INFORMAL OPINION 940118
QUESTION: Attorney would use an advertising firm to do direct marketing. Attorney would draft a form letter for each type of case. The advertising firm would use the form letter, a database of information obtained from police reports and a facsimile signature of Attorney to do direct mailings to prospective clients.
ANSWER: Although direct mailing is authorized under Rule 4-7.3(a), Attorney must make the determination that none of the exceptions found in Rule 4-7.3(c) apply to the situation. Attorney also must supervise any non-lawyers who are acting as Attorney's agents under Rule 4-5.3. This system would inherently violate both of those rules.
[Rule 4 -- 5.3; 7.3]
INFORMAL OPINION 940126
QUESTION: Attorney would establish a general business corporation that would obtain a real estate license. The corporation would review leases for businesses to verify that they reflect the business deal and that there are no other business terms or provisions contained in the lease which might adversely affect the tenant.
ANSWER: This would involve the unauthorized practice of law. A general business corporation may not practice law.Reviewing the lease and verifying that it reflects the business deal would not be the practice of law. However, determining that there are no other business terms or provisions that would adversely affect the tenant would be the practice of law. Inserting clauses into a landlord's lease form and making comments regarding these provisions would be the practice of law.
[Rule 4 -- 5.5]
INFORMAL OPINION 940130
QUESTION: Attorney would be paid a retainer by a title company to provide real estate related legal services to members of the public. No legal fees would be shared with the title companyand Attorney would be independent of the title company in the course of representation.
ANSWER: Attorney would have to follow the procedures in Rule 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 the confidentiality and conflict of interest rules.
[Rule 4 -- 1.6; 1.7; 1.8(f); 5.4]
INFORMAL OPINION 940163
QUESTION: May Attorney accept credit cards for payment of fees?
ANSWER: As a general rule, the answer is yes. However, this opinion does not imply blanket approval for any specific system an attorney may implement. Formal Opinion 112 which was issued in1974 and indicated that this conduct was prohibited, because it would result in fee splitting, was withdrawn in 1982.
[Rule 4 -- 1.5; 5.4]
INFORMAL OPINION 940177
QUESTION: Does the preparation, supervision of execution and recording a deed by an out of state lawyer who is not licensed in 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]
INFORMAL OPINION 940203
QUESTION: The firm proposes to retain a debt collection agency to collect delinquent attorney fees. If the law firm may retain 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 memoranda and time sheets; (e) materials within the client's file; (f) information in the firm's possession about the client such as financial status,assets, etc.?
ANSWER: The information in (a) through (d) generally may be disclosed unless the circumstances of the representation are such that the client could reasonably expect it to be confidential. The information in (e) and (f) may only be disclosed when, and to the extent, it has been placed in issue by the client's response to the collection efforts.
[Rule 4 -- 5.5]
INFORMAL OPINION 950008
QUESTION: Attorney wishes to participate in a not for profit program which coordinates support services for a specific segment of the community. Attorney has concerns about some aspects of the program. The program calls for the provider of services to pay a percentage fee of all fees received to the program. The program would have a right to review the provider's books and records to determine compliance with the program. The program would serve as 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 the billing services but not a percentage fee. The provision of the program regarding access to the books and records creates problems under Rule 4-1.6 unless the client consents in advance after being fully advised of the advantages and disadvantages.
[Rule 4 -- 1.6; 1.8(f); 5.4(a)]
INFORMAL OPINION 950015
QUESTION: Attorney is licensed in Texas but not Missouri.Attorney's client is a Texas resident who was involved in an automobile accident in Missouri. May Attorney engage in settlement negotiations with the insurance company, from Texas, without engaging in the unauthorized practice of law in Missouri? Attorney will affiliate with a Missouri attorney if it becomes necessary to file suit.
ANSWER: Yes, as long as Attorney engages in the negotiations from Texas and does not misrepresent Attorney's ability to file suit in Missouri.
[Rule 4 -- 5.5]
INFORMAL OPINION 950026
QUESTION: Attorney owns an interest in Corporation A.Attorney and Corporation A will share a suite of offices. Corporation A will be operated completely separately and with proper designation. Attorney will only minimally be involved in the day today operation of the corporation. Attorney B who also owns an interest will be involved in the day to day operation and will also share the office space.
ANSWER: This arrangement would not violate Rule 4-5.4. The attorneys would have to make full disclosure any time they would refer a client to the corporation. Additionally, it would constitute prohibited "in person" solicitation for the corporation to make referrals to either attorney. The attorneys must also make certain that all information related to their clients is secure from access by anyone who shares space in the suite of offices who is not part of the attorney's firm.
[Rule 4 -- 5.4; 1.7; 7.3]
INFORMAL OPINION 950038
QUESTION: May Attorney hire an investigator to do pretrial investigation who will make ex parte contact with witnesses with whom Attorney could not make ex parte contact under Rule 4-4.2?
ANSWER: No. To the extent that the rules prohibit an attorney from engaging in particular conduct, Rules 4-5.3 and 4-8.4(a)prohibit an attorney from directing or permitting an agent to engage in that conduct.
[Rule 4 -- 4.2; 5.3; 8.4(a)]
INFORMAL OPINION 950043
QUESTION: May Attorney pay a not-for-profit attorney referral service a fee which is a percentage of the attorney's fees collected on a case referred to Attorney by that referral service?
ANSWER: Yes, Rule 4-7.2(c) authorizes payment of "the usual charges of a not-for-profit lawyer referral service or other legal service organization."
[Rule 4 -- 7.2(c); 5.4(a)]
INFORMAL OPINION 950052
QUESTION: Attorney has been suspended with leave to apply for reinstatement in six months. May Attorney stay in a case in which there will be no further action for six months?
ANSWER: No. Under Rule 5.25, Attorney must withdraw. Under Rule 5.26, reinstatement is not automatic.
[Rule 4 -- 5.5; Rule 5.25; Rule 5.26]
INFORMAL OPINION 950066
QUESTION: Attorney proposes to practice only in the area of abstract opinions. Attorney would like to practice as the employee of the abstract company and provide abstract opinions for individuals purchasing property or banks financing the purchase.Another option would be for Attorney to be employed by a title insurance company and provide opinions for the use of that company in determining whether to issue title insurance.
ANSWER: The first arrangement proposed would create a number of problems under the rules. Practicing law in a general business corporation, such as the abstract company, would involve assisting the unauthorized practice of law by the title company in violation of Rule 4-5.5(b) and fee splitting with a non-lawyer in violation of Rule 4-5.4(a). Additionally, the arrangement would involve possible problems with conflicts of interest between Attorney's true client, the one receiving the abstract opinion, and the abstract company by which Attorney would be employed. If Attorney maintains an independent law practice, the abstract company can refer the clients to Attorney. Attorney may then give abstract opinions to the clients as long as the clients pay Attorney rather than the abstract company and as long as Attorney does not give the abstract company anything of value in exchange for the referral. Attorney may be employed by a title insurance company to provide opinions to that company upon which it would base its decision regarding the issuance of title insurance. In this situation,the client would be the title insurance company and the compensation would come from the client.
[Rule 4 -- 5.4((a); 5.5(b)]
INFORMAL OPINION 950074
QUESTION: If Attorney hires an investigator as an independent contractor and does not instruct the investigator on the manner of taking statements from witnesses, will it have implications for Attorney if the investigator tape records a statement without informing the witness that the conversation is being recorded?
ANSWER: Yes, under Rule 4-8.4(a) and (c).
[Rule 4 -- 8.4(a); 8.4(c); 5.3]
INFORMAL OPINION 950084
QUESTION: A suspended attorney asks whether it is permissible to coach an individual on the evidence rules, when the individual is representing himself at a trial.
ANSWER: In light of the fact that the individual whom Attorney would coach has a specific case for which Attorney would be preparing him, the conduct Attorney has proposed would constitute the unauthorized practice of law.
[Rule 4 -- 5.5]
INFORMAL OPINION 950145
QUESTION: Attorney asks about entering into a relationship with an insurance agent in which the insurance agent would have clients fill out an information sheet if they believe they need a will.The insurance agent would send the form to Attorney who would prepare a will and have the clients come in to execute it. No fees would be split with the insurance agent and nothing of value would be given to the insurance agent for the referral. The insurance agent would provide a price list of Attorney's services.
ANSWER: The arrangement proposed would involve improper solicitation, breach of confidentiality or both. In person solicitation is prohibited by Rule 4-7.3(b). If the insurance agent is acting as Attorney's agent, in person solicitation would occur. If the insurance agent is independent, Attorney would be asking someone who is not Attorney's representative to gather confidential information from Attorney's clients on Attorney's behalf in violation of Rule 4-1.6. Additionally, if the insurance agent is the one who is determining what specific type of estate planning the individual needs, the insurance agent would be engaging in the unauthorized practice of law and Attorney would be assisting in that activity in violation of Rule 4-5.5(b). Depending on other details of the arrangement, other rules may also be involved. Attorney would not be violating the rules if the insurance agent merely refers the potential client to Attorney for general estate planning, leaving it to Attorney to determine, in consultation with the clients, the specific type of estate planning the clients need. This situation could not involve any fee splitting or referral fee.
[Rule 4 -- 1.6; 7.3(b); 5.5(b)]
INFORMAL OPINION 950152
QUESTION: Attorney's firm engages in collection work. The firm would like to pay its non-attorney collections employees an incentive based upon a percentage of the contingent fee.
ANSWER: The proposal would violate Rule 4-5.4(a). A profit sharing plan must relate generally to the profits of the firm and not to the firm's fee or profit on an individual matter.
[Rule 4 -- 5.4(a)]
INFORMAL OPINION 950155
QUESTION: Attorney asks about participating in a credit card program which refers customers to member merchants. The member merchant pays a fee of twenty percent for participation.
ANSWER: Based upon the information provided, Attorney would violate Rules 4-5.4(a) and 4-7.2(c), as a participating merchant in the program. Rule 4-5.4(a) prohibits fee splitting with anon-lawyer and Rule 4-7.2(c) prohibits an attorney from giving anything of value in exchange for a referral.
[Rule 4 -- 7.2(c); 5.4(a)]
INFORMAL OPINION 950198
QUESTION: Attorney's office is a non-profit organization. The office will directly represent indigent persons in civil and criminal proceedings as a public interest law firm. May community leaders who are not licensed attorneys participate in the policy making decisions of the board if these decisions did not involve controlling the professional judgment of attorneys? Does Rule 4-5.4(d) apply to this organization?
ANSWER: Based upon the information provided, it does not appear that Rule 4-5.4(d) would apply to the proposed organization. However, Rule 4-5.4(c) would apply. Therefore, as with the current organization, the lay members should have no role in directing the attorneys in specific situations involving professional judgment. It would be permissible for the lay members to participate in establishing broad policies for the organization. The comment to Rule 5.4 states that it is advisable for attorneys who work for such an organization to have a written agreement which defines their role and provides for independence of the attorneys.
[Rule 4 -- 5.4(c)]
INFORMAL OPINION 950237
QUESTION: Attorney became licensed in Missouri without examination by virtue of licensure in another state. Attorney has not taken the practical skills course within the specified period.
ANSWER: Attorney's Missouri license is not completely lost by failing to comply with the continuing education requirements.However, under Rule 5.5(c) of Supreme Court Rule 4, the Rules of Professional Conduct, Attorney may not practice in Missouri if Attorney is not current on Attorney's Missouri CLE requirements under Missouri Supreme Court Rule 15.
[Rule 4 -- 5.5(c)]
INFORMAL OPINION 950257
QUESTION: May Missouri attorneys practice in partnership with solicitors admitted in England and Wales, provided that such partnership is not engaged in the unauthorized practice of law in Missouri?
[Rule 4 -- 5.5]
INFORMAL OPINION 950270
QUESTION: Attorney represents a collection agency. The agency will refer matters to Attorney for collection through litigation.The agency will refer the matter directly, rather than the creditor hiring Attorney. The agency will require Attorney to pay the agency a set fee on each matter for administrative expenses. May Attorney pay this fee?
ANSWER: The agreement which Attorney has submitted raises several concerns under the Rules of Professional Conduct. First, the fee would be either a prohibited referral fee under Rule 4-7.2(c) or improper fee splitting with a non-attorney under Rule 4-5.4(a). The other concerns raised cannot be fully addressed without information about disclosures, waivers and arrangements with the creditor, the actual client. The arrangement described causes concerns under Rule 4-1.6 related to confidentiality and under Rule 4-1.7(b) related to potential conflicts of interest. Additionally, this arrangement raises the concern that Attorney would be violating Rule 4-5.5 assisting the unauthorized practice of law by this company. 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 a collections company in a situation which appears similar to the situation of the collection agency in the opinion request.
[Rule 4 -- 5.5]