UNAUTHORIZED PRACTICE

OF LAW

1996 SUPPLEMENT

Un.Pr.-80

INFORMAL OPINION 940118

QUESTION: Attorney would use an advertising firm to dodirect marketing. Attorney would draft a form letter for each type ofcase. The advertising firm would use the form letter, a database ofinformation obtained from police reports and a facsimile signatureof Attorney to do direct mailings to prospective clients.

ANSWER: Although direct mailing is authorized under Rule4-7.3(a), Attorney must make the determination that none of theexceptions found in Rule 4-7.3(c) apply to the situation. Attorneyalso must supervise any non-lawyers who are acting as Attorney'sagents under Rule 4-5.3. This system would inherently violate both ofthose rules.

[Rule 4 -- 5.3; 7.3]

Un.Pr.-81

INFORMAL OPINION 940126

QUESTION: Attorney would establish a general businesscorporation that would obtain a real estate license. The corporationwould review leases for businesses to verify that they reflect thebusiness deal and that there are no other business terms orprovisions contained in the lease which might adversely affect thetenant.

ANSWER: This would involve the unauthorized practice oflaw. A general business corporation may not practice law.Reviewing the lease and verifying that it reflects the business dealwould not be the practice of law. However, determining that thereare no other business terms or provisions that would adversely affectthe tenant would be the practice of law. Inserting clauses into alandlord's lease form and making comments regarding theseprovisions would be the practice of law.

[Rule 4 -- 5.5]

Un.Pr.-82

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]

Un.Pr.-83

INFORMAL OPINION 940163

QUESTION: May Attorney accept credit cards for paymentof fees?

ANSWER: As a general rule, the answer is yes. However, thisopinion does not imply blanket approval for any specific system anattorney may implement. Formal Opinion 112 which was issued in1974 and indicated that this conduct was prohibited, because itwould result in fee splitting, was withdrawn in 1982.

[Rule 4 -- 1.5; 5.4]

Un.Pr.-84

INFORMAL OPINION 940177

QUESTION: Does the preparation, supervision of executionand recording a deed by an out of state lawyer who is not licensedin Missouri constitute the unauthorized practice of law in Missouri?

ANSWER: Not if all of the work is done in the other state.

[Rule 4 -- 5.5]

Un.Pr.-85

INFORMAL OPINION 940203

QUESTION: The firm proposes to retain a debt collectionagency to collect delinquent attorney fees. If the law firm mayretain such an agency, may it disclose: (a) the name of the client;(b) client's address; (c) amount payable by the client; (d)description of the services provided including billing memorandaand time sheets; (e) materials within the client's file; (f) informationin the firm's possession about the client such as financial status,assets, etc.?

ANSWER: The information in (a) through (d) generally may bedisclosed unless the circumstances of the representation are suchthat the client could reasonably expect it to be confidential. Theinformation in (e) and (f) may only be disclosed when, and to theextent, it has been placed in issue by the client's response to thecollection efforts.

[Rule 4 -- 5.5]

Un.Pr.-86

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)]

Un.Pr.-87

INFORMAL OPINION 950015

QUESTION: Attorney is licensed in Texas but not Missouri.Attorney's client is a Texas resident who was involved in anautomobile accident in Missouri. May Attorney engage in settlementnegotiations with the insurance company, from Texas, withoutengaging in the unauthorized practice of law in Missouri? Attorneywill affiliate with a Missouri attorney if it becomes necessary to filesuit.

ANSWER: Yes, as long as Attorney engages in thenegotiations from Texas and does not misrepresent Attorney's abilityto file suit in Missouri.

[Rule 4 -- 5.5]

Un.Pr.-88

INFORMAL OPINION 950026

QUESTION: Attorney owns an interest in Corporation A.Attorney and Corporation A will share a suite of offices. CorporationA will be operated completely separately and with properdesignation. Attorney will only minimally be involved in the day today operation of the corporation. Attorney B who also owns aninterest will be involved in the day to day operation and will alsoshare the office space.

ANSWER: This arrangement would not violate Rule 4-5.4. Theattorneys would have to make full disclosure any time they wouldrefer a client to the corporation. Additionally, it would constituteprohibited "in person" solicitation for the corporation to makereferrals to either attorney. The attorneys must also make certainthat all information related to their clients is secure from access byanyone who shares space in the suite of offices who is not part ofthe attorney's firm.

[Rule 4 -- 5.4; 1.7; 7.3]

Un.Pr.-89

INFORMAL OPINION 950038

QUESTION: May Attorney hire an investigator to do pretrialinvestigation who will make ex parte contact with witnesses withwhom Attorney could not make ex parte contact under Rule 4-4.2?

ANSWER: No. To the extent that the rules prohibit an attorneyfrom engaging in particular conduct, Rules 4-5.3 and 4-8.4(a)prohibit an attorney from directing or permitting an agent toengage in that conduct.

[Rule 4 -- 4.2; 5.3; 8.4(a)]

Un.Pr.-90

INFORMAL OPINION 950043

QUESTION: May Attorney pay a not-for-profit attorney referralservice a fee which is a percentage of the attorney's fees collectedon a case referred to Attorney by that referral service?

ANSWER: Yes, Rule 4-7.2(c) authorizes payment of "the usualcharges of a not-for-profit lawyer referral service or other legalservice organization."

[Rule 4 -- 7.2(c); 5.4(a)]

Un.Pr.-91

INFORMAL OPINION 950052

QUESTION: Attorney has been suspended with leave to applyfor reinstatement in six months. May Attorney stay in a case in whichthere will be no further action for six months?

ANSWER: No. Under Rule 5.25, Attorney must withdraw. UnderRule 5.26, reinstatement is not automatic.

[Rule 4 -- 5.5; Rule 5.25; Rule 5.26]

Un.Pr.-92

INFORMAL OPINION 950066

QUESTION: Attorney proposes to practice only in the area ofabstract opinions. Attorney would like to practice as the employeeof the abstract company and provide abstract opinions forindividuals purchasing property or banks financing the purchase.Another option would be for Attorney to be employed by a titleinsurance company and provide opinions for the use of thatcompany in determining whether to issue title insurance.

ANSWER: The first arrangement proposed would create anumber of problems under the rules. Practicing law in a generalbusiness corporation, such as the abstract company, would involveassisting the unauthorized practice of law by the title company inviolation of Rule 4-5.5(b) and fee splitting with a non-lawyer inviolation of Rule 4-5.4(a). Additionally, the arrangement wouldinvolve possible problems with conflicts of interest betweenAttorney's true client, the one receiving the abstract opinion, andthe abstract company by which Attorney would be employed. IfAttorney maintains an independent law practice, the abstractcompany can refer the clients to Attorney. Attorney may then giveabstract opinions to the clients as long as the clients pay Attorneyrather than the abstract company and as long as Attorney does notgive the abstract company anything of value in exchange for thereferral. Attorney may be employed by a title insurance companyto provide opinions to that company upon which it would base itsdecision regarding the issuance of title insurance. In this situation,the client would be the title insurance company and thecompensation would come from the client.

[Rule 4 -- 5.4((a); 5.5(b)]

Un.Pr.-93

INFORMAL OPINION 950074

QUESTION: If Attorney hires an investigator as anindependent contractor and does not instruct the investigator onthe manner of taking statements from witnesses, will it haveimplications for Attorney if the investigator tape records a statementwithout informing the witness that the conversation is beingrecorded?

ANSWER: Yes, under Rule 4-8.4(a) and (c).

[Rule 4 -- 8.4(a); 8.4(c); 5.3]

Un.Pr.-94

INFORMAL OPINION 950084

QUESTION: A suspended attorney asks whether it ispermissible to coach an individual on the evidence rules, when theindividual is representing himself at a trial.

ANSWER: In light of the fact that the individual whomAttorney would coach has a specific case for which Attorney wouldbe preparing him, the conduct Attorney has proposed wouldconstitute the unauthorized practice of law.

[Rule 4 -- 5.5]

Un.Pr.-95

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)]

Un.Pr.-96

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)]

Un.Pr.-97

INFORMAL OPINION 950155

QUESTION: Attorney asks about participating in a credit cardprogram which refers customers to member merchants. The membermerchant pays a fee of twenty percent for participation.

ANSWER: Based upon the information provided, Attorneywould violate Rules 4-5.4(a) and 4-7.2(c), as a participatingmerchant in the program. Rule 4-5.4(a) prohibits fee splitting with anon-lawyer and Rule 4-7.2(c) prohibits an attorney from givinganything of value in exchange for a referral.

[Rule 4 -- 7.2(c); 5.4(a)]

Un.Pr.-98

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 proposedorganization. However, Rule 4-5.4(c) would apply. Therefore, as withthe current 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)]

Un.Pr.-99

INFORMAL OPINION 950237

QUESTION: Attorney became licensed in Missouri withoutexamination by virtue of licensure in another state. Attorney has nottaken the practical skills course within the specified period.

ANSWER: Attorney's Missouri license is not completely lost byfailing to comply with the continuing education requirements.However, under Rule 5.5(c) of Supreme Court Rule 4, the Rules ofProfessional Conduct, Attorney may not practice in Missouri ifAttorney is not current on Attorney's Missouri CLE requirements underMissouri Supreme Court Rule 15.

[Rule 4 -- 5.5(c)]

Un.Pr.-100

INFORMAL OPINION 950257

QUESTION: May Missouri attorneys practice in partnershipwith solicitors admitted in England and Wales, provided that suchpartnership is not engaged in the unauthorized practice of law inMissouri?

ANSWER: Yes.

[Rule 4 -- 5.5]

Un.Pr.-101

INFORMAL OPINION 950270

QUESTION: Attorney represents a collection agency. Theagency will refer matters to Attorney for collection through litigation.The agency will refer the matter directly, rather than the creditorhiring Attorney. The agency will require Attorney to pay the agencya set fee on each matter for administrative expenses. May Attorneypay this fee?

ANSWER: The agreement which Attorney has submitted raisesseveral concerns under the Rules of Professional Conduct. First, thefee would be either a prohibited referral fee under Rule 4-7.2(c) orimproper fee splitting with a non-attorney under Rule 4-5.4(a). Theother concerns raised cannot be fully addressed withoutinformation about disclosures, waivers and arrangements with thecreditor, the actual client. The arrangement described causesconcerns under Rule 4-1.6 related to confidentiality and under Rule4-1.7(b) related to potential conflicts of interest. Additionally, thisarrangement raises the concern that Attorney would be violatingRule 4-5.5 assisting the unauthorized practice of law by thiscompany. Attorney may wish to study State ex rel. McKittrick v. C.S.Dudley & Co., Inc., 102 S.W.2d 895 (Mo. 1937). That case involved acollections company in a situation which appears similar to thesituation of the collection agency in the opinion request.

[Rule 4 -- 5.5]