QUESTION: Can Attorney tell a client that Attorney will provide free or reduced cost estate planning services to a client who leaves a portion of their estate to a not-for-profit organization? ANSWER: It is permissible for Attorney to offer a discount on estate planning to clients who leave a portion of their estates to a not-for-profit organization. Attorney must clearly and fully disclose Attorney's relationship with the organization. Attorney must provide objective advice and consultation to the clients regarding their options and the effects of their choices

QUESTION: An associate of Attorney's firm is leaving Attorney's firm. Attorney's firm will give written notice to the clients whose employment agreements bear the associate's signature that the associate is leaving. Attorney's firm proposes to say that one of the partners would continue handling the case. Since the attorney leaving the firm is an associate, and not a partner, of the firm, should Attorney's firm also include a statement that such clients are free to ask the associate to continue with their case or to hire completely different counsel? ANSWER: The same procedures apply when an attorney leaves a firm regardless of an attorney's status in the firm. It does not matter whether the attorney was a partner, associate, "of counsel," etc. The clients who must be notified are the clients for whom the attorney provided material representation. If it is actually possible for the departing associate to continue to represent these clients, the clients must be notified of that option. For further information about the duties when an attorney leaves a firm, please see the article, The Right Way to Leave Your Firm. It is available at in the Articles portion of www.mo-legal-ethics.org or by contacting the Legal Ethics Counsel office.

QUESTION: Attorney represents a health care provider in a medical malpractice case. Client is being sued for professional negligence. Attorney discovered from Client that the attorney representing the plaintiffs in the case had previously represented Client in a disciplinary proceeding before the state licensing board. The previous representation ended in a number of years ago. The disciplinary proceeding did not involve the plaintiffs in the pending malpractice claim, but there are allegations in the malpractice action that Client is incompetent, and that Client's alleged employer was negligent in employing Client due to incompetence. Confidential information gained in the prior representation could be used against Client in the present litigation. Attorney filed a motion to disqualify plaintiff's counsel. Does Attorney have an obligation to report this pursuant to Rule 4-8.3? ANSWER: The responses to the motion to disqualify and the evidence at any hearing on the motion should serve to clarify the facts of the situation. (1) If the court specifically finds that there is no conflict, or further facts lead Attorney to believe that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (2) If the court disqualifies opposing counsel, but Attorney believes that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (3) If the court disqualifies opposing counsel and Attorney believes that opposing counsel did not have a good faith belief that here was no conflict, Attorney has an obligation to report opposing counsel. However, under Rule 4-8.3(c), that duty is conditioned on consent by Client. In any event, as part of Attorney's duty under Rule 4-1.4, Attorney should advise Client of the option to file a complaint with OCDC.

QUESTION: Can Attorney volunteer to be Civilian Defense Counsel for the Military Commission set up in the war on terrorism? See, http://www.defenselink.mil/news/May2003/d20030430milcominstno5.pdf

ANSWER: Attorney may ethically serve as Civilian Defense Counsel. Under Rule 4-1.4, it will be necessary for Attorney to inform attorney's client of the provisions under which Attorney will be serving, especially the limits on the extent to which the government will treat communications as confidential.

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: Is it permissible for Attorney to allow and assistant a nonlawyer employee the of the client to take a sworn statement in Attorney's office, with or without an Attorney present?

ANSWER: It does not constitute the unauthorized practice of law for a nonlawyer to take a sworn statement as part of an investigation. Therefore, Attorney will not be assisting the unauthorized practice of law by supervising this activity. However, it is important that no one be misled about the nonlawyer's role or credentials. Because the statement is taken in Attorney's law office and Attorney may be present, it will be necessary to disclose that the nonlawyer is not a lawyer. It would not be permissible for a nonlawyer to take a deposition.

QUESTION: Attorney´s firm maintains a website which provides information about the attorneys in the firm and the nature of their practice. An e-mail hyperlink is provided for comments and questions from individuals who visit the site. Attorney´s firm has received unsolicited e-mails on a variety of subjects. They range from comments about the site to general questions for information to very detailed requests for legal representation. Often, it appears from the form of the e-mail that it has been sent to a number of attorneys and firms, not just Attorney´s firm. Does Attorney´s firm have an affirmative duty to respond to each and every request for information and representation? Based on whether or not a response is made, and the tone of the response, the individual sending the e-mail could possibly conclude that any attorney-client relationship has been created. Conversely, the lack of response may be interpreted by the sender as the acceptance of representation. ANSWER: By providing the opportunity to contact Attorney by e-mail through Attorney´s website, Attorney exposes Attorney´s firm to certain risks. One of the primary risks is that an attorney-client relationship will be established. The creation of that relationship may cause Attorney to have obligations to that client. Even if Attorney clearly inform the potential client that Attorney is declining representation, depending on the extent and nature of the communication, it may create a conflict that would prevent Attorney from representing another party in the matter. There is no blanket answer to Attorney´s question. The nature of Attorney´s obligation would depend on the nature of the communication. Attorney should also contact Attorney´s malpractice carrier for advice on this issue.

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 is representing Client in a personal injury matter. Client is experiencing a financial hardship and has contacted a corporation that provides interim funding to individuals with claims or lawsuits pending. In order to consider providing an advance to Client, the corporation has asked Attorney to provide case documents for review and fill out necessary forms. The corporation has explained to Client that it is an advance against an impending settlement, not a loan, and the advance is risky and the corporation´s fees are high. Even though Attorney has fully discussed the matter with Client and expressed caution concerning the interest rates, Client has asked Attorney to provide the necessary paperwork to the corporation. Would it be ethical for Attorney to participate in this type of agreement? ANSWER: 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 agrees to participate in this arrangement, Attorney has obligations to advise Client about all aspects of the arrangement and to look after Client´s interests. One aspect would be ensuring that the other party agrees to maintain confidentiality regarding information Attorney provides. Attorney may not participate in the arrangement and then withhold information required by the arrangement 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).

QUESTION: Attorney would like to put a binding arbitration provision in Attorney´s fee agreement providing that all disputes between Attorney and Attorney´s client would be arbitrated. Is this prohibited? ANSWER: Attorney may include a binding arbitration agreement in Attorney´s fee agreements without violating Supreme Court Rule 4. However, under Rules 4-1.4(b) and 4-1.7(b), Attorney has an obligation to orally point out this provision and to explain it, to the extent necessary for the individual client.

QUESTION: Attorney has submitted a electronic mail consent form for approval. Is this form appropriate? ANSWER: It is unlikely that any form could be developed which would adequately explain the concerns for all clients, without additional oral communication. Whether e-mail communication is appropriate may depend on the setting in which the client will send and receive e-mail as well as the nature of the particular communication. Any communication with the client regarding this subject should be in plain language, as much as possible, and should discuss the various ways in which e-mail might be intercepted or accessed by someone else. E-mail is not the same as other types of communications because it is so new that many people are not aware of the basic risks of interception through technology or access. Informal Opinions 980137, 980029, 970230 970161 and 970010, also address this topic. The risk that e-mail will be intercepted as it is actually traveling on the internet is only one type of risk. One example of another type of risk would be a client who sends and receives e-mail from a home computer. That client may not be aware of the risk of having someone obtain that e-mail through access to the same internet account or to e-mail stored on the computer itself. Computers are often set up to store all e-mail sent and received. Additionally, many computers create "temporary" files which essentially form a temporary backup system. A client may be unaware of these possibilities or may not have considered them. Whether these concerns will be significant to a particular client will depend upon the nature of the legal matter and communication. Clients who send and receive e-mail from the work place will need to consider similar types of issues but the risks of access, etc., will vary greatly depending on the work setting.

QUESTION: Attorney´s firm has been retained by insurance company and defends its insureds under liability policies. The insurance company requires Attorney´s firm to submit its bills directly to an outside auditing company, which is an independent contractor to the insurance company. The firm is required to submit the bills to the audit company with or without the consent of insured. Question 1. Would Attorney´s firm submitting its insurance company´s bill to the audit company violate the Rules of Professional Conduct? The insurance company has also provided the firm with "billing guidelines" to be followed in defending insureds. The insureds are not advised regarding the guidelines. Attorney´s firm believes that the guidelines are designed to benefit only the insurance company and not its insured. Question 2. Would the law firm violate the Rules of Professional Conduct by adhering to the billing guidelines in the preparation of a defense of this insured? Insurance company has requested Attorney´s firm agree to defend its insureds by a set or flat fee. Insured has no knowledge or input into the setting of the flat fee arrangement. Question 3. May Attorney´s firm enter into a contract with the liability insurer in which the firm agrees to do all or part of the defense work for a set fee either for all of the work or on a case-by-case basis? ANSWER: In each of the circumstances Attorney has outlined, Attorney may only comply with the insurance company´s guidelines or requests, if the client consents. Under Rules 4-1.8(f) and 4-1.4 Attorney must inform the insured of the guidelines and requests in a manner such that the insured will understand the extent of the guidelines and requests and the implications of the guidelines and requests on the representation. If the insured does not consent or the insurance company does not waive its guidelines and requests in this case, Attorney should withdraw.

QUESTION: Attorney is requesting clarification of 970230 concerning communicating with a client using e-mail. Attorney feels that the previous opinion is an overreaction. Would OCDC reconsider its position? ANSWER: The recency of the development of e-mail communication is a valid basis for a distinction between forms of communication. It is certainly acceptable to advise clients of the relative risks of interception of communications by regular telephones, etc. However, the attorney owes a duty to the client to advise of the risks of attorney/client communications through a technology about which many clients only have a rudimentary knowledge. This advice does not have to be technical in nature. The advice must be adequate to inform the client of the nature of the risk before the client makes the decision that it is acceptable to use that method of communication.

QUESTION: Attorney has received a set of litigation and billing guidelines from an insurance client. Is Attorney allowed to limit services to an insured to those for which the insurance company tells Attorney they will pay? May Attorney agree to such litigation and billing guidelines absent the insured´s consent? ANSWER: Attorney may only agree to have Attorney´s representation limited in the manner proposed, if the client consents. Under Rules 4-1.8(f) and 4-1.4, Attorney must inform the insured of the limitations in a manner such that the insured will understand the extent of the limitations and the implications of the limitations on the representation. If the insured does not consent, Attorney may not represent the insured subject to the limitations.

QUESTION: Is it necessary to caution clients and prospective clients who may communicate with Attorney by e-mail that e-mail may not be secure? ANSWER: An attorney who contemplates using e-mail to communicate with a client, prospective client or a third party regarding a client´s matter, should obtain the consent of the client prior to communicating in that manner. The client´s consent should be obtained after the attorney is satisfied that the client is aware of the risks of interception of the message as it travels through the internet as well as through any network to which the computer may be connected. Additionally, this consultation should address any potential for interception from the individual computer the client or other person will be using to send or receive e-mail. The consultation should address the possibility that the message could be randomly intercepted and disclosed by an otherwise disinterested person as well as the relative risk that the message could be intercepted by someone specifically interested in the matter which is the subject of the communication. If Attorney´s web site will solicit communications by e-mail to inquire about or initiate an attorney client relationship, Attorney´s web site should include the information, which should be included in the consultation with an existing client.

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: May Attorney charge a client in a contingency fee case for the hourly rate of the legal assistant working on the case in addition to the contingent fee in a circumstance in which this was fully disclosed and understood by the client? ANSWER: As long as this arrangement is fully disclosed to and understood by the client it is permissible as long as it does not result in an unreasonable fee. If, at the conclusion of the matter, the fee is unreasonable under all of the circumstances, it would violate Rule 4-1.5.

QUESTION: Attorney would like to use the internet for advertising and general legal consultations. Will this violate the rules? ANSWER: In the course of internet communications regarding Attorney´s services, Attorney is required to comply with Supreme Court Rule 4, including Rules 7.1 through 7.5, relating to advertising. Additionally, unless e-mail communications, in both directions, are secured through a quality encryption program, Attorney would need to advise clients and potential clients that communication by e-mail is not necessarily secure and confidential.

QUESTION: Attorney represents Wife in a dissolution. Husband has been charged with a crime, but has never been tried. Husband discussed the latest charge with Attorney two years ago. Husband went into detail about the facts and circumstances and Attorney declined representation. Attorney has discussed the conflict with Wife and she is aware of the allegations. It is Wife´s belief that nothing associated with the criminal charge will help or hurt the dissolution proceeding and Attorney agrees. Wife has asked Attorney not to withdraw. Would it be proper for Attorney to proceed with the wife´s representation, assuming no inquiry as to the criminal charges is to be made? ANSWER: Based upon the information Attorney has provided, it does not appear that the consultation with Husband creates a situation in which Attorney has a conflict of interest under Rule 4-1.9(b). Attorney has an obligation to encourage Wife to seek independent advice regarding the relevance of Husband´s criminal charge to the dissolution proceedings.

QUESTION: Attorney represents a client who is not indigent. The client´s obligation to pay attorney fees is contingent upon recovery. Question 1. May the employment contract with the client provide that, if there is no recovery, the client will not be responsible for repayment of the litigation costs and expenses advanced by the law firm? Question 2. May the employment contract provide that, if there is no recovery, the firm may, at its option, waive its claim against the client for reimbursement of costs and expenses? Question 3. May the parties enter into a fee contract which provides that, upon recovery, the client is responsible for litigation costs and expenses, but which employment contract is totally silent as to what occurs if there is no recovery? ANSWER: Question 1 and 2. Yes, see Rule 4-1.8(e)(1). Question 3. No. This would not constitute adequate communication with the client regarding the fee arrangement.

QUESTION: Question 1. Under an hourly fee contract, may Attorney include a clause that, after presenting the client with bill, Attorney will wait a specified period of time. If the client has not paid the bill through other means by that time, Attorney will bill the amount to the client´s credit card without the client separately signing the individual credit card slip? Question 2. In a criminal defense case, may Attorney include a clause in the contract that Attorney would take a certain fee up front. If a trial becomes necessary, Attorney would bill the additional fee associated with going to trial to the client´s credit card without the client separately signing the credit card slip? ANSWER: The answer to both Attorney´s questions is yes. The key to the situation is making certain that Attorney adequately communicates all of the ramifications of the agreement to the client. Simply including the written language in Attorney´s contract would not be sufficient. Attorney has an obligation to orally point out the provision and make sure the client understands it. It is suggested that Attorney set an upper limit, in the contract itself, of the aggregate amount Attorney will bill on the credit card. The contract should provide that the amount specified could only be exceeded with the client´s express written consent. Also, in addition to notifying the client of Attorney´s intent to bill a specified amount against the credit card, Attorney should send the client a receipt or confirmation when Attorney actually bills the card.

QUESTION 1: May Attorney charge interest on Attorney fees? ANSWER 1: Attorney may charge interest as long as it is a part of Attorney´s initial contract with Attorney´s client and it is adequately communicated to Attorney´s client at that time. Additionally, Attorney must comply with all laws regarding charging interest, such as the federal Truth in Lending Law, if it is applicable to Attorney. QUESTION 2: May Attorney report delinquent debts to a credit reporting agency? ANSWER 2: Attorney may disclose such information to the limited extent necessary in the course of attempting to collect the debt but not solely for the purpose of disclosing the information.

QUESTION: Attorney took over a case which was started by another firm. Attorney has now concluded that the previous firm committed malpractice. Does Attorney have a duty to make a disciplinary report? Does Attorney have an obligation to confront the other firm? Should Attorney advise the client that Attorney believes the other firm committed malpractice? ANSWER: Attorney does not have an obligation to report a simple malpractice case to this office. However, either Attorney or Attorney´s client may do so to enable us to determine whether the situation appears to involve a violation of the Rules of Professional Conduct, in addition to, or instead of, malpractice. Attorney may not advise the other firm of Attorney´s conclusions without the consent of Attorney´s client. Attorney does have an obligation, under Rule 4-1.4, to inform Attorney´s client of the information suggesting possible malpractice.

QUESTION: Attorney asks whether it will violate the rules if Attorney includes a binding arbitration clause in the engagement letter or representation agreement. Attorney will include the warning clause required by section 435.460, R.S.Mo., above the signature line. ANSWER: Attorney will not violate the Rules of Professional Conduct by including a binding arbitration clause in Attorney´s contractual arrangement with Attorney´s clients. Attorney´s duty of communication, under Rule 1.4, requires Attorney to make certain that Attorney´s clients are aware of the provision and understand it.

QUESTION: Attorney represents two companies. The two companies plan to form a third company for a joint venture. The companies both want Attorney to serve as a member of the board of the third company. ANSWER: Attorney will not violate any provision of the rules by serving on the board. Attorney does have a duty to communicate the possible ramifications of this role to both companies, including the fact that attorney would not be able to represent either company in any disputes which arise as a result of the joint venture.

QUESTION: Attorney proposes to establish a fee schedule based on the medical model. The fee would be a set amount for each type of service with different rates for each service depending on whether the service was "brief," "intermediate´, or "extended." ANSWER: Rule 4-1.5 does not prohibit such a fee schedule as long as the fees themselves are reasonable. Rule 1.4(b) requires that the meaning of the terms "brief," etc. be adequately communicated to the clients.

QUESTION: Attorney asks a number of questions in which a client indicates that the client has the authority to speak for other clients and whether Attorney may proceed without direct verification. Question 1. Client A indicates that A and B own property which was damaged and they want to file suit against a 3rd party. Must Attorney verify this with B? Answer 1. Yes. Attorney must verify this information before filing suit unless it is an emergency situation. If it is an emergency situation, Attorney must verify the information as soon as possible. Question 2. If a partner or co-owner wants to file suit and indicates that the other partner is inactive and has given all necessary authority to the active partner, what must Attorney do to verify this? Answer 2. Attorney should obtain authorization from all partners before representing the partnership. Whether that authorization is written or oral will depend on the circumstances. Question 3. Husband and Wife jointly own a small business. Only one is active in the business. Must Attorney obtain authorization from both before representing the business? Answer 3. Yes. Question 4. What if the business is a corporation? Answer 4. Attorney must determine that the individuals with whom Attorney is dealing have authority to act on behalf of the corporation. This authority may be with regard to the individual situation or ongoing authority. The issue of what specific action must be taken by the board of directors, etc., is a legal issue not addressed by the Rules of Professional Conduct. Question 5. What must Attorney do to verify the information when a case is referred from another attorney? Answer 5. Attorney may rely on the representations of another licensed attorney unless Attorney has reason to doubt the credibility of the other attorney. Attorney should make sufficient inquiry of that attorney to be assured that all of the information has been obtained that would have been obtained if Attorney dealt with the client directly. Question 6. Attorney is asked by father to represent son on a traffic ticket. Must Attorney obtain authorization from the son directly? Does this differ if the son is away at college? Answer 6. Attorney must obtain authorization from the son directly regardless of where the son resides.

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 represents a client in a case in which a third party has relevant information. Attorney has been notified that third party will commit suicide if deposed. The information cannot be obtained from any other source and the other side will not stipulate. ANSWER: Attorney has a duty to fully discuss the ramifications of proceeding with the deposition with the client. This discussion must include not only the purely legal issues but also the practical issues of the effect on the case and the effect on the client. After fully discussing the matter, Attorney will not be violating the Rules of Professional Conduct by proceeding.

QUESTION: Attorney represents insureds on behalf of an insurance company. To whom does Attorney owe the duty of candid communication and confidentiality? ANSWER: Attorney has an attorney client relationship with the insured. Attorney owes a duty of candor and confidentiality to the insured. Those duties can only be limited with the express consent of the insured after full disclosure. Attorney also owes a duty of candor and confidentiality to the insurance company unless that duty has been limited with the express consent of the insurance company. This dual representation can result in irreconcilable conflicts of interest requiring withdrawal from representation of both.