ct.Fla.1975)

Florida Bar v. Schneiderman, 285 So.2d 392 (Sup. Ct.Fla. 1973)

6. In The Matter of Chabior, 277 S.E.2d 736 (Sup. Ct. Ca. 1981)

7. Office of Disc'y Counsel v. Johnson, 611 P.2d 993 (Sup. Ct. Hi.1980)

Office of Disc'y Counsel v. Kagawa, 622 P.2d 115 (Sup. Ct. Hi.1981)

8. In The Matter of Shea, 425 N.E.2d 76 (Sup. Ct. Ind. 1976)

In Re O'Brien, 437 N.E.2d 972 (Sup. Ct. Ind. 1982)

In Re Purvis, 416 N.E.2d 433 (Sup. Ct. Ind. 1981)

9. Comm. of Prof. Ethics, etc. v. Roberts, 246 N.W.2d 259 (Sup. CtIowa 1976)

Comm. of Prof. Ethics, etc. v. Rogers, 313 N.W.2d 535 (Sup.Ct.Iowa 1981)

Comm. of Prof. Ethics, etc. v. Shaffer, 230 N.W.2d 1 (Sup. Ct. Iowa1975)

10. State v. Johnson, 546 P.2d 1320 (Sup. Ct. Kan. 1976)

State v. Vannerson, 588 P.2d 462 (Sup. Ct. Kan.)

11. Ky. Bar Assn. v. Littleton, 560 S.W.2d 5 (Ky. Sup. Ct. 1978)

Ky. State Bar Assn. v. Zigler, 471 S.W.2d 290 (Ky. Sup. Ct. 1971)

Ky. Bar Assn. v. Clem, 554 S.W.2d 360 (Ky. Sup. Ct. 1977)

12. Maryland State Bar Assn. v. Phoebus, 347 A.2d 556 (Sup. Ct. Md.1975)

13. Board of Overseers v. Ingeneri, 440 A.2d 1039 (Sup. Ct. Me. 1982)

14. State Bar of Nevada v. Watkins, 655 P.2d 530 (Sup. Ct. Nev. 1982)

15. In Re LeLince, 200 N.W.2d 56 (Sup. Ct. N.D.)

16. In Re Sultan, 26 App. Div. 2d 210, 271 N.Y.S.2d 1000 (App. Div.N.Y.)

In Re Pines, 26 App. Div.2d 424, 275 N.Y.S.2d 122 (App. Div. N.Y.1966)

In Re Higgins, 27 App. Div.2d 340, 279 N.Y.S.2d 197 (App. Div.N.Y.)

Jennings v. N.Y.S. Bar Assoc., 46 App. Div.2d 932, 361 N.Y.S.2d728 (App. Div. N.Y.)

In Re Verdile, 59 App. Div.2d 97, 397 N.Y.S.2d 813 (App. Div. N.Y.1977)

17. Akron Bar Asso. v. Wise, 421 N.E.2d 148 (Sup. Ct. Ohio 1981)

Dayton Bar Asso. v. Delcontiuo, 420 N.E.2d 113 (Sup. Ct. Ohio1981)

Dayton Bar Asso. v. Stinchfield, 418 N.E.2d 1366 (Sup. Ct. Ohio1981)

18. In Re Gevrts, 620 P.2d 1373 (Sup. Ct. Or. 1980)

19. Carter v. Folcarelli, 402 A.2d 1175 (Sup. Ct. R.I. 1979)

20. Matter of Hines, 269 S.E.2d 766 (Sup. Ct. S.C. 1980)

21. Howell v. State, 559 S,W.2d 432 (Ct. of Civil App. Texas 1977)

22. In Re Judd, 629 P.2d 435 (Sup. Ct. Utah 1981)

23. In Re Reiter, 241 A.2d 60 (Sup. Ct. Vt. 1968)

24. In Re Pool, 471 P.2d 688 (Sup. Ct. Wash. 1970)

In Re Stromberg, 452 P.2d 547 (Sup. Ct. Wash.)

In Re Allper, 617 P.2d 982 (Sup. Ct. Wash. 1980)

In Re Talbot, 474 P.2d 88 (Sup. Ct. Wash. 1970)

25. Matter of Lenon, 314 N.W.2d 118 (Sup. Ct. Wis. 1982)

Matter of Nafzcer, 312 N.W.2d 482 (Sup. Ct. Wis. 1982)

Matter of Slayton, 318 N.W.2d 379 (Sup. Ct. Wis. 1982)

Matter of Smith, 305 N.W.2d 416 (Sup. Ct. Wis. 1981)

State of Stumpf, 193 N.W.2d 842 (Sup. Ct. Wis. 1972)

State v. Weber, 200 N.W.2d 577 (Sup. Ct. Wis. 1972)



Misc.-17

(Opinion omitted. See Notes on Use.)

Misc.-18

(Opinion omitted. See Notes on Use.)

Misc.- 19

QUESTION: Can the Divorce Counseling Service, beingunsponsored by the organized bar, refer clients seeking legal advice toindividual attorneys or should it refer such clients to the Lawyer'sReference Service?

ANSWER: The Divorce Counseling Service should not make directreferrals of clients to individual attorneys and should refer such individualsto the Lawyer's Reference Service of the Metropolitan Bar Association.Rendered June 30, 1977.

[Rule 4 7.2(c)]

Misc.-20

QUESTION: What are the guidelines for contacts withunrepresented adverse parties in a dissolution of marriage action?

ANSWER: The committee reaffirms Formal Opinion No. 82 asmodified by Formal Opinion No. 109. (Editor's Note: See Conflict ofInterest Section, C.ofInt.-14, 22.) The committee believes that the attorneycan draw a joint petition for dissolution if the stipulations in Opinion No.109 are met. The attorney can draw a petition of dissolution for one spouseand can draw an entry of appearance for the other spouse but he should notdraw any other responsive pleading for the unrepresented party.

We see nothing wrong in an attorney drawing a proposed propertysettlement agreement for his client to be presented to an unrepresentedspouse, if the spouse chooses not to be represented, so long as the attorneydrawing the instrument does not attempt in any way to advise theunrepresented spouse concerning it. The opinions do not affect the right tonegotiate with the unrepresented party. They merely preclude the attorneyfrom giving advice to the unrepresented party. Rendered June 30, 1977.

[Rule 4 4.3]

Misc.-21

QUESTION: Is it improper for the named trustee in a Deed ofTrust, after issuance of a restraining order by the Bankruptcy Court, to filean application with the Bankruptcy Court on behalf of the lender andhimself for permission to proceed with the foreclosure on specific propertyof the bankrupt?

ANSWER: No. The Committee assumes that proper notice is givento all interested parties and the lender has been advised of the necessity ofthis additional procedure and the additional fees, if any, incurred thereby.Rendered August 1, 1977.

Misc.-22

QUESTION: Can a Legal Aid Society participate in the computersystem shared with other agencies into which the names of clients andother confidential information are inserted?

ANSWER: No. The Committee has the opinion that such actionwould be an improper breach of the attorney-client confidentiality and couldonly be done with the specific authorization of each individual client.Rendered August 3, 1977.

[Rule 4 1.6]

Misc.-23

(Opinion omitted. See Notes on Use.)

Misc.-24

(Opinion omitted. See Notes on Use.)

Misc.-25

(Opinion omitted. See Notes on Use.)

Misc.-26

(Opinion omitted. See Notes on Use.)

Misc.-27

(Opinion omitted. See Notes on Use.)

Misc.-28

QUESTION: A law firm represents a collection agency. It isproposed by the collection agency, that in consideration of a promissorynote executed to the assignor of the debt, that the account be assigned tothe agency and thus comply with the requirements of State ex relMcKittrick v. C. S. Dudley & Company, 102 S.W.2d 895.

1. Is it proper for a tacit agreement be made between the partiesthat if the account was not collected by the collection agency, the creditorwill write off the note and cancel same?

2. Is it proper for the original creditor or assignor to retain asecurity interest in the account to secure payment of the promissory note?

ANSWER: 1. No. 2. No. It is the opinion of the Committee that inboth instances, the proposed action would constitute a fraud upon the courtand be improper. Rendered January 6, 1978.

[Rule 4 3.3; 8.4(d); 5.5]

Misc.-29

QUESTION: Law firm "X" represents "P" in a suit filed for personalinjuries against defendants "A" and "F", co-partners of the business, uponwhose premises "P" sustained his injury. That suit is being handled byattorney "E" for the firm.

While the suit is pending, Defendant "A" sought the services ofattorney "G" in the same firm, who had no knowledge of the pending suitagainst "A". Attorney "G" does not confer in person with defendant "A" andthe work of incorporating a corporation for defendant "A" has beencompleted. Defendant "A" made no mention of the pending lawsuit to anymember of law firm "X".

Can law firm "X" continue to represent "P" in his action againstdefendant "A"?

ANSWER: Yes. The Committee is of the opinion under the abovefacts, that law firm "X" can continue in the case. "P" was a client prior todefendant "A" engaging the services of lawyer "G" and defendant "A" knewhe was dealing with a member of the firm which had filed litigation againsthim and chose not to say anything to lawyer "C" about it. Defendant "A"can't now insist that law firm "X" cease representing "P" in the case.Rendered January 6, 1978.

[Rule 4 1.7]

Misc.-30

QUESTION: Can an attorney ethically record a conversation withany person, without prior knowledge of that person?

ANSWER: No. The Committee adopts the ABA Opinion 337adopted August 10. 1971 and the reasoning contained in concurringopinions adopted in Arizona, Colorado, Kentucky, New York and Wisconsin(Texas contra).

This, of course, excepts those actions carried on by law enforcementagencies under control of court orders. Rendered January 13, 1978.

[Rule 4 8.4(c)]

Misc.-31

QUESTION: A lawsuit is filed by an allegedly improperlydischarged employee-union member against the employer and plaintiff'sunion.

The lawsuit alleges that the union failed to adequately investigatethe facts and failed to refer plaintiff's grievance to arbitration, as providedin the union contract, and that said union's refusal was arbitrary and in badfaith.

The union has been represented for approximately 25 years by lawfirm "U". The president of the union had received the advice of a memberof that firm regarding arbitration of plaintiff's grievance, before making thedecision declining to present plaintiff's grievance to arbitration.

Accordingly, that member of law firm "U" is expected to testify asa witness on behalf of the union as to his advice given to the unionpresident and law firm "U" is currently representing the union defendantin the pending case.

The court and counsel presented the question to the Committee onwhether DR5-102 (Withdrawal as counsel when the lawyer-member is totestify as a witness) mandated that law firm "U" withdraw fromrepresenting defendant in this case. Law firm "U" claimed exception under(1) DR5-101(B) (1) because its member-attorney's testimony relates only touncontested matters and (2) that under DR5-101(B) (4) that requiringwithdrawal would work a substantial hardship on the union-client.

ANSWER: Since this matter was pending before the court onmotion of plaintiff at the time this question was submitted to the AdvisoryCommittee, the court has jurisdiction to determine whether or notattorneys for the union and appearing before it can properly represent theparty they presume to represent. The Advisory Committee would notpresume to infringe upon the courts initial jurisdiction of this matter andthe comments made hereafter should be viewed in that light

The members of the Committee disclaim any extensive experiencein the field of labor law. In considering the briefs filed with the Committeeby both counsel, it appears any dispute rests with the legal effect of histestimony and not the content of his testimony. The lawyer-witness willtestify regardless of which firm appears as counsel for the union-defendant.If the competency of that lawyer-member of the firm to give said advice isan element for determination in the suit, then plaintiff's attorney mustargue that member's incompetence regardless of who is arguing for hiscompetency.

Under the facts presented, it appears that plaintiff can make amore convincing argument to the jury with the "U" law firm representingthe union and a member of their firm having been a witness in the case andhaving testified as to his previous advice given the union-defendant. In fact,the Committee feels that the "U" law firm would have an affirmative dutyto advise the union of that possibility prior to trial so the union would befully informed of this potential disadvantage.

Under these facts, should the court determine that the "U" law firmcan continue to represent the union defendant, the Committee does notbelieve that continued representation would justify a disciplinaryproceeding. The Committee's view could be different if the facts the witnesstestified were in dispute.

The Committee does not believe the question of financial hardshipto the union brings the matter under the exception of DR5-101(B) (1).Rendered January 13, 1978.

[Rule 4 3.7]

Misc.-32

QUESTION: Can sole practitioners, who share office spacetogether, be listed on a common letterhead?

ANSWER: No. It is improper for such sole practitioners to use acommon letterhead, because such practice indicates to the public that thelisted persons named thereon are partners and this violates DR2-102(C).Each sole practitioner must use his own letterhead indicating that he is asole practitioner. Rendered January 30, 1978.

[Rule 4 7.1; 7.5(f)]

Misc.-33

QUESTION: Can the name of a member of the firm be listed onthe firm letterhead while he is "on leave" from the firm serving as "U.S.Attorney"?

ANSWER: No. It is the unanimous opinion of the Committee thatsuch member should not be carried on the firm letterhead. RenderedJanuary 30, 1978.

[Rule 4 7.1]

Misc.-34

QUESTION: The attorney is appointed to represent the movant ina proceeding under Rule 27.26. In conferring with the client, the attorneydiscovers possible grounds of civil liability on the part of the appointingcircuit judge. What duty does the attorney have to advise the client of thepossible basis of civil liability?

ANSWER: It is the conclusion of the Committee that you do havean affirmative duty to tell the client of the possible potential grounds for acivil suit. Further, the attorney can represent the client in that civil matter,if he desires; but he is not obligated to do so. Rendered February 23, 1978.

[Rule 4 1.4]

Misc.-35

(Opinion omitted. See Notes on Use.)

Misc.-36

QUESTION: A lawsuit is pending between a fire insurancecompany and four insureds, who are corporate owners of a building whichwas damaged in a fire loss. The attorney representing all four corporationshas an associate who serves as president of one of the corporate defendantsand who will be a witness at the trial. All parties will consent to theattorney continuing to represent all defendants, irrespective of whether hisassociate appears as a witness.

Does DR5-101, under these circumstances, mandate thedefendant's attorney withdraw from the case?

ANSWER: No. Since this case is presently pending in court, thecourt has the initial jurisdiction to determine whether or not the attorneysappearing therein can properly do so for the representation of their clients.This committee will in no manner presume to infringe upon the jurisdictionof the court in which the case is pending.

Should the court allow the attorney to continue the representationof the corporate defendants, the Advisory Committee would not use thatrepresentation as a basis for disciplinary action. Rendered April 6, 1978.

[Rule 4 3.7]

Misc.-37

QUESTION: What are the legal effects of a former court-appointeddefense attorney, who joins the staff of the Attorney General, after decisionin the trial court on a motion under rule 27.26 and while an appeal is stillpending in that case. The attorney is assigned to the Administrative LawDivision in the Attorney General's Office and he will not take any part inthe handling of the appeal by the Criminal Division of that office; nor willthe attorney communicate anything about the case to the members of thestaff of the Attorney General who are handling the appeal.

(a) Do the above facts act to disqualify the entire staff of theAttorney General's Office from representing the State of Missouri in thisappeal?

(b) What effect does the employment of an attorney who wasformerly on the staff of a public defender's office by the Attorney General'sOffice have upon the duties to be assigned to that attorney?

ANSWER: (a) No. It is the conclusion of the Committee that theemployment on the Attorney General's staff of the former defense attorneyof the defendant, does not act to disqualify the entire office of the AttorneyGeneral from representing the State of Missouri on the appeal from thatproceeding. It is assumed that the attorney will not communicate anythingabout the case to the members of the staff who are handling the appeal andthat the attorney will take no part in the proceedings on behalf of the State.

(b) The position of the former member of a public defender's officeupon becoming employed on the staff of the Attorney General involves asimilar principle. The Committee ruled prior to the decision in State v.Boyd, 560 S.W.2d 296, that when an attorney employed by a publicdefender's office is later employed by a prosecuting attorney's office, thatdoes not disqualify the entire staff of the prosecuting attorney's office fromproceeding with prosecution. The person employed, however, is prohibitedfrom having any connection with any case being defended by the office ofthe public defender while he was on the staff. We believe the same ruleswould be applicable if a member from some public defender's office wereemployed by the staff of the Attorney General. That staff member wouldbe precluded from having any connection on the appeal of any case whichwas being defended by the office of the public defender. We believe theserulings are consistent and likewise are consistent with the court's holdingin the Boyd case. Rendered April 6, 1978.

[Rule 4 1.7; 1.10; 1.11]

Misc.-38

QUESTION: Can a hospital-creditor-assignor assign an accountwithout valid consideration tn an employee and thereafter institute a suitin the name of the assignee against the debtor?

ANSWER: No. The Committee is of the opinion that the bringingof such a suit constitutes a fraud upon the court because the named plaintiffis not the real party in interest and the assignment form is really not a validassignment divesting the hospital of all interest in the account. TheCommittee is of the opinion that the attorney is acting improperly ininstituting this action with the knowledge that the named plaintiff in theaction really has no interest in the subject matter of the action. RenderedMay 22, 1978.

[Rule 4 3.3; 8.4(d)]

Misc.-39

QUESTION: An attorney representing personal injury clientssubmits an ethical problem for the Committee's guidance. The attorneyrepresented the plaintiffs in a personal injury action and, while the case ispending, he consults the treating doctor of both plaintiffs. Regarding the billof the treating doctor, there was no written promise or oral representationon the attorney's part that the doctor would be paid when the case wassettled. However, the doctor was given the impression by both the clientsand the attorney that he would be paid out of any settlement recovered.

A settlement is negotiated and the clients-patients felt the doctor'sbill was too high and they refused to authorize the attorney to pay thedoctor directly out of the proceeds of the settlement. The clients have beenunable to reach an agreement with the doctor regarding his bill and theamount equal to his bill has been held by the attorney in his trust account.

What should the attorney do?

ANSWER: The Committee believes that the attorney should advisehis clients that there is a moral obligation on them for the payment of thedoctor's bill and if the clients continue not to authorize payment of it, thenthe attorney should file an interpleader suit and pay the money in the courtand let the court determine how much the doctor should be paid. RenderedApril 19, 1979.

[Rule 4 1.15]

Misc.-40

QUESTION: "I" is represented by a legal aid attorney. There aredisputed facts in the case which require the testimony of another legal aidattorney. "P" has been fully advised of the disadvantages of having anattorney from the same legal aid office to testify on her behalf. "P" isdesirous of litigating the matter with legal aid counsel because she is unableto secure other counsel.

Can legal aid counsel continue representation under thesecircumstances without running afoul of DR5-102(A)?

ANSWER: Yes. The Advisory Committee concludes that if "P"cannot get another attorney, the legal aid staff attorney can proceed withrepresentation of "P" even though the case will require the testimony ofanother legal aid attorney. Rendered June 16, 1978.

[Rule 4 3.7]

Misc.-41

QUESTION: What should the attorney do if he finds that he hasinadvertently entered his appearance on behalf of all defendants in apending action and filed a pleading on behalf of all defendants and,thereafter, discovers that he does not, in fact, represent "B", one of thedefendants in the case?

ANSWER: The attorney should file an application to withdraw asattorney for defendant "B" and provide a copy of said application todefendant "B" with sufficient notice to him to secure other counsel torepresent his interest in the cause. The attorney should be careful to seethat sufficient time is given to the defendant to secure other counsel beforethis "de facto representation" is terminated by his withdrawal. RenderedJune 16, 1978.

[Rule 4 1.16]

Misc.-42

(Opinion omitted. See Notes on Use.)

Misc.-43

(Opinion omitted. See Notes on Use.)

Misc.-44

(Opinion omitted. See Notes on Use.)

Misc.-45

QUESTION: The committee has reconsidered the question of useof business cards by lay employees of a law firm, such as legal assistants,investigators and accountants.

ANSWER: Upon reconsideration by the entire committee, thecommittee concludes that it will reverse its former opinion and nowauthorizes the use of business cards by lay employers of a law firm if theposition of the employee is clearly delineated on the card and the cards areused only in connection with the employee's duties for the law firm.Rendered September 15, 1978.

[Rule 4 7.1]

Misc.-46

QUESTION: Is an attorney personally liable for court reportingexpenses incurred pursuant to taking a deposition on behalf of his client ifthe client does not pay these expenses?

ANSWER: It is our opinion that the question propounded is a legalone and not an ethical question. We recognize that the failure of anattorney to pay any obligation which he undertakes puts the profession ina bad light but it is not unethical for the attorney to refuse payment. Inaddition, there may be some reasons why the court reporter is not paid.Therefore, in our view, the non-payment of a court reporter by an attorneymay subject him to legal action which the reporter is certainly free to take,but it is not such action that would subject him to a disciplinary proceedingunder the Code of Professional Responsibility. Rendered September 15,1978.

Misc.-47

QUESTION: Can a licensed Missouri attorney engage in the saleof real estate at a separate location with separate telephones, separatemailing addresses, separate books, etc.?

ANSWER: Yes. The real estate brokerage firm should be in aseparate location from the attorney's law office with separate telephones,mailing addresses and books. There should be a full disclosure to all partiesconcerned of possible conflict of interest to all clients referred by the lawyerto his real estate firm. Rendered September 28, 1978.

[Rule 4 1.7]

Misc.-48

(Opinion omitted. See Notes on Use.)

Misc.-49

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; 1.7; 1.13]

Misc. -50

QUESTION: What are the ethical considerations encounteredwhen a criminal defendant desires to contact the victim for the purpose ofeffecting restitution and hopefully, thereafter, the victim will drop thecriminal charge?

a. Can the contact be made by defendant's friends or relatives?

b. Can the defendant's attorney personally contact the victim andpay the restitution by the attorney's personal office account check?

ANSWER:

a. Yes. The Committee has concluded that it is not unethical for adefense attorney to advise his client that charges might possibly be droppedby the victim if restitution is made by the client to the victim. Direct contactwith the victim may be made by defendant's friends or relatives for thepurpose of effecting restitution. Such restitution cannot be conditionedupon the victim dropping the charges.

b. No. The Committee believes it is unethical for the defendant'sattorney himself to contact the victim and ask if restitution will "pave theway for the victim to tell the prosecutor he will no longer cooperate inprosecution of the reported offense." It is also unethical and would appearto be a violation of the law for the defendant's attorney to give a checkdrawn on the attorney's personal office checking account directly to thevictim for restitution and tell the victim to go to the prosecutor, dropcharges, and then cash the check.

Rendered October 20, 1978.

[Rule 4 8.4(d)]

Misc.-51

QUESTION: A circuit public defender is currently representing adefendant on three pending charges. The prosecuting attorney has advisedthe defender that he intends to call the defender as a witness in one of thecases. Does this disqualify the defender in all cases?

ANSWER: No. The Committee has concluded that the prosecutingattorney's intent to use the public defender as a witness in one case and thewithdrawal of the public defender from that case, does not disqualify thepublic defender from continuing to represent the same defendant in theother two cases. The Committee does believe, however, that a recordshould be made to get the defendant's consent on the record for the publicdefender to continue representation in the other two cases. RenderedOctober 20, 1978.

[Rule 4 3.7]

Misc.-52

(Opinion omitted. See Notes on Use.)

Misc.-53

QUESTION: Can a sole practitioner and a professional corporationuse a joint letterhead?

ANSWER: The Committee concludes under the present provisionsof the Code of Professional Responsibility in this state, attorneys who arenot partners cannot use a joint letterhead. If they are sole practitioners,then they must use a letterhead as a sole practitioner. If they are indeedpartners, then they can use a letterhead so indicating. Likewise, if there isa professional corporation, the letterhead can indicate that status.

The Committee has consistently held that lawyers who are notactually partners cannot use a joint letterhead because this is misleading tothe public and is in violation of DR2-102(C). Rendered December 8, 1978.

[Rule 4 7.1; 7.5(f)]

Misc.-54

(Opinion omitted. See Notes on Use.)

Misc.-55

(Opinion omitted. See Notes on Use.)

Misc.-56

QUESTION: Law firm A, B and C is a professional corporation.The members have decided to separate, some intend to practice as solepractitioners, others as a partnership, and one inquires whether he cancontinue to operate within the p.c. corporate structure for several monthsbefore joining a different organization.

ANSWER: The professional corporation of A, B and C, p.c. mustcease to practice as a corporation upon the withdrawal of B and C. A cannotcontinue to practice within that professional corporation structure. Thecorporation can be sustained to collect accounts receivable, pay off itsindebtedness, and then liquidate and dissolve. However, the corporatename cannot be maintained for anyone to actively practice under it. UntilA joins the organization with which he intends to practice in the future, Amust practice as an individual practitioner. Rendered December 8, 1978.

[Rule 4 7.1; 7.5]

Misc.-57

QUESTION: An attorney is contacted by the wife and asked toreview a separation agreement which had been prepared by the husband'sattorney. The attorney reviews same and advises the wife not to sign theproposed separation agreement. The attorney is requested to prepare anew proposed separation agreement consistent with the wife's interest andcopies were sent to the wife and the husband's attorney.

The wife then by letter discharged the attorney. The attorneybecame aware that the client-wife is under the care of a psychiatrist whostates she is mentally competent. The attorney states that his client'smental and emotional state is such that she is unable to act of her own freewill against the desires of her husband.

The attorney submits the following:

a. Does the attorney have a continuing duty to represent the wifein view of her condition, her actions and her dismissal of him as herattorney?

b. If so, what is the extent of that duty and at what point can heconsider the attorney-client relationship terminated?

ANSWER:

a. The Committee concludes that the attorney does not have acontinuing duty to represent the former client-wife inasmuch as she haddismissed him as counsel. Certainly the attorney is not her legal guardianand he is not held to that standard of conduct with regard to looking out forher rights.

b. The Committee thinks that the attorney-client relationship wasterminated upon her dismissal of the attorney. The client should be billedfor services rendered. Rendered December 8, 1978.

[Rule 4 1.14; 1.16]

Misc.-58

QUESTION: Is it unethical for an attorney to include the followinglanguage in a verified motion to disqualify a judge:

"Comes now (attorney) and moves to disqualify the Honorable(judge) for incompetency, interest and prejudice that preclude thedefendant from having a fair and impartial trial in the above case"?

ANSWER: No. It is the Committee's opinion that it is not unethicalfor an attorney to include the proposed language in a verified motion todisqualify a judge.

We do, however, question the advisability of it. Rendered March 2,1979.

[Rule 4 8.2]

Misc.-59

QUESTION: Can a Missouri lawyer who maintains an office inMissouri become a shareholder of a Kansas professional corporation andhold out to the public that said professional corporation is maintaining anoffice in the State of Missouri?

ANSWER: No. The Committee is of the opinion that the Missouriattorney cannot be a shareholder in the Kansas professional corporationand hold out to the public that the corporation is maintaining an office inthe State of Missouri. If the Missouri office and phone number is includedon the Kansas professional corporation's letterhead, it would, in our opinion,indicate to the public and court personnel that the Kansas corporation wasmaintaining an office in Missouri and this would be contrary to the statutesof the State of Missouri and cannot be allowed.

The Committee finds nothing improper should the Missouriattorney be designed "Of Counsel" to the Kansas corporation if he was notactually a shareholder therein. He could be so designated on the letterheadof the corporation and he could maintain his personal office in Missouri.Rendered April 19, 1979.

[Rule 4 7.1; 7.5]

Misc.-60

(Opinion omitted. See Notes on Use.)

Misc.-61

(Opinion omitted. See Notes on Use.)

Misc.-62

QUESTION:

1. Can a prosecuting attorney ethically require that the defendantexecute a release to the arresting police officer discharging him from civilliability, as part of the consideration for dismissal of a charge?

2. If such a release were signed, could it later be attacked bydefendant on grounds of duress?

ANSWER:

1. No. The Committee considers it unethical for a prosecutor torequire a release of the police officer involved from civil liability as acondition precedent to the dismissal of the charge.

2. Whether or not such a release could be attacked on the groundsof duress is a legal question and not one of which this Committee isauthorized to voice an opinion. Rendered May 18, 1979.

[Rule 4 8.4(d)]

Misc.-63

(Opinion omitted. See Notes on Use.)

Misc.-64

QUESTION: What should the ethical practitioner do under thefollowing circumstances: He is retained by an elderly client on an hourlybasis to investigate the circumstances surrounding the death of her son ina hospital outside the state of Missouri. He conducted a preliminaryinvestigation by mail and found no wrongdoing and so advised his client.The client insisted that the attorney hire an out-of-state investigator andthe attorney complied. The initial report of the investigator indicated nowrongdoing and suggested further investigation in depth for additionalmoney. The client, on being contacted, requested that additionalinvestigation be done and paid the attorney a sum for the investigator andfor his services. The attorney, during the period of time he represented theclient, has developed doubts as to his client's mental capacity and he has thefirm opinion that further investigation, at the client's expense, will notproduce the results that she desires.

Is it ethically proper for him to continue to represent her?

ANSWER: It is the conclusion of the Committee that continuedrepresentation of the client by the attorney, in view of his doubts about theclient's mental capacity and in view of his opinion that further investigationwould not produce the results the client desires, is not technically unethical.However, the Committee has the view that this situation has the potentialfor further problems and believes that it would be better practice for theattorney to withdraw from the representation, confirming same by letterto the client, setting out his belief that further investigation at her expensewould not produce the results she desires and would, in fact, be to herultimate detriment. Rendered July 17, 1979.

[Rule 4 1.14; 1.16]

Misc.-65

QUESTION: Lawyer B is entering the case after Lawyer A hadpreviously represented the client. The client has informed Lawyer B thathe has terminated the services of Lawyer A.

Can Lawyer B ethically undertake to represent the client relyingsolely on the client's oral statements that he has terminated the priorlawyer's employment or should Lawyer B require proof in writing of suchtermination?

ANSWER: The Advisory Committee believes that the secondattorney does have the right to rely upon the client advising him that he hasterminated the prior lawyer's employment. The Committee adds a caveat,that it is good practice for the second attorney to advise the previousattorney that he has accepted employment by the client upon the client'sassertion that the first attorney's employment has been terminated and ifthat does not comport with the facts, the first attorney should immediatelyso advise the second attorney, Lawyer B. The Committee does not see aviolation of the disciplinary rules if the second attorney accepts employmentand relies upon the client's assertion that he has terminated employmentof the previous attorney. Rendered July 17, 1979.

Misc.-66

(Opinion omitted. See Notes on Use.)

Misc.-67

(Opinion omitted. See Notes on Use.)

Misc.-68

Attorney A was an officer of Missouri Corporation No. 1 and servedas attorney of record when Corporation No. 1 filed suit against CorporationNo. 2. Subsequently, an affiliate of Corporation No. 2, Corporation No. 3,filed suit against Corporation No. 1 and also named Attorney A as adefendant. In the meantime, Party X has a contract for the purchase of ahome from Corporation No. 3 and also has an agreement to convey thatcontract to Corporation No. 1. Corporation No. 3 has refused to go throughwith the conveyance and Party X has filed suit for a declaratory judgmentnaming Corporation No. 3 and Corporation No. 1 as defendants. AttorneyA continues as attorney of record in this suit also for Corporation No. 1.

Attorney B and his clients, Corporations No. 2 and No. 3, haveagreed to settle all suits with Attorney A and Corporation No. 1 and withParty X if, among other things, Attorney A agrees to sign an agreementstating:

Attorney A agrees "not to incite, encourage, promote, publicize orparticipate directly, not to hire or employ the services of another attorney,nor work with, nor cooperate with another attorney in any mannerwhatsoever in any claims or actions (of any type, character or description)which may be asserted by class or separate action against Corporation No.3, Corporation No. 2 or any of their affiliated companies, officers, agents, orassigns by any present owner of any lots or residence in the subdivision inwhich the residence or the home is situated; to and does hereby indemnifyCorporation No. 3, Corporation No. 2 or any of their affiliated companies,and of their respective officers, agents, or assigns against all loss anddamage (including but not limited to attorney's fees) arising out of anybreach by Attorney A of any of the covenants and agreements to be kept,performed and observed by Attorney A hereunder." Attorney A shall bebound for (5) years.

QUESTION:

1. Would Attorney A be violating DR2-108(b) if he were to sign theagreement quoted?

2. If the opinion is in the affirmative for the above, would he beviolating DR2-108(b) if he were to sign the following agreement in order tosettle the cases and controversies:

"Attorney A agrees not to incite, encourage, promote, publicize orparticipate as a plaintiff in any claims or actions (of any type, character ordescription) which may be asserted by Attorney A in any action againstCorporation No. 2, Corporation No. 3 or any of their affiliated companiesand any of their respective officers, agents, or assigns." Attorney A shall bebound to the above agreement for a period of (5) years.

3. Would Attorney A be violating DR2-108(b) if he agreed not to filesuit as a plaintiff against Corporation No 2 or Corporation No. 3 on his ownbehalf for a period of (5) years from the date of the agreement? Thissituation would exclude the phrase with regard to "incite, encourage,promote, publicize". (above indicated)

ANSWER:

1. The Committee concludes Attorney A would be violatingDR2-108(b) if he were to sign the first agreement quoted.

2. The Committee concludes he would not be violating DR2-108(b)if he signed the agreement set out under Question 2, if it was understoodthat his agreement "not to incite, encourage, promote, publicize" did notrestrict his activities as attorney for others so long as it was done by ethicaland allowable means.

3. The Committee concludes that Attorney A would not be violatingDR2-108(b) if he agreed not to file suit as a plaintiff against the corporation.Rendered August 29, 1979.

[Rule 4 5.6]

Misc.-69

(Opinion omitted. See Notes on Use.)

Misc.-70

(Opinion omitted. See Notes on Use.)

Misc.-71

QUESTION: May a wife post bond for a defendant who isrepresented by the lawyer-husband of the wife?

ANSWER: Yes, provided the writing of the bond is not conditionedon the employment of the husband as defense counsel. Rendered November2, 1979.

[Rule 4 1.7]

Misc.-72

QUESTION: An attorney maintains his principal law office at thecounty seat and has an office sharing arrangement to use the office of aninsurance agent for seeing clients at a different location in the county. Thesecond office will be used for client's convenience in the evenings and onweekends. The attorney will not accept any kind of referrals, directly orindirectly, from the insurance agent who shares this out county office.

Is this office sharing arrangement improper?

ANSWER: No. It is the Committee's conclusion that it would notbe improper for the attorney to acquire space located in the office of aninsurance agent as a place to meet his clients in that part of the county.Rendered November 9, 1978.

Misc.-73

QUESTION: A sues B and B files a third party petition against C.Counsel for B advises counsel for A that A has sued the wrong party andurges A to sue C and dismiss as to B.

Is counsel for B in violation of professional ethics in trying to stir uplitigation between A and C? Does the problem of champerty or barratryarise?

ANSWER: No. In the above fact situation, counsel for B is not inviolation of professional ethics by suggesting to counsel for A that he hassued the wrong party and urging him to sue party C and dismiss as to partyB, Party C is already in the lawsuit brought in by the third party petitionand counsel for party B certainly has a right to urge that the action bedismissed as to his client. This does not constitute any problem ofchamperty or barratry. Rendered January 24, 1980.

[Rule 4 1.8(j)]

Misc.-74

QUESTION: An attorney offices near a military installation. Heundertakes to represent a member of the military service or the spouse ofa member in military service on a dissolution of marriage action. The usualdeposit of $100.00 on a $300.00 fee will be paid by the client. This $100.00includes court costs. Subsequently, the client moves without notifying thelawyer. The attorney ends up with a case on court docket with no means tocontact his client.

Can the lawyer dismiss the case without prejudice after sending alast letter of warning or must he wait until the court dismisses the case forlack of prosecution?

ANSWER: The attorney can dismiss the case without prejudice inthe opinion of the Committee if the attorney can demonstrate that he hasattempted to contact the client for whom he has filed the lawsuit and isunable to do so. The Committee believes that this would really he for theprotection of the client because leaving the case on the docket to bedismissed by the court for lack of prosecution could constitute a dismissalwith prejudice. The attorney should make a record to demonstrate whatefforts he has expended in trying to contact the client. Rendered February29, 1980.

[Rule 4 1.16]

Misc.-75

QUESTION: Should an attorney pursue an appeal of a criminalconviction, when the convicted defendant testifies under oath in acompanion case and admits that he committed the crime?

Does an attorney have an obligation to pursue the appeal in thissituation? Would the attorney violate his duty to his client if the appeal isnot pursued?

ANSWER: It is the opinion of the Advisory Committee that youhave an obligation to pursue the appeal if the defendant desires that it bedone, even though the defendant has testified in another trial that he isguilty. There might be many reasons for a conviction to be overturned. TheCommittee suggests to the attorney to discuss with his client the potentialfor a "sure second conviction" in case the first conviction is overturned, butwe believe the attorney would have to pursue the appeal if the clientdesires that it be done. Rendered March 7, 1980.

[Rule 4 1.2]

Misc.-76

(Opinion omitted. See Notes on Use.)

Misc.-77

(Unrelated parts a and b are not included.)

QUESTION: c. Is the lawyer obligated to return to the client thecourt cost deposit refund?

ANSWER: Yes. The lawyer is obligated to return to the client thecourt cost deposit refund if the initial deposit came from the client.

d. In a contested dissolution case, Attorney A is told by his clientthat he intends to file a bankruptcy immediately after the dissolution isover, and the client had agreed to pay certain debts, attorney fees, etc., inorder to obtain the dissolution. The client states to Attorney A that he doesnot intend to pay those items in view of his prospective bankruptcy.

QUESTION: Is Attorney A required to disclose to the otherattorney his client's intention 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 the attorney andthe court.

[Rule 4 1.15; 3.3; 8.4(d)]

Misc.-78

An out-of-state Missouri lawyer, who is also an accountant, isemployed full time by an accounting firm. For reasons of its own, theaccounting firm has established a work rule which requires the auditorswork sheets, also known as an audit point sheet, to be destroyed at thecompletion of each audit so that the material could not be subpoenaed at alater date.

QUESTION: Does the licensed attorney-accountant violate theCode of Professional Ethics by complying with the work rules of hisemployer?

ANSWER: The Committee is not exactly clear on what thesubmitting attorney is referring to as destruction of work sheets. Absentany statutory requirement, it is the Committee's view that an attorney isnot required to keep his work record except for the benefit of his client.Rendered May 23, 1980.

Misc.-79

A law firm represents four (4) plaintiffs in a tort action. All four (4)are related: husband, wife, son and daughter-in-law. Injuries to all four (4)arose out of the same transaction and all four (4) are plaintiffs in the sameaction.

On one day the wife (mother of the son) called and spoke with anassociate of the law firm on one (1) occasion and to the firm's office manageron five (5) occasions. During these calls, that plaintiff repeatedly expresseddissatisfaction with the services rendered by the firm and the lady statedto the office manager that she wanted her papers from the file and that thefirm would no longer represent the various plaintiffs. She expressly statedthat the son and daughter-in-law agreed to this and her husband wouldagree to this since he always went along with her.

Based on these conversations, the law firm prepared an applicationto withdraw believing that they had been discharged and were required toseek withdrawal pursuant to DR2-110(B)(4).

After the motion of withdrawal was sent to the various plaintiffs,the daughter-in-law said she and her husband did not desire to terminatethe firm's employment but later the wife claimed she had never fired thelaw firm.

Specifically the law firm submits the following:

QUESTION 1. Did the law firm correctly seek withdrawal fromemployment by said plaintiffs, based on its belief that it had beendischarged by the particular plaintiff, purporting to act for the benefit of allplaintiffs?

ANSWER: Yes, the law firm did correctly seek withdrawal fromemployment.

QUESTION 2. In the event a hearing on said motion is heard, maycounsel testify regarding the purported discharge without violating anydisciplinary rules of Canon 4, as appears to be the case underDR4-101(C)(4)?

ANSWER: Yes, in the event of a hearing of the motion forwithdrawal is heard, counsel may testify.

QUESTION 3. In the event the court should deny the motion towithdraw, how can the law firm in question properly represent the plaintiffsafter the many accusations leveled against its integrity by the particularplaintiff?

ANSWER: The Committee cannot provide a definitive answer onhow the law firm can properly represent the plaintiff in case the courtshould deny the motion of withdrawal. The only answer we can give appearsto be facetious but it is meant as cautionary rather than facetious. We canonly say "very carefully". Rendered May 23, 1980.

[Rule 4 1.16; 3.7]

Misc.-80

(Opinion omitted. See Notes on Use.)

Misc.-81

(Opinion omitted. See Notes on Use.)

Misc.-82

(Opinion omitted. See Notes on Use.)

Misc.-83

(Opinion omitted. See Notes on Use.)

Misc.-84

QUESTION: As part of a law school's effort to give clinicalexperience to its students, a certain program of estate planning anddrafting of wills for senior citizens has been developed.

It is proposed that a Missouri attorney who is a professor willundertake to supervise the students in estate planning and drafting of willsfor the senior citizens.

The proposal is submitted to the Committee for ethical guidance.The services to the senior citizens will be done free.

ANSWER: The Advisory Committee carefully considered theproposed method of operation and concluded that the supervisingattorney-professor should be present at the initial interview with the clientalong with the student team in order to first, establish the attorney-clientrelationship and second, to ascertain that all the information needed forproper estate planning is sought at the interview. With the suggestedchange, the Committee felt that the program could proceed withoutinterference and without any questions being raised concerning it to allowthe students to obtain practical experience. Rendered April 14, 1983.

[Rule 4 5.5]

Misc.-85

(Opinion omitted. See Notes on Use.)

Misc.-86

The attorney represents a collection agency in collection matters.

QUESTION: Can the collection agency advance filing fees for suitsbrought in the name of the creditors to collect an account?

ANSWER: No. It is the opinion of the Advisory Committee that acollection agency cannot advance filing fees for suits brought in the nameof creditors to collect an account. By a special disciplinary rule of the Codeof Professional Responsibility, attorneys are allowed to advance filing feesand suit costs if it is understood that they are to be reimbursed therefor.For a collection agency to do it, however, would amount to financing oflitigation by a third party which is a violation of the law. Rendered April 14,1983.

[Rule 4 1.8(e)]

Misc.-87

"A" Firm represents creditors on collection of accounts. Normallythe collection agency refers the matter as creditor's Agent to the Firm. TheFirm submits the following questions:

QUESTION 1. (a) Does the collection agency have authority towithdraw the claim from the attorney?

ANSWER 1. (a): The collection agency has authority to withdrawthe claim from the attorney only with the consent of the creditor.

QUESTION 1. (b) Does the client need to consent, in writing orotherwise, to the removal of the claim from the attorney?

ANSWER 1. (b): Yes.

QUESTION 1. (c) Can the attorney refuse to return the claim tothe agency and, if so, under what circumstances can he do so?

ANSWER 1. (c): The attorney can refuse to return the claim to theagency if the creditor tells the attorney to retain jurisdiction.

The collection agency for which the firm is handling accounts hasapproximately 300 creditors and approximAtely 75 of them are "out oftrust." The firm handling the accounts learned of the problems of thecollection agency and poses the following questions.

QUESTION 2. (a) Does the attorney have the authority to refuseto deal with the agency any further on any of the accounts that the firm ishandling?

ANSWER 2. (a); Yes but he must notify the creditor of his refusalto do so.

QUESTION 2. (b) May the attorney write all of the creditors thathe is representing to inform them of the problem, even if he is not sure thatany of the creditors he is representing is included in the group that is "outof trust"?

ANSWER 2. (b): The above question is a legal question and notwithin our jurisdiction. The firm can communicate with the creditors it isrepresenting but the firm is cautioned about any allegations if the firm isnot sure of the exact facts.

QUESTION 2. (c) Can the firm write the creditors he isrepresenting informing them of the problem, if he knows that the creditorto whom he is writing is not included in the group that is "out of trust"?

ANSWER 2. (c): The same as 2. (b) above.

QUESTION 3. In the above letters to clients, will it be construedas an attempt by the attorney to solicit business from the creditors directlyso as to be "improper solicitation"?

ANSWER 3: It is proper for the attorney to communicate directlywith the creditor. If the attorney is representing the creditor, then hecertainly can advise the creditor that he would be glad to continue suchrepresentation in the future. Rendered April 14, 1983.

[Rule 4 1.2; 5.4]

Misc.-88

INFORMAL OPINION 930076

Attorney represents husband in wrongful death case on death ofwife. Husband dies during case. Husband is survived by children. Canattorney proceed with settlement negotiations without disclosing death ofhusband? How soon must attorney disclose death of husband?

Attorney must disclose death of client to the defendant's attorneyand the court within a reasonable time. Attorney may not continue toactively negotiate without disclosure.

[Rule 4 3.3]

Misc.-89

INFORMAL OPINION 930094

QUESTION: Attorney represented client in a civil case. Attorneywas allowed to withdraw and civil case ended. Former client now hasanother attorney in a different case which is tangentially related. Whatpart of file must original attorney provide to client or current attorney?

ANSWER: Attorney must provide all of file unless he advancedlitigation expenses for which he was not reimbursed under Formal Opinion115, as amended.

[Formal Opinion 115]

[Rule 4 1.16]

Misc.-90

INFORMAL OPINION 930095

QUESTION: How can attorney go about setting up a plan in whichindigents or low income persons would pay a low fixed annual fee andreceive unlimited legal services in a limited legal area?

ANSWER: This office cannot answer general questions. However,ABA Opinion 87-355 on Prepaid Legal Plans may provide a starting place,although the ABA opinion is not binding on this office.

[ABA OPINION 87-355]

Misc.-91

INFORMAL OPINION 930099

QUESTION: May an attorney withdraw from a case due to theclient's interference with the representation?

ANSWER: Yes. Attorney must comply with all of the requirementsof Rule 1.16(d).

[Rule 4 1.16]

Misc.-92

INFORMAL OPINION 930104

QUESTION: A member of the firm is a municipal judge in onemunicipality. The firm handles municipal cases in other municipalities. Isthis a conflict?

ANSWER: It is not a conflict under the Rules of ProfessionalConduct for attorneys. However, this office cannot give opinions on theCode of Judicial Conduct. Also, the judge and the firm members should bealert to the fact that conflicts could arise if the judge substitutes for anothermunicipal judge.

[Code of Judicial Conduct]

Misc.-93

INFORMAL OPINION 930120

QUESTION: Municipal judge has a question regarding a possibleconflict of interest in using a particular service.

ANSWER: This question relates to the Code of Judicial Conductand should be directed to the Judicial Commission.

[Code of Judicial Conduct]

Misc.-94

INFORMAL OPINION 930134

QUESTION: Attorney represented client at one stage of case whileattorney was part of a firm. Client now wants attorney to resumerepresentation at a later stage. Defendant indicates it "may possibly" callattorney as a witness since acts or omissions of attorney's former firm is anissue. Must attorney withdraw at this point?

ANSWER: Rule 3.7 does not require attorney to withdraw at thistime. This opinion in no way affects the ability of a judge to disqualifyattorney. If attorney is actually a witness, attorney would be prohibitedfrom being an advocate at trial but would still be able to work on briefs,pleadings, etc.

[Rule 4 3.7]

Misc.-95

INFORMAL OPINION 930137

QUESTION: Attorney's client has failed to respond tocorrespondence over several years. Attorney's accountant says Attorneymust now open a separate account for the funds held or report the moneyas Attorney's own income. What should Attorney do?

ANSWER: Under Rule 4-1.15, Attorney must not treat the fundsas income. The funds must be held in a trust account. From theperspective of Rule 4-1.15, it does not matter whether the funds are heldin a general office trust account such as an IOLTA account, or a separatetrust account unless the funds are a substantial amount. However, thefunds should not be held in a separate account if the expenses associatedwith maintaining the separate account will reduce the funds available to theclient.

[Rule 4 1.15]

Misc.-96

INFORMAL OPINION 930157

QUESTION: Attorney is likely to be a witness at trial andAttorney's deposition has been taken. Does this prevent Attorney fromengaging in pre-trial discovery and arguing pre-trial motions?

ANSWER: No. However, Attorney should refrain from engagingin discovery and arguing pre-trial motions which relate to Attorney'sveracity.

[Rule 4 3.7]

Misc.-97

INFORMAL OPINION 930167

QUESTION: Attorney represented client at trial and clientreceived an SIS. Attorney had agreed to represent client on appeal if aconviction and jail time were received. Client wishes to appeal the SIS. May Attorney withdraw?

ANSWER: Yes. Attorney must comply with the provisions of Rule4-1.16(d). This opinion is based solely on the facts in the letter. If the clientfiles a complaint, this office would still investigate.

[Rule 4 1.16(d)]

Misc.-98

INFORMAL OPINION 940011

QUESTION: Attorney accepted a client in a dissolution case.Attorney accepted the retainer and the filing fee but has not filed. IfAttorney returns the filing fee and retainer, may Attorney withdraw?

ANSWER: Yes.

[Rule 4 1.16]

Misc.-99

INFORMAL OPINION 940014

QUESTION: Is Attorney subject to discipline if Attorney personallyfiles for bankruptcy?

ANSWER: No. However, if fraud or dishonesty is involved, thefraudulent or dishonest conduct would be grounds for disciplineindependent of the bankruptcy.

[Rule 4 8.4]

Misc.-100

INFORMAL OPINION 940019

QUESTION: Question 1. May Attorney move to withdraw from acriminal case if the client is uncooperative and will not communicate orassist with the defense? The Attorney will warn the client that Attorneywill withdraw if the situation doesn't improve before the Attorney actuallywithdraws. Question 2. If a client who is a criminal defendant fails to makea court date and a warrant is issued and the client has had no contact withAttorney for several weeks or months, may Attorney move to withdraw?

ANSWER: Yes to both questions. However, the fact that the Rulesof Professional Conduct allow Attorney to move to withdraw does not affectthe authority of the court to refuse to sustain that motion.

[Rule 4 1.16]

Misc.-101

INFORMAL OPINION 940025

QUESTION: Question 1. In representing a bank, is it a violation ofthe Rules of Professional Conduct to inform the debtor that failure todeliver the collateral may be a criminal violation at the same time thedemand for the collateral is made? Question 2. If a client bank is requiredby law to notify federal officials of criminal activity, may Attorney also givenotice to the alleged perpetrator that the bank is required to notify thefederal officials?

ANSWER: Question 1. No, if there is good faith belief that theconduct would be criminal and if there is no actual threat to prosecute. Question 2. Yes, unless prohibited by law. Attorney should not counselclients to ignore a federal law to gain an advantage in a civil matter.



Misc.-102

INFORMAL OPINION 940033

QUESTION: Attorney has a client who has been charged withpassing a bad check. The client states that he did not intend to defraud orknow that the check would not be paid. Attorney believes the client. Inorder to plead guilty, the client must state the opposite of what he has toldAttorney because an "Alford plea" is not an option. The client wants toplead guilty for economic reasons.

ANSWER: Under Rule 4-3.3, Attorney may not assist his client inproviding false information to the court. That rule also prohibits Attorneyfrom standing silent while the client provides false information. If the clientinsists on providing false information, Attorney must seek leave towithdraw.

[Rule 4 3.3]

Misc.-103

INFORMAL OPINION 940038

QUESTION: Attorney and the client have disagreed over theamount of settlement that would be reasonable. As a result, the client hasdischarged Attorney twice but has returned when other attorneys told theclient that Attorney's assessment of the case was reasonable. May Attorneywithdraw?

ANSWER: Yes. Attorney must comply with all of the requirementsof Rule 4-1.16(d), including the requirement that Attorney not withdraw ifthe withdrawal would have a materially adverse impact on the interests ofAttorney's client.

[Rule 4 1.16]

Misc.-104

INFORMAL OPINION 940046

QUESTION: Attorney represents a client in a case in which a thirdparty has relevant information. Attorney has been notified that third partywill commit suicide if deposed. The information cannot be obtained fromany other source and the other side will not stipulate.

ANSWER: Attorney has a duty to fully discuss the ramificationsof proceeding with the deposition with the client. This discussion mustinclude not only the purely legal issues but also the practical issues of theeffect on the case and the effect on the client. After fully discussing thematter, Attorney will not be violating the Rules of Professional Conduct byproceeding.

[Rule 4 1.4]

Misc.-105

INFORMAL OPINION 940059

QUESTION: Attorney is representing the class in a class actionsuit. One of the members of the class is recruiting class members andobtaining the attorney fee which is forwarded to Attorney. May Attorneyaccept these people as clients in this manner?

ANSWER: Yes. Once Attorney accepts them as clients, Attorneymust communicate with them directly affirming Attorney's representationand communicating about the case before taking any action as theirattorney. If they change their mind after direct communication, Attorneymust refund the fee under Rule 4-1.16. This opinion does not consider anyrestrictions the court may impose.

[Rule 4 1.4; 1.16(d)]

Misc.-106

INFORMAL OPINION 940061

QUESTION: May an attorney employee of a professionalcorporation who is not a shareholder serve as a director and officer?

ANSWER: Yes.

[Rule 4 5.4(d)]

Misc.-107

INFORMAL OPINION 940088

QUESTION: Attorney A was present at a deposition at whichAttorney B sought a continuance of the deposition. The deposition was ofa non-party witness. When the other attorneys would not agree tocontinuing the deposition, Attorney B entered his appearance for thewitness and instructed the witness to leave the deposition. The witnesswas under subpoena. The interests of the witness are potentially adverseto the party whom the other attorney was representing. Must Attorney Areport the Attorney B under Rule 4-8.3(a)?

ANSWER: If Attorney B entered into a conflict of interest byappearing for the non-party witness, Attorney A must report Attorney B'sconduct to this office.

[Rule 4 8.3(a)]

Misc.-108

INFORMAL OPINION 940091

QUESTION: Attorney has a trust account which has been inexistence for a large number of years. The trust account contains asignificant amount of money for which the firm cannot account. Some of thefunds cannot be attributed to a particular file, although there are somerecords which indicate that they do belong to a particular file. For theremainder of the funds, there is no record at all and it is possible that themoney relates to amounts that should have been disbursed to the firm. What should the firm do with these funds?

ANSWER: The amount which can be attributed to files, must beplaced in a separate, interest bearing trust account and Attorney mustcontinue to attempt to make appropriate disbursement of those funds. Attorney should maintain an accounting of the interest attributable to eachfile so that it can be disbursed once the client is identified and the funds aredisbursed. The funds which are not attributable to a file, may not bedisbursed to the firm unless the firm can establish that they are firm funds. In the absence of clear evidence to the contrary, funds in the trust accountare presumed to be client funds. These funds should also be placed in aseparate, trust account. The funds may not be distributed to the firmunless it is established that they are firm funds. The firm should maintainclear documentation to explain all of the steps taken, including the stepsinvolved in the ultimate disbursement.

[Rule 4 1.15]