CONFIDENCES OF CLIENT

1996 SUPPLEMENT

Confi.-53

INFORMAL OPINION 940119

QUESTION: A legal aid office asks two questions regardingdomestic relations cases. (1) If one party seeks representation but isdenied for some reason and the second party subsequently seeksrepresentation, may the legal aid office provide representationthrough a staff attorney or contract attorney? (2) If both partiesapply for representation at approximately the same time, may thecommittee that reviews applications consider both and accept onebut reject the other?

ANSWER: In either situation, the office may offerrepresentation to the qualifying party only if a contract attorneywho has no access to the intake information of the other party isassigned.

[Rule 4 -- 1.6; 1.7; 1.10]

Confi.-54

INFORMAL OPINION 940130

QUESTION: Attorney would be paid a retainer by a titlecompany to provide real estate related legal services to membersof the public. No legal fees would be shared with the title companyand Attorney would be independent of the title company in thecourse of representation.

ANSWER: Attorney would have to follow the procedures inRule 4-1.8(f) in addition to remaining independent under Rule 4-5.4.Attorney must recognize that an attorney client relationship isformed with each member of the public for purposes of theconfidentiality and conflict of interest rules.

[Rule 4 -- 1.6; 1.7; 1.8(f); 5.4]

Confi.-55

INFORMAL OPINION 940133

QUESTION: Attorney's client obtained confidentialdocuments from a member of opposing counsel's staff. The clientdid not solicit the documents. What should Attorney do?

ANSWER: Attorney should ask the client for permission tonotify opposing counsel that Attorney has the documents and howAttorney obtained them. If the client will not consent, Attorneyshould withdraw and return the documents to the client.

[Rule 4 -- 1.6]

Confi.-56

INFORMAL OPINION 940164

QUESTION: Attorney represents a client against whom amotion to modify has been filed. Attorney knows the client's homeaddress but the client has instructed Attorney not to reveal it. MustAttorney reveal the client's home address if the judge requests it?

ANSWER: No, that is confidential information under Rule 4-1.6.However, if the judge orders Attorney to disclose this information,Attorney may comply with the court's order without appealing it ifthe issue of confidentiality was fully presented to the court beforethe court issued its order.

[Rule 4 -- 1.6]

Confi.-57

INFORMAL OPINION 950008

QUESTION: Attorney wishes to participate in a not for profitprogram which coordinates support services for a specific segmentof the community. Attorney has concerns about some aspects ofthe program. The program calls for the provider of services to paya percentage fee of all fees received to the program. The programwould have a right to review the provider's books and records todetermine compliance with the program. The program would serveas the billing agent.

ANSWER: The percentage fee would violate Rule 4-5.4(a)which prohibits fee splitting. The lawyer could pay a flat fee for thebilling services but not a percentage fee. The provision of theprogram regarding access to the books and records createsproblems under Rule 4-1.6 unless the client consents in advanceafter being fully advised of the advantages and disadvantages.

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

Confi.-58

INFORMAL OPINION 950018

QUESTION: Attorney represented a client and withdrew whenhe learned that his client may be involved in fraud related to thematter. Attorney has now been subpoenaed to testify about thesituation in a proceeding before an administrative law judge. MayAttorney testify?

ANSWER: If the former client does not consent, Attorney maynot testify unless ordered to do so by the administrative law judgeafter the issue of confidentiality under Rule 4-1.6 has been fullyraised and Attorney has been ordered to testify. Attorney shouldseek to have any such order as specific and limited as possible.Attorney will not be required to appeal the ruling of theadministrative law judge.

[Rule 4 -- 1.6]

Confi.-59

INFORMAL OPINION 950022

QUESTION: May Attorney form a general businesscorporation that will not practice law but which will practice in arelated area and which will solicit clients for Attorney?

ANSWER: The general business corporation would beengaging in "in person" solicitation prohibited by Rule 4-7.3(b) anytime it made a referral to Attorney. If a client of Attorney developeda need for services such as those provided by the general businesscorporation, Attorney could only refer the client to thewholly-owned corporation after making full disclosure of therelationship between the corporation and the firm and making itclear to the client that the client has the option to obtain theservices from any source of the client's choosing. Additionally, thissituation raises issues of confidentiality. If Attorney does form such acorporation, Attorney must realize that it is a completely separateentity and that confidentiality of information relating to the law firm'sclients must be strictly maintained.

[Rule 4 -- 7.3; 1.7; 1.6]

Confi.-60

INFORMAL OPINION 950030

QUESTION: Attorney previously represented Company A invarious matters. Attorney's current client has a workers'compensation claim against Company A. May Attorney representthe current client against Company A?

ANSWER: Under Rule 1.9(b), Attorney must determine whetherAttorney, or any member of the firm, obtained confidentialinformation in the course of the previous representation that couldbe used to the company's detriment in the workers' compensationcase. Confidentiality under Rule 4-1.6 is much broader than theattorney-client privilege which is a statutory evidentiary rule. Anyinformation which came into Attorney's possession as a result ofprevious representation would be included under the ambit ofconfidential information.

[Rule 4 -- 1.9; 1.6]

Confi.-61

INFORMAL OPINION 950064

QUESTION: Attorney represents a criminal defendant A, whois a co-defendant with B. Initially, in order to determine whichdefendant to represent, Attorney interviewed both co-defendants.Attorney entered an appearance for defendant A. A and B nowhave conflicting interests. Co-defendant B now asserts thatAttorney's discussion with co-defendant B means that Attorney maynot represent defendant A against B's interests.

ANSWER: Under the circumstances described, once Attorneybegan discussing the case or facts related to the case withdefendant B, Attorney established an attorney client relationshipwith defendant B. This creates a conflict of interest under Rule4-1.9(a) which requires Attorney to withdraw from representation ofdefendant A.

[Rule 4 -- 1.6; 1.9]

Confi.-62

INFORMAL OPINION 950109

QUESTION: Attorney represents two clients, A and X, in twoseparate dissolution cases. A's spouse is B and X's spouse is Y. ClientA believes that B is having an affair with Y. May Attorney representClient A and Client X in their respective dissolutions?

ANSWER: Although the situation described does not presentan actual conflict, it does create the potential for conflicts to arise.It seems possible that Attorney may obtain confidential informationin representing one client that would be helpful in representing theother client. Attorney should make full disclosure to each clientregarding all potential conflicts and obtain waivers from eachbefore beginning the representations.

[Rule 4 -- 1.7(b); 1.6]

Confi.-63

INFORMAL OPINION 950115

QUESTION: A life insurance agent advertises to getindividuals to attend an estate planning seminar. Attorney makes apresentation at the seminar on estate planning. The life insuranceagent makes a presentation on life insurance. What duty doesAttorney have with regard to monitoring or directing the content ofthe life insurance agent's advertising? May Attorney hire the lifeinsurance agent for the purpose of assisting a client in funding aliving trust?

ANSWER: Before participating in the seminar, Attorney has aduty to ascertain that the insurance agent's advertising is not false,misleading or deceptive. Hiring the insurance agent, for the purposeindicated, would not involve an ethical violation as long as theclient is fully informed of the relationship and consents, the agentsduties are limited to non-legal responsibilities, and the agent doesnot engage in any other activity that the attorney would beprohibited from engaging in under the Rules of ProfessionalConduct.

[Rule 4 -- 1.6; 7.2; 7.3]

Confi.-64

INFORMAL OPINION 950125

QUESTION: Attorney represented H and W in estate planningmatters. H died before executing the new will which had beendrafted. Some assets were retitled prior to H's death so they wouldpass to W. H's children from a previous marriage have filed suitchallenging the retitling of the assets. W would like Attorney totestify. May Attorney testify?

ANSWER: To the extent that information Attorney has aroseout of representation in which Attorney was solely representing W,Attorney may disclose that information. However, Attorney may notdisclose confidential information of H until Attorney has fully raisedthe issue of confidentiality and the court has ordered Attorney todisclose the information. If the court orders Attorney to discloseinformation, Attorney should seek to have the court issue an orderas specific and limited as possible. Once the court issues an orderfor Attorney to disclose confidential information, Attorney may doso without appealing the court's decision.

[Rule 4 -- 1.6]

Confi.-65

INFORMAL OPINION 950145

QUESTION: Attorney asks about entering into a relationshipwith an insurance agent in which the insurance agent would haveclients fill out an information sheet if they believe they need a will.The insurance agent would send the form to Attorney who wouldprepare a will and have the clients come in to execute it. No feeswould be split with the insurance agent and nothing of value wouldbe given to the insurance agent for the referral. The insuranceagent would provide a price list of Attorney's services.

ANSWER: The arrangement proposed would involveimproper solicitation, breach of confidentiality or both. In personsolicitation is prohibited by Rule 4-7.3(b). If the insurance agent isacting as Attorney's agent, in person solicitation would occur. If theinsurance agent is independent, Attorney would be asking someonewho is not Attorney's representative to gather confidentialinformation from Attorney's clients on Attorney's behalf in violationof Rule 4-1.6. Additionally, if the insurance agent is the one who isdetermining what specific type of estate planning the individualneeds, the insurance agent would be engaging in the unauthorizedpractice of law and Attorney would be assisting in that activity inviolation of Rule 4-5.5(b). Depending on other details of thearrangement, other rules may also be involved. Attorney would notbe violating the rules if the insurance agent merely refers thepotential client to Attorney for general estate planning, leaving it toAttorney to determine, in consultation with the clients, the specifictype of estate planning the clients need. This situation could notinvolve any fee splitting or referral fee.

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

Confi.-66

INFORMAL OPINION 950153

QUESTION: Attorney agrees to represent client and obtainsa check for Attorney's retainer. The check is returned to Attorney asdrawn on a closed account.

Question 1: Must Attorney withdraw?

Question 2: May Attorney withdraw?

Question 3: Must Attorney report the client's actions to theprosecuting attorney?

Question 4: May Attorney report the client's actions to theprosecuting attorney?

Question 5: May Attorney report the client's actions to theclient's parole officer?

ANSWER:

Question 1: No.

Question 2: Yes.

Question 3: No.

Question 4: Yes, only if attorney is making a complaint as avictim.

Question 5: No.

[Rule 4 -- 1.6]

Confi.-67

INFORMAL OPINION 950191

QUESTION: Attorney is a guardian ad litem for a minor.Attorney has information because of Attorney's status as guardianad litem relating to another individual. May Attorney disclose thisinformation? Disclosure is not necessary to perform the duties asguardian ad litem.

ANSWER: Attorney has a duty to maintain confidentiality ofthe information which came into Attorney's possession as guardianad litem, unless Attorney is ordered by a court to disclose theinformation after the issue of confidentiality has been fully raised tothe court.

[Rule 4 -- 1.6]

Confi.-68

INFORMAL OPINION 950241

QUESTION: Attorney represented Client A and Insurance Co.B which insured Client A. Insurance coverage was not clear. ClientA obtained private counsel and discharged Attorney. Client A wantsthe file. May Attorney give the entire file to Client A?

ANSWER: Attorney was Client A's attorney but Attorney wasalso Insurance Co. B's attorney. Under the circumstances Attorneyhas described, Attorney may not release any portion of Attorney'sfile, other than communications from Client A's private attorney toAttorney, to Client A's current attorney based solely on Client A'srelease. However, if Insurance Co. B also consents, Attorney mayrelease Attorney's entire file.

[Rule 4 -- 1.6]

Confi.-69

INFORMAL OPINION 950244

QUESTION: Attorney did estate planning work for a clientwho was competent when the work was done but is not competentnow. An individual is serving as attorney in fact under a durablepower of attorney. The client made a video tape at the time theestate planning work was done to express the client's feelings aboutcertain relatives who were likely to contest the estate plan. MayAttorney turn the video tape over to the attorney in fact while theclient is alive? May Attorney discuss or show the video tape to therelatives after the client dies based upon consent by the attorneyin fact?

ANSWER: Attorney may give physical custody of thevideotapes to the attorney in fact while the client is alive. Underthese specific circumstances, Attorney may imply the client'sconsent under Rule 4-1.6 to disclose the videotape after the client'sdeath. Serious reservations exist about the ability of the attorney infact to waive confidentiality after the client is deceased. Thereservations stem from the understanding that the durable power ofattorney ceases upon the death of the principal. It would seemlogical that actions authorized by the attorney in fact during the lifeof the principal which had not been acted upon prior to theprincipal's death would no longer be authorized. Additionally, thelanguage of section 404.710.6 and .7, RSMo 1984, indicates a lack ofauthority for the attorney in fact to act regarding testamentarymatters. However, the issue Attorney has presented involves manylegal issues rather than ethical issues. Therefore, no definite opinioncan be given.

[Rule 4 -- 1.6]

Confi.-70

INFORMAL OPINION 950256

QUESTION: Attorney is personal representative and attorneyfor the estate. Attorney has been asked to sign an authorization forrelease of medical records of the deceased. May Attorney do so?

ANSWER: Because Attorney served not only as personalrepresentative but as attorney for the deceased, such a releasewould involve disclosure of confidential information by attorney.Attorney's duty to maintain confidentiality of client informationunder Rule 4-1.6 does not end with the death of the client.Therefore, Attorney may not consent to the disclosure of anyconfidential information without a court order.

[Rule 4 -- 1.6]

Confi.-71

INFORMAL OPINION 950260

QUESTION: Attorney will be writing a regular column for anewspaper which Attorney would like to have in a question andanswer format. Attorney wants to address items of general interestand to avoid giving specific legal advice.

ANSWER: The format Attorney has proposed for Attorney'scolumn will not generally violate any provision of the Rules ofProfessional Conduct. However, Attorney must be careful not to givespecific legal advice regarding actual clients. Attorney should notanswer specific actual questions and, if Attorney bases the questionon actual questions received, Attorney should not include anyspecific information that could lead to identification of the personwho has written the question. Attorney should also disclose the factthat the questions are not necessarily questions from real people orthat the questions may have been edited to make them moregeneral.

[Rule 4 -- 1.6]