QUESTION: Attorney has reason to believe that a Trustee misappropriated, and perhaps stole, funds from a Trust. Since Attorney represented the Trustee, is Attorney permitted to notify and inform the other beneficiaries of the Trustee's management of the Trust and of Attorney's suspicions? To Attorney's knowledge, the other beneficiaries have received no information regarding the Trust, and they have not contacted Attorney. ANSWER: Attorney may not disclose the information to the other beneficiaries, unless Attorney has the consent of the Trustee. If the Trustee will come forward with the necessary information, Attorney may continue to represent the Trustee in attempting to resolve any problems. It is permissible for Attorney to advise the Trustee that Attorney will withdraw if the Trustee is unwilling to take the steps Attorney believes to be necessary, including consenting to disclosure to the other beneficiaries. It is also permissible for Attorney to withdraw, at this point, regardless of the steps the Trustee is willing to take. If the Trustee is not willing to take the steps necessary to resolve the problem and Attorney believes that the Trustee's conduct is fraudulent or criminal, Attorney must withdraw if Attorney's representation would assist the fraudulent or criminal activity.

QUESTION: Attorney's firm represents a client in a child custody dispute. Law firm hired a new associate who was employed by the law firm of the opposing party in the custody case. The associate had access to and performed a limited amount of work on the file while employed by the opposing firm. Attorney's firm erected an "ethical wall," screening the associate from the custody case. Does Attorney's firm have a conflict even with the "ethical wall" that has been erected?

ANSWER: As a result of hiring the new associate, Attorney's firm has a conflict. Although the erection of an ethical wall can help to persuade the former client to waive a conflict, it is not a means of eliminating a conflict under Missouri Rules 4-1.10. Therefore, Attorney's firm must withdraw from the case unless the opposing party, as the new associate's former client, consents.

QUESTION: Attorney's client was treated by a chiropractor who claimed he was due a certain fee. The client disputed the amount owed. The chiropractor gave notice of a lien, but Attorney believes the lien notice to be defective. Attorney issued a check jointly payable to both parties. Attorney's client returned the check to Attorney. The chiropractor sued Attorney's client and obtained a judgment, which is now the subject of a request for trial de novo. What legal obligations does Attorney have to his client and the chiropractor with respect to this disputed amount?

ANSWER: If Attorney gave the chiropractor assurances that his interests would be protected or if the chiropractor would have reasonably believed Attorney made such an agreement, Attorney may not pay the funds to the client, without the chiropractor's consent. Under those circumstances, Attorney should hold the funds for a reasonable period of time for the chiropractor and client to reach an agreement. If an agreement is not reached after a reasonable period, Attorney should interplead the funds.

If Attorney did not participate in such arrangements and the chiropractor's lien is not valid, or Attorney is willing to take the risk, Attorney may pay the funds to the client or as the client directs. If the funds are paid to the client, Attorney must advise the client that this action does not affect the judgment obtained by the chiropractor.

QUESTION: Attorney X shares an office with nine other attorneys. Their letterhead indicates they are a firm and a PC, but they are independent contractors sharing rent and common expenses. They maintain separate files, billing, computer systems, and phone messaging. Client A, injured in a serious automobile accident, came to see Attorney. Liability in the accident is not an issue. Attorney X sent out a lien letter and requested various medical documentation. Attorney Y, another of the attorneys in the office, was contacted by Client B for representation in connection with the same accident. May Attorney X continue to represent Client A if full disclosure of the potential conflict is made to all parties and neither party objects?

ANSWER: Because they hold themselves out as a firm and formed a PC for the firm, they will be treated as a firm for ethical and, most likely, malpractice purposes. As a single firm, Rule 4-1.10 applies, and it is essential the firm have an adequate system to screen for conflicts. This situation presents conflicts, even though there is no litigation, yet. The conflicts are waivable if both clients consent and the representation of both will not interfere with the representation of either.

QUESTION: Attorney represents individual clients in litigation that frequently involves medical records. After the conclusion of a case, attorney returns "the file," including medical records to the clients. Attorney keeps a copy of the contract of representation, settlement documents, and stipulations for dismissal filed with the court, sensitive material, written settlement offers, and negotiations. Attorney provides a final accounting and disbursement of any money received and gives the client a list of the file materials being returned. Is attorney's practice in accordance with Rule 4-1.15? Attorney does not keep paper copies other than this, although Attorney may have some of the records in electronic form.

ANSWER: Under the Rules of Professional Conduct, including Rule 4-1.15(h), an attorney is not required to keep any portion of a file, if the "original file" has been returned to the client or disposed of with the client's consent. However, under Rule 4-1.15(a), an attorney must keep records of funds and other property the attorney held for a period of five years after the end of the representation. Although Attorney and the client can alter the period of time Attorney will hold the file for the client, they cannot alter the minimum period of time Attorney must keep records of funds and other property under Rule 4-1.15(a). Attorney may keep paper or electronic copies of the file or portions of the file, at his own expense. Attorney may want to consult with his malpractice carrier for recommendations regarding keeping copies for the Attorney's own records.

QUESTION: In response to the new Rule 4-1.15(h) on file retention that takes effect January 1, 2005, Attorney asks if the following language in the letter closing the file is sufficient.

We will now be closing this file. We will be keeping the file contents in storage for two years, and then the file contents will be destroyed unless you instruct us to the contrary. If you want any portion of the file contents, please let us know now.

ANSWER: The proposed language is sufficient for implied consent. However, Attorney should cover this issue at the outset of the litigation, in the engagement letter, fee agreement, etc. The last sentence should be modified to indicate that the request should be made as soon as possible and no later than a certain time ahead of the anticipated destruction date. Otherwise, a client might conclude that failure to immediately request the file would result in loss of that option. It is recommended that Attorney modify "the file contents will be destroyed" to language that gives Attorney authority to destroy the file but not a statement that the file will be destroyed. There may be a number of reasons Attorney may not want to destroy the file promptly at the end of two years.

QUESTION: In 1989, client hired law firm and paid a retainer prior to execution of services by the firm. The services provided by the firm never exceeded the amount of the retainer, leaving a surplus of $163. The firm attempted to contact the client by mail in 1993, 1998, and 2000 but was unsuccessful. What is the procedure for forfeiting these funds?

ANSWER: Based upon the information provided, these funds should escheat to the Missouri Unclaimed Property Division of the State Treasurer's office.

QUESTION: Attorney's law firm recently lost the attorneys in its litigation department and those attorneys are not able to continue to handle the litigation. Before leaving, one of the attorneys won a trial on a personal injury case. The case was reversed and remanded for new trial. Attorney's firm does not have anyone who can represent this client adequately. Attorney's firm has been unsuccessful in securing other counsel for the client. The case is not on a trial docket. May Attorney's firm withdraw under these circumstances?

ANSWER: It is permissible for Attorney's firm to seek to withdraw, if you the firm can do so at a time that will not be materially adverse to the client. Whether a case is on a trial docket would be one factor in determining whether withdrawal, at a given time, will be materially adverse. However, there could be other factors to consider, such as discovery, court orders, etc. If there are no factors that will cause withdrawal to be materially adverse to the client, Attorney's firm may seek to withdraw, notwithstanding the fact that the client has been unable to find other counsel.

Whether Attorney's firm is permitted to withdraw is entirely in the discretion of the court. If the court refuses to allow withdrawal, under Rule 4-1.16(c), Attorney's firm must stay in the case and represent the client. Attorney's firm should be sure to inform the court of its concerns about its ability to adequately represent the client, in the course of seeking leave to withdraw.

QUESTION: If Attorney sends a client a courtesy copy of all pleadings at the time of filing and a copy of all pleadings filed by opposing counsel (with a notation that it is a courtesy copy for the client's information and safekeeping), is it necessary to copy the file and provide the documents again to the client? May attorney charge for copies of documents previously sent to client?

ANSWER: It is permissible for copies provided to the client during the course of the representation to serve as client's file, or a portion of the client's file, if two conditions are met. First, Attorney would have had to provide an explanation of this process prior to sending the copies. Second, the original of the file belongs to the client. Therefore, if there is an original in the file, a copy does not fulfill the obligation to the client unless the attorney and client have agreed that it will. If both conditions are not met, attorney should provide the file to the client and keep copies at Attorney's own expense.

QUESTION: An attorney recently joined the Attorney's Firm. The attorney was previously employed at another firm which is opposing counsel in a number of cases. If the new attorney did not participate in a case at the other firm, does Attorney's Firm have a conflict in that case? What if the new attorney is screened?

ANSWER: Rule 4-4.10 states, in part:

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.

The Comment states, in part:

Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge of information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9.

Attorney has indicated that the attorney who was formerly with the other firm was not the attorney in the case and did not participate in the work up of the case for the defense. That information does not quite cover the necessary inquiry. The question is whether the attorney acquired any confidential information regarding the matter while the attorney was with the other firm. This could be information acquired by conferring on an issue related to the case, through informal conversation within the firm, etc. If the attorney acquired such information, Attorney's Firm is has a conflict and is disqualified, unless the attorney's former client and Attorney's Firm's client consent, after consultation. Screening the attorney within Attorney's Firm is not a means by which disqualification can be avoided. However, screening may help to persuade the former client to waive the conflict.

QUESTION: Attorney represented client in a matter which is now concluded. Attorney advanced funds for court reporter fees and transcripts. The client has requested copies of the transcripts, but has not reimbursed Attorney for these expenses. Must Attorney provide copies of the transcripts to the client? ANSWER: Rule 4-1.16 requires Attorney to return the client's property to the client at the conclusion of the representation. However, under Formal Opinion 115, as amended, Attorney may withhold items for which Attorney has paid out-of-pocket and has not been reimbursed.

ADVISORY COMMITTEE
MISSOURI BAR ADMINISTRATION

FORMAL OPINION #115, as amended

ATTORNEY MAY NOT WITHHOLD PROPERTY BELONGING TO HIS CLIENT TO ENFORCE PAYMENT OF FEES OR EXPENSES.

Question: May a Missouri Attorney ethically withhold from his client papers, books, documents or other personal property which belong to the client and came to the attorney in the course of his professional employment to enforce payment of fees or expenses owed to the attorney by the client?

Answer: It is the opinion of the Advisory Committee that under the Rules of Professional Conduct, such action by an attorney is improper. The Advisory Committee is of the opinion that the file belongs to the client, from cover to cover, except for those items contained within the file for which the attorney has borne out-of-pocket expenses such as, but not limited to, transcripts. The attorney may retain those items until such time as he is reimbursed for the out-of-pocket expense and then they must be immediately delivered to the client. Those items which have commonly been denominated as "work product" of the attorney actually belong to the client because those are the result of services for which the client contracted.

The basis given for such action by attorneys in Missouri has been the so-called Attorney's Common Law Retaining Lien, said lien having existed in the English Common Law and being recognized in a number of states, of which Missouri is not one. It is strictly a passive lien inasmuch as the attorney has no power to enforce payment other than to embarrass, inconvenience or to cause worry to the client by the withholding of his papers. The legal question of whether or not the Attorney's Common Law Retaining Lien exists has not been affirmatively answered by the Missouri courts.

The Advisory Committee recognizes the Statutory Attorney's Lien created in Missouri by the act of 1901 and it, in no way, is affected by this Opinion. This Lien is embodied in Sections 484.130 and 484.140 of the Missouri Revised Statutes 1986. It has been held to give the attorney a lien on the fund or funds produced for the client by his action where he filed a petition or counterclaim and/or where he has given sufficient notice to the defendant of the existence and nature of his contract with the plaintiff.

Even if the Attorney's Common Law Retaining Lien were deemed to be in existence, the question of the ethical propriety of its exercise must still be answered with reference to the Rules of Professional Conduct. The situations under which this question normally arise will be where the attorney has withdrawn from the representation of his client or where the client has discharged the attorney because the representation has been completed or prior to the time of the completion of the representation. For purposes of this discussion, however, the aforementioned situations do not differ inasmuch as [Rule 1.15(b)] of Missouri Supreme Court Rule 4 states, "Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, [a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive] and, upon request of the client or third person, shall promptly render a full accounting regarding such property." Furthermore, [Rule 1.16(d)] of Rule 4 of the Missouri Supreme Court Rules states that ["[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.] The lawyer may retain papers relating to the client to the extent permitted by other law." (Emphasis added.) If a lawyer wishes to keep a copy of the file for his own use or protection, then the lawyer must bear the costs of copying the file.

The above quoted disciplinary rules require the lawyer to turn over such property to which the client is "entitled." It could be argued that the disciplinary rules constitute an exception which would include the property over which the lawyer has a recognized lien. However, in the opinion of the Advisory Committee, for a lawyer to force payment of his fees or expenses by resorting to a lien which can only be effective by causing embarrassment, inconvenience or worry to his client is for the lawyer to act in a manner totally inconsistent with the above-cited disciplinary rules and, further, is inconsistent with the spirit of his professional responsibility. This is particularly true since other methods are available for use by an attorney for the collection of those fees and expenses to which he may be legally entitled.

Adopted March 4, 1988

QUESTION: Attorney is acting as a mediator. Attorney will ask for prepayment of fees. Attorney will be keeping the fees in a separate account until earned. Since attorney will not be providing legal representation or legal advice to the parties, is it proper for Attorney to hold the unearned funds in Attorney's lawyer's trust account? ANSWER: It is permissible for Attorney to put the prepaid fees for the mediation in Attorney's trust account, including an IOLTA account.

QUESTION: Attorney filed a personal injury lawsuit for Husband and Wife. Husband was severely injured. Attorney filed a lawsuit on behalf of Husband for his injuries and included a count for loss of consortium for Wife. Husband and Wife are now getting a divorce. Husband wants Attorney to withdraw as counsel for Wife. Is it ethical for Attorney to withdraw from representing Wife, but continue to represent Husband? Attorney is not representing either party in the dissolution action. No trial date has been scheduled in the personal injury lawsuit. Attorney has asked Wife to consent to Attorney's withdrawal or a dismissal without prejudice of her case, but has not received any response. ANSWER: This presents three questions. QUESTION 1: Must Attorney withdraw from representing Wife simply because Husband wants Attorney to do so? ANSWER 1: Probably not. Rule 4-1.16 provides that an attorney may withdraw if it can be accomplished without material adverse effect on the interests of the client (i.e., Wife). In this case, Attorney will have to consider whether that can be accomplished. Relevant factors to consider may include: if Wife's interests in this case are directly contingent on pursuit of Husband's claim; the need for her to get substitute counsel and possibly the likelihood of whether she will be able to do so. In other words, Attorney also has duties to Wife as client, which Attorney must consider before withdrawing from her representation. QUESTION 2: Is there a conflict that requires Attorney to withdraw from representation of Wife? ANSWER 2: Rule 4-1.7(a) cautions that a lawyer shall not represent a client if the representation will be directly adverse to another client, and provides certain caveats. Attorney needs to evaluate: Is the representation of Wife directly adverse to Husband? Attorney should assess how Attorney's individual clients would perceive this issue. If it is directly adverse, Attorney can't represent them both (unless they consent.) The Rule goes on to say that even if representation is directly adverse, the lawyer can proceed, if Attorney reasonably believes the representation will not adversely affect the relationship with the other client. Again, this is something for Attorney to evaluate under the circumstances of Attorney's relationship to both these clients; the strategies and legal theories Attorney will have to employ; the involvement that will be required between the clients and Attorney; perhaps even the level of animosity between the clients and how that will affect Attorney's representation of both. If both clients consent, Attorney can represent them both, but obviously Husband is requesting that Attorney withdraw at this point. Perhaps Attorney wants to consider whether exploring the reasons for his objection to Attorney's continued representation can be addressed through some other means, short of withdrawing. What is his real concern? Is there a genuine conflict here or does he simply not want to face encounters with Wife? Rule 4-1.7(b) prohibits representation of a client where the representation would be materially limited by the lawyer's responsibilities to another client or by the lawyer's own interests, unless the client consents. Again, this is a similar analysis as above. It may be appropriate to consider: Is Attorney's sense of loyalty to one of the clients affected by the circumstances; is there confidential information that Attorney has gained from one of the clients that the client does not wish Attorney to disclose to the other or to disclose within the lawsuit? If representing either of them will materially limit Attorney's responsibility to the other, Attorney cannot represent them both. QUESTION 3: If Attorney does withdraw from representing Wife, can Attorney continue to represent Husband? ANSWER 3: Yes, unless Husband's interests in this case are materially adverse to Wife's interests in the case and she won't consent. Rule 4-1.9 relates to former clients and may apply to Wife if Attorney continues to represent Husband after withdrawing from her representation. The primary concern here is for the appearance of disloyalty to the former client, as well as the misuse of confidential information of the former client to their disadvantage. It may be that there is confidential information that she would consider embarrassing and she would not want disclosed, or that could affect her position in the divorce action and would then be in the public record in the personal injury case. These are certainly areas of potential conflict, which Attorney will have to assess and discuss with the client. Attorney would need to request her consent to disclosure pursuant to Rule 4-1.6 (Confidentiality).

QUESTION: Attorney's firm is considering hiring Lawyer, who is working for another firm, Firm A. Lawyer, while working for Firm A, defended Y in a lawsuit that concluded approximately two years ago. Lawyer is considering leaving Firm A and joining Attorney's firm, which serves as local counsel for a plaintiff in a case against Y that raises issues almost identical to those in the previous lawsuit. Even though Firm A is defending Y in the new matter, Lawyer has neither appeared in nor worked on the new matter. Lawyer would not work on the new matter at Attorney's firm and intends to avoid all contact with the new matter. Attorney's firm would similarly avoid allowing Lawyer any involvement in the new matter by screening. May Lawyer join Attorney's firm, and if so, under what conditions? ANSWER: The rules do not prohibit Lawyer from joining Attorney's firm. However, it is possible that Attorney's firm will have a conflict that requires it to withdraw from the new matter, once Lawyer is a part of Attorney's firm. If the issues are "almost identical" there is a substantial likelihood that the new matter would be considered a "substantially related" matter, as that phrase is used in Rule 4-1.9(a). It is also possible that Lawyer obtained information in the course of Firm A's representation of Y in the previous lawsuit or the new matter that could be used to Y's detriment in the new matter. Under those circumstances, Lawyer would have a conflict under Rule 4-1.9(b). If Lawyer has a conflict under Rule 4-1.9(a) or (b), Attorney's firm has a conflict under Rule 4-1.10. Screening is not a method by which that conflict can be avoided. However, as a practical matter, giving an assurance of screening may help Attorney to obtain consent to Attorney's firm's continued representation from Y. Based upon the available information, this office cannot make a definite statement about whether Lawyer has a conflict. If we receive a complaint, we will investigate to determine the facts independently. This opinion does not affect the authority of a judge to rule on a motion to disqualify.

QUESTION: Attorney X has joined Attorney Y's firm as a principal. Attorney X previously represented a plaintiff in a personal injury action. Attorney Y was counsel of record for the defendant in the same action. The case was voluntarily dismissed by the plaintiffs without prejudice. Attorney X then referred the case to a new attorney and that attorney refiled the action. Attorney Y is currently representing the defendant. Is Attorney Y precluded from continuing to represent the defendants in the refiled action? ANSWER: Attorney Y has a conflict under Rules 4-1.9 and 4-1.10, that prohibits Attorney Y from continuing to represent the defendant in this matter, unless the plaintiff consents.

QUESTION: Attorney represents Child, who is a minor, in a personal injury matter. Mother signed Child's personal injury contract as guardian and guarantor. The personal injury matter has not been settled. Attorney's firm has now been approached by Husband of Mother, who is not the father of Child, regarding representation for a divorce from Mother. Attorney's firm would use different attorneys for the two different matters. May Attorney's firm represent Husband in his divorce without conflict? ANSWER: The situation Attorney has described creates a conflict of interest under Rules 4-1.7 and 4-1.10. Child's interests will be adversely affected if representation of Husband damages the firm's working relationship with Mother. This conflict could be waived if consent is obtained from Mother and Husband, after full disclosure. It will be necessary to obtain consent from Husband to disclose the situation to Mother before Attorney can make the disclosure necessary to obtain consent.

QUESTION: Attorney would like to add a provision to Attorney´s standard engagement letter for civil cases, particularly domestic relations cases. Is it permissible to state in the engagement letter that if the client does not make payment, Attorney will stop working on his or her case? Attorney would like to state that Attorney will not continue to work on a client´s case if no payments are made. ANSWER: Attorney may not include the provision Attorney proposes in Attorney´s engagement letter. Under Rule 4-1.3, Attorney has an obligation to diligently represent Attorney´s client, unless Attorney withdraws. If Attorney has not been paid, Attorney´s option is to continue to diligently represent the client and seek payment, or seek to withdraw. Attorney may seek to withdraw under Rule 4-1.16(b), only if withdrawal may be accomplished without ´material adverse effect on the interests of the client.´

QUESTION: Attorney represents Client in a workers´ compensation matter. Client advised Attorney that Client obtained a loan against the proceeds of Client´s workers´ compensation claim. Attorney is frequently asked by clients that Attorney represents in contingency fee cases to loan them money or advance them money against the anticipated recovery of their claim. Attorney tells these clients that Attorney is ethically prohibited from loaning them money or advancing them money against their anticipated recovery. Would it be ethical to advise Attorney´s clients of the existence of the company that loaned Client money? ANSWER: It is permissible for Attorney to inform Attorney´s clients of the existence of this company. However, if Attorney is the one informing Attorney´s clients about this company, Attorney must be sure to consult with them about the implications of the waiver of confidentiality that is necessary. If Attorney participates, in any way, in the arrangement between the company and Attorney´s clients, it may change the duty to Attorney´s client, in the event that Attorney´s client would not want to pay the company out of the proceeds. Attorney should also be prepared to advise Attorney´s client about the application of any statutes specific to workers compensation, for example section 287.260, to this sort of arrangement.

QUESTION: Attorney handled a personal injury claim for Client. Client signed a Notice of Doctor´s Lien and a Authorization, Assignment and Release Form. Attorney did not sign either of these documents. Attorney did not withhold monies from Client´s settlement to pay the doctor bill and the doctor involved is threatening to file a complaint against Attorney. Did Attorney act in the appropriate manner and what should be done to rectify the situation? ANSWER: Attorney did not agree, orally or in writing, to protect the doctor´s interest. This office cannot give Attorney an opinion on past conduct. Under these circumstances, Attorney does not need to take any action to rectify the situation, from the standpoint of the Rules of Professional Conduct. This opinion does not address whether Attorney may have any liability to the doctor under other laws.

QUESTION: Attorney´s firm has several clients´ monies in the firm´s trust account dating back several years. The firm does not have a way of contacting the clients in order to disburse these funds. What should Attorney´s firm do? ANSWER: As long as Attorney continues to hold those funds, Attorney should make reasonable efforts to locate the former clients. What is reasonable depends on the circumstances, including the amount of the funds. After Attorney has held the funds for the period specified by the escheat statute, Attorney may follow the terms of that statute and turn the funds over to the state.

QUESTION: Attorney is representing Client in a traffic matter. Client has a friend who is a friend of the Judge. Client had her friend contact the Judge regarding the traffic violation. The Judge responded that he could not speak about the case. What are Attorney´s ethical violations concerning either mandatory or discretionary withdrawal? ANSWER: Attorney should advise Client to cease this type of activity and contact. If Client is willing to do so, Attorney may remain in the case. If Client is not willing to do so, Attorney must withdraw.

QUESTION: Attorney´s firm has a substantial number of closed files in storage. Attorney would like to minimize the cost and expense of file storage by either returning these files to the former clients or by destroying the file. Attorney understands that the files are the property of the former clients. Attorney would like to send a letter to Attorney´s former clients at the last known address as indicated in the file. The letter will inform the former client that, unless he or she contacts Attorney´s office and makes arrangements to pick up the file within thirty (30) days, Attorney will destroy the contents of the file. May Attorney rely upon the client´s oral response to the letter or do the ethical rules require the client to express his or her intention in writing? May Attorney ethically destroy the contents of the file if Attorney does not hear from the client within the thirty day period? May Attorney ethically destroy the contents of a file if the letter is returned to Attorney by the post office? ANSWER: Attorney´s proposal would not be acceptable. Attorney is proposing to destroy a client´s property in circumstances in which the client may not receive notice of Attorney´s proposed file destruction. Attorney would need to wait a substantially longer period of time before assuming silence to be consent. The exact amount of time that would be considered reasonable depends on various circumstances, including, among others, the currency of the address. Attorney may destroy files, at any time, if Attorney gets express oral or written consent from the clients. Attorney should provide a means for the client to easily respond to Attorney regarding whether the client wants the file or gives permission for Attorney to destroy the file. Once Attorney has determined that it is permissible to destroy the file because explicit authority has been received or because the former client has not responded, it will be necessary for Attorney to review the file to ensure that original documents or other items with inherent value are not destroyed. In the future, Attorney should address this topic at the beginning and end of the representation. It is best to agree with the client that Attorney will hold the file for a reasonable period of time, usually several years. The client should be informed that the client may claim the file at any time. The agreement should also provide that, at the end of the specified period, the client agrees that Attorney has permission to destroy the file, in Attorney´s discretion.

QUESTION: Attorney represented plaintiff in a personal injury action. Attorney promised to pay various health care providers from the settlement proceeds of the case while the case was pending. Attorney did this with the client´s knowledge and consent. When the matter settled, the client would not give Attorney permission to pay the client´s health care providers from the settlement proceeds. Attorney gave the client several months to work out a settlement with the health care providers, but when the client could not work out a settlement, Attorney filed an interpleader action. Is it ethical for Attorney to claim attorney´s fees for time incurred in the interpleader action? Is it ethical for Attorney to request reimbursement for funds used to file and serve the interpleader action on all parties? ANSWER: Attorney may claim attorney´s fees and expenses related to the interpleader action.

QUESTION: Attorney serves as an assistant prosecuting attorney. Attorney´s duties are limited to those concerning either civil or criminal child support issues. There is another assistant prosecutor, but that attorney does not handle any of the office´s child support cases. The other assistant prosecutor served as GAL in a paternity case several years ago and the judgment also includes an order pertaining to custody and support of the child. Attorney has now received a referral requesting enforcement of that order with regards to child support. Attorney has not taken any action in the matter. Does a conflict exist for Attorney´s office because the other assistant prosecutor once served as GAL for the child? ANSWER: As long as the other assistant prosecuting attorney is screened from contact with or participation in this matter, the prosecutor´s office, as a whole, does not have a conflict.

QUESTION: Attorney settled Client´s case. As part of the settlement, Attorney wrote a check to a medical facility for care Client received. The payment turned out to be an overpayment and Attorney received a refund from the medical facility several years after the payment was made. Attorney has tried repeatedly to contact Client by mail, but has had no luck. Attorney has been unable to locate an address or telephone number for Client. Attorney contacted a private detective, but the private detective indicated that they would charge more than the funds that they have to locate Client. How should Attorney proceed? ANSWER: Attorney must continue to make all reasonable efforts to locate Client. If Attorney has not been able to locate Client by the time the escheat statute takes effect, Attorney may follow that statute to dispose of the funds. In the meantime, Attorney must keep the funds in a trust account.

QUESTION: Client would like to enter into an agreement with a company that essentially makes a loan against the potential recovery on Client´s personal injury case. The company will agree not to seek payment from Client for the loan if no recovery is made. Before the company will loan Client the money they require information concerning Client´s medical bills, medical records, police reports, liens,an estimated amount of recovery on the claim and Attorney´s estimated value of the claim. Client has directed Attorney to provide the information to the company. Question 1. Are there any ethical problems with divulging this information to a third party? Is it necessary to get a written waiver of the privilege from Client? Question 2. Is there any ethical problem with Attorney signing an agreement with the loan company to pay that company directly from Attorney´s trust account after the recovery is made? Question 3. If Client changes his or her mind and refuses to allow payment from Attorney´s trust, would Attorney violate Attorney´s fiduciary duty to Client by disbursing the payment when there is not a valid lien and only the signed agreement? ANSWER: Answer 1. This opinion only addresses Attorney´s responsibilities under Supreme Court Rule 4. It does not address the advantages and disadvantages of the arrangement nor the application of any other laws to the arrangement. If Attorney participates in this type of arrangement, Attorney must advise Client about all aspects of the arrangement and make sure that Client understands all of the implications. One aspect that Client must understand and agree to is that they cannot ensure that the other party would or could maintain confidentiality of the information Attorney provides. Attorney may not participate in the arrangement and then withhold information required by the arrangement, even if Client so requests, without disclosing that Attorney is withholding information. That conduct could involve assisting Client with a fraud or dishonest conduct under Rule 4-8.4(c). Answer 2. This is permissible, if Client consents. Answer 3. If Attorney enters into the agreement described in Question 2 and Client changes his or her mind, Attorney would not be able to disburse the funds to Client or the company, until the dispute is resolved. Under those circumstances, Attorney would hold the funds in Attorney´s trust account for a reasonable period of time to allow them to resolve the dispute. If they did not resolve the dispute in a reasonable period of time, Attorney would interplead the disputed funds.

QUESTION: Attorney has several client files that are closed because the case has been finalized. How long is Attorney required to keep the files? ANSWER: Supreme Court Rule 4 does not specify the length of time Attorney is required to keep files. The original file belongs to the client. Therefore, if the files are original files, Attorney needs the client´s consent prior to destroying the files. Attorney may return the files to the client, at any time. If the files are photocopies Attorney has maintained for Attorney´s own records, Attorney may destroy them at any time. Attorney must maintain the confidentiality of the files in the destruction process. Attorney may want to consult Attorney´s malpractice carrier regarding its recommendations on file retention.

QUESTION: Attorney is a shareholder in XYZ law firm, which is in the process of dissolving. After accounting for all known client claims to funds in the trust account, a sum still remains. An audit of the trust fund for the last five years reveals no outstanding sums due to clients. The supposition is that clients may have been paid amounts out of the firm´s regular account without reimbursement to the regular account from the trust account. What steps does the firm need to take before closing the trust account? ANSWER: Unless Attorney can show where the funds were paid out of the firm´s operating account, it will be necessary for one or more of the attorneys who were in the firm to maintain the funds in a trust account. If the funds cannot be traced to a client or to the firm before the escheat statute becomes applicable, the funds will escheat to the state.

QUESTION: Attorney´s office has thousands of closed files. Many of the files are over five years old. If Attorney sends a letter to the last known address of the former client, based upon information in the closed file, notifying the former client of Attorney´s intent to destroy the file within ten days absent a reply indicating the former client wishes to pick up the old file, may Attorney destroy the file if Attorney receives no reply by the deadline or if the letter comes back as undeliverable? ANSWER: The time frame Attorney proposes and the options Attorney has suggested are not sufficient. The files are Attorney´s clients" property and Attorney should develop procedures that take into consideration the best interests of the clients. Attorney should allow a substantial period of time after notice is sent to the last known address. Attorney should also allow the clients the option of arranging with Attorney for the client to pay to have the file mailed or shipped to the client. It is not reasonable to expect every client to come to Attorney´s office. The best time to address the issue of file disposition is during the representation and at the conclusion of the representation.

QUESTION: Attorney plans to retire from the practice of law in the next few months. Attorney would appreciate any comments, recommendations, or advice that OCDC may have for Attorney as to Attorney´s responsibilities to clients and others in that regard. ANSWER: Based upon Attorney´s letter, it sounds as though Attorney is planning to wind up Attorney´s practice, rather than selling it. If Attorney decides to sell Attorney´s practice, Rule 4-1.17 provides considerable detail regarding the steps to follow. The Missouri Bar has resources available through its Law Practice Management library which can help Attorney identify the steps Attorney should follow in winding up a practice. Attorney can contact The Missouri Bar at 573-635-4128. The original of the files belongs to the clients. Attorney should take steps to return those files to the clients or obtain their consent to handle them in a different manner, if Attorney has not already done so. By winding up Attorney´s practice, Attorney will be withdrawing from any pending matters. Attorney may not withdraw at a time when withdrawal will have a material adverse affect on the client. One way to avoid this is to provide ample notice to Attorney´s clients and to make sure they are aware of the anticipated future course of their case or other matter. This communication should clearly communicate any settings, deadlines, etc.

QUESTION: Attorney has a contingency fee contract with a client. The client paid a retainer towards attorney´s fees. According to the contract with the client, if Attorney received fees which exceeded that retainer, Attorney would refund the retainer to the client. The contract also provided that the client would pay all out-of-pocket litigation expenses as they were incurred. The defendant ended up paying attorney´s fees of more than the retainer amount. The client received a separate check for the client´s portion of the settlement proceeds. At the time of the settlement, the client owed more than the retainer amount for out-of-pocket expenses advanced on the client´s behalf. The client does not dispute that Attorney paid the expenses, but disputes the legitimacy of some of the expenses. Attorney still holds the retainer. Must Attorney refund the retainer to the client or may Attorney apply the retainer toward the client´s outstanding expense bill? ANSWER: Under Rule 4-1.15(c), Attorney must repay the retainer, unless the express language of Attorney´s contract permits Attorney to apply it against expenses. If the contract expressly permits Attorney to keep these funds and apply them to expenses and the client disputes Attorney´s position, Attorney must hold the funds in a trust account pending resolution of the dispute. The funds must be held in a separate, interest bearing account, with the recipient of the interest determined as a part of the resolution of the dispute. Attorney may attempt to resolve the dispute without litigation for a reasonable period of time, including participating in a fee dispute program. However, if the dispute is not resolved within a reasonable period of time, Attorney must initiate litigation or disburse the retainer plus interest to the client.

QUESTION: Attorney´s client was previously represented by another attorney. After taking over the case, Attorney immediately filed suit in the matter. The case was then settled. The settlement check did not include the name of the previous attorney. Attorney is aware that the previous attorney was claiming a lien on the file, but is unsure if the previous attorney sent this claim to the insurance company. The draft has been executed and is in Attorney´s trust account. The client disputes the claim for attorney´s fees by the previous attorney. The client has given Attorney authority to pay the previous attorney for out-of-pocket expenses and is demanding payment of the remaining proceeds, after Attorney´s fees. Attorney contacted the previous attorney with the client´s offer, but the offer was refused. Attorney is hesitant to release the funds from Attorney´s trust account. It is Attorney´s position that legally, Attorney can honor the client´s request and pay the client the proceeds of the settlement. What are Attorney´s ethical obligations? ANSWER: Attorney has not indicated whether Attorney has engaged in any communication with the previous attorney, which indicated that Attorney would honor his lien. If Attorney engaged in any such communications, Attorney may not disburse the disputed funds to Attorney´s client. If Attorney did not engage in such communications, Attorney may disburse the funds to Attorney´s client. However, even in the absence of such communications, Attorney is not required to disburse the funds to Attorney´s client, if Attorney believes that Attorney or Attorney´s firm would be exposed to civil liability for such actions. If Attorney does not disburse the funds to Attorney´s client, Attorney should hold the funds in Attorney´s trust account to provide a reasonable opportunity for Attorney´s client and the previous attorney to resolve the dispute. If the dispute is not resolved in a reasonable period of time, it will be necessary for Attorney to interplead the funds.

QUESTION: Attorney´s client was involved in an automobile accident and was treated by a doctor. The doctor required the client to sign forms attempting to create a lien. Attorney and client both signed the forms, because the doctor would not send the client records without having the forms signed first. The insurance carrier made a small offer which the client would like to accept, but there would not be sufficient funds to pay the doctor´s bill. Must Attorney honor the doctor´s lien if the client directs Attorney to disregard it? ANSWER: In light of the fact that Attorney participated in the arrangements with the doctor, Attorney may not disregard those arrangements, even if Attorney´s client directs Attorney to disregard them. When the settlement funds are received, Attorney must keep them in Attorney´s trust account until Attorney´s client and the doctor have reached an agreement regarding disbursement. Attorney may assist Attorney´s client in those efforts. If they don´t reach an agreement within a reasonable period of time, it will be necessary for Attorney to interplead the funds.

QUESTION: Attorney has been in practice for many years and has files dating back to Attorney´s first client. Attorney understands that Attorney needs to keep something concerning the identity of all prior clients for possible conflicts checks. How long should a file be retained? ANSWER: If the files Attorney has are copies of files after the original has been provided to the client, Attorney may destroy the copies. If the files are originals, they belong to the clients and Attorney has a duty of safekeeping. Before destroying the files the clients must be given reasonable notice of Attorney´s intent to do so and a reasonable opportunity to inform Attorney if they want their files. Destruction must be done in a manner which assures that client confidences are not revealed. In the future, it is advisable to address this topic with the client during the representation, at the time Attorney completes the representation, or both. Attorney may also want to consult with Attorney´s malpractice insurance carrier about the length of time they advise that Attorney maintain a copy of a file for Attorney´s own records.

QUESTION: In the process of closing files, Attorney discovered a few cases having small trust account balances. Attorney has attempted to contact the clients in each case, but has been unable to locate the clients. What should Attorney do with the remaining funds? ANSWER: Attorney must continue to make efforts to contact the clients. If Attorney has been unable to locate the clients by the time the escheat statute takes effect, Attorney may follow that statute to dispose of the funds. In the meantime, the funds must be kept in a trust account.

QUESTION: Attorney handled several matters for an elderly client, which included estate planning. Attorney has learned that the client is showing the signs of Alzheimer´s disease and is becoming increasingly unaware of the extent of the client´s financial resources and the consequences of the client´s actions or negligence in handling them. There is no family member or friend to intervene to protect the client´s interests. Attorney believes that the client needs a guardian. Is Attorney obligated to inform the probate court? Is it ethically permitted for Attorney to inform the probate court? What is Attorney to do in these circumstances? ANSWER: Rule 4-1.14, applies to the situation Attorney has described. Attorney may seek a guardian for Attorney´s client, as a last resort. Under the circumstances Attorney has described, Attorney may want to inquire whether a local social services agency could be called in for assistance to the client. It is possible that the need for a guardian would be identified in that manner. If Attorney believes that Attorney´s client is in danger, from the standpoint of health and physical welfare, Attorney should take prompt action to alleviate that situation, including seeking the appointment of a guardian. If Attorney´s primary concern relates to questionable financial or estate planning decisions, with which the client is requesting Attorney´s assistance, Attorney may decline to take the action requested. If necessary, Attorney may withdraw from further representation. Attorney may not inform the probate court of Attorney´s concerns and observations unless the situation has progressed to the point where Attorney is seeking the appointment of a guardian. If Attorney decides that this type of action is warranted, Attorney must only take the action to the limited extent necessary to protect the client.

QUESTION: Attorney represented a client in a civil matter and the client was awarded a judgment. Attorney took the matter on a contingency fee contract basis, plus expenses. The client has failed to come in and endorse the check despite several phone calls and letters. Attorney is still in possession of the unendorsed check. How can Attorney collect the fee and expenses? May Attorney have the defendant pay the amount into court and then petition the court for Attorney´s fee? ANSWER: The only way Attorney can collect the fee and expenses is through a court proceeding. The method Attorney has proposed would not violate Supreme Court Rule 4. There may also be other procedures which would be acceptable. If Attorney believes that the client is being uncooperative because the client disputes the amount of Attorney´s fee, it may be helpful to inform the client of the availability of the fee dispute committee.

QUESTION: Attorney is a former Associate Circuit Judge who is now in private practice. While still a judge, Attorney entered an order in a dissolution matter awarding visitation to one of the parents. This parent has now asked Attorney for representation in seeking enforcement of the visitation order. May Attorney represent this parent? ANSWER: Under the circumstances Attorney has described, Attorney would be prohibited from representing the parent under Rule 4-1.12.

QUESTION: Attorney is a former prosecutor, now in private practice. Attorney has been contacted for representation in a probation violation hearing. Attorney originally prosecuted the individual who was placed on probation. Would it be a conflict of interest for Attorney to represent this individual? ANSWER: Under Rules 4-1.11(a) and 4-1.9(a) Attorney may not represent defendants on probation violation matters which arise in connection with cases which Attorney or Attorney´s assistants prosecuted, while Attorney was the prosecuting attorney. Under Rule 4-1.11(a), the conflict may be waived.

QUESTION: Are there any ethical considerations concerning how long Attorney should keep closed files? ANSWER: The original of the file belongs to the client. Therefore, Attorney should keep original files until Attorney returns them to the client or obtains the client´s consent to destroy them. Formal Opinion 115, as amended, addresses the client´s ownership of the file. Attorney should also review In re Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997). Attorney may wish to contact Attorney´s malpractice carrier for advice regarding the length of time to keep copies of files.

QUESTION: Attorney is a newly elected prosecuting attorney. It is part of the prosecutor´s duties to represent the Juvenile Officer in all juvenile matters. Attorney´s firm has received a large number of appointments from the court on juvenile court matters. Attorney has no knowledge of the facts of any of the cases on which the firm has been appointed, but there is no formal screening to isolate Attorney from those cases. Should Attorney be disqualified from representing the Juvenile Officer in those cases? ANSWER: Under Rule 4-1.11(c), Attorney may represent the Juvenile Officer in those cases, if Attorney will no longer be a member of the firm.

QUESTION: Attorney handles a number of personal injury cases on a contingent fee basis. Recently, insurance companies have required Attorney to give a tax ID number before a settlement check is issued, even though the checks are payable to Attorney´s clients and Attorney. The insurance companies will be reporting the entire amount of the settlement checks to the IRS. Attorney only receives a fraction of that money. Attorney´s accountant has suggested Attorney report the entire amount as fee income and the disbursements for the share of the settlements as expenses. Attorney suggested to the accountant that Attorney report as gross receipts only the amount of the funds from settlement checks that were actually paid as fees to Attorney and attach an explanation of why it is less than the 1099 amounts. Would this be ethical? ANSWER: The approach Attorney has suggested will not violate Rule 4-1.15. The approach suggested by the accountant could be used by a creditor to argue that all of the funds in the trust account are funds belonging to Attorney, since Attorney will have reported them that way. To the extent that any approach Attorney chooses causes client or third party funds held in a trust account to be available to Attorney´s creditors, Attorney would violate Rule 4-1.15. Regardless of the approach Attorney takes, as always, it will be important for Attorney to keep clear records in case any questions arise regarding the appropriateness of disbursements.

QUESTION: Based on the recent IOLTA decision, Attorney is concerned that Attorney may have a conflict of interest that needs to be disclosed to all of Attorney's clients, if not at the initial stage of representation, certainly at the time of the disbursement of any funds. Does Attorney have a conflict of interest in this situation? ANSWER: Attorney does not have a conflict of interest in this situation. At this point, Rule 4-1.15 (relating to IOLTA) is still valid. Because Attorney did not opt out of the program for this year, Attorney must continue to participate in the program for the remainder of this year. It would be advisable to disclose Attorney's participation in the IOLTA program to Attorney's clients who will have funds in Attorney's IOLTA trust account. Under Rule 4-1.15(d)(2), Attorney's IOLTA trust account should only contain "funds of clients that are nominal in amount or are expected to be held for a short period of time" such that there would not be a benefit to placing the funds in a separate interest bearing account when compared with the costs of such an account. The cost/benefit analysis, for this purpose, includes not only bank fees but the administrative costs associated with Attorney's record keeping on a separate, interest bearing account. If the benefit of maintaining a separate, interest bearing account would be expected to exceed the costs, Attorney should place the funds in a separate, interest bearing account with the interest, which exceeds the costs, going to the client.

QUESTION: Attorney is an associate with Firm A. Attorney has done very little workers" compensation work for Firm A. The work that has been done has been research for partners of Firm A and Attorney has appeared at one deposition. Attorney is considering leaving Firm A and joining Firm B. The bulk of Firm B´s workload is workers" compensation cases. Attorney feels that if Attorney joins Firm B, Attorney would inevitably be working on files that were being defended by Firm A. Question 1. If Attorney has not personally had any contact at Firm A with the file, would it be a conflict for Attorney to work on that case at Firm B? Question 2. If Attorney has not personally had any contact at Firm A with a file, is there any possibility that after Attorney is employed by Firm B, Firm B would be disqualified from continuing to represent a claimant when the claim is being defended by Firm A? ANSWER: If Attorney joins Firm B, under Rule 4-1.10, Firm B will have a conflict of interest regarding any matter in which Attorney participated while at Firm A or about which Attorney was privy to confidential information. Confidential information includes all information obtained in the course of representation, from any source. Attorney would have a conflict, and therefore Firm B would have a conflict, if Attorney obtained information formally or informally through casual conversation, conferences, firm meetings, etc. This opinion does not, in any way, affect the ability of the tribunal to rule on a motion to disqualify.

QUESTION: Attorney´s firm has interviewed a legal assistant for a position at the firm. The legal assistant is currently working for an attorney who represents a co-defendant in a case Attorney´s firm is handling. If hired, the legal assistant would not be assigned to the case and Attorney would inform all attorneys and staff members associated with the case not to discuss any aspect with the new legal assistant. Would there be any potential conflicts or ethical violations? ANSWER: The legal assistant must be completely screened from all contact with or access to the case involving the co-defendant. If the legal assistant is effectively screened, it will not be necessary for Attorney´s firm to withdraw. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify. Additionally, if a complaint is received, it would be investigated to determine the facts independently.

QUESTION: May Attorney remove notes from the file before it is turned over to a former client? The information consists of Attorney´s impressions about the case, as well as Attorney´s comments and thoughts made during telephone calls about the case and during meetings with Attorney´s staff and clients. A separate research file was maintained for Attorney´s research notes regarding the case. ANSWER: Based upon the information Attorney has provided and the nature of the material in question in this case, the notes are part of the file which must be provided to the client. Please see Formal Opinion 115, as amended.

QUESTION: Attorney´s firm has taken on a new partner, who was formerly with another local firm. Attorney´s firm recently became aware that the new partner´s previous firm is on the opposing side in a modification case. The new partner was not the attorney of record and has no knowledge of the particular case in question. The opposing firm is now raising conflict of interest. Does Attorney´s firm have to remove themselves from the case? ANSWER: Based solely on the information Attorney has provided, it does not appear that this situation involves a conflict of interest under Rules 4-1.9 and 4-1.10. This opinion is based on the understanding that Attorney´s new partner did not obtain any confidential information related to this matter while the new partner was at the former firm. This would include information obtained at firm meetings and through informal conversation.

QUESTION: Attorney and Attorney's partner are licensed in Missouri and Kansas. They have recently moved their offices to Missouri. Attorney currently has Attorney's trust account in a Kansas bank that does not have any branch offices in Missouri. Does Attorney have to open a trust account in Missouri? Does Attorney need to obtain consent of each person to deposit funds into the Kansas trust account? Do funds need to be kept in separate states based upon the location of the client? ANSWER: Under Rule 4-1.15(a) if Attorney's sole office is in Missouri, Attorney must have a trust account in Missouri, unless Attorney obtains the consent of each client to keep the funds in Kansas. The provisions of Rule 1.15(e)(3) provide an exception to the requirement to maintain an IOLTA account in Missouri. This exception would apply if Attorney had an office in Kansas as well as Missouri. If Attorney continues to maintain a trust account in Kansas for the funds related to Kansas clients, Attorney will need to get the consent of those clients to comply with Missouri's Rule 1.15(a).

QUESTION: Attorney´s firm is a general defense firm, which represents defendant X in a medical negligence case. The firm recently hired an associate, who has not yet come to work. The associate is currently working with a plaintiff´s firm and is the primary associate representing the plaintiffs in the medical malpractice case against defendant X. Attorney´s firm intends to completely screen the case when the associate arrives at the firm. May Attorney´s firm continue to represent the defendant in the medical negligence case? ANSWER: Under Rules 4-1.10 and 4-1.9(a), Attorney´s firm has a conflict of interest in the case once the associate becomes associated with Attorney´s firm. Screening is not an option to avoid the conflict. The conflict would be waivable by the plaintiff and, perhaps, Attorney´s offer of screening will persuade the plaintiff to waive the conflict. Otherwise, it will be necessary for Attorney´s firm to withdraw from the case before the associate begins employment.

QUESTION: Does Attorney, who is not licensed in Missouri, commit the unauthorized practice of law in Missouri when Attorney maintains an office and represents and advises clients in Missouri solely in the area of immigration law? ANSWER: Attorney may not maintain an office in Missouri for the purpose of representing and advising clients solely on immigration law. In order for Attorney to do so, it would be necessary for Attorney to become licensed in Missouri.

QUESTION: Attorney represents a client who had a fire at the client´s home. Attorney was retained on an hourly basis. The client paid a portion of the attorney´s fees, but has not made payments to Attorney for some time. The insurance company has issued a check payable to the client, Attorney, and some third parties. The client has asked Attorney to sign the check without payment. May Attorney refuse to sign the check unless Attorney is paid? ANSWER: Attorney may not refuse to sign the check without payment, if Attorney´s client will agree to placement of any DISPUTED funds in escrow. Attorney may not withhold Attorney´s signature in a manner which will prevent Attorney´s client from receiving UNDISPUTED funds.

QUESTION: Attorney obtained a verdict in favor of Attorney´s client and began collection efforts. Attorney has learned that a portion of the judgment has been paid to the Clerk´s office pursuant to garnishments. The money is being held in a non-interest bearing account pending an appeal. Attorney would like to have the money transferred into an interest bearing trust account. Is this ethical? ANSWER: Under Rule 4-1.15 it would be appropriate for Attorney to place these funds in a separate, interest bearing trust account. Such an account would be a non-IOLTA trust account, and the interest would go to Attorney´s client. Any time Attorney will hold funds, belonging to one client, of any significant amount for an extended period or substantial funds for a shorter period, this approach should be used. The amount of income to be generated, in relation to the costs (bank charges, legal fees, etc.) of maintaining a separate account will be a major factor in determining whether a separate account is appropriate.

QUESTION: Attorney is a former county prosecutor now in private practice. Attorney has been approached by X seeking representation on a DWI charge. Attorney knows X because X was a witness in an assault case that the prosecutor´s office handled while Attorney worked at the prosecutor´s office. The assault case is still pending. X gave Attorney no special information, and previous contact with X was unrelated to the present charge. Does Attorney have a conflict? ANSWER: Based on the information Attorney has provided, Attorney does not have a conflict of interest which prohibits Attorney from representing the individual in the DWI case.

QUESTION: Attorney represents a client in a lawsuit against the Estate of X arising out of the non-payment of a promissory note. After Attorney filed the Petition, Attorney changed law firms. The new firm once represented X. The firm ceased representation of X over a year prior to Attorney´s employment there. Attorney does not believe that any information was learned in representing X that would involve the current suit. Attorney has informed the attorney representing the Public Administrator of the potential conflict. Is this a conflict? ANSWER: Under Rule 4-1.9(b) Attorney must determine whether the firm obtained confidential information in the course of the previous representation that could be used to X´s detriment in the current 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 the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. Based on the information Attorney has provided, it does not appear that there is a conflict under Rule 1.9. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify.

QUESTION: Attorney is a public defender. Attorney´s office represented a client in a stealing case. The client pled guilty and was placed on probation. Attorney´s office withdrew from representation of the victim once the individual was placed on probation on the stealing charge. That client is now a victim in an assault case. Attorney is now representing the defendant charged with assaulting the former client. Attorney has no knowledge of the former client other than the charge and sentence. Is it a conflict for Attorney to represent a client charged with assaulting the former client of another attorney in the same office? ANSWER: Based on the information Attorney has provided, Attorney does not have a conflict of interest. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify.

QUESTION: Attorney represents a client in a workers" compensation case. Attorney has received a settlement offer, but is unable to locate the client. Attorney has hired a skip tracer, but efforts to find the client have so far been unsuccessful. Attorney would like to agree to the settlement in writing, get the check and the release from the defendant in the case and then hold on to them until Attorney can find the client. May Attorney do this? ANSWER: Attorney may not settle the case unless Attorney´s client agrees to the settlement or has previously given Attorney authorization which would include settlement on the proposed terms. If Attorney does settle the case for Attorney´s client, the settlement funds should be placed in a separate interest bearing trust account, with the interest going to the client, until the client is located.

QUESTION: Attorney represents a city through its insurance carrier in a tort claim. Attorney´s firm represents several businesses which are occasionally involved in condemnation cases against the city. Other members of Attorney´s firm represent criminal defendants in municipal violations. Is there a conflict of interest for Attorney if he represents the city on tort claims and other attorneys in the firm are in opposition to the city in non-tort matters such as criminal defense and condemnation? ANSWER: In the situation Attorney has described, Attorney has a conflict of interest under Rules 4-1.7(a) and 4-1.10.

QUESTION: Attorney has been asked to represent Wife in a dissolution matter. Husband was previously married and divorced and Attorney´s firm represented him in the dissolution matter over ten years ago. Attorney was not a member of the firm at that time and has no knowledge about the previous case. May Attorney represent Wife in the dissolution case with Husband? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation of Husband that could be used to Husband´s detriment in the current 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 the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. If any detrimental confidential information was obtained, Attorney has a conflict of interest and Attorney may not represent Wife unless Husband consents.

QUESTION: Attorney A and Attorney B are shareholders and directors of a Professional Corporation. Attorney B is the Prosecuting Attorney, which is a part-time position. Attorney A is the Assistant Prosecuting Attorney. Attorney B considers possible criminal charges stemming from a collision. Attorney A is contacted by a client concerning the collision and they discuss a wrongful death action. Attorney B instructs the patrolman to issue a ticket on the collision. Attorney A agrees to represent the client in the wrongful death action. Later, Attorney A and Attorney B realize that they are both working on the case from different angles. What is the proper course of action at this time? ANSWER: In the circumstances described, it is necessary for Attorney A to withdraw from representation of the client. It is also necessary to seek the appointment of a special prosecutor regarding the potential criminal charges.

QUESTION: Attorney represents a client in a slip and fall matter. During the course of representation, the client contacted Attorney about an unrelated loan that was delinquent. At the client´s request the Attorney sent a letter to the credit company agreeing to pay off the loan out of any settlement that may be obtained on behalf of the client. The client´s claim was settled and the amount of the loan is in Attorney´s trust account. The client has asked Attorney not to pay the credit company. What is Attorney´s ethical duty? ANSWER: Under the circumstances which Attorney has described, including Attorney´s letter to the credit company, Attorney may not disburse the disputed funds to the client, without the credit company´s consent. Attorney may hold the funds in Attorney´s trust account for a reasonable period of time to allow for the client and the credit company to come to a settlement. Attorney should notify Attorney´s client and the credit company that, if the client does not consent to full disbursement or if the client and the financial institution cannot come to some other agreement regarding disbursement, Attorney will file an interpleader action. Attorney should file the interpleader action within a reasonable period of time unless good faith efforts toward a resolution are in progress.

QUESTION: Attorney is considering terminating the association with Attorney´s current employer. Attorney plans to open a firm or seek employment with another firm. Attorney believes that because Attorney is materially involved in the representation of the firms clients, and many of the clients perceive Attorney to be their attorney, that the clients should be notified of Attorney´s departure. What is Attorney´s obligation to inform clients of the impending change? ANSWER: Attorney has a duty, individually or in cooperation with the firm, to notify the clients whose cases Attorney primarily handled or with whom Attorney had significant contact, that Attorney is leaving the firm. The client should also be informed that they have the option of being represented by Attorney or the firm, (if both are willing and able to do so), or by some other attorney of their choice. The Supreme Court of Missouri addressed this issue in the recent case of In Re Cupples, No. 79063 (Mo.banc 1997).

QUESTION: Attorney has decided to close the law office and relocate out of state. Attorney will continue to represent certain clients in pending matters until they are completed and other matters will be referred to other attorneys. Question 1. May Attorney transfer files to other attorneys and advise clients that Attorney has done so, or should Attorney withdraw from the cases and request that the clients find another attorney? Question 2. May Attorney amend Attorney´s business card and letterhead to reflect Attorney´s new out of state location and continue to represent clients with the out of state letterhead as long as Attorney is in good standing with the Missouri Bar? Question 3. May Attorney represent corporate clients from out of state with trips to Missouri as conditions require using Attorney´s out of state letterhead? Question 4. May Attorney obtain a position as a paralegal in a state where Attorney is not admitted, but serve Missouri clients in Missouri matters? ANSWER: Question 1. Attorney may not transfer Attorney´s clients" files to other attorneys without first obtaining the consent of Attorney´s clients. Attorney may recommend other attorneys to Attorney´s clients and transfer the files with the consent of Attorney´s clients. Questions 2., 3. and 4. As a non-resident member of The Missouri Bar who does not maintain an office in Missouri, Attorney´s ability to practice in Missouri is governed by Missouri Supreme Court Rule 9.02. It will be necessary for Attorney to check with the state in which Attorney will be residing to determine whether the reciprocity contemplated by the rule is available. Unless Attorney is licensed to practice law in the other state, there is a high probability that the conduct Attorney is proposing, including the continued representation of Attorney´s Missouri clients, would constitute the unauthorized practice of law in that state. If Attorney engages in the unauthorized practice of law in another state, Attorney would violate Missouri Supreme Court Rule 4-5.5. The laws of the state in which the conduct occurs would govern whether Attorney is engaging in the unauthorized practice of law in that state. Various officials in that state may have jurisdiction regarding the unauthorized practice of law.

QUESTION: X was seeking representation for pending litigation involving a personal injury claim. X gave Attorney the file to review. Attorney reviewed the file and decided not to take X´s case. Attorney notified X that Attorney was not interested and requested that X make arrangements to pick up the file. X failed to respond to Attorney´s request. It has been more than a month and the file is still at Attorney´s office while the litigation is ongoing. What may Attorney do with the file? ANSWER: Attorney may return X´s file by personal delivery or by a mail or delivery service which has a tracking system. Attorney may not destroy X´s file. Attorney may make a copy at Attorney´s own expense for Attorney´s protection.

QUESTION: Attorney is a former assistant county prosecutor who has entered private practice. As a prosecutor, one of Attorney´s duties was to prosecute homicides. Attorney initiated proceedings against D for murder nearly a year before Attorney left the prosecutor´s office. The mother of the victim contacted Attorney and indicated that she wishes to sue D for the assault and murder of the victim. Question 1. Is there any prohibition against Attorney handling this case? Question 2. If a prohibition does apply against Attorney, may other members of Attorney´s firm handle the case? Question 3. If a prohibition does apply in both of the first two questions, can any member of the firm refer the case to another firm? ANSWER: Question 1. Yes, Attorney has a conflict under Rule 4-1.11, which prohibits Attorney from handling the matter. Questions 2. and 3. It is possible for another member of Attorney´s firm to handle the matter as long as Attorney and Attorney´s firm comply with the requirements of Rule 4-1.11.

QUESTION: Attorney is the county prosecuting attorney and is in private practice. Attorney is handling a civil matter for a client. Attorney´s client made a report of the incident, that later resulted in the civil suit, with the county sheriff´s office for information purposes only. The sheriff passed on the information on to the prosecutor, although no charges were ever filed. Does Attorney have a conflict of interest because the matter was investigated by the sheriff´s department? ANSWER: Although the report may only be intended for information, the prosecutor would have discretion to act on the information. If Attorney´s office received the report prior to Attorney´s acceptance of the civil case for the plaintiff, Attorney has a conflict of interest under Rule 4-1.11, which requires Attorney to withdraw. If the information was recieved after the Attorney accepted the civil case, the report should be reviewed by a Special Prosecutor.

QUESTION: In 1983, Attorney received a $165 refund from a nursing home due to the death of a former client of Attorney´s firm. Attorney has been holding the funds in the trust account and all efforts to find any heirs have been totally exhausted. What should Attorney do? ANSWER: Attorney must continue to make any reasonable efforts to find the appropriate heir(s), if further leads arise. Otherwise, Attorney must hold the funds in a trust account until they escheat to the state under the statutes.

QUESTION: A member of Attorney´s firm formerly represented D in a contract action. Attorney is now representing P against D in a negligence case. Does Attorney have a conflict? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation that could be used to D´s detriment in the current 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 the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. Attorney should review the file. Attorney may also want to ask opposing counsel in the current matter whether D is asserting that Attorney has a conflict under Rule 4-1.9(b) and, if so, what confidential information from the previous representation D believes triggers the rule.

QUESTION: Attorney is holding settlement funds that are disputed between the client and a third party asserting a lien. The non-disputed funds have been distributed. May Attorney hold these funds in an interest bearing account. ANSWER: Attorney may hold the funds for a reasonable period of time. While Attorney holds the funds, they may be in a non-IOLTA interest bearing account as long as the interest goes to the person to whom the funds belong. However, Attorney should not continue to hold the funds if progress toward settlement is not being made. Under those circumstances, it will be necessary for Attorney to file an interpleader action. Attorney should advise both parties of Attorney´s intent to file such an action far enough in advance that they will still be able to settle and avoid the expenses of that action.

QUESTION: Attorney is representing a plaintiff against a defendant who is insured by XYZ. Another member of Attorney´s firm is representing a defendant who is insured by XYZ in unrelated litigation. Is this a conflict? ANSWER: Attorney´s firm has a conflict of interest under Rules 4-1.7 and 4-1.10 which prevents it from handling matters on behalf of XYZ while Attorney is representing Attorney´s personal injury client against XYZ, or its interests. This conflict could be waived. It would be necessary to make full disclosure to Attorney´s personal injury client and XYZ. Each would have to expressly waive the conflict after full disclosure.

QUESTION: Attorney is a prosecuting attorney. Attorney´s office maintains several bank accounts. Account #1 is used for office expenses such as notary license and vehicle licenses. Account #2 is the account in which monies collected on restitution, bad checks (excluding fees) and taxes are deposited. This is an interest bearing account. Account #3 is the account in which fees collected from other attorneys for discovery, fees collected from the courts, reimbursements for depositions, fire investigation reports, etc. are deposited. Account #4 is the account in which all fees collected on bad checks and bad check cases are deposited. Do these accounts need to be IOLTA accounts? ANSWER: It appears that Accounts 1, 3 and 4 do not need to be IOLTA accounts. Account #2 should, under Rule 1.15, be an IOLTA account, assuming that there is no statutory provision which requires the interest from such an account to be deposited into the General Revenue Account.

QUESTION: Attorney is a former assistant prosecutor. Question 1. May Attorney represent a criminal defendant who is charged with crime which occurred while Attorney was an assistant prosecutor but for which the defendant was arrested and charged after Attorney was in private practice? Question 2. The criminal defendant is on probation for a crime to which the defendant pled guilty while Attorney was an assistant prosecutor. May Attorney represent the defendant in probation revocation proceedings? Question 3. May Attorney include the potential probation revocation in negotiations? Question 4. Is Attorney precluded from representing anyone on any matter that arises out of a criminal charge that was filed while Attorney was an assistant prosecutor? Question 5. Are other members of Attorney´s firm precluded from handling matters described in Question 4? Question 6. Must Attorney notify potential criminal clients about Attorney´s prior employment as an assistant prosecutor? ANSWER: Question 1. Yes. Question 2. No. Question 3. No. Question 4. Attorney is precluded from representing anyone on any matter that stems from or arises out of a criminal charge that was filed while Attorney was an assistant prosecutor if that charge is one with which Attorney, or anyone Attorney supervised, were involved, in any way. Question 5. Members of Attorney´s new firm are not precluded from handling these cases as long as Attorney follows the provisions of Rule 4-1.11(a) including effective screening and notice. Question 6. Attorney is not required to inform potential criminal clients about Attorney´s prior employment by the prosecutor´s office unless Attorney obtains information which indicates that Attorney may have a conflict.

QUESTION: May Attorney include language in the initial contract with the client that indicates that Attorney may destroy the contents of the file a specific time after the file is closed. Attorney will provide the client the option of indicating, at the beginning of the representation or later, that the client wants possession of the file. ANSWER: Attorney may include such a provision in Attorney´s Attorney/Client contract. Despite these terms, Attorney should remind Attorney´s clients of the provisions regarding file storage at the time the file is closed. Additionally, it is Attorney´s responsibility to make sure that these terms are adequately communicated to the client at the time they enter into the contract.

QUESTION: Attorney is holding funds in the trust account which Client deposited with Attorney to pay off Client´s bills once they are compromised. Client now refuses to respond to Attorney. Attorney does not have authority to actually make payments. ANSWER: In the absence of an apparently legitimate claim against the specific funds Attorney holds, Attorney must hold the funds until Attorney receives instructions from Client or returns the funds to Client. Attorney must make all reasonable efforts to locate and obtain instructions from Client. If Attorney is ultimately unable to locate Client, Attorney must hold the funds until they escheat to the state. If it appears that the funds will be held for an indefinite period of time, they should be kept in a separate, non-IOLTA interest bearing trust account, with the interest accruing to the benefit of the Client. If there is an apparently legitimate claim against the specific funds Attorney holds, once Attorney believes Attorney has held the funds a reasonable period of time and has made reasonable efforts to communicate with Client, without success, Attorney should file an interpleader action and pay the disputed funds into court. Prior to taking that action, Attorney should attempt to notify Client of Attorney´s plans and any possible impact that such action might have on funds that would probably come to Client if it is resolved without an interpleader action.

QUESTION: Attorney received funds from the State Abandoned Property Division indicating that the funds were garnishment proceeds from a collection action Attorney handled. Attorney´s client is a corporation which has since dissolved and no successors can be located. Part of the funds would be payable to Attorney under the contingent fee contract. ANSWER: Attorney´s firm must hold the client´s funds in a trust account until a representative of the client, or other person with a legal claim to the funds, can be found. If no such person is found, the funds will eventually, once again, escheat to the state. The portion of the funds which represent Attorney´s fee may be disbursed to the firm if it is clear under a written contingent fee contract that Attorney´s firm is entitled to the funds. Because it is anticipated that Attorney will hold the funds for an extended period of time, Attorney should hold them in a separate, interest bearing account. The account should not be an IOLTA account. The interest should go to the person or people who ultimately receive the funds or it should escheat with the remainder of the funds. Attorney has an ongoing duty to make reasonable efforts to distribute the funds to the appropriate person or people.

QUESTION: Attorney represented a client in a workers compensation case. The client indicated an intent to pay a doctor out of the proceeds and the doctor sent Attorney an assignment, signed by the client. Attorney was not involved in the assignment and has made no assurances to the doctor. Now Attorney´s client is instructing Attorney not to pay any of the proceeds to the doctor. To whom should Attorney pay the funds? ANSWER: Attorney may pay the amount claimed by the doctor to Attorney´s client, but such payment is not required. The doctor may or may not have a legitimate claim under the assignment; that is a legal rather than ethical issue. The rules do not require Attorney to take action which may subject Attorney to personal liability. However, Attorney should not pay the disputed amount to the doctor, unless Attorney´s client consents. If Attorney does not pay the disputed amount to Attorney´s client, Attorney may allow a reasonable period of time for the two to come to an agreement and Attorney may attempt to facilitate such an agreement. If they have not reached an agreement after a reasonable period of time, Attorney should interplead the disputed amount. In the interim, Attorney should pay all undisputed amounts to Attorney´s client.

QUESTION: Attorney represents a client who has suffered from brain injury. The client has been under the influence of various people. The client has asked Attorney for advances against an anticipated settlement or award. Subsequent to these influences, the client has indicated that Attorney is discharged. Attorney questions the client´s competence for various reasons described. May Attorney advance the funds? Must Attorney withdraw or may Attorney initiate a civil commitment proceeding? ANSWER: Rule 4-1.8(e) prohibits a lawyer from providing financial assistance to a client, other than advancing court costs and litigation expenses. Based on the information Attorney has provided, it appears that Rule 4 - 1.14, Client Under a Disability, would give the Attorney discretion to seek the appointment of a guardian or, if possible, a guardian ad litem. If Attorney believes that the client is capable of making a decision in the client´s own interests with regard to the question of discharging Attorney, Attorney may accept the decision to discharge without further action.

QUESTION: Attorney is the trustee in bankruptcy for a law firm that has dissolved. The trust account of the law firm still contains a significant sum of money. The owners of the funds are unknown and no one has claimed them. What should Attorney do with these funds? ANSWER: The funds must be held in a trust account until they are claimed or they escheat to the state under the Missouri unclaimed property law. Formal Opinion 118 generally addresses this topic. Under these circumstances, the funds should be held in an IOLTA account until they are cliamed or escheat.

QUESTION: Attorney settled a case for Client. Attorney distributed some of the funds but is holding the remaining funds. Client´s health insurer has notified Attorney that it will provide information regarding its position on subrogation. Attorney has not heard from the insurer for some time. The health insurer has no lien to the best of Attorney´s knowledge. May Attorney distribute the funds according to Client´s instructions? ANSWER: If Attorney was not involved in any arrangement between Client and the health insurer regarding reimbursement, Attorney may disburse the funds in accordance with Client´s directions at any time without violating the Rules of Professional Conduct.

QUESTION: Attorney will be leaving the firm in a couple of months. Attorney will be taking a plaintiff´s case. Before Attorney leaves the firm, an attorney who is representing the defendant in that case is scheduled to join the firm. Does Attorney need to change the departure date to avoid a conflict? ANSWER: Under Rules 4-1.7(a) and 1.10, Attorney and the other attorney may not continue on opposite sides of the same case while they are in the same firm. The only way that Attorney can avoid this problem is by Attorney´s departure from the firm before the other attorney joins the firm.

QUESTION: A number of years ago, Attorney was in a firm that represented Client A in an alienation of affection case. Subsequently, Client A was divorced and Client A´s Ex Spouse has sought representation from Attorney regarding collection of amounts due under the decree. ANSWER: Attorney´s question is governed by Rule 4-1.9(b). If Attorney worked on the alienation case or if Attorney obtained information about the case through discussion or other means while Attorney was at Attorney´s former firm, and if Attorney´s former firm obtained information in the course of representing the Client A in the alienation case that could be used to Client A´s detriment in the current matter, Attorney has a conflict of interest. If Attorney determines that Attorney does not believe Attorney has a conflict under this rule and Attorney undertakes to represent Client A´s ex-spouse, Attorney may want to raise the issue with opposing counsel early on, if Attorney´s client consents. By raising the issue early in the proceedings, if Client A has a valid basis for believing that there is a conflict under this rule, Attorney´s client will be able to obtain other counsel before the case progresses too far.

QUESTION: Attorney is a prosecuting attorney who has hired a new assistant prosecutor. While the new assistant was in private practice the new assistant was involved in several matters which are still pending in the prosecutor´s office. Must Attorney withdraw or may Attorney stay in the case by screening the new assistant from these matters? If screening is used, must Attorney notify defense counsel of the measures taken? ANSWER: Attorney does not need to withdraw from any of the matters as long as Attorney effectively screens the new assistant from these matters. The rules do not require Attorney to disclose these measures to defense counsel unless the issue is raised, however it may be advisable to advise them before they raise the issue. This opinion does not, in any way, affect the ability of a court to rule on a motion to disqualify.

QUESTION: Attorney was hired by a woman to represent her in a modification action. The woman´s current husband also signed the contract with Attorney. The woman and her husband obtained the advance fee payment from her husband´s relatives. The representation is over. The client has asked that the unused funds be refunded to her. The relatives have requested that the unused funds be refunded to them. ANSWER: Attorney may not refund the fee to Attorney´s client or her in-laws as long as both are claiming an interest in those funds. Attorney should notify both that Attorney can pay out the funds in the manner they jointly authorize if they reach an agreement. Attorney may not represent either of them in the process of reaching an agreement, but Attorney may facilitate communications. If they do not reach an agreement within a reasonable time, Attorney must file an interpleader action regarding the funds. Attorney should notify Attorney´s client and her in-laws of Attorney´s intention to do this in advance and of the possibility that the costs of the interpleader action will diminish the eventual refund.

QUESTION: Attorney is holding funds which a financial institution claims but which the client will apparently not authorize Attorney to disburse directly to the financial institution. Attorney was involved in making the arrangement with the financial institution under which the financial institution asserts its claim to the funds. What should Attorney do? ANSWER: Attorney should seek to obtain consent from Attorney´s client. Attorney should notify Attorney´s client that, if the client does not consent to full disbursement or if the client and the financial institution cannot come to some other agreement regarding disbursement, Attorney will file an interpleader action. Attorney should file the interpleader action within a reasonable period of time unless good faith efforts toward a resolution are in progress.

QUESTION: Attorney´s practice exclusively involves matters in which Attorney will be paid after the services are performed, except criminal matters in which a flat fee will be paid in advance. Attorney does not anticipate receiving settlement funds which Attorney will hold prior to disbursement. Must Attorney establish a trust account? ANSWER: If Attorney´s practice will not involve receiving fees in advance except in flat fee criminal cases, Attorney will not be required to establish a trust account under Rule 4-1.15. Attorney will have to provide annual notice at the time Attorney pays Attorney´s annual enrollment fee that Attorney believes Attorney is exempt under Rule 4-1.15(e)(1).

QUESTION: Attorney represents a client in a matter which is set for hearing in several months. The client did not divulge certain information to Attorney which Attorney has now learned. If Attorney had been aware of this information, Attorney would not have taken the case. May Attorney seek to withdraw? ANSWER: Attorney may withdraw, if Attorney is allowed by the tribunal to do so, as long as Attorney is not at a point in the proceedings such that the withdrawal will have a materially adverse effect on Attorney´s client.

QUESTION: Attorney represented a plaintiff in a personal injury case. The case was settled and the defendant agreed to pay court costs. Attorney has received a costs refund check and mailed it to Attorney´s client. The check has been returned with no forwarding address information. What should Attorney do with the refund? ANSWER: Attorney must make all reasonable efforts to locate Attorney´s client. If Attorney is unable to locate Attorney´s client, Attorney must deposit and maintain the funds in Attorney´s trust account. If the check is made out to Attorney´s client and Attorney does not have authority to endorse it, Attorney should notify the clerk´s office of the information after Attorney has made all reasonable efforts to locate Attorney´s client.

QUESTION: Attorney is a member of a firm that plans to organize as an LLP. However, the firm will not be a traditional partnership. Some expenses will be shared, profits and losses will not. May Attorneys hold themselves out as a partnership? ANSWER: If Attorney and the other attorneys form a valid limited liability partnership that complies with the LLP law, they may hold the partnership out as a partnership regardless of the details of the partnership agreement. Attorney should realize that forming Attorney´s firm as an LLP does not, in any way, limit the liability of individual members of the firm under the Rules of Professional Conduct. For example, Rule 4-1.10, which relates to imputed disqualification, would still apply. In other words, there is no limited ethical liability.

QUESTION: Attorney is a prosecuting attorney and asks about the applicability of Rule 4-1.15 to funds received by the prosecutor´s office. The funds include restitution and payment of delinquent taxes. ANSWER: Under Rule 4-1.15 , Attorney must maintain one or more separate trust accounts as prosecuting attorney for the funds of third persons. This account would include any payments Attorney receives as restitution. This account should be an IOLTA account pursuant to Rule 1.15(d) unless the cost of the account would outweigh the interest produced by the account. However, funds Attorney receives on behalf of the Department of Revenue or any other state agency should be kept in a separate trust account with interest payable to the appropriate state entity. The state monies may be commingled as long as the interest will all ultimately be deposited into the same state fund. Attorney may wish to contact the IOLTA office if Attorney needs further information about the IOLTA program. The address is: P.O. Box 63, Jefferson City, MO 65102. The telephone number is: 573-634-8117.

QUESTION: Attorney has lost contact with the clients. Attorney wishes to withdraw. What is Attorney required to do to notify the clients? ANSWER: Attorney has a duty to take all reasonable steps to contact the clients. It is unclear from the information Attorney has provided whether Attorney has taken sufficient steps under the circumstances. Attorney is not required to hire a private investigator but Attorney should conduct a reasonable investigation. Attorney has not indicated whether Attorney has checked with various agencies or businesses that may have received notification of an address change. The Department of Revenue (drivers and motor vehicle licenses), employers, banks and relatives all may be appropriate to contact, depending on the circumstances. Attorney is not required to give notification to the clients by publication if Attorney is unable to contact them any other way, but Attorney may do so. Attorney should also seek guidance from Attorney´s malpractice insurer´s claims prevention office, regarding any additional steps they may recommend.

QUESTION: Attorney asks about Attorney´s obligations to a client with whom Attorney has brief in-person or telephone contact but whose case Attorney declines. What obligation does Attorney have to inform the client of the statute of limitations? Does it matter how 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 extent of the information which attorney must provide the client regarding the statute of limitations relates more to malpractice than to ethical standards. The Missouri Bar operates a risk management program which attorney can reach at 1-800-555-9721.

QUESTION: Attorney has an office sharing arrangement with another firm. Attorney´s description of the arrangement describes a true office sharing arrangement. A member of the other firm previously represented Clients A and B to obtain a guardianship. Clients A and B have had a falling out and Client A now wants Attorney´s representation in seeking to be the sole guardian. May Attorney do so? ANSWER: Based upon the information Attorney has provided, attorney does not have a conflict of interest under the Rules of Professional Conduct that would prohibit Attorney from representing Client A.

QUESTION: Several attorneys have formed a firm but they do not share profits. One member of the firm is a municipal judge. May other members of the firm represent clients in municipal zoning matters? ANSWER: No. Once the attorneys have formed a firm, the provisions of Rule 4-1.10 apply regardless of the internal financial arrangements. Therefore, the conflicts of each member of the firm are conflicts for all members of the firm.

QUESTION: Attorney will be leaving the firm. Attorney asks about the obligation to inform the clients Attorney brought to the firm and the clients whom Attorney is currently representing. Attorney asks whether the firm file is available to clients who wish to be represented by Attorney or someone else outside the firm. ANSWER: Attorney does have an obligation to inform clients Attorney brought to the firm and clients whom Attorney is currently representing of Attorney´s departure. The firm has a concurrent obligation to make sure that these clients are informed. There is no set procedure for accomplishing this notification. It is best if the firm and the attorney who is leaving work together on this matter. Regardless of who informs the client, the client may be told that the client has the option of staying with the firm, going with the attorney or going with any other attorney of the client´s choice. Of course, if either of the first two choices are not available due to conflicts or some other reason, the client should not be presented with the option that is not available. The original of the file on the case belongs to the client. Therefore, the attorney or firm chosen by the client should have the original file unless the client consents to receiving only a copy. This should be accomplished by working with the firm. If the firm has advanced expenses to purchase items, such as copies of records or transcripts, it does not have to relinquish those items until it has been reimbursed. Formal Opinion 115, as amended, addresses this topic.

QUESTION: Attorney represents H and W as defendants in a personal 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 no recollection of the incident leading to the lawsuit and there is some question as to his mental acuity. H has never been declared incompetent. Does Attorney have an obligation to seek a guardian ad litem for H? ANSWER: Based on the information provided, it does not appear that Attorney has an obligation under the Rules of Professional Conduct to seek to have a guardian ad litem appointed for H. However, because this question is very fact dependent and somewhat subjective, Attorney should review Rule 4-1.14 for guidance in this situation. Attorney should discuss the matter with H, to the extent this is feasible. This opinion does not address whether any statutory provisions may apply to this situation.

QUESTION: A prosecutors office has hired a part time prosecutor who previously represented individuals who are criminal defendants. The prior representation was not in the criminal case but was in related matters. Efforts have been taken to screen the part time prosecutor from these cases by isolation from the file and not discussing the case. Does this create a conflict for the entire office? ANSWER: The prior involvement of the part time prosecutor in the two cases does not disqualify the entire office as long as adequate steps are taken to screen the part time prosecutor from these cases. In addition to isolating the file, other staff should be made aware of the screening so that information is not inadvertently provided or the part time prosecutor is not inadvertently brought into discussions about the cases.

QUESTION: Client A has asked Attorney for representation in a divorce. A firm for which Attorney worked at the time prepared the prenuptial agreement. May Attorney represent Client A? Can any conflicts be cured by waiver? ANSWER: Attorney has not indicated which party to the prenuptial agreement the former firm represented. Therefore, this is based on the assumption that it represented both parties. If Attorney obtained confidential information regarding the prenuptial agreement while Attorney was a member of the firm that prepared the agreement, Attorney has a conflict of interest under Rule 4-1.9 . However, if Attorney did not obtain such information, Attorney does not have a conflict of interest. Attorney should be aware that Attorney may have obtained confidential information by discussing the matter with other members of the firm despite complete lack of contact with the file or the clients. If a conflict of interest does exist, it may be waived. The former client should only be asked to waive the conflict after full disclosure and the opportunity and encouragement to obtain the advice of independent counsel.

QUESTION: Attorney represented W on a motion to modify. Attorney A represented H. Attorney and Attorney A now share office space and expenses but are not partners. W needs to file a motion for contempt against H. Attorney A will not represent H. ANSWER: If Attorney and Attorney A are truly only sharing office space and expenses, Attorney may represent W. In order for the relationship to be solely office sharing, confidentiality must be maintained so that employees of one attorney do not have access to the files and client information of the other attorney. To the extent that any employees are joint employees, they should be clearly instructed on the fact that the offices are separate and information about one attorney´s clients should not be shared with the other. The two practices should appear separate through signage and advertising. Although the space is shared, the overall arrangement should make the separateness of the practices clear. If the two practices are not kept separate as described, each should consider the conflicts of one to be the conflicts of both. Therefore, Attorney would not be able to represent W without the consent of H.

QUESTION: Attorney asks for clarification of opinion 950071 regarding payments to a third party from the proceeds of a case. ANSWER: Rule 1.15(c) of Supreme Court Rule 4, the Rules of Professional Conduct, governs the conduct of an attorney who is in possession of funds in which the client and a third party claim an interest. If a third party claims an interest, Attorney must comply with that rule. Informal advisory opinion 950071, and others rendered before and since, involve situations where either the attorney has been involved in an agreement made or ratified by the client for the third party to be paid from any settlement or recovery, or where the third party has perfected a lien or demonstrated an apparently valid claim on the proceeds such that the attorney may be held personally liable to the third party. Under these circumstances the attorney is not committing an ethical violation by withholding the disputed amount from the client. In other circumstances, an attorney is not ethically prohibited from paying the money to the client and accepting the legal consequences including the possibility of being held personally liable to the third party.

QUESTION: Attorney asks which files Attorney may destroy versus which files Attorney must retain. ANSWER: No provision of Supreme Court Rule 4, the Rules of Professional Conduct, specifically addresses file retention. However, the original file actually belongs to the client. Therefore, Attorney should not destroy an original file without the consent of the client. Attorney may obtain the consent of the client by notifying the client that Attorney will retain the file for a certain period of time after which it will be destroyed or by specifically asking the client for permission to destroy the file. Of course, Attorney must inform the client that the client has the right to take possession of the file at any time. Additionally, Attorney may not destroy an item within a file which has inherent value if it has been left with Attorney for safekeeping. If the files about which Attorney is concerned are copies of files, Attorney may establish Attorney´s own file retention program. Various law practice management books contain suggestions regarding this topic. The Law Practice Management Information Center at The Missouri Bar has publications on this topic available for loan. For information on this center, contact Linda Oligschlaeger at 314-635-4128. Attorney may also want to consult with Attorney´s malpractice insurance carrier on this topic.

QUESTION: Attorney is a member of a firm. Attorney represents Company X in a workers compensation case. The worker in the workers compensation case claims to have called the firm to talk about a wrongful discharge case. The worker talked to another member of the firm who has never been involved in the workers compensation case. The worker claims to have discussed the workers compensation case with the other member of the firm. Does Attorney now have a conflict of interest? ANSWER: If the conversation which the worker described did occur, the firm has a conflict of interest under Rule 1.9(a) and must withdraw unless the worker consents. Screening is not an option for curing a conflict of interest in a private firm in Missouri. Therefore, the fact that the other member of the firm has had no direct involvement in the workers compensation case does not affect the existence of the conflict.

QUESTION: Former prosecutor has formed a firm with a former assistant prosecutor. A warrant was issued for X while the prosecutor and assistant were still in the prosecutor´s office. Former prosecutor and former assistant now wish to represent X. Neither had any direct involvement in the case while they were in the prosecutor´s office. Because of the fee arrangement, X will be at a disadvantage if X must obtain other counsel. ANSWER: Former prosecutor is disqualified regardless of personal knowledge because the authority of any assistant prosecuting attorney to act in the case flowed from the prosecutor and the prosecutor was a supervising attorney responsible for the assistant´s actions. The former assistant is not disqualified, based on the facts presented. The hardship for X is not a factor to be considered in the analysis. The former assistant may continue representation in the case as long as the former prosecutor is screened following the requirements set out in Rule 4-1.11.

QUESTION: Attorney´s client is seeking representation in a motion to modify. One of Attorney´s partners previously represented the client´s ex-husband in an incorporation matter. May Attorney represent the current client in the motion to modify? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation that could be used to the previous client´s detriment in the current 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 the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: Attorney is a former judge. (1) Attorney served as a judge in an uncontested matter relating to child support. Now one party wants to hire Attorney in a proceeding to enforce the order. (2) Attorney served as a judge in a default dissolution. Now one party wants to hire Attorney for a motion to modify. (3) Attorney served as a judge in a Consent Order of Protection under the Adult Abuse Act. The parties were subsequently divorced without Attorney´s involvement. One party now wants to hire Attorney for a motion to modify. ANSWER: Under Rule 4-1.12 Attorney may not represent either party in any of the situations described unless both parties consent after disclosure.

QUESTION: Attorney is a former assistant prosecutor. As assistant prosecutor, Attorney was involved in representing the county zoning director in a case. May Attorney now represent another party in the case if the representation is not adverse to the former client? ANSWER: The representation proposed would involve a conflict of interest under Rule 4-1.11(a). The former client would have to consent after full disclosure.

QUESTION: Attorney is a former judge. Attorney presents several situations. Situation 1: While a judge, Attorney signed letters of administration. Subsequently, the estate became contested and Attorney has now been asked to represent a party. Situation 2: While a judge, Attorney entered a divorce decree. One of the parties to the divorce has asked Attorney for representation in an action to modify the decree. Does Attorney have a conflict of interest in these situations? ANSWER: Yes, in each of the situations described, Attorney is prohibited by Rule 4-1.12 from undertaking the representation unless all parties consent after disclosure.

QUESTION: Attorney represented a client in a workers compensation case. The client obtained medical treatment without authorization from the employer or insurer. The employer is denying liability for these bills. The client has since died leaving a minor child who is the sole beneficiary. ANSWER: If Attorney did not participate in the formation of an agreement that the medical providers would be paid from the proceeds of the workers compensation case and there are no valid liens or assignments which would make Attorney liable for the claims of the medical providers if they are not paid from the proceeds, Attorney may distribute the proceeds directly to the current client or according to the client´s directions. However, if Attorney did participate in the formation of an agreement, Attorney may not pay the proceeds to the client. If the client and the medical providers cannot come to an agreement within a reasonable period, Attorney will have to interplead the disputed funds. If did not participate in formation of an agreement but there is a lien or assignment that Attorney believes is arguably valid that would subject Attorney to personal liability for payment of the funds, Attorney may pay out the funds according to the client´s direction or Attorney may interplead the funds.

QUESTION: Attorney represented a client in a personal injury case. Attorney assisted the client in arrangements with health care providers that they would be paid out of the settlement or judgment. Now, the case has been settled and the client does not want to pay the health care providers. ANSWER: In light of Attorney´s involvement in representing to the health care providers that they would be paid out of the proceeds of the settlement, Attorney may not disburse the disputed funds to Attorney´s client. However, Attorney may not pay the disputed funds to the health care providers contrary to the client´s instructions. Attorney may hold the funds in Attorney´s trust account for a reasonable period of time to allow for the client and health care providers to resolve this dispute. If the dispute is not resolved within a reasonable period of time, Attorney must file an interpleader action to present the legal issue to the court for determination.

QUESTION: Attorney represented a client in estate planning who was previously competent but now appears incompetent. May Attorney represent client´s child in proceedings to have the client declared incompetent. This appears to be necessary for the client´s protection. May Attorney represent the child in incompetency proceedings and continue to represent the client in estate planning. If there is a conflict, can the client waive the conflict? ANSWER: Under Rule 4-1.14(b), Attorney may represent the child in a proceeding to have the former client declared incompetent. Attorney will not be able to continue to provide representation of any sort to the client once Attorney is representing a party seeking to have the client declared incompetent. In light of the fact that Attorney believes the former client to be incompetent, it will not be possible for Attorney to seek a waiver of the conflict from the client. Attorney should also consider whether there is a likelihood that Attorney will be a necessary witness in the incompetency proceedings in determining whether to represent the child in seeking to have the client declared incompetent. Attorney should consult Rule 3.7 regarding this issue.

QUESTION: Attorney represents a client in a case that has been resolved through arbitration. A company claims that a portion of the award was for that company. Attorney is holding the disputed amount in Attorney´s trust account. What should Attorney do? ANSWER: Once a reasonable time for the various parties to resolve their dispute over the money has passed, Attorney has no option other than to interplead the funds. Perhaps when the disputing 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.

QUESTION: A member of Attorney´s firm is now a prosecuting attorney. Attorney will be appointed as an assistant prosecuting attorney or as a special assistant prosecutor on specific cases. May Attorney continue representing criminal defendants whom Attorney has represented from the onset and whose cases are coming to an end? ANSWER: If Attorney is an assistant prosecuting attorney, under Rule 4-1.7(a) Attorney may not continue to represent any criminal defendants in state court. Attorney is also prohibited from such representation, under Rule 4-1.10, if the prosecuting attorney is still a member of Attorney´s firm. If Attorney is a special prosecutor appointed on individual cases in which there is a need for a special prosecutor and the prosecuting attorney is not a member of Attorney´s firm, Attorney may represent criminal defendants in other cases, including cases in the same county.

QUESTION: Two attorneys who are in separate firms will form a firm. They currently have cases against each other. Attorney A is a guardian ad litem in a case which the other attorney had to decline due to a conflict. Other members of Attorney A´s firm have cases against Attorney B. What must the attorneys do regarding these cases. ANSWER: In all of the pending cases, both attorneys must withdraw unless both clients consent to one continuing as counsel for one party. The rules do not permit the attorneys to obtain consent for both to remain in the case once they are both in the same firm. Attorney A will have to withdraw as guardian ad litem once the firm is formed. Under Rule 4-1.10, the conflict of one is the conflict of both. It will not be necessary for Attorney B to withdraw from cases in which another member of Attorney A´s current firm represents the opposing party unless Attorney A gained confidential information related to the representation while Attorney A was in the current firm.

QUESTION: Attorney was an assistant public defender and is now an assistant prosecuting attorney. (1) May Attorney prosecute in cases which were pending in the public defender´s office while Attorney was employed there? (2) May attorney prosecute former clients who Attorney personally represented on unrelated matters? ANSWER: (1) Under Rule 4-1.11, Attorney may not prosecute in these cases if Attorney personally and substantially participated in the case while Attorney was in the public defender´s office. Attorney would be considered to have personally and substantially participated if you were privy to confidential information regarding the case. (2) This question is governed by Rule 4-1.9(b). Attorney may not prosecute if Attorney obtained information in the course of previous representation of the defendant that could be used to the defendant´s disadvantage in the current matter.

QUESTION: Attorney represents Client A on a traffic ticket and Client B on a personal injury matter. Attorney now learns that the two matters arise out of the same facts. If A and B consent after full disclosure, may Attorney continue to represent both? At this point no suit has been filed and Attorney has been negotiating settlement with the insurance company. ANSWER: If A and B consent after full disclosure, Attorney may continue to represent both. However, if it becomes necessary to file a suit in which one client is the plaintiff and the other is the defendant, Attorney must withdraw from representing both unless both consent to Attorney continuing to represent only one.

QUESTION: Attorney proposes to pay the treating physician out of the settlement. This physician would have been an expert witness if the case had gone to trial. The physician accepted the patient on Attorney´s recommendation. A judgment has been entered in small claims court against the client/patient and the lawyer´s trust account is about to be garnished. The client has not consented to payment to the physician. ANSWER: Under Rules 4-1.5(d) and 4-1.15(a)-(c), Attorney may only pay the treating physician out of settlement funds if the client consents. If the client does not consent and the physician continues to assert a claim, Attorney must interplead the funds. Attorney must not allow funds to be removed from the trust account without the consent of the client unless it is pursuant to a court order in a matter in which the client´s interests were represented or in which the client chose not to be represented.

QUESTION: Attorney is the trustee in bankruptcy for an attorney who is now deceased. The deceased attorney had closed client files from many years of practice. What should the trustee do about the files? ANSWER: Rule 5.24 provides a mechanism for appointment of a trustee to wind up the practice of a deceased attorney. That rule would not prohibit the bankruptcy trustee from also being the trustee for the practice. The attorney who is appointed trustee under Rule 5.24 should make an effort to return the files to the clients.

QUESTION: Does the title "general counsel" create any different obligations than the titles "legal counsel" or "corporate counsel´? ANSWER: No. Under the Rules of Professional Conduct, the attorney´s actual role rather would determine the attorney´s responsibilities regardless of the title. If individuals within the organization might be led to believe that the attorney has a role other than the actual role, perhaps the title used should be reconsidered.

QUESTION: Attorney is city counselor. May members of Attorney´s firm handle the defense of municipal ordinance violations? Is screening a solution? ANSWER: No, it would involve a conflict of interest under Rule 1.7(a). Screening is not a solution because screening is only allowed under the rules in a situation involving successive government and private employment.

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.

QUESTION: Attorney does not have a trust account. Attorney has taken a case that will involve payment of a retainer. Attorney will bill against the retainer. Attorney anticipates billing the full amount of the retainer in a very short time. Must Attorney set up an IOLTA account? ANSWER: Attorney must establish a trust account. If it is interest bearing, it must be an IOLTA account unless the funds of the individual client can be segregated so that the interest can be paid to that client. Even for a short period of time, the funds may not be in the operating account or any account other than a trust account. Once Attorney has earned the fee and billed the client and the client has had sufficient time to notify Attorney of any objection to the fee, Attorney may transfer the funds into the operating account.

QUESTION: Attorney has recently learned that a conservator whom attorney represents may have attempted to misappropriate funds. Attorney has come into possession of a check representing money belonging to the estate which the conservator has attempted to improperly obtain. Attorney also has received information that the conservator may have misappropriated estate funds in a previous year. What may attorney do with the check? What may attorney do regarding notifying the conservator´s bonding company? What are Attorney´s duties to the subject of the conservatorship? ANSWER: The information is covered by Rule 4-1.6, client confidentiality. Attorney may not communicate the information to anyone other than the conservator unless the conservator has consented or gives consent in the future. Attorney must attempt to persuade the conservator to remedy these problems. If conservator is unwilling to remedy these problems, Attorney must return the check to the court without explanation and withdraw from the representation. Attorney may inform the bonding company of Attorney´s Motion for Leave to Withdraw. Attorney´s duties to the subject of the conservatorship are discharged by persuading the conservator to rectify the wrongful conduct. Alternatively, Attorney´s duties are discharged by seeking to withdraw and returning the check to the court.

QUESTION: Attorney has a trust account which has been in existence for a large number of years. The trust account contains a significant amount of money for which the firm cannot account. Some of the funds cannot be attributed to a particular file, although there are some records which indicate that they do belong to a particular file. For the remainder of the funds, there is no record at all and it is possible that the money relates to amounts that should have been disbursed to the firm. What should the firm do with these funds? ANSWER: The amount which can be attributed to files, must be placed in a separate, interest bearing trust account and Attorney must continue to attempt to make appropriate disbursement of those funds. Attorney should maintain an accounting of the interest attributable to each file so that it can be disbursed once the client is identified and the funds are disbursed. The funds which are not attributable to a file, may not be disbursed to the firm unless the firm can establish that they are firm funds. In the absence of clear evidence to the contrary, funds in the trust account are presumed to be client funds. These funds should also be placed in a separate, trust account. The funds may not be distributed to the firm unless it is established that they are firm funds. The firm should maintain clear documentation to explain all of the steps taken, including the steps involved in the ultimate disbursement.

QUESTION: Husband (H) and Wife (W) are attorneys in separate firms. H asks whether the hiring of one precludes or impacts the hiring of the other. ANSWER: Under Rule 4-1.8(i), H will not be able to take a case in which W represents an adverse party unless H´s potential client consents after full disclosure. As indicated in the comment, this conflict will not disqualify other members of H´s firm under Rule 4-1.10. However, another member of the firm who takes a case in which W is representing an adverse party should disclose this fact to the client.

QUESTION: Attorney accepted a case on a flat fee basis. Attorney now wishes to withdraw before the case is concluded due to the client´s lack of cooperation. Attorney states that, as a result of client´s lack of cooperation, attorney fees valuing several times the flat fee paid have been provided. May Attorney withdraw and, if so, what amount of refund, if any, is owed the client? ANSWER: Attorney may ask the court for leave to withdraw. This office cannot resolved factual issues such as the amount of a refund owed in the context of an informal advisory opinion.

QUESTION: One member of the firm is a part time municipal judge. Another member has a case in which the city is a defendant. Is this a conflict? Can it be waived? ANSWER: Yes, it is a conflict and the member must withdraw from the case. As a governmental entity, the city cannot waive the conflict.

QUESTION: Attorney is representing the class in a class action suit. One of the members of the class is recruiting class members and obtaining the attorney fee which is forwarded to Attorney. May Attorney accept these people as clients in this manner? ANSWER: Yes. Once Attorney accepts them as clients, Attorney must communicate with them directly affirming Attorney´s representation and communicating about the case before taking any action as their attorney. If they change their mind after direct communication, Attorney must refund the fee under Rule 4-1.16. This opinion does not consider any restrictions the court may impose.

QUESTION: Attorney is a member of one firm and will be "of counsel" to another firm. The two firms share office space and some equipment, otherwise they are separate. Does this violate the Rules of Professional Conduct? ANSWER: In order to avoid violating Rule 4-7.1 attorney would need to identify both firms with which the attorney is connected on each firm´s letterhead and other forms of communication to the public and other law firms. The two firms will be considered as one for conflicts purposes.

QUESTION: Attorney will become prosecuting attorney. What impact will that have on pending civil cases? What impact on future civil cases involving automobile accidents? Attorney is currently working with another attorney in a firm. After Attorney becomes prosecutor, may Attorney work with the other attorney on civil cases on a case by case basis without disqualifying the other attorney from defending criminal cases in Missouri? ANSWER: Attorney may continue in pending civil cases unless some aspect of the factual situations from which those cases arise was considered by that prosecuting attorney´s office. After becoming prosecuting attorney, Attorney may represent parties in auto accident cases which occur in other counties and other states as long as nothing related to those cases is considered by Attorney´s prosecutor´s office. If Attorney maintains a separate office from the other Attorney and is occasionally co-counsel on individual cases, it will not affect Attorney´s ability to represent criminal defendants. However, if there is an ongoing relationship or the appearance of an ongoing relationship, the other attorney would be disqualified from handling any criminal defendants in Missouri as well as any other case from which prosecuting attorney would be disqualified.

QUESTION: Attorney and the client have disagreed over the amount of settlement that would be reasonable. As a result, the client has discharged Attorney twice but has returned when other attorneys told the client that Attorney´s assessment of the case was reasonable. May Attorney withdraw? ANSWER: Yes. Attorney must comply with all of the requirements of Rule 4-1.16(d), including the requirement that Attorney not withdraw if the withdrawal would have a materially adverse impact on the interests of Attorney´s client.

QUESTION: Attorney's client is receiving Medicaid. Attorney has obtained agreement from an insurance company to settle a personal injury case. Statutes require both Attorney and client to notify Social Services of the settlement. Client has withdrawn authority to settle and discharged Attorney after Attorney informed client of this obligation. May Attorney report to Social Services? ANSWER: If Attorney reports without client's consent, Attorney will violate the confidentiality obligation under Rule 4-1.6. Attorney should counsel client regarding the obligations under the statutes prior to withdrawing. If client will not consent to reporting, Attorney must remain silent and withdraw under Rule 4-1.16(a)(1).