MISCELLANEOUS

1996 SUPPLEMENT

Misc.-88

FORMAL OPINION 118

QUESTION: What is the proper disposition of a client's unusedfunds remaining in a lawyer's trust fund after termination ofrepresentation when every reasonable effort has been made tolocate the client and refund the funds?

ANSWER: While this situation is not uncommon, it istroublesome, particularly in that the amounts sought to be refundedare typically only a few dollars, representing refunds on unused filingfees or what remains unspent of money deposited for futureexpenses.

The lawyer's duty to safeguard all clients' funds in hispossession continues after the representation of the client hasended. The lawyer's duty, after all reasonable efforts to find theclient and refund the funds are in vain, is a matter of Missouri law,which currently is stated in RSMo 447.500-447.585, Uniform Dispositionof Unclaimed Property. All such unclaimed funds, including anyinterest, are presumed abandoned property after seven years(447.530) and shall be reported to the director of the MissouriDepartment of Economic Development under the provisions of447.539 and the director shall cause notice to be published at leastonce each week for two successive weeks in a newspaper ofgeneral circulation (447.541). The lawyer at the time of filing suchreport shall pay the funds to the Missouri State Treasurer, retainingthe reasonable costs of compliance with Sections 445.500-447.585(447.543).

Adopted October 21, 1988.

Misc.-89

INFORMAL OPINION 930076

Attorney represents husband in wrongful death case ondeath of wife. Husband dies during case. Husband is survived bychildren. Can attorney proceed with settlement negotiationswithout disclosing death of husband? How soon must attorneydisclose death of husband?

Attorney must disclose death of client to the defendant'sattorney and the court within a reasonable time. Attorney may notcontinue to actively negotiate without disclosure.

[Rule 4 3.3]

Misc.-90

INFORMAL OPINION 930094

QUESTION: Attorney represented client in a civil case.Attorney was allowed to withdraw and civil case ended. Formerclient now has another attorney in a different case which istangentially related. What part of file must original attorney provideto client or current attorney?

ANSWER: Attorney must provide all of file unless headvanced litigation expenses for which he was not reimbursedunder Formal Opinion 115, as amended.

[Formal Opinion 115]

[Rule 4 1.16]

Misc.-91

INFORMAL OPINION 930095

QUESTION: How can attorney go about setting up a plan inwhich indigents or low income persons would pay a low fixedannual fee and receive unlimited legal services in a limited legalarea?

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

[ABA OPINION 87-355]

Misc.-92

INFORMAL OPINION 930099

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

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

[Rule 4 1.16]

Misc.-93

INFORMAL OPINION 930104

QUESTION: A member of the firm is a municipal judge in onemunicipality. The firm handles municipal cases in othermunicipalities. Is this a conflict?

ANSWER: It is not a conflict under the Rules of ProfessionalConduct for attorneys. However, this office cannot give opinions onthe Code of Judicial Conduct. Also, the judge and the firmmembers should be alert to the fact that conflicts could arise if thejudge substitutes for another municipal judge.

[Code of Judicial Conduct]

Misc.-94

INFORMAL OPINION 930120

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

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

[Code of Judicial Conduct]

Misc.-95

INFORMAL OPINION 930134

QUESTION: Attorney represented client at one stage of casewhile attorney was part of a firm. Client now wants attorney toresume representation at a later stage. Defendant indicates it "maypossibly" call attorney as a witness since acts or omissions ofattorney's former firm is an issue. Must attorney withdraw at thispoint?

ANSWER: Rule 3.7 does not require attorney to withdraw atthis time. This opinion in no way affects the ability of a judge todisqualify attorney. If attorney is actually a witness, attorney wouldbe prohibited from being an advocate at trial but would still beable to work on briefs, pleadings, etc.

[Rule 4 3.7]

Misc.-96

INFORMAL OPINION 930137

QUESTION: Attorney's client has failed to respond tocorrespondence over several years. Attorney's accountant saysAttorney must now open a separate account for the funds held orreport the money as Attorney's own income. What should Attorneydo?

ANSWER: Under Rule 4-1.15, Attorney must not treat the fundsas income. The funds must be held in a trust account. From theperspective of Rule 4-1.15, it does not matter whether the funds areheld in a general office trust account such as an IOLTA account, ora separate trust account unless the funds are a substantial amount.However, the funds should not be held in a separate account if theexpenses associated with maintaining the separate account willreduce the funds available to the client.

[Rule 4 1.15]

Misc.-97

INFORMAL OPINION 930157

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

ANSWER: No. However, Attorney should refrain fromengaging in discovery and arguing pre-trial motions which relate toAttorney's veracity.

[Rule 4 3.7]

Misc.-98

INFORMAL OPINION 930167

QUESTION: Attorney represented client at trial and clientreceived an SIS. Attorney had agreed to represent client on appealif a conviction and jail time were received. Client wishes to appealthe SIS. May Attorney withdraw?

ANSWER: Yes. Attorney must comply with the provisions ofRule 4-1.16(d). This opinion is based solely on the facts in the letter.If the client files a complaint, this office would still investigate.

[Rule 4 1.16(d)]

Misc.-99

INFORMAL OPINION 940011

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

ANSWER: Yes.

[Rule 4 1.16]

Misc.-100

INFORMAL OPINION 940014

QUESTION: Is Attorney subject to discipline if Attorneypersonally files for bankruptcy?

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

[Rule 4 8.4]

Misc.-101

INFORMAL OPINION 940019

QUESTION: Question 1. May Attorney move to withdraw froma criminal case if the client is uncooperative and will notcommunicate or assist with the defense? The Attorney will warn theclient that Attorney will withdraw if the situation doesn't improvebefore the Attorney actually withdraws. Question 2. If a client whois a criminal defendant fails to make a court date and a warrant isissued and the client has had no contact with Attorney for severalweeks or months, may Attorney move to withdraw?

ANSWER: Yes to both questions. However, the fact that theRules of Professional Conduct allow Attorney to move to withdrawdoes not affect the authority of the court to refuse to sustain thatmotion.

[Rule 4 1.16]

Misc.-102

INFORMAL OPINION 940025

QUESTION: Question 1. In representing a bank, is it a violationof the Rules of Professional Conduct to inform the debtor that failureto deliver the collateral may be a criminal violation at the sametime the demand for the collateral is made? Question 2. If a clientbank is required by law to notify federal officials of criminal activity,may Attorney also give notice to the alleged perpetrator that thebank is required to notify the federal officials?

ANSWER: Question 1. No, if there is good faith belief that theconduct would be criminal and if there is no actual threat toprosecute. Question 2. Yes, unless prohibited by law. Attorneyshould not counsel clients to ignore a federal law to gain anadvantage in a civil matter.

Misc.-103

INFORMAL OPINION 940033

QUESTION: Attorney has a client who has been charged withpassing a bad check. The client states that he did not intend todefraud or know that the check would not be paid. Attorneybelieves the client. In order to plead guilty, the client must state theopposite of what he has told Attorney because an "Alford plea" isnot an option. The client wants to plead guilty for economicreasons.

ANSWER: Under Rule 4-3.3, Attorney may not assist his clientin providing false information to the court. That rule also prohibitsAttorney from standing silent while the client provides falseinformation. If the client insists on providing false information,Attorney must seek leave to withdraw.

[Rule 4 3.3]

Misc.-104

INFORMAL OPINION 940038

QUESTION: Attorney and the client have disagreed over theamount of settlement that would be reasonable. As a result, theclient has discharged Attorney twice but has returned when otherattorneys told the client that Attorney's assessment of the case wasreasonable. May Attorney withdraw?

ANSWER: Yes. Attorney must comply with all of therequirements of Rule 4-1.16(d), including the requirement thatAttorney not withdraw if the withdrawal would have a materiallyadverse impact on the interests of Attorney's client.

[Rule 4 1.16]

Misc.-105

INFORMAL OPINION 940046

QUESTION: Attorney represents a client in a case in which athird party has relevant information. Attorney has been notified thatthird party will commit suicide if deposed. The information cannotbe obtained from any other source and the other side will notstipulate.

ANSWER: Attorney has a duty to fully discuss the ramificationsof proceeding with the deposition with the client. This discussionmust include not only the purely legal issues but also the practicalissues of the effect on the case and the effect on the client. Afterfully discussing the matter, Attorney will not be violating the Rules ofProfessional Conduct by proceeding.

[Rule 4 1.4]

Misc.-106

INFORMAL OPINION 940059

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

ANSWER: Yes. Once Attorney accepts them as clients,Attorney must communicate with them directly affirming Attorney'srepresentation and communicating about the case before takingany action as their attorney. If they change their mind after directcommunication, Attorney must refund the fee under Rule 4-1.16. Thisopinion does not consider any restrictions the court may impose.

[Rule 4 1.4; 1.16(d)]

Misc.-107

INFORMAL OPINION 940061

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

ANSWER: Yes.

[Rule 4 5.4(d)]

Misc.-108

INFORMAL OPINION 940088

QUESTION: Attorney A was present at a deposition at whichAttorney B sought a continuance of the deposition. The depositionwas of a non-party witness. When the other attorneys would notagree to continuing the deposition, Attorney B entered hisappearance for the witness and instructed the witness to leave thedeposition. The witness was under subpoena. The interests of thewitness are potentially adverse to the party whom the otherattorney was representing. Must Attorney A report the Attorney Bunder Rule 4-8.3(a)?

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

[Rule 4 8.3(a)]

Misc.-109

INFORMAL OPINION 940091

QUESTION: Attorney has a trust account which has been inexistence for a large number of years. The trust account contains asignificant amount of money for which the firm cannot account.Some of the funds cannot be attributed to a particular file, althoughthere are some records which indicate that they do belong to aparticular file. For the remainder of the funds, there is no record atall and it is possible that the money relates to amounts that shouldhave been disbursed to the firm. What should the firm do with thesefunds?

ANSWER: The amount which can be attributed to files, mustbe placed in a separate, interest bearing trust account andAttorney must continue to attempt to make appropriatedisbursement of those funds. Attorney should maintain anaccounting of the interest attributable to each file so that it can bedisbursed once the client is identified and the funds are disbursed.The funds which are not attributable to a file, may not be disbursedto the firm unless the firm can establish that they are firm funds. Inthe absence of clear evidence to the contrary, funds in the trustaccount are presumed to be client funds. These funds should alsobe placed in a separate, trust account. The funds may not bedistributed to the firm unless it is established that they are firm funds.The firm should maintain clear documentation to explain all of thesteps taken, including the steps involved in the ultimatedisbursement.

[Rule 4 1.15]

Misc.-110

INFORMAL OPINION 940115

QUESTION: Attorney does not have a trust account. Attorneyhas taken a case that will involve payment of a retainer. Attorneywill bill against the retainer. Attorney anticipates billing the fullamount of the retainer in a very short time. Must Attorney set up anIOLTA account?

ANSWER: Attorney must establish a trust account. If it isinterest bearing, it must be an IOLTA account unless the funds of theindividual client can be segregated so that the interest can be paidto that client. Even for a short period of time, the funds may not bein the operating account or any account other than a trustaccount. Once Attorney has earned the fee and billed the clientand the client has had sufficient time to notify Attorney of anyobjection to the fee, Attorney may transfer the funds into theoperating account.

[Rule 4 -- 1.15]

Misc.-111

INFORMAL OPINION 940137

QUESTION: Client signed a contract authorizing Attorney towithhold amounts due to health care providers when Attorneydistributes proceeds to client. Health care provider makes a claim.Client disputes the terms of the arrangement with the health careprovider. Client instructs Attorney to pay no portion of the proceedsto the health care provider and to pay those amounts to client.

ANSWER: If Attorney was not involved in any of the agreements between the client and the doctor, Attorney may honor theclient's directive and pay the proceeds to the client. Alternatively,Attorney may hold the funds in Attorney's trust account until thedispute can be resolved. If the dispute is not resolved in a reasonable time, Attorney would have to interplead the funds. If Attorneywas a participant in the agreement between the client and thehealth care provider, Attorney must hold the funds in Attorney's trustaccount until the dispute is resolved. If the dispute is not resolved ina reasonable time, Attorney must file an interpleader action. Thisadvice only addresses the ethical aspects of this question. It doesnot address issues of possible civil liability.

[Rule 4 -- 1.2]

Misc.-112

INFORMAL OPINION 940153

QUESTION: May Attorney have a provision in the feeagreement which requires that any dispute, including claims formalpractice, be submitted to binding arbitration?

ANSWER: This would not violate any provision of the Rules ofProfessional Conduct.

Misc.-113

INFORMAL OPINION 940157


QUESTION: Does the title "general counsel" create anydifferent obligations than the titles "legal counsel" or "corporatecounsel"?

ANSWER: No. Under the Rules of Professional Conduct, theattorney's actual role rather would determine the attorney'sresponsibilities regardless of the title. If individuals within the organization might be led to believe that the attorney has a role otherthan the actual role, perhaps the title used should be reconsidered.

Misc.-114

INFORMAL OPINION 940165


QUESTION: Attorney asks a number of questions in which aclient indicates that the client has the authority to speak for otherclients and whether Attorney may proceed without direct verification.

QUESTION 1. Client A indicates that A and B own propertywhich was damaged and they want to file suit against a 3rd party.Must Attorney verify this with B?

QUESTION 2. If a partner or co-owner wants to file suit andindicates that the other partner is inactive and has given allnecessary authority to the active partner, what must Attorney do toverify this? QUESTION 3. Husband and Wife jointly own a smallbusiness. Only one is active in the business. Must Attorney obtainauthorization from both before representing the business?

QUESTION 4. What if the business is a corporation?

QUESTION 5. What must Attorney do to verify the informationwhen a case is referred from another attorney?

QUESTION 6. Attorney is asked by father to represent son ona traffic ticket. Must Attorney obtain authorization from the sondirectly? Does this differ if the son is away at college?

ANSWER 1. Yes. Attorney must verify this information beforefiling suit unless it is an emergency situation. If it is an emergencysituation, Attorney must verify the information as soon as possible.

ANSWER 2. Attorney should obtain authorization from allpartners before representing the partnership. Whether that authorization is written or oral will depend on the circumstances.

ANSWER 3. Yes.

ANSWER 4. Attorney must determine that the individuals withwhom Attorney is dealing have authority to act on behalf of thecorporation. This authority may be with regard to the individualsituation or ongoing authority. The issue of what specific action mustbe taken by the board of directors, etc., is a legal issue not addressed by the Rules of Professional Conduct.

ANSWER 5. Attorney may rely on the representations ofanother licensed attorney unless Attorney has reason to doubt thecredibility of the other attorney. Attorney should make sufficientinquiry of that attorney to be assured that all of the information hasbeen obtained that would have been obtained if Attorney dealtwith the client directly.

ANSWER 6. Attorney must obtain authorization from the sondirectly regardless of where the son resides.

[Rule 4 -- 1.4]

Misc.-115

INFORMAL OPINION 940175

QUESTION: Attorney is the trustee in bankruptcy for anattorney who is now deceased. The deceased attorney had closedclient files from many years of practice. What should the trustee doabout the files?

ANSWER: Rule 5.26 provides a mechanism for appointmentof a trustee to wind up the practice of a deceased attorney. Thatrule would not prohibit the bankruptcy trustee from also being thetrustee for the practice. The attorney who is appointed trustee underRule 5.26 should make an effort to return the files to the clients.

[Rule 4 -- 1.16; 5.26]

Misc.-116

INFORMAL OPINION 940185

QUESTION: Attorney represented a defendant in a trialresulting in a defense verdict. Plaintiff's counsel is alleging jurormisconduct and indicates that one juror will provide testimony onthat allegation. Attorney proposes to contact the juror to interviewthe juror.

ANSWER: No provision of the Rules of Professional Conductprohibits this contact. As with any witness, the juror has no obligationto speak to Attorney. Attorney must be especially careful incontacting jurors to avoid any conduct or questioning that mightbe viewed as harassment.

[Rule 4 -- 4.3; 4.4]

Misc.-117

INFORMAL OPINION 940191

QUESTION: Attorney proposes to contact jurors from a trial inwhich Attorney represented a party. Attorney will ask the jurors tosign an affidavit.

ANSWER: No provision of the Rules of Professional Conductprohibits contacting the jurors to ask them to sign an affidavit. Aswith any witness, the juror has no obligation to speak to Attorney orcooperate with Attorney's efforts. Attorney must be especiallycareful in contacting jurors to avoid any conduct or questioningthat might be viewed as harassment.

[Rule 4 -- 4.3; 4.4]

Misc.-118

INFORMAL OPINION 950006

QUESTION: Attorney represents W in a dissolution. H is alsoinvolved in a pending social security disability claim in which he isnot represented by Attorney. W disputes that H is disabled. MayAttorney advise W to volunteer evidence in the social securityproceeding?

ANSWER: Yes.

Misc.-119

INFORMAL OPINION 950020

QUESTION: Must a Missouri attorney pay a fee to maintaininactive status?

ANSWER: Missouri has a reduced enrollment fee for out ofstate attorneys who do not practice in the state. If attorneys stoppaying fees, they are listed as suspended/delinquent. This is not adisciplinary action. They may pay all outstanding fees and penaltiesand be retroactively reinstated within the first three years. After threeyears, they must pay the outstanding fees and penalties andpetition the Supreme Court for reinstatement. Attorneys may alsonotify the Clerk of the Supreme Court of their desire to go oninactive status and not pay fees. They will be listed as inactive ratherthan suspended/delinquent. However, the conditions for reinstatement to active status are the same.

[Rule 6.02; Rule 5.28]

Misc.-120

INFORMAL OPINION 950023

QUESTION: Attorney paid the category 3 fee under Rule6.01(d) as an attorney who does not reside in Missouri. May attorneypractice in Missouri in this status?

ANSWER: No. That fee is only available to attorneys whoneither reside nor practice in Missouri.

[Rule 6.01(d)]

Misc.-121

INFORMAL OPINION 950063

QUESTION: Attorney represents a client in a case which wasappealed and will now go to trial on remand. Opposing counselhas indicated an intention to call Attorney as a witness regarding astatement Attorney made during a conference with the judgeabout whether Attorney's client was requesting attorney fees.

ANSWER: If Attorney is called as a witness to testify solelyabout Attorney's statement in court regarding whether Attorney'sclient was requesting fees, Rule 4-3.7 would not prohibit Attorneyfrom continuing to serve as counsel at trial. However, if Attorney'stestimony relates to any other issue, the conclusion might change.Additionally, this opinion has no effect on the discretion of the courtto rule on a motion to disqualify.

[Rule 4 -- 3.7]

Misc.-122

INFORMAL OPINION 950071

QUESTION: Attorney represents a client in a case that hasbeen resolved through arbitration. A company claims that a portionof the award was for that company. Attorney is holding the disputedamount in Attorney's trust account. What should Attorney do?

ANSWER: Once a reasonable time for the various parties toresolve their dispute over the money has passed, Attorney has nooption other than to interplead the funds. Perhaps when thedisputing parties are advised of this fact and that the costs associated with the interpleader will use a significant portion of the funds,they will be able to resolve the dispute.

[Rule 4 -- 1.15]

Misc.-123

INFORMAL OPINION 950075

QUESTION: Attorney is licensed in Missouri and state X. Itappears that another attorney with whom Attorney has practicedhas signed Attorney's name without permission and entered anappearance in state X. The other attorney is not licensed in state X.Must Attorney report the other attorney to the Chief DisciplinaryCounsel?

ANSWER: Yes, under Rule 4-8.3(a).

[Rule 4 -- 8.3(a)]

Misc.-124

INFORMAL OPINION 950086

QUESTION: Attorney represented a client in a personal injurycase. Attorney assisted the client in arrangements with health careproviders that they would be paid out of the settlement or judgment. Now, the case has been settled and the client does not wantto pay the health care providers.

ANSWER: In light of Attorney's involvement in representing tothe health care providers that they would be paid out of theproceeds of the settlement, Attorney may not disburse the disputedfunds to Attorney's client. However, Attorney may not pay thedisputed funds to the health care providers contrary to the client'sinstructions. Attorney may hold the funds in Attorney's trust accountfor a reasonable period of time to allow for the client and healthcare providers to resolve this dispute. If the dispute is not resolvedwithin a reasonable period of time, Attorney must file an interpleader action to present the legal issue to the court for determination.

[Rule 4 -- 1.15]

Misc.-125

INFORMAL OPINION 950089

QUESTION: Attorney has knowledge that another attorneycontinued to negotiate settlement of a case and to engage indiscovery after the other attorney's client was deceased. The otherattorney did not disclose the fact of the client's death to the courtor opposing counsel during this period. Does Attorney have a dutyto report the other attorney's conduct?

ANSWER: Yes, Rule 4-8.3(a) requires the attorney to report theother attorney's conduct. Attorney may indicate that Attorney isonly reporting as a result of the duty to do so and that Attorneydoes not wish to be considered a complainant. Under thosecircumstances, Attorney will not be identified as a complainant andyou will not be treated as a complainant under Missouri SupremeCourt Rule 5.

[Rule 4 -- 8.3(a)]

Misc.-126

INFORMAL OPINION 950091

QUESTION: Attorney has obtained the opinion of an expertin a workers' compensation case that is adverse to Attorney's client.Must Attorney disclose this information to opposing counsel?

ANSWER: Attorney has not indicated whether the informationin question has been requested through discovery or whether thereare any workers compensation statutes or other statutes or ruleswhich require disclosure of this information. If none of theserequirements apply, the Rules of Professional Conduct, do notrequire disclosure of this information. However, Attorney may notrepresent to opposing counsel or the tribunal, expressly or byimplication, that Attorney has not obtained such an opinion.

[Rule 4 -- 8.4(c)]

Misc.-127

INFORMAL OPINION 950098

QUESTION: Attorney represented a client in a workers'compensation case. The client obtained medical treatment withoutauthorization from the employer or insurer. The employer is denyingliability for these bills. The client has since died leaving a minor childwho is the sole beneficiary.

ANSWER: If Attorney did not participate in the formation ofan agreement that the medical providers would be paid from theproceeds of the workers' compensation case and there are no validliens or assignments which would make Attorney liable for the claimsof the medical providers if they are not paid from the proceeds,Attorney may distribute the proceeds directly to the current clientor according to the client's directions. However, if Attorney didparticipate in the formation of an agreement, Attorney may not paythe proceeds to the client. If the client and the medical providerscannot come to an agreement within a reasonable period,Attorney will have to interplead the disputed funds. If Attorney didnot participate in formation of an agreement but there is a lien orassignment that Attorney believes is arguably valid that wouldsubject Attorney to personal liability for payment of the funds,Attorney may pay out the funds according to the client's directionor Attorney may interplead the funds.

[Rule 4 -- 1.2; 1.15]

Misc.-128

INFORMAL OPINION 950110

QUESTION: Attorney represents a client who received ajudgment in a case arising out of an automobile accident. Thedefendant is uninsured and has not satisfied the judgment. Attorneyis contemplating notifying the Department of Revenue of thesefacts so that drivers license revocation proceedings will be initiated.Attorney is contemplating giving the defendant advance warningof this intention.

ANSWER: The proposal of reporting the judgment debtor tothe Department of Revenue would not violate any provision of theRules of Professional Conduct. The decision regarding whether toreport the judgment debtor is one to be made in consultation withthe client. Attorney does not have an ethical obligation under therules to make the report except to the extent that it serves theclient's interests.

[Rule 4 -- 1.2]

Misc.-129

INFORMAL OPINION 950151

QUESTION: Attorney asks which files Attorney may destroyversus which files Attorney must retain.

ANSWER: No provision of Supreme Court Rule 4, the Rules ofProfessional Conduct, specifically addresses file retention. However,the original file actually belongs to the client. Therefore, Attorneyshould not destroy an original file without the consent of the client.Attorney may obtain the consent of the client by notifying the clientthat Attorney will retain the file for a certain period of time afterwhich it will be destroyed or by specifically asking the client forpermission to destroy the file. Of course, Attorney must inform theclient that the client has the right to take possession of the file at anytime. Additionally, Attorney may not destroy an item within a filewhich has inherent value if it has been left with Attorney forsafekeeping. If the files about which Attorney is concerned arecopies of files, Attorney may establish Attorney's own file retentionprogram. Various law practice management books containsuggestions regarding this topic. The Law Practice ManagementInformation Center at The Missouri Bar has publications on this topicavailable for loan. For information on this center, contact LindaOligschlaeger at 573-635-4128. Attorney may also want to consultwith Attorney's malpractice insurance carrier on this topic.

[Rule 4 -- 1.16]

Misc.-130

INFORMAL OPINION 950152

QUESTION: Attorney's firm engages in collection work. Thefirm would like to pay its non-attorney collections employees anincentive based upon a percentage of the contingent fee.

ANSWER: The proposal would violate Rule 4-5.4(a). A profitsharing plan must relate generally to the profits of the firm and notto the firm's fee or profit on an individual matter.

[Rule 4 -- 5.4(a)]

Misc.-131

INFORMAL OPINION 950158

QUESTION: May Attorney have Attorney's paralegal signAttorney's name to documents?

ANSWER: Attorney may direct Attorney's paralegal to signAttorney's name to correspondence and pleadings on a documentby document basis after Attorney has reviewed, supervisedproduction of the document and approved the content. Theparalegal should indicate that the paralegal signed Attorney'sname to the document. One method of indicating this fact is for theparalegal to initial the signature. There are other methods that arealso acceptable.

[Rule 4 -- 8.4(c)]

Misc.-132

INFORMAL OPINION 950164

QUESTION: Attorney asks for clarification of opinion 950071regarding payments to a third party from the proceeds of a case.

ANSWER: Rule 1.15(c) of Supreme Court Rule 4, the Rules ofProfessional Conduct, governs the conduct of an attorney who is inpossession of funds in which the client and a third party claim aninterest. If a third party claims an interest, Attorney must comply withthat rule. Informal advisory opinion 950071, and others renderedbefore and since, involve situations where either the attorney hasbeen involved in an agreement made or ratified by the client forthe third party to be paid from any settlement or recovery, or wherethe third party has perfected a lien or demonstrated an apparentlyvalid claim on the proceeds such that the attorney may be heldpersonally liable to the third party. Under these circumstances theattorney is not committing an ethical violation by withholding thedisputed amount from the client. In other circumstances, anattorney is not ethically prohibited from paying the money to theclient and accepting the legal consequences including thepossibility of being held personally liable to the third party.

[Rule 4 -- 1.15]

Misc.-133

INFORMAL OPINION 950165

QUESTION: Attorney is current defense counsel. Attorney askswhether Attorney has a duty under Rule 4-8.3 to report previousdefense counsel for disclosing confidential information. Theinformation was disclosed in court after current defense counselraised the issue of confidentiality to the court and current defensecounsel's objections were overruled.

ANSWER: Based upon the information provided, the answeris: "No."

[Rule 4 -- 8.3]

Misc.-134

INFORMAL OPINION 950178

QUESTION: Attorney represents H and W as defendants in apersonal injury case. W's mental abilities are fine but H has Alzheimer's Disease. H continues to function on a daily basis but H has norecollection of the incident leading to the lawsuit and there is somequestion as to his mental acuity. H has never been declaredincompetent. Does Attorney have an obligation to seek a guardianad litem for H?

ANSWER: Based on the information provided, it does notappear that Attorney has an obligation under the Rules of Professional Conduct to seek to have a guardian ad litem appointed forH. However, because this question is very fact dependent andsomewhat subjective, Attorney should review Rule 4-1.14 forguidance in this situation. Attorney should discuss the matter with H,to the extent this is feasible. This opinion does not address whetherany statutory provisions may apply to this situation.

[Rule 4 -- 1.14]

Misc.-135

INFORMAL OPINION 950184

QUESTION: Attorney will be leaving the firm. Attorney asksabout the obligation to inform the clients Attorney brought to thefirm and the clients whom Attorney is currently representing.Attorney asks whether the firm file is available to clients who wish tobe represented by Attorney or someone else outside the firm.

ANSWER: Attorney does have an obligation to inform clientsAttorney brought to the firm and clients whom Attorney is currentlyrepresenting of Attorney's departure. The firm has a concurrentobligation to make sure that these clients are informed. There is noset procedure for accomplishing this notification. It is best if the firmand the attorney who is leaving work together on this matter.Regardless of who informs the client, the client may be told that theclient has the option of staying with the firm, going with the attorneyor going with any other attorney of the client's choice. Of course, ifeither of the first two choices are not available due to conflicts orsome other reason, the client should not be presented with theoption that is not available. The original of the file on the casebelongs to the client. Therefore, the attorney or firm chosen by theclient should have the original file unless the client consents toreceiving only a copy. This should be accomplished by working withthe firm. If the firm has advanced expenses to purchase items, suchas copies of records or transcripts, it does not have to relinquishthose items until it has been reimbursed. Formal Opinion 115, asamended, addresses this topic.

[Rule 4 -- 1.16]

Misc.-136

INFORMAL OPINION 950187

QUESTION: Attorney is a municipal prosecutor. Attorney'srelative is one of multiple municipal judges. May Attorney continueas municipal prosecutor if Attorney does not appear beforeAttorney's relative?

ANSWER: Attorney may serve as municipal prosecutor aslong as Attorney does not appear before the relative. If a situationdoes arise in which Attorney is called upon to appear before therelative, Attorney may do so without violating the Rules of Professional Conduct. Attorney should disclose the relationship "on therecord" or in some other formal manner. This opinion does notaddress the conduct of the municipal judge under the Code ofJudicial Conduct.

[Rule 4 -- 8.4]

Misc.-137

INFORMAL OPINION 950198

QUESTION: Attorney's office is a non-profit organization. Theoffice will directly represent indigent persons in civil and criminalproceedings as a public interest law firm. May community leaderswho are not licensed attorneys participate in the policy makingdecisions of the board if these decisions did not involve controllingthe professional judgment of attorneys? Does Rule 4-5.4(d) apply tothis organization?

ANSWER: Based upon the information provided, it does notappear that Rule 4-5.4(d) would apply to the proposed organization. However, Rule 4-5.4(c) would apply. Therefore, as with thecurrent organization, the lay members should have no role indirecting the attorneys in specific situations involving professionaljudgment. It would be permissible for the lay members to participatein establishing broad policies for the organization. The comment toRule 5.4 states that it is advisable for attorneys who work for such anorganization to have a written agreement which defines their roleand provides for independence of the attorneys.

[Rule 4 -- 5.4(c)]

Misc.-138

INFORMAL OPINION 950226

QUESTION: Attorney represents a client in a suit regardingconduct which Attorney witnessed. The information provided byAttorney indicates that Attorney is not likely to be a witness at trial.Must Attorney withdraw?

ANSWER: Rule 4-3.7(a) provides, in part, that a "lawyer shallnot act as advocate at a trial in which the lawyer is likely to be anecessary witness. . . ." Even if Attorney is likely to be a necessarywitness, Attorney may continue to be an attorney of record in thecase but Attorney may not be an advocate at trial. Under thecircumstances described, Attorney may continue in the case as anadvocate at trial. This opinion does not, in any way, affect theability of a judge to rule on a motion to disqualify.

[Rule 4 -- 3.7]

Misc.-139

INFORMAL OPINION 950242

QUESTION: Attorney asks about Attorney's obligations to aclient with whom Attorney has brief in-person or telephone contactbut whose case Attorney declines. What obligation does Attorneyhave to inform the client of the statute of limitations? Does it matterhow much initial investigation Attorney has done?

ANSWER: Under Rule 4-1.16 Attorney must take steps reasonably practicable to protect the client's interests. However, the extentof the information which attorney must provide the client regardingthe statute of limitations relates more to malpractice than to ethicalstandards. The Missouri Bar operates a risk management programwhich attorney can reach at 1-800-555-9721.

[Rule 4 -- 1.16]

Misc.-140

INFORMAL OPINION 950248

QUESTION: Attorney has lost contact with the clients.Attorney wishes to withdraw. What is Attorney required to do tonotify the clients?

ANSWER: Attorney has a duty to take all reasonable steps tocontact the clients. It is unclear from the information Attorney hasprovided whether Attorney has taken sufficient steps under thecircumstances. Attorney is not required to hire a private investigatorbut Attorney should conduct a reasonable investigation. Attorneyhas not indicated whether Attorney has checked with variousagencies or businesses that may have received notification of anaddress change. The Department of Revenue (drivers and motorvehicle licenses), employers, banks and relatives all may beappropriate to contact, depending on the circumstances. Attorneyis not required to give notification to the clients by publication ifAttorney is unable to contact them any other way, but Attorneymay do so. Attorney should also seek guidance from Attorney'smalpractice insurer's claims prevention office, regarding anyadditional steps they may recommend.

[Rule 4 -- 1.16]

Misc.-141

INFORMAL OPINION 950264

QUESTION: Attorney intends to subpoena records related toAttorney's client. Attorney asks whether the procedures are differentsince the client's, rather than a non-party's, records are the subjectof the subpoena.

ANSWER: In Missouri, the purpose of a subpoena is to compelthe attendance of an individual or representative of an organization. The subpoena may also compel the person to whom it isaddressed to bring documents to this appearance. If the subpoenais used in litigation in which there is an opposing party, Attorney maynot use the subpoena to obtain the documents and waive theappearance. The procedures do not change if the documents aredocuments to which Attorney's client should otherwise have access.If Attorney must obtain the documents through subpoena becauseAttorney is unable to obtain them through a request or demand byAttorney's client, Attorney must follow these procedures.

[Rule 4 -- 3.4(d)]

Misc.-142

INFORMAL OPINION 950265

QUESTION: Attorney is a prosecuting attorney and asks aboutthe applicability of Rule 4-1.15 to funds received by the prosecutor'soffice. The funds include restitution and payment of delinquenttaxes. ANSWER: Under Rule 4-1.15, Attorney must maintainone or more separate trust accounts as prosecuting attorney for thefunds of third persons. This account would include any paymentsAttorney receives as restitution. This account should be an IOLTAaccount pursuant to Rule 1.15(d) unless the cost of the accountwould outweigh the interest produced by the account. However,funds Attorney receives on behalf of the Department of Revenue orany other state agency should be kept in a separate trust accountwith interest payable to the appropriate state entity. The statemonies may be commingled as long as the interest will all ultimatelybe deposited into the same state fund. Attorney may wish tocontact the IOLTA office if Attorney needs further information aboutthe IOLTA program. The address is: P.O. Box 63, Jefferson City, MO65102. The telephone number is: 573-634-8117.

[Rule 4 -- 1.15]