Confi.-53

INFORMAL OPINION 940119

QUESTION: A legal aid office asks two questions regarding domestic relations cases. (1) If one party seeks representation but is denied for some reason and the second party subsequently seeks representation, may the legal aid office provide representation through a staff attorney or contract attorney? (2) If both parties apply for representation at approximately the same time, may the committee that reviews applications consider both and accept one but reject the other?

ANSWER: In either situation, the office may offer representation to the qualifying party only if a contract attorney who has no access to the intake information of the other party is assigned.

[Rule 4 -- 1.6; 1.7; 1.10]

Confi.-54

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 company and 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 is formed 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]

Confi.-55

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

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

[Rule 4 -- 1.6]

Confi.-56

QUESTION: Attorney represents a client against whom a motion to modify has been filed. Attorney knows the client's home address but the client has instructed Attorney not to reveal it. Must Attorney 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 if the issue of confidentiality was fully presented to the court before the court issued its order.

[Rule 4 -- 1.6]

Confi.-57

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)]

Confi.-58

QUESTION: Attorney represented a client and withdrew when he learned that his client may be involved in fraud related to the matter. Attorney has now been subpoenaed to testify about the situation in a proceeding before an administrative law judge. May Attorney testify?

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

[Rule 4 -- 1.6]

Confi.-59

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

ANSWER: The general business corporation would be engaging in "in person" solicitation prohibited by Rule 4-7.3(b) any time it made a referral to Attorney. If a client of Attorney developed a need for services such as those provided by the general business corporation, Attorney could only refer the client to the wholly-owned corporation after making full disclosure of the relationship between the corporation and the firm and making it clear to the client that the client has the option to obtain the services from any source of the client's choosing. Additionally, this situation raises issues of confidentiality. If Attorney does form such a corporation, Attorney must realize that it is a completely separate entity and that confidentiality of information relating to the law firm's clients must be strictly maintained.

[Rule 4 -- 7.3; 1.7; 1.6]

Confi.-60

QUESTION: Attorney previously represented Company A in various matters. Attorney's current client has a workers' compensation claim against Company A. May Attorney represent the current client against Company A?

ANSWER: Under Rule 1.9(b), Attorney must determine whether Attorney, or any member of the firm, obtained confidential information in the course of the previous representation that could be used to the company's detriment in the workers' compensation case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney's possession as a result of previous representation would be included under the ambit of confidential information.

[Rule 4 -- 1.9; 1.6]

Confi.-61

QUESTION: Attorney represents a criminal defendant A, who is a co-defendant with B. Initially, in order to determine which defendant to represent, Attorney interviewed both co-defendants. Attorney entered an appearance for defendant A. A and B now have conflicting interests. Co-defendant B now asserts that Attorney's discussion with co-defendant B means that Attorney may not represent defendant A against B's interests.

ANSWER: Under the circumstances described, once Attorney began discussing the case or facts related to the case with defendant B, Attorney established an attorney client relationship with defendant B. This creates a conflict of interest under Rule 4-1.9(a) which requires Attorney to withdraw from representation of defendant A.

[Rule 4 -- 1.6; 1.9]

Confi.-62

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

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

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

Confi.-63

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

ANSWER: Before participating in the seminar, Attorney has a duty to ascertain that the insurance agent's advertising is not false, misleading or deceptive. Hiring the insurance agent, for the purpose indicated, would not involve an ethical violation as long as the client is fully informed of the relationship and consents, the agents duties are limited to non-legal responsibilities, and the agent does not engage in any other activity that the attorney would be prohibited from engaging in under the Rules of Professional Conduct.

[Rule 4 -- 1.6; 7.2; 7.3]

Confi.-64

QUESTION: Attorney represented H and W in estate planning matters. H died before executing the new will which had been drafted. Some assets were retitled prior to H's death so they would pass to W. H's children from a previous marriage have filed suit challenging the retitling of the assets. W would like Attorney to testify. May Attorney testify?

ANSWER: To the extent that information Attorney has arose out of representation in which Attorney was solely representing W, Attorney may disclose that information. However, Attorney may not disclose confidential information of H until Attorney has fully raised the issue of confidentiality and the court has ordered Attorney to disclose the information. If the court orders Attorney to disclose information, Attorney should seek to have the court issue an order as specific and limited as possible. Once the court issues an order for Attorney to disclose confidential information, Attorney may do so without appealing the court's decision.

[Rule 4 -- 1.6]

Confi.-65

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)]

Confi.-66

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

Question 1: Must Attorney withdraw?

Question 2: May Attorney withdraw?

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

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

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

ANSWER:

Question 1: No.

Question 2: Yes.

Question 3: No.

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

Question 5: No.

[Rule 4 -- 1.6]

Confi.-67

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

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

[Rule 4 -- 1.6]

Confi.-68

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

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

[Rule 4 -- 1.6]

Confi.-69

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

ANSWER: Attorney may give physical custody of the videotapes to the attorney in fact while the client is alive. Under these specific circumstances, Attorney may imply the client's consent under Rule 4-1.6 to disclose the videotape after the client's death. Serious reservations exist about the ability of the attorney in fact to waive confidentiality after the client is deceased. The reservations stem from the understanding that the durable power of attorney ceases upon the death of the principal. It would seem logical that actions authorized by the attorney in fact during the life of the principal which had not been acted upon prior to the principal's death would no longer be authorized. Additionally, the language of section 404.710.6 and .7, RSMo 1984, indicates a lack of authority for the attorney in fact to act regarding testamentary matters. However, the issue Attorney has presented involves many legal issues rather than ethical issues. Therefore, no definite opinion can be given.

[Rule 4 -- 1.6]

Confi.-70

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

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

[Rule 4 -- 1.6]

Confi.-71

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

ANSWER: The format Attorney has proposed for Attorney's column will not generally violate any provision of the Rules of Professional Conduct. However, Attorney must be careful not to give specific legal advice regarding actual clients. Attorney should not answer specific actual questions and, if Attorney bases the question on actual questions received, Attorney should not include any specific information that could lead to identification of the person who has written the question. Attorney should also disclose the fact that the questions are not necessarily questions from real people or that the questions may have been edited to make them more general.

[Rule 4 -- 1.6]