Most of the Missouri law regarding the unauthorized practice of law is found in appellate opinions. Two rules within Supreme Court Rule 4, the Rules of Professional Conduct, relate to this subject. Those rules are 5.4and 5.5. In addition, Chapter 484 of the Revised Statutes of Missouri,especially sections 484.010 and 484.020, relate to this subject.
The following list of Missouri cases relating to the unauthorized practice of law is not necessarily exhaustive but should provide a substantia lbase for research on this topic.
State ex inf. Miller v. St. Louis Union Trust Co., 74 S.W.2d 348 (Mo. banc1934)
Clark v. Austin, 101 S.W.2d 977 (Mo. 1937)
State ex rel. McKittrick v. C.S. Dudley & Co., Inc., 102 S.W.2d 895 (Mo.1937)
Curry v. Dahlberg, 110 S.W.2d 742 (Mo. banc 1937)
Liberty Mut. Ins. Co. v. Jones, 130 S.W.2d 945 (Mo. banc 1939)
Hulse v. Criger, 247 S.W.2d 855 (Mo. banc 1952)
In re Page, 257 S.W.2d 679 (Mo. banc 1953)
Hoffmeister v. Faerber, 293 S.W.2d 554 (Mo. banc 1955)
Hoffmeister v. Tod, 574 S.W.2d 5 (Mo. 1961)
In re Thompson, 574 S.W.2d 365 (Mo. 1978)
Automobile Club of Mo. v. Hoffmeister, 338 S.W.2d 348 (Mo. App. 1960)
In re Allstate Ins. Co., 722 S.W.2d 947 (Mo. banc 1987)
In re Reza, 743 S.W.2d 411 (Mo. banc 1988)
Reed v. Labor and Indus. Relations Comm'n, 789 S.W.2d 19 (Mo. banc1990)
In re First Escrow, Inc., 840 S.W.2d 839 (Mo. banc 1992)
Risbeck v. Bond, 885 S.W.2d 749 (Mo. App. 1994)
FORMAL OPINION 1
AUTOMOBILE CLUBS UNLAWFUL PRACTICE
UNLAWFUL TO FURNISH MEMBERS WITH LEGAL SERVICES IN CONNECTION WITH OWNERSHIP AND OPERATION OF AUTOMOBILES.
FORMAL OPINION 2
CREDIT EXCHANGE UNLAWFUL PRACTICE
UNLAWFUL FOR CREDIT EXCHANGE TO FURNISH COLLECTION SERVICE TO MEMBERS OR STOCK HOLDERS WHICH INVOLVES SUIT OR THREAT OF SUIT.
QUESTION: A corporation was organized as a so-called "Credit Exchange" for the purpose of furnishing its stockholders or "members" with credit information and collection service. It secures its business from its members and solicits business houses, professional men and others, who have accounts to be collected, to become stockholders or "members". It does a very large collection business and when ordinary methods of collection fail,it secures permission from the creditor to file suit. The suit is filed in a court of inferior jurisdiction by employees, who are lawyers, who file the necessary pleadings and where there is no appearance, take default judgments. If there is an appearance in the cases where the Credit Exchange has sued, the matter is set for trial and a firm of attorneys who are on retainer is engaged to handle the contested case and secure judgment. These attorneys bill the exchange for their services in each case,the amount of which is added to the charge made to the client by the Exchange. Is the corporation illegally practicing law?
ANSWER: In the opinion of the Advisory Committee the corporation is illegally practicing law. See State ex rel. v. C. S. Dudley & Co.(Mo.Supp. 1937) 102 S.W.2d 895. The Committee is further of the opinion that lawyers who accept employment as salaried employees of such Credit Exchange, or independent lawyers who accept employment for the prosecution of cases for such Credit Exchange are guilty of unethical conduct. Such lawyers are engaged in promoting the unauthorized practice of law, and in permitting their services as lawyers to exploited by lay agency in violation of Rule 4 of the Supreme Court.
Canon 2 DR2-103(D)
FORMAL OPINION 3
CORPORATIONS UNLAWFUL PRACTICE
UNLAWFUL FOR CORPORATION TO ENGAGE IN BUSINESS OF INCORPORATING COMPANIES WHERE SERVICES INCLUDE PREPARATION OF CORPORATE PAPERS AND GIVING ADVICE WITH REFERENCE THERETO.
QUESTION: A corporation is engaged in the business of incorporating companies, qualifying foreign corporations to do business in various states and acting as resident agent of corporations in such states.The corporation solicits business from laymen, advertising that its services include (1) the preparation, examination and filing of Articles of Incorporation in the various states; (2) the preparation of By Laws; (3) the preparation of minutes of meetings; and (4) acting on proposals for the issuance of stock in exchange for property, services or other assets. Is the corporation engaged in the illegal practice of law? If it offers the above services only to those licensed to practice law, is the corporation engaged in the illegal practice of the law?
ANSWER: It is the opinion of the Advisory Committee that the corporation is engaged in the illegal practice of the law. Clearly the services it holds itself out to perform are such as can be performed for others only by persons duly licensed and qualified to practice law. It does not alter the situation that the corporation performs the services only for lawyers. A layman cannot practice law for lawyers and it is unprofessional for a lawyer to accept the legal services from a layman. (See In Re Lacy, 112 S.W.2d594).
FORMAL OPINION 4
RETAINING LAWYERS TO RENDER LEGAL SERVICES TO CUSTOMERS ILLEGAL. UNETHICAL FOR A LAWYER TO ENGAGE IN SUCH PRACTICE.
QUESTION: A corporation hires a lawyer to act as its chief counsel paying him a regular salary. The corporation refers its customers to this lawyer, who gives them advice and otherwise provides them with legal services. The customers pay the fees for such services to the corporation.The lawyer gets only his salary regardless of the number of persons the corporation sends him. Is the corporation engaged in the illegal practice of the law? Is the lawyer engaged in unethical practice?
ANSWER: The Advisory Committee is of the opinion the corporation is engaged in the practice of law, which is illegal and that the lawyer is engaged in unethical practices.
The lawyer is aiding the corporation to do an illegal act, and he is therefore acting unethically. Also, he is permitting an intermediary to come between himself and his client, or clients, in violation of Rule 4 of the Supreme Court of Missouri. He is permitting his professional services to be controlled and exploited by a lay agency, in violation of the same Rule.
Canon 2 DR2-103(D)
FORMAL OPINION 5
REAL ESTATE AGENTS AND CORPORATIONS
DRAFTING OF CONTRACTS, DEEDS, ETC. FOR CUSTOMERS, ILLEGAL.
QUESTION: Real estate agents and companies draft contracts of sale, deeds and other papers as well as advising customers of their property rights in real estate which the person is contemplating buying or selling. Do such practices constitute the illegal practice of law if done by those not licensed to practice law?
ANSWER: WITHDRAWN (See Hulse et al. v. Criger, 247 S.W.2d855).
FORMAL OPINION 6
BANKS, TRUST COMPANIES AND TITLE COMPANIES UNLAWFUL PRACTICE
DRAFTING OF DEEDS, TRUST AGREEMENTS OF MORTGAGES FOR CUSTOMERS IN REPRESENTATIVE CAPACITY, ILLEGAL.
QUESTION: A bank, trust company or title company draws deeds,trust agreements, or mortgages for customers. Is the drafting of such instruments illegal? What if the company or bank is not a party to the instrument drawn?
ANSWER: The Advisory Committee is of the opinion the drafting of such papers as deeds, trust agreements and mortgages by a bank or trust company or a title company for its customers is practicing law, and is therefore, forbidden to any corporation. In answering the first part of the question the Committee has assumed that the service is being rendered in a representative capacity to the customer and the bank or trust company is not an actual and necessary party to the instrument.
FORMAL OPINION 8
WORKMEN'S COMPENSATION UNLAWFUL PRACTICE
UNLAWFUL FOR LAYMAN TO APPEAR BEFORE WORKMEN'S COMPENSATION COMMISSION AND OTHER COMMISSIONS REPRESENTING PARTIES TO PROCEEDINGS BEFORE SUCH COMMISSIONS.
QUESTION: Complaints have been made regarding certain persons who are not lawyers, who have appeared before the Workmen's Compensation Commission and other Commissions representing parties to proceedings before those commissions. Those against whom complaints have been made, have advised parties and conducted hearings before the commissions. Are such persons engaged in the illegal practice of the law?
ANSWER: The Advisory Committee is of the opinion that persons not lawyers appearing before the Workmen's Compensation Commission representing others are engaged in the illegal practice of the law. It has been held by the Supreme Court that a layman appearing for another before the Public Service Commission is engaged in the unauthorized practice of law and is guilty of contempt of Court. (See Clark u. Coon, 101S.W.2d 977). Also Hulse et al v. Scheske, Sup. Ct. Judgment, October 1951.
FORMAL OPINION 10
INSURANCE ADJUSTERS INDEPENDENT ADJUSTERS UNLAWFUL PRACTICE
UNLAWFUL FOR LAYMAN TO OPERATE INSURANCE ADJUSTMENT BUREAU FOR ADJUSTMENT OF LOSSES OF FIRE AND CASUALTY INSURANCE COMPANIES.
QUESTION: A layman proposes to engage in the business of adjusting fire and casualty insurance claims under the name of "X Insurance Adjustment Bureau." As such Bureau he proposes to solicit fire and casualty insurance companies for business within the territory served by the Bureau and to investigate and adjust claims. Would such layman be illegally engaged in the practice of law?
ANSWER: WITHDRAWN (See Liberty Mutual Case, 130 S.W.2d945).
FORMAL OPINION 11
ATTORNEYS EMPLOYMENT OF LAYMEN TO ADJUST CLAIMS
IMPROPER FOR AN ATTORNEY TO EMPLOY A LAYMAN TO INVESTIGATE AND ADJUST CLAIMS REFERRED TO THE ATTORNEY.
QUESTION: A law firm is associated with or employs a layman who investigates and adjusts insurance as well as other matters referred to the law firm. Is this association or employment proper?
ANSWER: The Advisory Committee is of the opinion the association or employment is improper. A layman may be employed by a law firm, as an investigator to discover witnesses and evidence, to take photographs, statements of witnesses, and to do acts of like nature. He may also appraise damages to physical property, procure execution of prepared instruments where the lay employee exercises no discretion in the selection or preparation of the same and acts as a messenger in the delivery of check or draft in payment of money in discharge of claim. As long as the activities of a lay emplace of a law firm are confined to these matters there can be no objection to his employment.
A lay employee may not adjust or settle claims, or negotiate for the settlement thereof, or prepare releases and other documents affecting settlements, or advise with reference to the legal rights of the parties or perform any of the services held by the courts of Missouri to constitute the practice of law. The question contemplates that the layman not only does all things permitted by a lay employee in a law office but adjusts insurance and other matters referred to the law firm, which is prohibited by law.
Canon 3 DR3-101(A)
FORMAL OPINION 12
EMPLOYMENT INSURANCE ADJUSTERS
IMPROPER FOR ATTORNEY TO ACCEPT EMPLOYMENT FROM PUBLIC ADJUSTER WHO SOLICITS BUSINESS,REGARDLESS OF WHETHER ADJUSTER IS A LAWYER OR SHARES IN THE FEES WHICH ARE PAID THE ATTORNEY EMPLOYED FOR HIS PROFESSIONAL SERVICES.
QUESTION: A public adjuster advertises through insurance journals and law lists that he is engaged in a general adjustment business for casualty insurance companies. The adjuster is associated with lawyers whose employment he recommends to his clients if litigation arises out of any matter he is handling. The adjuster is a layman. (a) Are the lawyers under these circumstances guilty of unethical practice? (b) Is the situation altered if the public adjuster is a lawyer? (c) Is it of any importance that the adjuster does or does not share in the fees which are paid the lawyer for professional services rendered in connection with the litigation?
ANSWER: The Committee is of the opinion that the adjuster is engaged in the practice of law.
(a) A lawyer under the circumstances detailed in the question would be guilty of unethical practice. The adjuster acts as an intermediary in violation of law.
(b) If the adjuster is a lawyer he is guilty of unethical practice in soliciting professional employment in violation of Supreme Court Rule 4.The lawyer employed by the adjuster lawyer to handle business that he, the adjuster lawyer has solicited, would be guilty of unethical practice in accepting employment solicited in violation of Supreme Court Rule 4.
(c) The lawyer employed by the adjuster to render professional services in connection with the litigation would be guilty of unethical practice whether he divided the fee with the adjuster or not. This is true regardless of whether the adjuster is a lawyer or layman. The professional employment is obtained by solicitation through an intermediary and the lawyer accepting the employment is guilty of unprofessional conduct under Supreme Court Rule 4, whether the adjuster be lawyer or layman.
FORMAL OPINION 13
COLLECTIONS EMPLOYMENT OF LAY COLLECTOR BY ATTORNEY
IMPROPER FOR LAWYER TO EMPLOY LAYMAN TO ATTEND TO COLLECTION MATTERS UPON SALARY OR FOR PORTION OF PROFITS.
QUESTION: A law firm has in its employ a layman who attends to collection matters referred to the law firm. The layman receives a fixed salary for his services. (a) Is the law firm guilty of unethical conduct? (b) If the layman shares in the profits of the collection business of the law firm is the lawyer guilty of unethical conduct?
ANSWER: (a) The law firm is guilty of unethical conduct.Attendance to collection matters involves dealing with the clients, making demand for payment, threatening suit, adjusting claims, and the like. This general activity constitutes the unauthorized practice of law when done by a layman. State ex inf. u. C. S. Dudley & Company, 102 S.W.2d 895. It is unethical for a lawyer to employ a layman to engage in the unauthorized practice of law, or to aid and abet a layman in the unauthorized practice oft he law. Re: Otterness, 181 Minn. 254, 232 N.W. 318, 73 A. L. R. 1319.
(b) In view of the answer to question (a) it follows that it is immaterial whether the lay employee receives a fixed salary or shares in the profits derived from collection matters by the law firm.
FORMAL OPINION 18
EMPLOYMENT BY ADJUSTING COMPANIES
IMPROPER FOR ATTORNEY TO ACCEPT EMPLOYMENT FROM AN ADJUSTING COMPANY ENGAGED IN THE UNAUTHORIZED PRACTICE OF LAW TO REPRESENT IT IN MATTERS COMING FROM ITS PATRONS.
QUESTION: A corporation is engaged in the business of adjusting and investigating insurance claims and solicit such adjustment business from insurance companies. In the letter of solicitation which it sends to insurance companies, the corporation states that it can render prompt and efficient service in any part of the country but makes no mention of employing lawyers. When the corporation receives a claim for adjustment in a city in which it does not have an office it sends the matter to an attorney located there. If efforts to adjust are unsuccessful, the attorney represents the insurance company in the ensuing litigation.
May an attorney, having knowledge of the adjustment corporation's business and methods of soliciting, properly accept employment from it to handle adjustments for its insurance company patrons?
ANSWER: The corporate adjustment company is engaged in the unauthorized practice of law and is guilty of acting as an intermediary between the lawyer and the insurance company when it places an adjustment with a lawyer. A lawyer who handles adjustments at there quest of the corporate adjustment company is guilty of unprofessional conduct and he participates in and assists in the unauthorized practice of law by the corporation. However, the lawyer may accept employment to adjust claims for the insurance company if he is employed directly by the insurance company. (See State ex inf. v. C. S. Dudley & Company,Mo.Supp. 1937, 102 S.W.2d 895).
FORMAL OPINION 21
LAY FIRE ADJUSTERS UNLAWFUL PRACTICE EMPLOYMENT BY LAY FIRE ADJUSTER
MAKING A CONTRACT TO FURNISH LEGAL SERVICES IF NECESSARY IS GUILTY OF UNAUTHORIZED PRACTICE.LAWYER REPRESENTING SUCH ADJUSTER IN MATTERS COMING FROM ITS PATRONS IS GUILTY OF UNPROFESSIONAL CONDUCT.
QUESTION: A layman is engaged in the business of adjusting fire losses for claimants. He makes a written contract with a claimant, vesting him with a power of attorney to negotiate settlement of a particular loss.The contract provides that his compensation shall consist of ten percent of the recovery in case settlement is made without suit, and fifteen percent if recovery is had through legal action. The contract further provides that in event suit is necessary, the adjuster is to provide the attorney.
(a) If the adjuster, under this arrangement, prepares a statement of the fire loss, including the contractor's appraisal of the property destroyed or damaged, an inventory of the personal property destroyed or damaged, and advises the claimant as to his rights under the terms of the insurance policy involved, is he engaged in the practice of law?
(b) If the adjuster retains a lawyer to whom he entrusts all litigation arising under the above mentioned arrangement on a contingent fee basis of five percent of the recovery, is the adjuster or lawyer guilty of any violation of law or unprofessional conduct?
ANSWER: (a) The contract between the claimant and the layman is an illegal bargain. See Curry v. Dahlberg, (Mo.Supp. en Banc 1937) 112S.W.2d 345; Minier v. Bernich (La. Ct. App. 1936) 170 So. 567. Performance there under is authorized practice of law. Independently of the illegal agreement rendering advice to the claimant as to his rights under the terms of the insurance policy is the practice of law and unlawful when done by layman. Simple preparation of an inventory of personal property or statement of loss to tangible property is not the practice of law in the opinion of the committee.
(b) The adjuster is guilty of illegal practice of law and the lawyer is guilty of unprofessional conduct. The adjuster acts as an intermediary and divides fees with a lawyer in violation of both the statute and rule of court.State ex inf. vs. C. S. Dudley and Company (Mo.Supp. 1937) 102 S.W.2d895; Curry v. Dahlberg, (Mo.Supp. en banc 1937), 112 S.W.2d 345. The adjuster is engaged in the barter and sale of an attorney's services which constitutes the unauthorized practice of law.
The lawyer is guilty of securing employment by indirection through an unauthorized practitioner who is not bound to refrain from soliciting employment in violation of Canon 2. The lawyer is further guilty of violating Canon 2 relating to intermediaries. The lawyer who participates in, aids or abets the unauthorized practice of law is guilty of unprofessional conduct.Re Otterness, 181 Minn. 254, 232 N.W. 318, 73 A. L. R. 1319. The layman whom he assists, aids and abets is guilty of contempt of court. Clark vs.Austin (Mo.Supp. 1937) 101 S.W.2d 977. It therefore follows that the lawyer is likewise guilty of contempt of court. Such conduct is in violation of the criminal statute and the rules of professional conduct.
FORMAL OPINION 33
RADIO BROADCASTING OF AN OFFER BY A REFUND COMPANY TO OBTAIN REFUNDS ON INSURANCE POLICIES IS THE SOLICITATION OF LAW BUSINESS.
QUESTION: A Refund Company is having Radio Broadcasts made from Missouri Radio stations, wherein the Company solicits the business of obtaining refunds on insurance policies. Is such broadcasting the solicitation of law business? And is such company, therefore, engaged in the unauthorized practice of law in Missouri?
ANSWER: The Committee is of the opinion that the Company is soliciting law business and engaged in the unauthorized practice of law.
Canon 3 DR3-101(A)
FORMAL OPINION 34
NON-RESIDENT ATTORNEY, NOT LICENSED TO PRACTICE IN MISSOURI, MAY NOT HOLD HIMSELF OUT AS A MISSOURI LAWYER.
QUESTION: May a non-resident. attorney who is not licensed to practice in the State of Missouri hold himself out as a Missouri lawyer because he has been permitted to appear in Missouri courts under the rule of comity?
ANSWER: It is the opinion of the Advisory Committee that anon-resident attorney, not licensed to practice in Missouri, may not hold himself out as a Missouri lawyer merely because he may have been permitted to appear in Missouri Courts under the rule of comity.
See Missouri Supreme Court Rule 9.
FORMAL OPINION 38
DRAFTING OF CONTRACTS, DEEDS AND MORTGAGES BY AN EMPLOYEE OF A CORPORATION, WHICH CORPORATION IS AN ACTUAL AND NECESSARY PARTY TO SUCH AN INSTRUMENT IS NOT THE PRACTICE OF LAW.
QUESTION: Is the drafting of contracts, deeds and mortgages by an employee of a corporation, which corporation is an actual and necessary party to said instrument the practice of law?
ANSWER: The Advisory Committee is of the opinion that the drafting of such instruments by an employee of a corporation which corporation is an actual and necessary party to said instrument, is not the practice of law.
FORMAL OPINION 44
LAYMEN CANNOT PRACTICE IN MAGISTRATE COURTS OF MISSOURI.
FORMAL OPINION 52
NOT UNAUTHORIZED PRACTICE OF LAW FOR A LAY EXECUTOR TO DRAW A LEGAL INSTRUMENT TO WHICH HE IS A PARTY.
QUESTION: Is a layman who is executor of an estate, engaged in the unauthorized practice of law when he draws deeds and other legal instruments to which he is a party as such executor?
FORMAL OPINION 53
INCOME TAX RETURNS
LAWFUL FOR BANK EMPLOYEE TO PREPARE INCOME TAX AND OTHER TAX RETURNS FOR BANK'S CUSTOMERS.
QUESTION: Is it lawful for a bank or trust company employee to prepare income tax and other tax returns for customers of his institution where the bank or trust company is not interested?
ANSWER: Yes. (See DePass v. B. Harris Wool Company, 144 SW.2d 146).
FORMAL OPINION 54
ACCOUNTANTS MAY LAWFULLY PREPARE MINUTES OF CORPORATION DIRECTORS AND STOCKHOLDERS MEETINGS
QUESTION: Is it lawful for a public accountant, certified or not certified, or a bank or trust company employee not a lawyer, to prepare Minutes of Directors' and Stockholders' meetings of a corporation when he is not acting as an officer of the corporation?
FORMAL OPINION 55
KANSAS LAWYER CANNOT PREPARE AND FILE ARTICLES OF INCORPORATION FOR A MISSOURI CORPORATION UNLESS ASSOCIATED WITH A MISSOURI LAWYER.
QUESTION: Is it lawful for Kansas lawyers not maintaining an office in Missouri and not associated with Missouri lawyers, to prepare and file with the Corporation Department of the Secretary of State's office,Articles of Incorporation for Missouri corporations?
ANSWER: No. The incorporating of a Missouri corporation in Missouri is the practice of law in Missouri (Sec. 13313, RSMo 1939). Only a Missouri lawyer can practice law in Missouri. Sec. 13314 RSMo 1939). A lawyer admitted and in good standing in a state outside of Missouri may appear in a case in which he is employed in Missouri. (Sec. 13324, RSMo1939) but only when permitted through comity and according to the rules of the court. The Supreme Court of Missouri has adopted a reciprocal rule(Rule 9). Kansas Supreme Court Rule 54 (1935 Statutes of Kansas, Sec.60-3827) and the Kansas Statutes (Sec. 7-104, General Statutes of Kansas,1945 Supplement) do not permit a Missouri lawyer to practice in Kansas and permit his appearance in court in Kansas only when he has associated with him a Kansas lawyer residing or maintaining an office within the judicial district in which the action is pending. Since neither the decisions,rules or statutes of Kansas permit a Missouri lawyer to practice law (Depewv. Wichita Association of Credit Men, 142 Kansas 403, 49 Pac.2d, 1041) in Kansas except as above provided, the same situation applies in Missouri with respect to a Kansas lawyer. The Committee has concluded that filing of corporate papers alone in a representative capacity is not the practice of law.
FORMAL OPINION 73
SUBMISSION BY FOREIGN CORPORATION OF APPLICATION TO DO BUSINESS IN MISSOURI CONSTITUTES PRACTICE OF LAW AND MUST BE DONE BY AN ATTORNEY.
QUESTION: (a) Is the submission by a foreign corporation of an application for authority to do business in Missouri and conferences and correspondence with reference thereto an act constituting the practice of law in this state?
(b) If such application be by a foreign insurance company does constitute the practice of law, may such application be made by an employee of the insurance company?
(c) May such application be submitted by a lawyer licensed in a sister state?
(d) May such application be submitted by an independent actuary who receives compensation from the insurance company for his services?
(e) Does the drafting of forms of policies of insurance, together with riders, endorsements, supplementary or additional terms when such policies are designed to be submitted to the Division of Insurance or to the Attorney General for approval, constitute the practice of law in this state?
ANSWER: (a) yes.
(b) No, unless such employee be a duly licensed Attorney at Law.
(c) Yes, provided such sister state permits similar practice by members of the Bar of Missouri. (See Supreme Court Rule No. 9.01).
FORMAL OPINION 77
MAGISTRATE COURT CLERKS
CANNOT PREPARE LEGAL FORMS FOR OTHERS
FORMAL OPINION 89
MISSOURI LAWYERS WHOSE PRACTICES IN WHOLE OR IN PART EMBRACE THE ADJUSTMENT OF CLAIMS MUST ADHERE TO THE STANDARDS APPLICABLE TO LAWYERS
FORMAL OPINION 94
ORDINANCE CODIFICATION SERVICES
CODIFICATION SERVICES FOR CITY ORDINANCES OFFERED BY CORPORATIONS AND LAYMEN MAY INVOLVE UNAUTHORIZED PRACTICE OF LAW.
QUESTION: Are companies or individuals engaged in the business of rendering codification of ordinance services to cities in Missouri engaged in the unauthorized practice of law?
ANSWER: The Advisory Committee is of the opinion that the services offered and rendered by an ordinance codification company or a layman engaged in such business may involve the unauthorized practice o flaw depending on the service offered or rendered under the contract of employment by the city. Such services which might involve unauthorized practice would include the drafting of ordinances; the giving of opinions regarding the legality or constitutionality of ordinances; the rendering of opinions as to statutory provisions regulating the various classes of cities in Missouri; the checking of ordinances for completeness, conflicts and ambiguity; revising and re-writing provisions where necessary so as to express the city intent in concise and accurate language; the checking of ordinances against court decisions and all other work of a legal nature. On the other hand, such codification services as assembling the ordinances;eliminating all repealed and obsolete ordinances; indexing in detail the revised general ordinances and arranging the same in proper order would not be considered unauthorized practice of law, but largely secretarial service.
The Advisory Committee cannot give an all inclusive opinion that all acts and services offered by codification companies involve unauthorized practice, but each offer of services to be rendered must be considered andpassed upon as to whether they might involve unauthorized practice.
FORMAL OPINION 96
LAY INSURANCE ADJUSTERS
NOT UNAUTHORIZED PRACTICE FOR LAY INSURANCE ADJUSTERS EMPLOYED BY LIABILITY INSURANCE COMPANY TO ADJUST AND SETTLE CLAIMS FOR COMPANY'S ASSURED AFTER SUIT IS FILED. ATTORNEY FOR PLAINTIFF IS NOT IN VIOLATION OF SUPREME COURT RULE 4 IN NEGOTIATING WITH SUCH LAY ADJUSTERS IF DONE WITH KNOWLEDGE AND CONSENT OF DEFENDANT'S COUNSEL.
QUESTION: A liability insurance company employs lay adjusters.Suit is filed against an insured of such liability insurance company and the company then employs an attorney who enters his appearance and files pleadings on behalf of the defendant. The lay adjuster, there after undertake to deal with and to engage in settlement negotiations directly with the attorney representing the plaintiff in which the possibilities and/or probabilities of recovery are discussed. Are the adjusters practicing law?Is the attorney for plaintiff in violation of Missouri Supreme Court Rule 4in that he is dealing with such lay adjusters instead of dealing only with the counsel representing the defendant in the pending litigation?
ANSWER: The Advisory Committee is of the opinion that such lay adjusters are not practicing law provided such lay adjusters are determining only the pecuniary limit which the company will be willing to offer or pay in settlement, and provided further said lay adjusters do not attempt to determine the legal liability of the company or its insured, but arrive at their conclusions as to the amount to be offered either regardless of legal liability or upon the advice of a licensed attorney whether such attorney be the attorney who filed the responsive pleading or any other licensed attorney.
The Advisory Committee is further of the opinion that the attorney for plaintiff is not in violation of Supreme Court Rule 4 in dealing with such lay adjusters, instead of dealing only with counsel representing the defendant in the pending litigation, provided that such discussions and negotiations are conducted with the knowledge and consent of the counsel who has filed the responsive pleadings representing the defendant in the pending litigation.
Canon 2 DR2-102(A) (2)
FORMAL OPINION 98
ATTORNEYS LICENSED IN STATES OTHER THAN MISSOURI WHO BECOME RESIDENTS OF MISSOURI, AS DEFINED IN SUPREME COURT RULE 8.01, MAY NOT PRACTICE LAW IN MISSOURI WITHOUT BEING ADMITTED TO PRACTICE BY THE SUPREME COURT OF MISSOURI IN ACCORDANCE WITH SUPREME COURT RULE 8.ATTORNEYS NOT SO ADMITTED ARE ENGAGED IN THE UNAUTHORIZED PRACTICE OF LAW IF IN THE EMPLOYMENT OF A CORPORATE OR INDIVIDUAL EMPLOYER IN A CAPACITY REQUIRING THE RENDITION OF LEGAL SERVICES.
QUESTION: Is a lawyer licensed in a state other than Missouri who becomes a resident of Missouri, as defined in Supreme Court Rule 8.01, and is employed by a corporation or individual in a capacity requiring the rendition of legal services engaged in the unauthorized practice of law if such lawyer is not admitted to practice by the Supreme Court of Missouri?
ANSWER: The Advisory Committee is of the opinion that a lawyer licensed in a state other than Missouri who becomes a resident of Missouri,as defined in Supreme Court Rule 8.01, and is employed by a corporation or individual in a capacity requiring the rendition of legal services and who has been admitted to practice by the Supreme Court of Missouri is engaged in the unauthorized practice of law.
Rule 8 of the Supreme Court of Missouri establishes the procedure for admission to the Bar of Missouri and requires either examination or admission by reciprocity when applicable. Rule 8.11 requires every person to take and subscribe to the oath therein specified before being admitted to practice and prior to such admission and the taking of such oath such person may not practice law in Missouri. A corporation may properly utilize the services of an attorney in full or part-time employment for the conduct of its legal affairs and the same is true of an individual employer, but in such cases the lawyer employees are engaged in the practice of law.
Rule 8.05 requires applicants for examination for admission to the Bar of Missouri to be bona fide residents of Missouri for at least three months prior to the date of making application. Rule 8.10 with reference to applicants for admission from other states in reciprocity situations contains no period of residency in Missouri, and permits admission if the applicant intends presently to become a resident. In light of these requirements, it is the opinion of the Advisory Committee that lawyers who become residents of Missouri, as defined in Supreme Court Rule 8.01, and engage in the practice of law in this state should promptly apply for admission, and in no event later than three months after becoming a resident. In the event of failure to so apply for admission, the Advisory Committee is required by Supreme Court Rule 5.18 to take the necessary action to prevent the unauthorized practice of law.
INVESTMENT BANKERS, BOND HOUSES OR OTHERS ENGAGED IN BUYING STATE, MUNICIPAL AND SCHOOL DISTRICT BONDS FOR RESALE WHO OFFER TO PROVIDE LEGAL SERVICES TO THE ISSUER RESPECTING THE ISSUANCE OF SUCH BONDS ARE ENGAGED IN THE UNAUTHORIZED PRACTICE OF THE LAW AND LAWYERS PERMITTING THEIR SERVICES TO BE TOUTED AND THUS EXPLOITED BY A LAY AGENCY ARE ABETTING THE UNAUTHORIZED PRACTICE OF LAW IN VIOLATION OF MISSOURI SUPREME COURT RULE 4.
It has come to the attention of the Advisory Committee that investment bankers and bond houses purchase State and municipal bonds and bonus of other Missouri public issuing bodies for resale. These bonds are payable from ad valorem taxes or revenues. In making bids to School Districts and the like it is invariably a condition of the bid that the legality of the issue be approved by counsel designated by the bidder. Usually the issuer requests a net bid and the bidder agrees to pay advertising costs,printing costs, costs of educational materials preceding the election and bidder's legal fees and other expenses. Frequently the resolutions authorizing the issuance of the bonds, the calling of the election, the formal notices of election, the certification of the results and the form of the bonds are prepared by the same counsel bidder has designated as its counsel to approve the legality of the issue. On occasion the officers or employees of an issuer such as the School District follow existing forms and prepare these documents themselves and the Secretary then sends a transcript of the proceedings to the bidder's designated counsel who in due course renders an opinion approving the legality of the issue. In the subsequent sale to the public the prospectus or advertising gives the name of counsel who approved legality of the issue. The bidder's designated counsel is sometimes requested to act by the issuing bond itself, but frequently the request is made by the bidder.
It is a matter of common knowledge that the marketing of bond issues payable from ad valorem taxes or revenues and issued by public bodies requires the opinion of counsel as to the regularity of the procedural requirements and approved as to the legality of the issue. It follows that purchasing bond houses must of necessity be free to designate counsel whose opinion is acceptable to the purchaser and to the buying public. No impropriety is involved by lawyers permitting themselves to be so designated and to thereafter render the customary opinion. The buying public likewise needs to know, as a matter of essential information, counsel approving the issue and there is no impropriety in an advertisement or prospectus so stating. Designated counsel legitimately acting as counsel for the purchaser have a vital interest in the regularity of the procedure of the issuing body. When so requested by the issuing body such counsel may properly prepare the original documents, copies of which constitute the transcript upon which their opinion is based. Ordinarily, there is no conflict of interest between the issuing body and the bidder for the bonds, and it is permissible for counsel to act both for the issuer and the bidder. That the bidder makes a net bid and agrees to stand the cost of printing the bonds,the attorney fees, cost of advertising and promotional expenses incident to the urging of the passage of the necessary legislation authorizing the bond issue does not necessarily place the purchasing bond house in the position of furnishing legal services to the issuing body. The substance of the transaction is that all of the mentioned costs are borne by the issuing body since these expenses are inevitably reflected in the net bid price.
The opinion of the Committee is that so long as the bidder does not hold out that it is furnishing legal services to the issuing body and it is made clear to the issuing body that bidder's designated counsel is acting only for the bidder, the bidder is not engaged in the unauthorized practice of the law. Purchasers who hold out to issuing bodies that legal services will be furnished are engaged in the unauthorized practice of the law and designated attorneys who permit their services to be thus exploited by the lay agencies and thereby engage in abetting the unauthorized practice of the law violate Supreme Court Rule 4. Investment houses should not tout the services of counsel designated by them and such counsel should not permit their investment company clients to solicit professional employment in their behalf since to do so is a violation of Supreme Court Rule 4.
Canon 3 DR3-101(A)
FORMAL OPINION 104
UNAUTHORIZED PRACTICE OF LAW
IMPROPER FOR ANY PERSON OTHER THAN AN ATTORNEY TO REPRESENT A TAXPAYER BEFORE THE STATE TAX COMMISSION.
QUESTION: (1) Does filing a Petition for Review before the State Tax Commission and appearing therein on behalf of a taxpayer constitute the practice of law? (2) Can any person other than a licensed attorney legally perform these functions on behalf of a taxpayer?
ANSWER: The Advisory Committee is of the opinion that filing a Petition for Review before the State Tax Commission and appearing therein on behalf of the taxpayer constitutes the practice of law. The Committee is of the further opinion that no person other than a licensed attorney can legally perform these functions on behalf of the taxpayer.
Those things set out in Question (1) fall within the definition of the practice of law given in paragraph (1), Sec. 484.010, RSMo 1969. That paragraph reads as follows:
"The practice of law is hereby defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers,pleadings, or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any Court of record, commissioner, referee or any body, board, committee, or commission constituted by law or having authority to settle controversies."
A Petition for Review is clearly a paper, pleading, or document and the State Tax Commission is constituted by law, (138.190 RSMo 1969) and has authority to settle controversies. (138.430 RSMo 1969). See also Clark vs. Austin, 101 S.W.2d 977. Adopted December 15, 1972.
FORMAL OPINION 113
UNAUTHORIZED PRACTICE TITLE COMPANIES CERTIFICATES OF TITLE SHOULD BE MADE BY LAWYERS ONLY.
QUESTION: Is the rendering of Certificates of Title the practice of law, and if it is, who may engage in such activity?
ANSWER: The Advisory Committee is of the opinion that the rendering of Certificates of Title is the practice of law. While the activity is described more accurately by paragraph 2, Section 484.010 as the "law business", in common parlance the "practice of law" encompasses the activities described in both paragraphs of the section. VAMS 484.010, 1969.
All certificates of Title examined by the Committee state that "title is vested" or "title is now well vested." Clearly this is the expression of an opinion relating to secular rights and legal interests in real property. Such activity is prohibited to anyone "unless he shall have been duly licensed therefor and while his license therefor is in full force and effect, nor shall any association or corporation engage in the practice of law or do law business as defined in section 484.010 or both." VAMS 484.020, 1969 paragraph 1, Clark us. Austin, 101 S.W.2d 977. We conclude, therefore,that legally this activity can only be engaged in by licensed attorneys.
This conclusion does not preclude the issuance of a title insurance policy by a corporation based upon investigation of insurability by its agents who are not licensed attorneys. If the corporation chooses to take that risk,it can do so. The difference lies in the document furnished the owner. A title insurance policy is a contract between the corporation and the owner which the corporation, as a party to the contract, can have drawn by its own laymen agents if it chooses. Formal Opinion #38.
Adopted April 4, 1975.
QUESTION: Can an attorney who is duly registered as a lobbyist employ a layman to assist him in his duties with the limitation on the layman's duties that he not testify for the client or appear in a representative capacity to introduce persons who are going to testify and the employee's duties are confined to contacting the individual legislators and acting as host in entertaining members of the legislature, all to be done under the direction and under the supervision of the attorney?
ANSWER: Yes, provided the employee would be properly registered as a lobbyist under the applicable statutes. Rendered March 29,1977.
QUESTION: Can a sole incorporator or one of three incorporators (not acting for a fee) who are lay persons, file incorporation papers with the office of the Secretary of State of Missouri?
ANSWER: Yes. This does not constitute the unauthorized practice of law. The Committee believes this to he consistent with in numerable rulings which state that it is permissible for an individual to represent himself in litigation in any court. Once the charter is issued to the corporation, however, the lay person can no longer do anything to represent the corporation A corporation can only be represented by an attorney and not by an officer who is a lay person. Until the charter is issued, however,the lay person incorporator is in the position of representing himself.Rendered September 1, 1977.
QUESTION: Does a letter sent by a collection agency to a debtor advising him that his assets, in excess of his legal exemptions, may be levied against to satisfy any judgment that might thereafter be obtained against the debtor, constitute the unauthorized practice of law?
ANSWER: It is the conclusion of the Advisory Committee that the sending of such a letter does not constitute the practice of law. It is possible that it may infringe upon some consumer protection provisions and the Counselor Affairs Division of the Attorney General's office should be consulted. Rendered October 21, 1977.
QUESTION: A suit is instituted for a corporate utility by its house counsel on an account alleged to be due and owing to the corporation. A motion is filed by defendant customer to strike the pleadings of the plaintiff corporation on grounds the corporation is engaged in the "unauthorized practice of law" as prohibited by Sections 484.010 and 484.020 RSMo 1969.
Is the corporation engaged in the unauthorized practice of law?
ANSWER: No. A suit instituted by a duly licensed Missouri attorney, who is a full-time employee of the corporation, for amounts allegedly due to the corporation, does not constitute the "unauthorized practice of law." See Formal Opinion No. 98 which states: "A corporation may properly utilize the services of an attorney in full or part-time employment of its legal affairs." Rendered April 6, 1978.
QUESTION: May a Jackson County resident, who is licensed to practice law in Missouri establish his law office in a county and state adjacent to Jackson County, Missouri and engage in the practice of law in the State of Missouri?
ANSWER: Yes, the Advisory Committee is of the opinion that it is permissible for a Jackson County resident, who is licensed to practice law in Missouri, to establish his law office in a county and state adjacent to Jackson County, Missouri, and engage in the practice of law in the State of Missouri. Rendered September 28, 1978.
QUESTION: Does the filing of pleadings or making appearances before the Administrative Hearing Commission on behalf of an entity or another individual constitute the practice of law?
ANSWER: Yes. It is the opinion of the Advisory Committee that the filing of pleadings or making appearances before the Commission on behalf of an entity (as used in Section 161.273, S.B. 661, P. 17) or another individual does constitute the practice of law. Only lawyers licensed to practice in Missouri or lawyers who qualify under Missouri Civil Rule 9.03 should be allowed to represent clients before the Commission. This is in conformity with Formal Opinion No. 101 concerning appearances before the State Tax Commission. Rendered September 28, 1978.
QUESTION: An out-of-state lawyer has qualified as a visiting attorney under Rule 9.03 by filing a statement and a designated Missouri attorney has entered his appearance as an attorney of record. Does Rule 9.03 require the physical presence of the Missouri lawyer at every court appearance thereafter?
ANSWER: No. It is the opinion of the Advisory Committee that Rule 9.03, as now written, does not require the physical presence of the Missouri lawyer at every court appearance. However, neither does the Rule prevent a local rule or custom from being adopted or enforced, if the court before whom the appearance is made deems it advisable. Rendered September 28, 1978.
QUESTION: A city attorney for a charter city submits a question as to whether certain acts of a layman union representative constitute the"unauthorized practice of law" by appearing before administrative Personnel Board on behalf of city union employees.
1. The union representative is not engaging in the unauthorized practice of law when he represents the employee in the initial steps of the grievance procedure that lead up to the hearing before the Personnel Board.
2. The Committee believes the union representative is engaging inthe unauthorized practice of law when he appears on behalf of theemployee and presents evidence in his behalf and attempts to cross-examine witnesses at a hearing before the Personnel Board.
3. If the Personnel Board sees fit, it could adopt a rule of procedure requiring that each employee can either represent himself or he represented by an attorney and the rule could provide that no layman could represent anyone before the Board Rendered February 20, 1979
QUESTION: Is it the unauthorized practice of law for a juvenile officer, who is not a licensed attorney, to make and argue motions, to call witnesses to the stand and conduct direct and cross-examination of witness,and to present evidence to the court in a juvenile court hearing?
ANSWER: No. The Committee believes it would be preferable for the juvenile officer to be represented by counsel or to be a licensed attorney himself, but when he is not, we do not believe it is the unauthorized practice of law for him to carry out his statutory duties. The statutes specifically place upon the juvenile officer the duty of presenting evidence in a juvenile court proceeding and thus we do not believe it is the unauthorized practice of law when the juvenile officer undertakes to question witnesses, argue motion, etc. Rendered April 26, 1979.
QUESTION: A nationwide collection service submitted its methodof operation to the Committee to be sure that its method of operation didnot violate the ethical rules and court decisions regarding unauthorizedpractice of law and requested through its attorney an informal opiniondetermining whether these practices were proper.
The collection service collected wholesale accounts only. Upon astandard form contract between the agency and its subscribers for variouscharges on an annual basis, it attempted to collect the amount bycorrespondence.
If the agency was unable to collect the amount, the subscriberwould be notified and given a choice whether the matter should beforwarded to a lawyer designated by the subscriber or forwarded to alawyer selected by the collection agency. If selected by the collection agency,upon rates previously given to the subscriber, the lawyers report directlyto the client with copies to the agency. The accounts are never assigned tothe agency. The suits are filed in the name of the subscriber.
The collection agency subscribes to the Fair Practices of Collection Agencies, approved by the National Conference of Lawyers and Collection Agencies on February 18, 1968, and also to the Statement of Principles issued by the American Bar Association on May 4, 1937. The agencyengages in no practices condemned in State ex rel. McKittrick us. Dudley& Company, 102 S.W.2d 895 (1937). Also see "Operations of CollectionAgencies as Unauthorized Practice of Law", 27 ALR 3d 1152 (1969).
Under the above fact situation is the agency engaged in theunauthorized practice of law?
ANSWER: No. It is the conclusion of the Advisory Committee that the procedures engaged in by this collection agency do not violate any statutes or court rules concerning the unauthorized practice of law.Rendered June 18, 1979.
QUESTION: Is the State Auditor engaging in the unauthorizedpractice of law when his rules require county fire-protection districtauditors to state in their reports whether or not the districts are complyingwith applicable constitutional provisions and statutes?
ANSWER: It is the conclusion of the Advisory Committee that theState Auditor is carrying out the duties of his office dictated by theConstitution and Statutes of the State of Missouri when he establishes therule requiring fire district auditors to state their conclusions and this ruledoes not constitute the unauthorized practice of law. The politicalsubdivisions are free to dispute the district and state auditors' conclusionson the questions. Rendered July 17, 1979.
QUESTION: The client is a finance company who is representedby a lawyer who obtains a judgment for the company. Thereafter, thecompany, through its central office, attempts to collect the judgment byusing letters to respective clerks of court requesting that garnishments beissued pursuant to the judgment. At the same time, the finance companysends along a standard set of interrogatories printed by the StandardPrinting Company of Hannibal, Missouri. The question is whether thisrequest and the production of interrogatories supplied to the clerksconstitutes the illegal practice of law?
ANSWER: It is the opinion of the Advisory Committee that whenthe finance company filed interrogatories along with a request forgarnishment with the office of the clerk, that this does not constitute thepractice of law because such interrogatories, whether or not in printed formobtained from the Standard Printing Company of Hannibal, Missouri, arepleadings in the matter. It is proper for a party to make a request forgarnishment to the clerk but anything further, would constitute thepractice of law. Rendered August 3, 1979.
QUESTION: A staff attorney for a department of government ofstate X submits a request for an informal opinion.
The state of X obtained a default judgment in "X" state courtagainst a Missouri resident.
The state of "X" through its staff attorney now desires to seekregistration of that foreign judgment in the Missouri court withoutassociating some member of The Missouri Bar as associate counsel underRule 9.
Would such action of the X state staff attorney constituteunauthorized practice of law within Missouri?
ANSWER: It is the opinion of the Advisory Committee thatregistering of a foreign judgment in the State of Missouri would constitutethe practice of law and, therefore, no out-of-state attorney could undertakesuch action without joining a member of The Missouri Bar as associatecounsel under Rule 9.
If the judgment had been obtained by an individual in the foreignstate, that individual could file the necessary verified petitions on his ownbehalf because an individual can represent himself in Missouri courts.However, since the judgment was obtained on behalf of the "X" state, thestate obviously cannot do so and it would require that the matter behandled with the association of Missouri counsel. Rendered August 29, 1979
QUESTION: The general counsel for a small Missouri corporationsubmits the following inquiry. Some of the corporation's employees areKansas residents and the general counsel has represented those employees,without fee, in simple traffic matters in city traffic court in the suburbs ofKansas City, Kansas. The counsel is a Missouri attorney and he has soinformed the prosecuting attorneys of the various cities and encounteredno problems.
1. The general counsel requests an opinion on whether such actionconstitutes the illegal practice of law in Kansas?
1. Whether or not the general counsel by appearing in traffic courtsas described is engaging in the unauthorized practice of law would be amatter for Kansas to decide and the proper address of DisciplinaryAdministrator of Kansas was given.
2. The committee points out that under DR3-101(B) of Rule 4 of theSupreme Court of Missouri, it is a violation of the Code of ProfessionalResponsibility of Missouri for a Missouri lawyer to practice in a state wherehe is not licensed to do so. Rendered August 29, 1979.
(Opinion omitted. See Notes on Use.)
(Unrelated Situation 1 is not included.)
Q QUESTION: Situation 2. Unrelated to Situation 1 except that A isthe same attorney.
A is a stockholder, director, officer and general counsel of acorporation whose business is diversified into insurance sales, real estatesales mortgage banking, and other activities which are permitted undercertain licensing statutes of Missouri and for which the corporation isproperly licensed. The corporation will as a matter of policy, pursuant toboard resolution, disclose to its clients the entire interest of A in thecorporation.
1. May A draw documents for the corporation to facilitate itsproviding to its clients those services for which it is licensed?
ANSWER: Situation 2.
The answer to this question depends on the kind of documentswhich are being drawn. The corporation may not provide documents forclients in such a fashion that it is engaged in the unauthorized practice oflaw. Neither may the corporation make an additional charge for thedrawing of documents even if the drawing is proper in connection with thebusiness transaction being carried on.
QUESTION: Situation 3. May A engage in the private practice oflaw, providing ordinary legal services to persons who are or have beenclients of:
a. The lobbying sole proprietorship.
b. The corporation of which he is counsel in matters not connectedwith the corporation.
ANSWER: Situation 3.
The answer to both questions a and b is yes. The lawyer mayengage in private practice of law provided that such private practice doesnot place him in a conflict of interest with one of his other clients and hislaw office is not carried on in conjunction with other activities from thesame office. Rendered May 23, 1980.
A Regional Planning Commission proposed the creation of a CircuitRider City Attorney designed to assist small communities in its region toobtain the services of counsel. The Commission is created by statute and iscomposed of voluntary associations of local governments. The Commissionproposed to employ the services of a full-time counsel and to subcontractthose services to fourth class cities to act as a city attorney upon formalappointment by the boards of aldermen in the respective cities. Theattorney would be a full-time employee of the Commission, selected by acommittee of the Commission.
QUESTION: Is this proposed arrangement in accord with the Codeof Professional Responsibility?
ANSWER: No. The Committee believes that the plan outlinedwould amount to the practice of law by the Commission and would becontrary to the Code of Professional Responsibility. The Regional PlanningCommission, in the Committee's view, is a political subdivision and thuswould be treated as a corporation. This would amount to the same as acorporation practicing law. It would be an intervention between theattorney and his clients and the Committee does not believe it would beproper. Rendered May 22, 1981.
Lawyer A is considering setting up a partnership with anonattorney to provide a consulting service for small businesses in the areasof affirmative action, contract negotiations, discipline and various othermatters relating to the employer/employee relationship. The lawyer doesnot intend to offer these services as an attorney but merely as a consultant.
QUESTION: Would this partnership present any ethical problemsfor Lawyer A?
ANSWER: The Committee has reviewed the submitted factsituation. It has long been held that an attorney may enter into some otherbusiness besides the practice of law so long as it is not carried on from thesame office. If Lawyer A undertook to enter a partnership with anon-attorney to provide a consulting service, he could not carry on a lawpractice from the same office. It appears to the Advisory Committee thatmany of the matters the lawyer would be consulting and giving advice onwould involve the practice of law and the Committee believes the situationoutlined has the potential for great difficulties. Rendered May 22, 1981.
A member of The Missouri Bar is employed as a staff accountantfor a C.P.A. He does engage in a part-time practice as an attorney.
QUESTION: He inquires whether he can represent a client of theC.P.A. firm before the IRS?
ANSWER: Yes. In the opinion of the Committee, the lawyer canrepresent the client before the IRS. The Committee points out to him thathe is representing the client in a legal capacity and not an accountant'scapacity since he is licensed to practice law. Rendered October 29, 1981.
QUESTION: May a graduate paralegal secretary, working underthe direct supervision of an attorney, be delegated the responsibility ofanswering the attorney's docket calls and requesting or accepting trial datesor uncontested continuances?
ANSWER: No The Advisory Committee in its interpretation of Rule4 states it is the opinion of the Committee that it is improper for a paralegalto answer a docket call on behalf of an attorney. In its opinion, theappearance constitutes a court appearance and this can only be done by alicensed attorney. Rendered July 9, 1982.
INFORMAL OPINION 930079
QUESTION: Attorney has assumed representation in a case whichwas previously handled by an attorney who has pled guilty to a felony. Final disposition of the case, including any award of attorney fees, willprobably occur after the previous attorney is disbarred. May the currentattorney share the attorney fees with the previous attorney?
ANSWER: Yes, as long as the previous attorney was licensed at thetime the legal services were performed.
[Rule 4 5.4(a)]
INFORMAL OPINION 930083
QUESTION: May firm form a general for profit corporation for aclient which would be advertised to the public to handle legal problems. The corporation would be owned by lawyers and non-lawyers. People whoneed legal assistance would contact the corporation which would help themfind a lawyer. The corporation would charge a fee for this assistance. Theclient would pay the attorney's fee.
ANSWER: This program would involve fee splitting withnon-lawyers which is prohibited by Rule 5.4(a).
[Rule 4 5.4(a)]
INFORMAL OPINION 930090
QUESTION: (1) May a lawyer enter into a direct contractualrelationship with a potential client where the lawyer agrees to providecertain specifically delineated legal services in return for payment of aregular monthly retainer? (2) If yes, may a lawyer hire direct employees orcontract with an independent contractor to promote, market, and sell theplan? (3) May an employee be compensated with a salary and receivebonuses based on performance? (4) May an independent contractor be usedand paid on a flat fee or commission basis?
ANSWER: The answer to all questions is yes. Neither an employeenor an independent contractor may be paid on the basis of the amount offees paid to the attorney or billed by the attorney for legal services. Thatconduct would violate Rule 5.4, fee splitting with a non-lawyer.
[Rule 4 1.5; 5.4; 7.2(c)]
INFORMAL OPINION 930096
QUESTION: Would an attorney, who assisted a collection agencyin setting up a system in which it has an in-house attorney hired and paidby the collection agency but filing suits in the names of the agency's clients,be assisting the unauthorized practice of law?
[Rule 4 5.5]
[Formal Opinion 4; 102 S.W.2d 895]
INFORMAL OPINION 930097
QUESTION: To what extent is an attorney disqualified fromhandling cases against attorneys in a firm which previously employed theattorney's paralegal?
ANSWER: Attorney would not be required to withdraw from ordecline cases adverse to clients of the paralegal's former firm as long as (1)the paralegal is screened from participation in those cases and (2) theparalegal does not reveal any confidential information from the formeremployment to any person in the attorney's firm. These measures apply toall situations in the former firm, regardless of whether the paralegal hadany involvement in those cases.
[ABA Informal Opinion 88-1526]
[Rule 4 1.6; 1.7; 5.3]
INFORMAL OPINION 930098
QUESTION: May a non-lawyer act as the secretary of a Missouriprofessional corporation engaged in the practice of law?
ANSWER: Yes, Formal Opinion 102 is still valid despite statute andrule changes.
[Rule 4 5.4(d)(2); Formal Opinion 102; § 356.091]
INFORMAL OPINION 930103
QUESTION: May attorney enter into a relationship with insuranceagents related to estate planning for clients of the insurance agents?
ANSWER: If the insurance agents are ONLY identifying a potentialneed for legal estate planning work and informing the client of their beliefthat the client would benefit from legal advice, it would not constitute theunauthorized practice of law. No further opinion can be given withoutspecific details of the proposed arrangement.
[Rule 4 5.4; 5.5; 7.2]
INFORMAL OPINION 930105
QUESTION: Attorney enters into a business which will draw uponthe attorney's legal knowledge but which is not a law practice. Theagreement with the financers calls for payment of a percentage of therevenues, including revenues from the attorney's law practice. Is this aconflict?
[Rule 4 5.4]
INFORMAL OPINION 930106
QUESTION: Attorney enters into a relationship with a companywhich makes the initial contact with individuals regarding possible estateplanning. Estate planning documents are drafted by a lawyer employed bythe company outside Missouri. The documents and data are delivered tothe attorney for review. The documents are delivered to the individual bya representative of the corporation.
ANSWER: The question does not provide enough specificinformation for an opinion. However, a number of rules may be involveddepending on the exact nature of the relationships and procedures followed. These include: Rule 1.7(b), Conflict of Interest: General Rule; Rule 5.4,Professional Independence of a Lawyer; Rule 5.5, Unauthorized Practice ofLaw; Rule 7.2(c) Advertising; and Rule 7.3(b), Direct Contact withProspective Clients.
[Rule 4 1.7(b); 5.4; 5.5; 7.2(c); 7.3(b)]
INFORMAL OPINION 930112
QUESTION: A separate business would be established whichwould offer will preparation to members of churches. If the church wantsto make the service available, it will announce it and scheduleappointments. A certain day will be set aside for appointments at thechurch. Clients will meet privately with attorney and documents will beprepared and executed. Attorney will not be a part of the separate businessbut will be paid an hourly rate by the business for will preparation. Thebusiness would make donations to the churches.
ANSWER: The arrangement would be contrary to one or more ofthe Rules of Professional Conduct. Depending on the exact logistics of thearrangement, it could violate Rule 1.7, Conflict of Interest: General Rule;Rule 5.4, Professional Independence of a Lawyer; and Rule 7.3, DirectContact with Prospective Clients. The relationship and role of theindependent business creates many problems.
[Rule 4 1.7; 5.4; 7.3]
INFORMAL OPINION 930123
QUESTION: Company sets up a seminar on living trusts. Anattorney presents legal information and answers questions. Complimentaryconsultations would be set up on request but not necessarily with the sameattorney. The consulting attorney evaluates the client's needs and preparesany necessary documents. Fees are pre-determined but may be lowered. Fees are paid to the attorney who pays the company for the seminar costand secretarial support which amounts to approximately two thirds of thefee. All legal work and advice are provided by consulting attorney orassociate. Company provides an office for attorney to meet with clients. There is a management agreement.
ANSWER: No problem with attorneys being from different firmsor with the company providing an office. However, it appears that feesplitting is occurring and that, therefore, concerns exist related to theunauthorized practice of law. There would be a problem with themanagement agreement if it contains anything similar to a covenant not tocompete.
[Rule 4 5.4; 5.5]
INFORMAL OPINION 930139
QUESTION: Attorney would contact church leaders and offer toprepare wills for congregation members who meet with Attorney. Thechurch would communicate the availability of the service through generaloral or written announcements. No one-on-one solicitation would occur. The church would schedule a time when interested persons would scheduleappointments for private consultation and will preparation. The churchmight charge a fee to Attorney for use of the facility. Fees would be paiddirectly to Attorney or Attorney's agent. No promise or expression ofintention to contribute to the church would
be made by Attorney in advance.
ANSWER: This program would not violate the Rules ofProfessional Conduct. It would not be a violation for Attorney to pay thechurch a fee which is directly related to Attorney's use of the facilities.
[Rule 4 5.4; 7.3]
INFORMAL OPINION 930144
QUESTION: Attorney is considering participating in a broadcaststation's coverage of legal issues. This participation might include reportingand commenting on news stories about law and features providing legalinformation. Other than in response to questions posed by interviewers ina news capacity, or as part of a broadcast discussion of a specific subject,Attorney does not anticipate commenting or rendering advice about specificfactual situations. Attorney is not licensed in Missouri but the broadcastwill be in Missouri as well as another state.
ANSWER: Assuming Attorney doesn't have an attorney-clientrelationship with anyone, including the station, in connection with thissituation and assuming that Attorney won't be giving any legal advice tospecific individuals, Attorney's proposed conduct would not violate the Rulesof Professional Conduct.
[Rule 4 5.5]
INFORMAL OPINION 930147
QUESTION: May Attorney contract with a marketing firm tomarket Attorney's services through contact, word of mouth, flyers andperiodicals? The marketing firm would be paid based upon Attorney's grossrevenues or the number of calls made to an 800 number.
ANSWER: This arrangement would violate Rules 4-5.4(a) and4-7.3(a).
[Rule 4 5.4(a); 7.3(a)]
INFORMAL OPINION 930148
QUESTION: Attorney works for the federal government inWashington, D.C. and is a licensed in Missouri paying out of state fees. Ona few occasions since Attorney was designated an out of state attorney,Attorney has temporarily been physically located within Missouri workingexclusively for the federal government. Should Attorney have paid residentfees for these periods?
[No. 6.01(e); Rule 4 5.5]
INFORMAL OPINION 930152
QUESTION: May Attorney, who is not licensed in Missouri, moveto Missouri and practice as a visiting attorney until Attorney becomeslicensed in Missouri either with or without examination?
ANSWER: No. Rule 9.03 does not authorize the kind of ongoingactivity described.
[Rule 9.03; Rule 4 5.5]
INFORMAL OPINION 930165
QUESTION: Attorney would hire a marketing firm to market theattorney's services, generally, and specifically directed to a certainoccupation. The marketing firm would be paid a set fee per month andwould be paid an additional per call fee on calls received each month relatedto the marketing efforts. The per call fee would be paid regardless ofwhether Attorney receives any legal business from the call.
ANSWER: This proposal would not violate the Rules of ProfessionalConduct as long as there is no direct personal or telephone solicitation.
[Rule 4 5.4; 7.2; 7.3]
INFORMAL OPINION 930169
QUESTION: (1) Attorney A is licensed in another state and not inMissouri. Attorney B is licensed in Missouri. A holds living trust seminarsand holds B out as a part of A's estate planning team. A and B are not partof a firm. B meets with clients, obtains intake information and proposesestate planning documents to be prepared by A. B ships the information toA who prepares the documents and ships them back to B to supervisesignature. B has no authority to make subtantive changes. B receives thefee and sends it to A who gives B a percentage without disclosure. (2) MayAttorney B be on seminar panels on estate planning with non-attorneys? Nospecific advice given.
ANSWER: (1) Attorney A would be engaging in the unauthorizedpractice of law in Missouri in violation of Rule 4-5.5(a). Attorney B wouldbe violating Rule 4-5.5(b) by assisting A's unauthorized practice. (2) If nospecific legal advice is given at a seminar, it would not be the practice of lawand, therefore, an attorney on the panel would not be assisting theunauthorized practice of law.
[Rule 4 5.5]
INFORMAL OPINION 930170
QUESTION: May Attorney's firm reorganize from a partnershipto a limited liability company?
ANSWER: Yes, after the changes to Rules 4-5.4 and 4-9.1 becomeeffective on January 1, 1994.
[Rule 4 5.4; 9.1]
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)]
INFORMAL OPINION 930176
QUESTION: Attorney proposes to produce a video on a legal topic. May Attorney form a separate corporation and share the profits from thisventure with a non-attorney?
ANSWER: The production of audio or video tapes for the generalpublic on legal topics would not be the practice of law. Therefore, splittingthe profits with a non-attorney would not violate [Rule 4 5.4]
INFORMAL OPINION 940002
QUESTION: Attorney has questions about several situations. (1)Client would obtain trust documents from a company which customizesthem for client's financial advisor firm. Attorney would review thedocument and approve it or suggest changes. (2) Attorney would beemployed by the financial advisor firm and draft wills and trusts for itsclients. (3) Financial advisor firm refers clients to Attorney just as anyfriend or former client might. (4) The financial advisor company wouldadvertise that it has an attorney to handle certain matters for its clients. (5)Financial advisor company sets up a legal department to handle the legalaffairs of the company and the company's clients.
ANSWER: (1) This raises concerns that Attorney would beassisting in the unauthorized practice of law in violation of Rule 5.5. Otherproblems may be raised if more details were provided. (2) This wouldinvolve assisting the unauthorized practice of law. There may be violationsof Rule 7.3(b) regarding in person solicitation. There could be otherproblems depending on the specifics. (3) Referrals are acceptable as long asthat is all that's involved. No relationship other than that of attorney andclient should exist. Rule 7.2(c) prohibits a lawyer from giving anything ofvalue in exchange for a referral. (4) This would involve assisting theunauthorized practice of law. (5) This would be the unauthorized practiceof law.
[Rule 4 5.5; 7.3(b); 7.2(c)]
INFORMAL OPINION 940029
QUESTION: Attorney's title company would like to havenon-attorneys draft easement deeds using form documents. Would this
be the unauthorized practice of law?
ANSWER: Yes, and if Attorney assists in this activity, Attorney willviolate Rule 4-5.5.
[Rule 4 5.5]
INFORMAL OPINION 940036
QUESTION: Are there rule violations if: (1) a lay companyprepares estate planning documents including living trusts and wills; (2) anindependent contractor, who is not an attorney, makes the documentsavailable to clients, takes the information from the clients, explains andrecommends the documents to the clients and submits the information tothe lay company; (3) the lay company prepares a set of documents whichare returned to the client; (4) the client pays the independent contractor atthe time of the sale and also writes a check for an attorney who works withthe lay company; (5) an attorney receives the drafted living trust andprepares an opinion letter which is sent to the client; (6) the attorney doesnot give an opinion on the will and may or may not prepare documents tofund the living trust.
ANSWER: (1) This would constitute the unauthorized practice oflaw. (2) and (3) Each would be engaging in the unauthorized practice oflaw and aiding and abetting the other in the unauthorized practice of law.(4), (5) and (6) This would be the unauthorized practice of law and assistingthe unauthorized practice of law by the lay company and the independentcontractor. It would be assisting the unauthorized practice by the attorney. The attorney would also be violating Rules 4-5.4 and 4-7.3(b) as a result ofthe solicitation.
[Rule 4 5.5; 5.4; 7.3(b)]
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)]
INFORMAL OPINION 940061
QUESTION: May an attorney employee of a professionalcorporation who is not a shareholder serve as a director and officer?
[Rule 4 5.4(d)]
INFORMAL OPINION 940070
QUESTION: Attorney represents a client on a real estate contract.A person (X) who is not an attorney or a real estate professional comes toAttorney's office with client and informs Attorney that X has negotiated thecontract for client. X has been advising client on possibly conveying the realestate to a charitable trust which client has established and of which X istrustee. (1) Should Attorney advise X that X is violating the law? (2) ShouldAttorney report X to the proper authorities? (3) Should Attorney informclient that X is engaging in the unauthorized practice of law? (4) ShouldAttorney refuse to represent client further in this situation?
ANSWER: (1) Attorney should not advise X of anything because Xwould become a client and this would create a conflict with Attorney'scurrent client under Rule 4-1.7(a). (2) Yes. (3) Attorney should adviseclient of the concerns using Attorney's legal judgment. (4) Attorney maycontinue to represent client as long as X has no further involvement in thetransaction. Attorney must advise client of the ramifications of having athird party present during attorney-client conferences.
[Rule 4 1.7(a); 4.3; 5.5]
INFORMAL OPINION 940072
QUESTION: Several attorneys wish to form a partnership. Withinthe partnership will be professional corporations and limited liabilitycompanies. (1) May the letterhead only reflect the partnership namewithout referencing the professional corporations or limited liabilitycompanies? (2) Would it be OK if the partnership name is used and theprofessional corporations and limited liability companies are otherwiseidentified on the letterhead? (3) May a law firm be a limited liabilitycompany?
ANSWER: (1) No. (2) Yes. (3) Yes.
[Rule 4 5.4; 7.1; 7.5; 9.1]
INFORMAL OPINION 940092
QUESTION: May an attorney who is licensed to practice in anotherstate but not in Missouri, and who currently resides in Missouri practice inMissouri under the visiting attorney rule, Rule 9.03.
[Rule 4 5.5; Rule 9.03]