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's elderly client was injured in an automobile accident. The client has left the area. Attorney has made numerous attempts to locate the client but has been unable to do so. The judge wants to move the case along. What does Attorney do since the client cannot be located?

ANSWER: If Attorney was given authorization to settle on specific terms, Attorney may settle. If Attorney is unable to settle the case, Attorney could try the case in the client's absence. Otherwise, Attorney should continue taking reasonable steps to locate the client. Attorney may be able to locate the names of the client's relatives in medical records. Attorney should check to see whether the Social Security Administration can be of assistance.

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´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 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 client who received a judgment in a case arising out of an automobile accident. The defendant is uninsured and has not satisfied the judgment. Attorney is contemplating notifying the Department of Revenue of these facts so that drivers license revocation proceedings will be initiated. Attorney is contemplating giving the defendant advance warning of this intention. ANSWER: The proposal of reporting the judgment debtor to the Department of Revenue would not violate any provision of the Rules of Professional Conduct. The decision regarding whether to report the judgment debtor is one to be made in consultation with the client. Attorney does not have an ethical obligation under the rules to make the report except to the extent that it serves the client´s interests.

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 and client propose to agree to language in the contingent fee contract which states: "Client shall not withhold Client´s consent to a reasonable offer of compromise or settle Client´s claims unreasonably." Is this permissible under the Rules of Professional Conduct? ANSWER: Yes. Such a provision in the contract would not authorize the attorney to unilaterally determine that a settlement was reasonable and to settle the case without the client´s express authority.

QUESTION: Client signed a contract authorizing Attorney to withhold amounts due to health care providers when Attorney distributes proceeds to client. Health care provider makes a claim. Client disputes the terms of the arrangement with the health care provider. Client instructs Attorney to pay no portion of the proceeds to the health care provider and to pay those amounts to client. ANSWER: If Attorney was not involved in any of the agreements between the client and the doctor, Attorney may honor the client´s directive and pay the proceeds to the client. Alternatively, Attorney may hold the funds in Attorney´s trust account until the dispute can be resolved. If the dispute is not resolved in a reasonable time, Attorney would have to interplead the funds. If Attorney was a participant in the agreement between the client and the health care provider, Attorney must hold the funds in Attorney´s trust account until the dispute is resolved. If the dispute is not resolved in a reasonable time, Attorney must file an interpleader action. This advice only addresses the ethical aspects of this question. It does not address issues of possible civil liability.

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.