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 wants to hire an answering service to answer phones during non-business hours. The answering service staff would identify themselves as such when answering phones, and Attorney would have them sign a confidentiality agreement before retaining their services. They would take messages from existing clients and as well as potential new clients. Are these steps sufficient with the ethical rules? If not, what additional steps need to be taken in order to hire this service?

ANSWER: It is permissible to use an answering service if Attorney has taken sufficient steps to safeguard the confidentiality of client information. At a minimum, the type of information to be included in the confidentiality agreement with the answering service should provide that all answering service staff will be notified that all information related to Attorney's account is confidential. It should also provide that the company will be liable for any breach of confidentiality by the company's staff. Attorney should also give clients instructions to limit the information they provide to the answering service, if possible.

QUESTION: Attorney prepared a will and deeds for a client. The client has since died. The attorney representing the personal representative of the deceased client has requested that Attorney turn over a copy of the file, or the original file to the personal representative. May Attorney turn over the deceased client's file to the personal representative or to the attorney for the personal representative?

ANSWER: Attorney may not disclose information, other than an actual will Attorney considers still valid or a deed that has been recorded, without a court order, unless the client gave express consent to further disclosure. The court order must be issued after the issue of confidentiality has been fully presented.

QUESTION: May Attorney file suit against clients who owe Attorney substantial fees, to collect those fees?

ANSWER: Attorney may file suit to collect attorney fees owed. Under Rule 4-1.6(b)(2), Attorney may disclose information obtained in the course of representing the client only to the extent reasonably necessary to establish the claim.

QUESTION: Attorney represented decedent in preparation of her Last Will and Testament, which she later amended. The Will is being challenged and the Plaintiff and the Defendant are submitting to the court a joint application for a court order waiving privilege. Attorney's testimony is necessary to show that the decedent was competent at the time she prepared her Will. Do the Plaintiff and Defendant have standing? May Attorney waive the privilege and testify?

ANSWER: The parties to the litigation do not have standing to waive the confidentiality of information that Attorney may have. Attorney has a duty to maintain confidentiality under Rule 4-1.6. However, Attorney may disclose the information if ordered to do so by a court after the issue of confidentiality has been fully presented. Attorney should seek to have the order as limited and specific as possible.

QUESTION: May Attorney release a copy of a Will drafted and executed by a client, purportedly deceased, when relatives of the deceased testator say the testator's personal representative has not filed the Will or opened an estate. Attorney has no proof of testator's death.

ANSWER: Attorney should request evidence of testator's death. Unless Attorney has reason to believe that the testator revoked the Will prior to death, Attorney may provide a copy of the Will to a member of the testator's family or any other interested person who expresses intent to bring the matter to the attention of the probate court. Attorney may not disclose any other information related to the Will, unless ordered to do so by a court the issue of confidentiality has been fully presented.

QUESTION: Attorney works in a non-attorney capacity for a Title Company with several Missouri offices. Attorney also practices law as an independent, general practitioner. Company receives requests for drafting documents not associated with the issuance of title insurance.

Question 1: May Title Company refer those requests to attorney?

Question 2: May attorney draft such documents in the capacity of solo practitioner, if compensated for all work directly by client and so long as client has a means to contact attorney directly?

Question 3: May other Title Company employees act as intermediaries for relaying information, if Attorney supervises those individuals?

ANSWER: Question 1. Because Attorney works for the Title Company, referrals to Attorney would be in person solicitation prohibited by Rule 4-7.3(b). The Title Company could provide people with the names of several attorneys who do that type of work, including Attorney.

Question 2. Yes. The attorney-client relationship must be direct between the attorney and client.

Question 3. In order to supervise the individuals, Attorney would have to have control and authority over them. Attorney would have to be able to take remedial measures if they acted inappropriately. That does not seem likely if they are employed by another entity. Attorney should not use employees of the Title Company to convey any information that would be considered confidential under Rule 4-1.6.

QUESTION: May Attorney disclose confidential information in order to defend in a lawsuit relating to representation of the client? Attorney is personally named as a defendant.

ANSWER: It is permissible for attorney to disclose confidential information to the extent necessary for Attorney's defense.

QUESTION:} Law firm ABC represents Client P against several defendants represented by law firm XYZ. Attorney was employed by XYZ when P's lawsuit against defendants was filed and after XYZ's representation of defendants began. Attorney did no work on this case. Attorney no longer works for XYZ. Can ABC hire Attorney on a contract basis for certain projects? Attorney will not work on P's case.

ANSWER: Attorney can be hired as an independent contractor on a case by case basis. ABC should take steps that Attorney would have access to confidential information to only the cases on which Attorney is hired to work. Attorney should not have any contact with P's case.

QUESTION: Client came to Attorney with a rough draft of a trust. Client provided Attorney with information Attorney needed to complete the trust document and some other estate planning. Client died before Attorney could prepare the documents. Attorney has received a request to produce all documents related to estate planning for Client to the attorney for Client's family. What should Attorney do? ANSWER: Attorney may not disclose any documents or information unless Attorney is ordered to do so by a court, after the issue of confidentiality under Rule 4-1.6 has been fully presented. If a court orders Attorney to disclose documents, information, or both, Attorney may do so. It is not necessary for Attorney to appeal such an order. The duty of confidentiality under Rule 4-1.6 is not the same as the attorney-client privilege, which is a narrower, evidentiary statute, although the terms are often used interchangeably. The attorney-client privilege survives death. Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).

Although there are cases that state that the privilege does not apply as between heirs of an estate in order to effectuate the intent of the decedent, those cases may be the basis for a judge to rule that an attorney should disclose information. They do not stand for the proposition that the attorney should be the one to decide whether the privilege applies. An attorney, in the absence of express consent from the decedent, may only disclose information or documents clearly necessary to effectuate the decedent's intent, such as an executed will or other similar document.

QUESTION: Attorney took over the practice of X, a deceased attorney. X had represented a client in various matters. The client recently died. A relative of the client contacted Attorney to see if Attorney or X drafted a will for the client. Attorney explained that Attorney could not discuss the matter without a court order because the information was confidential. Attorney then looked through the client's file and discovered an original will, executed by the client, and a photocopy of a 2nd will, which was drafted by X. The photocopy of the 2nd will was witnessed and notarized. Chapter 473.043.1 R.S.Mo. requires that after death of the testator the person having custody of the will shall deliver it to the probate division of the circuit court which has jurisdiction of the estate. Should Attorney file with the probate division in the county wherein the decedent client was a resident either the original will, the photocopy of the 2nd will, or both? Since X's passing, neither the client or the client's spouse contacted Attorney about the will. Also bear in mind that Missouri law provides that an application for letters of testamentary can be had for a lost will. ANSWER: In light of section 473.043.1, it is permissible for Attorney to deliver the original will and the photocopy of the 2nd will to the probate division of the circuit court. However, a more conservative approach Attorney may wish to consider would involve providing notice to the court of Attorney's possession of these documents and Attorney's concern about disclosure of these documents in light of Attorney's duty to maintain confidentiality under Rule 4-1.6. This would enable Attorney to obtain a ruling from the court before disclosing the actual documents.

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 bidding to enter into a contract with a liability insurer to defend claims brought against its insureds on a flat fee basis. This fee would be the same regardless of the complexity of the case, venue and personal exposure over the limits. Question 1. Does this arrangement violate Rule 4-1.8(f)(2) in that the insurer could potentially interfere or compromise Attorney's judgment? Question 2. Does this arrangement violate Rule 4-1.7(b) in that the insurer limits Attorney's responsibilities to the insured clients? Question 3. Does this arrangement violate Rule 5.4(c) in that the insurer could direct or regulate Attorney's professional judgment in rendering legal services to the client-insured? Question 4. Could a situation arise where the insured and Attorney determine that the matter should be settled and the third party insurer wants the matter to go to trial, create a conflict of interest under the rules? Question 5. Does a flat fee arrangement automatically put Attorney and client in a financial conflict of interest, like a medical doctor in an HMO who is encouraged to provide the absolute minimum in medical care to the patient? ANSWER: Attorney should act consistent with the over-riding principle that "a lawyer shall not accept compensation for representing a client from one other than the client unless: 1) the client consents after consultation, 2) there is no interference with the lawyer's independence of professional judgment or with the attorney-client relationship, and 3) information relating to the representation of the client is protected under 1.6" - the confidentiality rule. (Rule 4-1.8(f)). Questions 1 & 3. Attorney needs to make it clear to the insurance company that Attorney is bound by Rule 4-1.8 and that Attorney's representation of the client must be governed by Attorney's professional judgment. Attorney should consult with the client about the possibility of any limitations by the insurance company, at the outset of the representation. Attorney should explain to the insured that Attorney is employed by the insurance company. Attorney should also inform the insured that the insured may hire his or her own attorney, if he chooses, subject to any restrictions provided in their insurance contract or as provided by law. However, the insurance company, as Attorney's employer, cannot dictate how Attorney handles the matter for an individual client in conflict with Attorney's professional judgment. The fact that a flat fee is to be paid for Attorney's legal services, regardless of complexity of the case, will not in itself constitute a violation of 4-1.8(f). Likewise, Attorney's responsibilities to the client are not limited, as Attorney suggests, simply because Attorney's compensation may be less than Attorney would customarily receive for a similar case. Question 2. Attorney indicates that the insurer "limits the attorney's responsibilities to the insured client" but Attorney does not present any facts in that regard. It is difficult to respond under the circumstances. However, Attorney's responsibility to the client is the same whether the insurance company is paying Attorney a flat fee or the client is paying Attorney directly. The insurance company cannot limit Attorney's responsibilities. Attorney should make the client aware of the limitations that they may be subject to under the contract of insurance that they have with the insurance company. Question 4. The circumstance Attorney has described is possible. The reverse circumstance is also possible. Rule 4-1.8(f) governs Attorney's responsibility in that accepting a fee from another should not inhibit Attorney's professional judgment to act in the insured's best interest. If a conflict of interest does arise, Attorney will have to look to Rule 4-1.7(b) and inform the client of the situation and then determine if Attorney would need to withdraw. Question 5. If a flat fee arrangement will affect Attorney's representation such that Attorney will not provide an appropriate level of representation, Attorney should not accept the representation on that basis. Attorney must provide the same level of representation to all clients, regardless of the compensation Attorney receives, unless Attorney's representation is limited by express agreement with the client(s).

QUESTION: Attorney represented Client on a contingency fee basis concerning a personal injury matter. The claim was settled. At the time of settlement, Attorney knew of no hospital liens. The check from the insurance company was made payable to Attorney, Client and Hospital. Without noticing that Hospital was on the check, Attorney and Client endorsed the check and it was then deposited in Attorney's trust account. Neither Attorney's bank nor the insurance company's bank noticed that Hospital was on the check. The check cleared in Attorney's trust account. Attorney then wrote two separate checks, one to Attorney for advanced costs and fees. The other check was to Client for the balance of the settlement. Client then executed a document which agreed Client was responsible for any unpaid medical bills or liens. A short time later, Attorney was contacted by Hospital and informed of the existence of their lien and learned that Hospital was on the check. Attorney immediately contacted Client, but Client refused to return the outstanding funds and cut off all communication with Attorney. Hospital has filed a civil lawsuit against Client and the insurance carrier for the amount of the lien. The attorney for the insurance carrier has informed Attorney that they intend to add Attorney into the suit. If added, Attorney intends to raise certain statutory and other defenses relating to Hospital's alleged lien. Certain documents from Client's file may be requested in discovery in the pending suit and may be necessary to support Attorney's defenses. Question 1. Given the fact that Attorney disbursed all settlement funds to Client, after deduction of fees and costs, does Rule 4-1.15 require Attorney to deposit funds of Attorney's own into Attorney's trust account in a sum equal to the amount claimed due by Hospital, until such time as the dispute is resolved? Question 2. Under what circumstances may Attorney use portions of Client's file in responding to discovery and in making Attorney's defense? ANSWER: Question 1. No. Question 2. Under Rule 4-1.6(b)(2), Attorney may disclose portions of Client's file to the extent necessary for Attorney's defense. If disclosure is not necessary for Attorney's defense, Attorney may only disclose portions of Client's file if Client consents or if Attorney is ordered to disclose by the court, after the issue of confidentiality has been fully presented.

QUESTION: Attorney has a check from a former client, X, that was returned for insufficient funds. Attorney sent X several letters letting X know that X needed to reimburse Attorney the amount of the check and the bank charges. Since the time that Attorney received the check, Attorney has withdrawn from the case because of X's failure to communicate with Attorney on other matters relating to the case itself. Would it violate any ethical rules if Attorney sends the check to the prosecuting attorney in an effort to collect the fees owed? ANSWER: Rule 4-1.6(b)(2) permits Attorney to disclose confidential information, to the limited extent necessary, to establish a claim in a dispute between Attorney and Attorney's former client. Therefore, Attorney may provide the check to the prosecuting attorney. Attorney should provide other information related to the representation only to the extent it is necessary for the prosecution.

QUESTION: Attorney represents Personal Representative in a decedent's estate. The claim period has passed and there are very few legatees. Personal Representative would like to sell estate real estate in a transaction that Attorney has told Personal Representative would need the consent of all of the legatees. If Personal Representative persists in the sale, must Attorney withdraw? If so, must Attorney inform the court of the improper sale? ANSWER: If Attorney is unable to persuade Personal Representative to follow the proper procedure in the sale of the real estate, Attorney must withdraw as Personal Representative's attorney. The information about the sale is confidential information under Rule 4-1.6. Attorney may not disclose that information to the court without the consent of Personal Representative, unless disclosure is necessary, under Rule 4-3.3, to correct a representation Attorney has made to the court.

QUESTION: Attorney prepared a will for Client several years ago. There has been no contact between Attorney and Client since that time. Attorney was recently contacted by a second attorney and that attorney requested that Attorney provide information about Client's mental condition on or about that time. The second attorney is representing Client in a medical malpractice action. Question 1. May Attorney discuss competency without a court order if Client is capable of giving consent? Question 2. May Attorney discuss competency without a court order if Client is incapable of giving consent? Question 3. May Attorney discuss competency without a court order if Client is incapable of giving consent but a child of Client is named as attorney-in-fact under a durable power of attorney? ANSWER: Question 1. : Yes. If Client has the capacity to consent to the disclosure and does so, Rule 4-1.6 would not preclude Attorney from discussing Client's competency. Question 2. : No. Attorney may not reveal information relating to Attorney's representation of Client if Client is incapable of consenting to the disclosure. If a guardian has been appointed, Attorney may discuss Client's competency, if the guardian consents. Question 3. : It would depend on the exact terms of the durable power of attorney.

QUESTION: Attorney´s law firm has a website with general information about the firm and its members. There is also a link to the firm´s electronic e-mail address. Some people have been writing to that e-mail address with lengthy messages about their legal problems. Attorney´s concern is that some individual would send them an e-mail and believe that an attorney-client relationship existed. Attorney is concerned about the possibility that some individual might expect Attorney´s firm to take action on his or her behalf. Attorney is also concerned that someone might provide information to the firm about a matter in which they already have an existing client. Has OCDC taken an informal position about any disclaimer language? May Attorney´s firm validly assert that communications to their firm, via e-mail only, do not create an attorney-client relationship, and that such information sent to them, via e-mail only, cannot be considered confidential by the sender? ANSWER: By providing the opportunity to contact Attorney´s firm by e-mail through Attorney´s website, Attorney´s firm exposes itself to certain risks. Attorney can reduce these risks with a disclaimer, but Attorney cannot avoid them. One of the primary risks is that an attorney-client relationship will be established. The creation of that relationship may cause Attorney´s firm to have obligations to that client. Even if Attorney clearly informs 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´s firm 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: Attorney represented Husband and Wife, who had been married for several years. Wife entered nursing home last year and Husband and Wife sought Attorney´s counsel for assistance with Medicaid and estate planning. Husband recently died. Attorney received a written request from an attorney representing the executor of Husband´s estate. The attorney asked Attorney to provide the Medicaid and estate planning documents and all asset information that Attorney´s office has for Husband and Wife. The attorney´s request did not include an authorization for release of information. Attorney would like to reply to the attorney´s request to provide information, but does not want to violate the client´s attorney client privilege. Who has the authority to sign a release of information on behalf of Husband´s estate at this point? What documentation, other than the Husband´s will, is Attorney permitted to provide? ANSWER: No one has the authority to sign a release for Husband. To the extent that the information Attorney has is joint, as to Husband and Wife, Wife may consent to the release of that information. To the extent that Attorney has information that pertains solely to Husband, Attorney may not release that information unless Attorney is ordered to do so by a court, after the issue of confidentiality has been fully presented. Attorney should seek to have any such order as specific and limited as possible. Attorney may disclose Husband´s will, without violating Rule 4-1.6.

QUESTION: Attorney has been subpoenaed to produce a file that contains information regarding a deceased client. The children of the deceased are represented by counsel, but no estate was opened for the deceased client´s estate. The same file will contain information about another deceased client, the spouse. Attorney does not know if an estate has been opened for that client. The matter involves the possible misuse of a power of attorney by the holder of a power of attorney some time after the power was prepared. May Attorney disclose this information? ANSWER: Under Rule 1.6 of Supreme Court Rule 4, the Rules of Professional Conduct, Attorney may not disclose any information Attorney obtained in the course of representing either deceased client. However, Attorney may provide a copy of any will or testamentary trust Attorney prepared, to the heirs of the deceased, if Attorney believes that would be consistent with the goals of the deceased. Attorney may only provide the information sought through the subpoena if Attorney is ordered to do so by a judge, after the legal and factual issues related to confidentiality have been fully presented. Confidentiality, under Rule 4-1.6, is broader than the evidentiary attorney-client privilege, which arises from statute. If the judge orders Attorney to provide information, Attorney should seek to have the order as specific and limited as possible.

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 got involved in a business with friends. Now the business is under investigation and the friends have asked Attorney for advice. Attorney advised them that because of the possibility of a conflict of interest they needed to hire another attorney. After a subpoena was issued, the friends again asked for advice. Attorney again informed them that Attorney thought there was a possible conflict and advised them to hire an attorney. They have now hired an attorney. If information is sought from Attorney during the investigation, must Attorney assert confidentiality? ANSWER: Attorney does not appear to have attorney-client confidential information related to this matter. Attorney´s description indicates that Attorney did not have an attorney-client relationship in this transaction but was involved in a business transaction with friends. However, it is likely that Attorney´s friends may have a different understanding of Attorney´s relationship. Attorney should decline to voluntarily provide information. Unless Attorney´s friends consent, Attorney should provide information only after Attorney has fully presented the issue of confidentiality to a court, and the court has ordered Attorney to provide the information. Attorney should seek to have such a court order as specific and limited as possible.

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 prepared a will for a person who has now passed away. The will was filed in probate, but an estate was not opened. The personal representative has now terminated Attorney´s services. The personal representative and the new attorney have requested all of the personal representative´s legal matters be turned over to the new attorney. They have also requested the estate planning file of the deceased be turned over to the new attorney. What should Attorney do about the estate planning file of the deceased? ANSWER: The duty of confidentiality under Rule 4-1.6 survives death. Attorney may not voluntarily provide the estate planning file, or information about the advice provided to the deceased family member, unless that person expressly consented to such disclosure. If Attorney is subpoenaed to provide the information, Attorney may only do so after the factual and legal issues related to confidentiality are fully presented to the court and the court orders Attorney to disclose the information.

QUESTION: Attorney is renting office space from a law firm and there is a landlord tenant relationship. They share a common reception area. The firm´s receptionist answers Attorney´s telephone calls only when Attorney´s number is forwarded to do so. One of the members of the law firm is a municipal judge and another is a city prosecutor. May Attorney represent individuals charged with violations in the areas where the firm members act as the prosecutor and municipal judge? ANSWER: The arrangement Attorney has described does not, on its face, prohibit Attorney from representing individuals charged with ordinance violations in either of those municipalities. In an office sharing arrangement, it is important to be certain that people who come into contact with the offices understand that they are separate offices. This should be addressed in signs and possibly in the set up of the reception area. It should also be addressed in the manner in which the telephone is answered, even when Attorney has forwarded Attorney´s calls to the firm´s telephone number. Attorney also has an obligation to maintain confidentiality as to Attorney´s files and other information. In order to accomplish such confidentiality Attorney´s files must be secure. If Attorney has taken these steps, the firms will be treated as separate. Therefore, Attorney will not have a conflict.

QUESTION: Several years ago Attorney filed a conservatorship matter for some clients, but after a conservator ad litem was appointed, Attorney was not involved any further. Attorney has recently been contacted by the IRS concerning the conservatorship. The IRS has requested Attorney´s file, but Attorney told the IRS that Attorney can not discuss the matter or provide the file without the client´s permission. Are Attorney´s actions appropriate? ANSWER: Attorney must continue to treat the information as confidential. Therefore, Attorney may not disclose the information without the consent of Attorney´s clients, unless ordered to do so by a court. A grand jury subpoena does not constitute such an order. If the issue is presented to a court, Attorney should make certain that the Rule 4-1.6 confidentiality issue is fully presented, and seek to have the court´s ruling as specific and limited as possible.

QUESTION: May Attorney attend a trade show and occupy a booth which displays the name of Attorney and the name of Attorney´s firm? May Attorney display brochures and other literature ordinarily displayed in the lobby of the Attorney´s office? May Attorney discuss and answer legal questions and give legal advice to members of the public who solicit such advice from Attorney while in Attorney´s booth? May Attorney make an appointment for such a person to meet the following weekday at Attorney´s law office to possibly sign an engagement agreement or attorney/client contract? ANSWER: Based solely on the information Attorney has provided, the activities Attorney has proposed would not violate Supreme Court Rule 4. If Attorney will be consulting with individuals at a trade show, Attorney has an obligation to ensure confidentiality or be certain that the individual is not concerned about confidentiality. If Attorney will be giving specific advice or addressing specific situations, Attorney must perform a conflicts check before giving the advice. Attorney must also be certain that Attorney is only responding to contact, which has been initiated by individuals. If Attorney initiates the contact, Attorney would be engaging in "in person" solicitation in violation of Rule 4-7.3 (b).

QUESTION: Attorney has reported a potential problem with a case to Attorney´s liability insurer, as required under the "claims-made" policy. No actual claim has been made and there was not an immediate indication that the affected client will make a claim. Insurer has requested a copy of the client´s file in order to assist with avoiding further problems. The client would not be notified of the review. May Attorney provide a copy of the file to insurer´s legal counsel without violating client confidentiality? ANSWER: Under the circumstances Attorney has described, Attorney would violate Rule 4-1.6 by providing the client´s file to Attorney´s liability insurer, without the client´s consent. Based upon the specific facts of this situation, the exception found in Rule 4-1.6(b)(2) does not apply.

QUESTION: Attorney recently received a notice from the State of Missouri advising that the statute requires all businesses, which hold abandoned or unclaimed property for as long as seven years, to report and remit all such property to the Unclaimed Property office. How does this relate to monies which may be held in a trust account for a long period of time because Attorney has been unable to locate the client? ANSWER: If Attorney is holding funds which belong to a client or third party, Attorney has an ongoing duty to make reasonable efforts to locate the client or third party to disburse the funds. If the amount of funds is such that the interest earned would offset the costs of maintaining a separate account, the funds should be held in a separate, non-IOLTA, interest bearing account. The interest should go to the owner of the principal. If the funds are not sufficient to warrant a separate account, they should be held in Attorney´s general trust account, whether that is an IOLTA or non-IOLTA account. If Attorney has been unable to locate the owner of the funds after the period of time specified in the unclaimed property statutes, Attorney may disburse those funds as specified in those statutes. If the funds were held in a separate, non-IOLTA interest bearing account, the interest should be disbursed with the principal. The unclaimed property statute does not apply to the client´s file because that would involve disclosure of confidential information in violation of Rule 4-1.6.

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 is involved in an office sharing agreement with three other attorneys. Each person pays all expenses relating to their practice and each contracts separately with clients. They do share common overhead expenses. They are also networked together on the same computer system and everyone on the network can access all of the client files for all of the attorneys. The attorneys are the sole occupants of a stand alone building and the sign in front of the building lists the names of all attorneys and the words "Law Office´. There is one receptionist answering the telephone for all four attorneys. Currently, each attorney has their own stationery with their name at the top. Should Attorney list the names of the other attorneys on Attorney´s stationery? If so, what is the proper way to list these names? ANSWER: Under Rules 4-7.1 and 4-7.5(f), if Attorney is in an office sharing arrangement, all stationery, signage, etc., should indicate that Attorney is completely separate. If Attorney includes the other attorneys on Attorney´s letterhead, it would give a contrary impression. If Attorney has a separate practice, it is not appropriate for the other attorneys to have access to confidential information regarding Attorney´s clients. This applies to electronic information in the computer system, paper files, incoming and outgoing fax materials, etc. Attorney should take immediate steps to make any necessary changes to comply with the requirements of Rule 4-1.6 regarding confidentiality.

QUESTION: Attorney recently received notice of an audit by the I.R.S. with regard to Attorney´s business account. The I.R.S. has made a general request for all documents regarding business income. Would it be a violation of ethics to release information regarding settlements secured for clients, which would include information pertaining to costs advanced in their behalf and amount of settlement? ANSWER: Attorney may release the information about the settlement, if it was a settlement approved by a court or other tribunal. If it was not made a part of the public record in that manner, Attorney should inform Attorney´s client of the request by the I.R.S., before releasing the information to the I.R.S. As a general rule, the information would not be considered confidential. By notifying Attorney´s client, Attorney provides Attorney´s client the opportunity to express a view that the settlement in the client´s case should be considered confidential. If the client consents or does not assert a reason that the settlement information should be considered confidential, Attorney could provide the information to the I.R.S.

QUESTION: Attorney previously represented a client who is now deceased. Attorney represented the decedent in a dissolution of marriage, a traffic violation, a workers" compensation injury and preparation of a will. Attorney has received a letter from an attorney representing the deceased client´s estate and the surviving spouse requesting all of the decedent´s closed files. May Attorney release these files? ANSWER: Attorney may only provide the old closed files under two circumstances. The first circumstance would be if the decedent gave consent prior to death. The second circumstance would be if Attorney is ordered to do so by a court after the issue of confidentiality has been fully raised. If a court does issue such an order, Attorney should seek to have the order as specific and limited as possible.

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 been served with a subpoena requiring Attorney to deliver the contents of Attorney´s client files. Attorney has filed a Motion to Quash Subpoena asserting attorney-client confidentiality. One of the clients is now deceased. Does Attorney have to answer questions about the file if the Judge orders Attorney to do so? ANSWER: If a judge orders Attorney to testify, after Attorney has fully raised the issue of confidentiality, Attorney may do so without violating Rule 4-1.6. As an alternative to complying with the judge´s order, Attorney may also seek any available appellate review. If the judge does order Attorney to testify, produce documents, or both, Attorney should seek to have the order as specific and limited as possible.

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 handles primarily workers compensation cases. Under a new law, insurance carriers and the self insured employers are requesting Attorney´s Federal Identification Number so that they may pay to Attorney the settlements reached and approved for Attorney´s clients. They are also requesting the amount of the attorney fee and expenses. Is it a violation to reveal that information to the opposing party? ANSWER: The amount of Attorney´s fee is not confidential information under Rule 4-1.6. The amount of expenses is confidential information which Attorney may not disclose without the consent of Attorney´s client.

QUESTION: Attorney´s firm rents office space to an attorney who is not a member of the firm and is not "of counsel." Attorney´s firm operates on the same computer network, therefore they can e-mail messages to one another and all have access to all client files stored on the computer. Because the office-sharing attorney and the firm have some mutual clients Attorney would like to add the office-sharing attorney to the network. Although the office-sharing attorney would only be able to look at e-mail specifically directed to that attorney, it would be possible to look at the firm´s client files. The firm and the office-sharing attorney would agree not to look at each other´s files. May Attorney´s firm allow the office-sharing attorney to join the network under this agreement? If not, would the result be different if the office-sharing attorney became "of counsel" to the firm? If not, should the paper files of Attorney´s firm be locked so that the office-sharing attorney cannot gain access to them? ANSWER: Attorney may not allow the office-sharing counsel to join Attorney´s computer network without blocking access to Attorney´s client files. The result would be different if that attorney were "of counsel" to Attorney´s firm. Office-sharing counsel should not have physical access to Attorney´s paper files at times when those files are unattended.

QUESTION: Attorney is interested in setting up an Internet web site that would provide generalized legal information. The site would set up access to three attorneys who are non-affiliated, private practitioners. Would a plain and unambiguous disclaimer stating that this is not a law firm and that the attorneys are not affiliated be sufficient to insulate the attorneys involved from being considered to be a firm? ANSWER: Although a plain and unambiguous disclaimer may be sufficient to alert someone to the actual nature of the relationship, it may not be sufficient to insulate the attorneys from being treated as a firm from an ethical standpoint. In addition to the concerns Attorney has raised about creating the appearance of a firm, Attorney should also be aware that there are concerns about soliciting e-mail from prospective clients through a web site. If Attorney engages in the practice of communicating with current or prospective clients by e-mail, Attorney bears the responsibility of providing them timely advice regarding the relative security of communication by e-mail, in general, and in the particular computer setting through which they would be communicating. Attorney also creates the potential for conflicts of interest to be created through the receipt of substantive information by e-mail which may involve a person whose interests are adverse to a current client.

QUESTION: Client A has been a long standing client of Attorney. Attorney regularly files mechanic´s liens and suits for Client A. Attorney has periodically performed the same type of work for Client B but has not represented Client B in any matters for the last two years. Client A has asked Attorney to file a mechanic´s lien and possibly a suit. Client B is involved in this matter. May Attorney do this if it means naming Client B as a defendant? ANSWER: The situation Attorney has described is governed by Rule 4-1.9(b). Under Rule 4-1.9(b), Attorney must determine whether Attorney obtained confidential information in the course of the previous representation of Client B that could be used to Client B´s detriment in the current case. If so, Attorney could not undertake the representation without the consent of Client B.

QUESTION: Attorney is forming a firm to provide legal services to financial institutions. A CPA firm would refer financial institution clients to Attorney and Attorney would bill the institution directly for legal services. Attorney would then contract with the CPA firm on a case by case basis for the CPA firm´s personnel to handle Attorney´s administrative and paralegal work. Attorney would supervise all of the work and the CPA firm personnel would not be providing legal services for the client. Is this permissible? ANSWER: It appears from Attorney´s description that Attorney´s hiring of the CPA firm will be a quid pro quo for the referral of clients. If that is the case, the arrangement would violate Rule 4-7.2(c), which prohibits giving anything of value in exchange for a referral. Attorney may hire the CPA firm to perform Attorney´s administrative and secretarial service. However, this situation will require Attorney to make special arrangements regarding confidentiality, conflicts and the manner in which Attorney holds herself out to the public. Attorney would need to ensure that the public understands that Attorney´s law practice is independent of the CPA firm, but Attorney would also need to ensure that Attorney´s clients are aware of Attorney´s relationship with the CPA firm. Because the CPA firm will have access to confidential client information, Attorney will be responsible for the actions of the CPA firm´s staff in maintaining confidentiality. Attorney will also be responsible for making arrangements with the CPA firm to ensure that it does not undertake a representation adverse to one of Attorney´s current or former clients, if a similar representation would be prohibited under the Rules of Professional Conduct. If the CPA firm is not a completely independent business entity, the referral of clients to Attorney´s law firm may violate Rule 4-7.3(b) relating to in-person solicitation.

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 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 represents Client Y, who was at one time engaged to X. Attorney represented X on a traffic matter at the request of Client Y. Client Y has now asked Attorney for representation in an unrelated dispute with X. Is Attorney precluded from filing suit against X? Is Attorney precluded from issuing a demand letter to X? Is Attorney precluded from referring this matter to another attorney in Attorney´s firm? Is Attorney precluded from referring Client Y´s case to another attorney outside of Attorney´s firm? ANSWER: Under Rule 4-1.9(b) Attorney may handle the suit against X as long as Attorney did not gain any confidential information in the course of representing X that could be used to X´s detriment in the current matter. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney´s possession as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: Attorney is the city counselor for a small municipality. A former city employee has threatened litigation, through the employee´s attorney, against the city, the mayor and individual aldermen. Attorney believes that some of the individuals will claim that others involved are responsible. Attorney also believes that Attorney could represent the municipality, if the insurance carrier does not provide a defense. However, Attorney does not believe that Attorney could represent any or all of the individuals in this litigation. Is this correct? ANSWER: Based solely on the information Attorney has provided, Attorney is correct in Attorney´s understanding that Attorney may represent the municipality, but may not represent any of the individuals. However, if any of the individuals believe that they provided confidential information to Attorney, as individuals, or that Attorney offered them advice, as individuals, then Attorney may also be disqualified from representing the municipality.

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: After Client´s recent death, Attorney received a call requesting a copy of documents in Attorney´s file relating to the client´s Revocable Living Trust Agreement. The client had gone to another attorney and revoked the Trust Agreement. The client later went to yet another attorney and had non-probate transfers made. Due to the confidentiality of some of the documents, Attorney has refused to release the documents unless a court order is issued. May Attorney release the documents without a court order? ANSWER: Attorney is correct that Attorney has an obligation under Rule 4-1.6, to maintain the confidentiality of the information in Attorney´s files. Attorney may disclose the information if a court orders Attorney to do so after the issue of confidentiality has been fully raised. If the court enters such an order, Attorney should seek to have the order as specific and limited as possible.

QUESTION: Attorney is considering purchasing professional liability insurance from a company. The application states, "List the five clients which generated the most fees for the Firm during the past fiscal year. Indicate the nature of the client´s business and describe the services rendered by the firm using the categories shown . . .´. The categories cover a variety of different areas of the law. Does listing the client´s name and the nature of their business violate any ethical rule, including but not limited to a breach of confidentiality? ANSWER: The amount of fees paid by a client is not confidential, with limited exceptions, under Rule 4-1.6. However, the nature of the client´s business and the type of services rendered are confidential information. Therefore, Attorney may disclose that information only with the consent of those clients.

QUESTION: Attorney filed suit on behalf of Client against defendants in Federal Court. Client authorized Attorney to submit a settlement proposal in writing to opposing counsel and Attorney did so. After several counter offers, the parties reached an oral agreement, but the client thereafter decided not to sign. Opposing counsel filed a Motion for Sanctions against Client, not against Attorney. Client is no longer represented by Attorney. May Attorney provide an affidavit to opposing counsel regarding communication between Attorney and former client relating to the terms and conditions of the settlement agreement and what the client did or did not say to Attorney? May Attorney give deposition testimony and the foregoing information under oath? May Attorney contact Client and/or Client´s current attorney requesting consent to permit Attorney to submit the affidavit and/or give deposition testimony? ANSWER: All communications between Attorney and Client relating to Client´s case are client confidences and secrets as described in Rule 4 - 1.6. Attorney may not reveal information about those communications without the consent of Client, unless Attorney is ordered to do so by a court after the issue of confidentiality under Rule 4 - 1.6 has been fully raised. Attorney may contact Client´s current attorney to request consent.

QUESTION: Attorney has represented Husband, an acquaintance, on two small matters. Wife now wants Attorney to represent her in seeking a dissolution from Husband. The issues involved in the dissolution will not involve the prior matters in which Attorney provided representation. May Attorney represent Wife without consent of Husband? ANSWER: Under Rule 4-1.9(b) Attorney must determine whether Attorney obtained confidential information in the course of the previous representation 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 Attorney´s possession as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: Husband and Wife are seeking a divorce and have each retained their own attorneys. Attorney has represented Wife in the past, before her marriage, in a worker´s compensation matter and then on other small matters throughout the marriage. Attorney also represented Husband on several matters, including the defense of a lawsuit brought by one of Husband´s creditors. During that suit, Husband asked Attorney to prepare a Quit Claim Deed transferring ownership of his residence from him individually to Husband and Wife jointly. Husband and Wife now dispute the purpose of the property transfer in the divorce proceedings. Husband´s divorce attorney indicated that he will subpoena Attorney to testify as to the purpose of the preparation of the Quit Claim Deed. What is Attorney´s duty of confidentiality to Wife with respect to the transaction or due to prior representation on non-related matters. ANSWER: If Wife could reasonably believe that Attorney was representing her interests in the preparation of the Quit Claim Deed, Attorney owes a duty of confidentiality to Wife under Rule 1.6 of Supreme Court Rule 4, the Rules of Professional Conduct. Attorney´s past representation of Wife would be a factor to consider in making this determination. Wife could consent to Attorney´s testimony. If Attorney is subpoenaed and Wife has not consented, Attorney must resist the subpoena and fully raise the issue of confidentiality to the court. If the court orders Attorney to testify, Attorney should seek to have the order as specific and limited as possible. If Attorney is ordered to testify, it is not necessary for Attorney to take the issue to a higher court to avoid violating the rules.

QUESTION: Attorney was retained to represent X in a paternity action against Y. During the course of representation, X informed Attorney that several years before X referred Y to Attorney. Attorney represented Y on a municipal court matter, but has no record of the representation. The case was dismissed for lack of prosecution by the victim. Does prior representation of Y preclude Attorney from representing X? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether Attorney obtained confidential information in the course of the municipal court representation that could be used to the detriment of Y 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 Attorney´s possession or 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 on inactive status and proposes to open a temporary paralegal service. Would this violate the rules? ANSWER: An inactive attorney may function as a temporary paralegal in the same manner as any non-lawyer. Because Attorney may be working for more than one attorney or firm, it will be necessary for Attorney and the attorneys for whom Attorney works to make sure that the rules regarding confidentiality and conflict of interest are followed in addition to making sure that Attorney´s activities do not involve the unauthorized practice of law.

QUESTION: Attorney owns office space and is considering entering into a landlord/tenant office sharing relationship with a non-attorney. The offices are all separated and have closing doors. There would be a common reception area. The non-attorney would have a separate secretary and phone system. There would be separate signage outside and inside the office space. All legal files would be maintained in separate storage and secured. No sharing of information would occur. There would be no sharing of advertising. ANSWER: Based on the information provided, the office sharing arrangement Attorney has proposed will not violate the Rules of Professional Conduct.

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 proposes to set up a website and include the website address on Attorney´s letterhead. The website address will include reference to a specific area of practice. The website itself will invite people to e-mail Attorney regarding matters in that area of practice. Attorney also proposes to include the e-mail address on letterhead. ANSWER: Based on the information Attorney has provided, the actions Attorney proposes will not violate the Rules of Professional Conduct. In light of the fact that Attorney will be soliciting potential clients to contact Attorney by e-mail regarding legal matters, Attorney should include on the website a cautionary statement that communication by e-mail is not necessarily secure and confidential.

QUESTION: Attorney represents a company (Client A) in various types of legal matters. Attorney also represents client B in litigation. Several representatives of the company have been named as potential witnesses for the opposing party. Attorney possesses information from the representation of Client A which could be used to impeach these witnesses. ANSWER: Attorney has a conflict of interest which prohibits Attorney from continuing to represent Client B, unless Client A consents after full disclosure.

QUESTION: The firm´s trust account checks have been requested in the bankruptcy case involving an individual member of the firm. Are the trust account checks confidential? If the firm is ordered to produce the checks, and does so, will this be an ethical violation? ANSWER: It is my opinion that trust fund checks are confidential under Rule 4-1.6. The firm should fully raise the issue of confidentiality under Rule 4-1.6 with the court. If the judge orders the firm to produce the checks after the issue has been fully raised, the firm will not violate the rules by complying. The firm should seek to have the judge´s order as limited and specific as possible.

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 would like to office share with a CPA firm. May Attorney do so if Attorney´s files will be segregated within Attorney´s own space in the suite? May Attorney use or share the secretarial staff? ANSWER: Attorney may have an office sharing arrangement with the CPA firm as long as all signs, and other ways in which Attorney´s practice is held out to the public, clearly indicate that Attorney is separate. Attorney must not only make certain that Attorney´s files are segregated but that they are secure from unauthorized people. Attorney may use or share the secretarial staff as long as Attorney can implement adequate measures to ensure confidentiality.

QUESTION: Attorney would like to use a collection agency to collect past due fees against former clients. Will Attorney violate the confidentiality rule by providing the necessary information to the collection agency? ANSWER: Attorney may disclose the client´s identity and other information about the representation to the collection agency without violating Rule 4-1.6. However, the information provided must be limited to the minimum amount of information that is necessary in order to carry out the collection effort.

QUESTION: Attorney is a public defender. Attorney previously represented Client 1 on charges unrelated to the charges on which Attorney is now representing Client 2. Client 1 has been endorsed as a witness for the state. (1) Does Attorney have a conflict and, if so, can it be waived by Client 1? (2) If Attorney has a conflict, must Attorney´s office withdraw from representation of Client 2? (3) Does Attorney have a duty to disclose the prior representation of Client 1? ANSWER: (1) If Attorney obtained information in the course of representing Client 1 that has not become generally known and that could be used to Client 1´s detriment in the representation of Client 2, Attorney has a conflict under Rule 4-1.9(b). If proper representation of Client 2 would not involve using confidential information to Client 1´s detriment, but it would involve disclosure of such information, Attorney has a conflict under Rule 4-1.7(b). Client 1 could waive the conflict under either situation. (2) Under either type of conflict, Attorney´s office should withdraw, unless Client 1 waives the conflict. (3) Attorney has a duty to disclose the prior representation of Client 1 to Client 2.

QUESTION: Attorney has received a proposal from an entity to purchase Attorney´s accounts receivable. The entity would purchase accounts receivable which Attorney has written off for a percentage of their total. The entity would only be provided with the name of the debtor, the debtor´s last known address and telephone number(s), and the outstanding balances. The entity would never be provided with information that would detail the nature of the legal services provided. The accounts receivable the entity would purchase would only relate to former clients. Would this violate the rules? ANSWER: Based on the information Attorney has provided, the proposal Attorney has outlined will not violate the Rules of Professional Conduct.

QUESTION: Attorney´s former client has apparently voluntarily given information to the FBI. The FBI agent had the former client sign an attorney confidentiality waiver, and now wants Attorney to discuss the representation. Attorney wants to cooperate, but wants to make sure the former client has given a voluntary waiver. May Attorney insist on further assurances that the former client has given a knowing, voluntary waiver? ANSWER: Attorney should not disclose confidential information unless Attorney feels certain that Attorney´s former client has given consent either with knowledge of the ramifications or with the opportunity to be advised about the ramifications. Attorney will not violate any provision of the Rules of Professional Conduct, if Attorney insists on obtaining verification, either directly from the client or from the client´s current attorney, that Attorney´s former client has given knowing consent.

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

QUESTION: Attorney is personal representative and attorney for the estate. Attorney has been asked to sign an authorization for release of medical records of the deceased. May Attorney do so? ANSWER: Because Attorney served not only as personal representative but as attorney for the deceased, such a release would involve disclosure of confidential information by attorney. Attorney´s duty to maintain confidentiality of client information under Rule 4-1.6 does not end with the death of the client. Therefore, Attorney may not consent to the disclosure of any confidential information without a court order.

QUESTION: Attorney did estate planning work for a client who was competent when the work was done but is not competent now. An individual is serving as attorney in fact under a durable power of attorney. The client made a video tape at the time the estate planning work was done to express the client´s feelings about certain relatives who were likely to contest the estate plan. May Attorney turn the video tape over to the attorney in fact while the client is alive? May Attorney discuss or show the video tape to the relatives after the client dies based upon consent by the attorney in fact? ANSWER: Attorney may give physical custody of the videotapes to the attorney in fact while the client is alive. Under these specific circumstances, Attorney may imply the client´s consent under Rule 4-1.6 to disclose the videotape after the client´s death. Serious reservations exist about the ability of the attorney in fact to waive confidentiality after the client is deceased. The reservations stem from the understanding that the durable power of attorney ceases upon the death of the principal. It would seem logical that actions authorized by the attorney in fact during the life of the principal which had not been acted upon prior to the principal´s death would no longer be authorized. Additionally, the language of section 404.710.6 and .7, RSMo 1984, indicates a lack of authority for the attorney in fact to act regarding testamentary matters. However, the issue Attorney has presented involves many legal issues rather than ethical issues. Therefore, no definite opinion can be given.

QUESTION: Attorney represented Client A and Insurance Co. B which insured Client A. Insurance coverage was not clear. Client A obtained private counsel and discharged Attorney. Client A wants the file. May Attorney give the entire file to Client A? ANSWER: Attorney was Client A´s attorney but Attorney was also Insurance Co. B´s attorney. Under the circumstances Attorney has described, Attorney may not release any portion of Attorney´s file, other than communications from Client A´s private attorney to Attorney, to Client A´s current attorney based solely on Client A´s release. However, if Insurance Co. B also consents, Attorney may release Attorney´s entire file.

QUESTION: Attorney is a guardian ad litem for a minor. Attorney has information because of Attorney´s status as guardian ad litem relating to another individual. May Attorney disclose this information? Disclosure is not necessary to perform the duties as guardian ad litem. ANSWER: Attorney has a duty to maintain confidentiality of the information which came into Attorney´s possession as guardian ad litem, unless Attorney is ordered by a court to disclose the information after the issue of confidentiality has been fully raised to the court.

QUESTION: Attorney agrees to represent client and obtains a check for Attorney´s retainer. The check is returned to Attorney as drawn on a closed account. Question 1: Must Attorney withdraw? Question 2: May Attorney withdraw? Question 3: Must Attorney report the client´s actions to the prosecuting attorney? Question 4: May Attorney report the client´s actions to the prosecuting attorney? Question 5: May Attorney report the client´s actions to the client´s parole officer? ANSWER: Question 1: No. Question 2: Yes. Question 3: No. Question 4: Yes, only if attorney is making a complaint as a victim. Question 5: No.

QUESTION: Attorney asks about entering into a relationship with an insurance agent in which the insurance agent would have clients fill out an information sheet if they believe they need a will. The insurance agent would send the form to Attorney who would prepare a will and have the clients come in to execute it. No fees would be split with the insurance agent and nothing of value would be given to the insurance agent for the referral. The insurance agent would provide a price list of Attorney´s services. ANSWER: The arrangement proposed would involve improper solicitation, breach of confidentiality or both. In person solicitation is prohibited by Rule 4-7.3(b). If the insurance agent is acting as Attorney´s agent, in person solicitation would occur. If the insurance agent is independent, Attorney would be asking someone who is not Attorney´s representative to gather confidential information from Attorney´s clients on Attorney´s behalf in violation of Rule 4-1.6. Additionally, if the insurance agent is the one who is determining what specific type of estate planning the individual needs, the insurance agent would be engaging in the unauthorized practice of law and Attorney would be assisting in that activity in violation of Rule 4-5.5(b). Depending on other details of the arrangement, other rules may also be involved. Attorney would not be violating the rules if the insurance agent merely refers the potential client to Attorney for general estate planning, leaving it to Attorney to determine, in consultation with the clients, the specific type of estate planning the clients need. This situation could not involve any fee splitting or referral fee.

QUESTION: Attorney represented H and W in estate planning matters. H died before executing the new will which had been drafted. Some assets were re-titled prior to H´s death so they would pass to W. H´s children from a previous marriage have filed suit challenging the re-titling of the assets. W would like Attorney to testify. May Attorney testify? ANSWER: To the extent that information Attorney has arose out of representation in which Attorney was solely representing W, Attorney may disclose that information. However, Attorney may not disclose confidential information of H until Attorney has fully raised the issue of confidentiality and the court has ordered Attorney to disclose the information. If the court orders Attorney to disclose information, Attorney should seek to have the court issue an order as specific and limited as possible. Once the court issues an order for Attorney to disclose confidential information, Attorney may do so without appealing the court´s decision.

QUESTION: A life insurance agent advertises to get individuals to attend an estate planning seminar. Attorney makes a presentation at the seminar on estate planning. The life insurance agent makes a presentation on life insurance. What duty does Attorney have with regard to monitoring or directing the content of the life insurance agent´s advertising? May Attorney hire the life insurance agent for the purpose of assisting a client in funding a living trust? ANSWER: Before participating in the seminar, Attorney has a duty to ascertain that the insurance agent´s advertising is not false, misleading or deceptive. Hiring the insurance agent, for the purpose indicated, would not involve an ethical violation as long as the client is fully informed of the relationship and consents, the agents duties are limited to non-legal responsibilities, and the agent does not engage in any other activity that the attorney would be prohibited from engaging in under the Rules of Professional Conduct.

QUESTION: Attorney represents two clients, A and X, in two separate dissolutions cases. A´s spouse is B and X´s spouse is Y. Client A believes that B is having an affair with Y. May Attorney represent Client A and Client X in their respective dissolutions? ANSWER: Although the situation described does not present an actual conflict, it does create the potential for conflicts to arise. It seems possible that Attorney may obtain confidential information in representing one client that would be helpful in representing the other client. Attorney should make full disclosure to each client regarding all potential conflicts and obtain waivers from each before beginning the representations.

QUESTION: Attorney represents a criminal defendant A, who is a co-defendant with B. Initially, in order to determine which defendant to represent, Attorney interviewed both co-defendants. Attorney entered an appearance for defendant A. A and B now have conflicting interests. Co-defendant B now asserts that Attorney´s discussion with co-defendant B means that Attorney may not represent defendant A against B´s interests. ANSWER: Under the circumstances described, once Attorney began discussing the case or facts related to the case with defendant B, Attorney established an attorney client relationship with defendant B. This creates a conflict of interest under Rule 4-1.9(a) which requires Attorney to withdraw from representation of defendant A.

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

QUESTION: May Attorney form a general business corporation that will not practice law but which will practice in a related area and which will solicit clients for Attorney? ANSWER: The general business corporation would be engaging in "in person" solicitation prohibited by Rule 4-7.3(b) any time it made a referral to Attorney. If a client of Attorney developed a need for services such as those provided by the general business corporation, Attorney could only refer the client to the wholly-owned corporation after making full disclosure of the relationship between the corporation and the firm and making it clear to the client that the client has the option to obtain the services from any source of the client´s choosing. Additionally, this situation raises issues of confidentiality. If Attorney does form such a corporation, Attorney must realize that it is a completely separate entity and that confidentiality of information relating to the law firm´s clients must be strictly maintained.

QUESTION: Attorney represented a client and withdrew when he learned that his client may be involved in fraud related to the matter. Attorney has now been subpoenaed to testify about the situation in a proceeding before an administrative law judge. May Attorney testify? ANSWER: If the former client does not consent, Attorney may not testify unless ordered to do so by the administrative law judge after the issue of confidentiality under Rule 4-1.6 has been fully raised and Attorney has been ordered to testify. Attorney should seek to have any such order as specific and limited as possible. Attorney will not be required to appeal the ruling of the administrative law judge.

QUESTION: Attorney wishes to participate in a not for profit program which coordinates support services for a specific segment of the community. Attorney has concerns about some aspects of the program. The program calls for the provider of services to pay a percentage fee of all fees received to the program. The program would have a right to review the provider´s books and records to determine compliance with the program. The program would serve as the billing agent. ANSWER: The percentage fee would violate Rule 4-5.4(a) which prohibits fee splitting. The lawyer could pay a flat fee for the billing services but not a percentage fee. The provision of the program regarding access to the books and records creates problems under Rule 4-1.6 unless the client consents in advance after being fully advised of the advantages and disadvantages.

QUESTION: Attorney represents a client against whom a motion to modify has been filed. Attorney knows the client´s home address but the client has instructed Attorney not to reveal it. Must Attorney reveal the client´s home address if the judge requests it? ANSWER: No, that is confidential information under Rule 4-1.6. However, if the judge orders Attorney to disclose this information, Attorney may comply with the court´s order without appealing it if the issue of confidentiality was fully presented to the court before the court issued its order.

QUESTION: Attorney´s client obtained confidential documents from a member of opposing counsel´s staff. The client did not solicit the documents. What should Attorney do? ANSWER: Attorney should ask the client for permission to notify opposing counsel that Attorney has the documents and how Attorney obtained them. If the client will not consent, Attorney should withdraw and return the documents to the client.

QUESTION: Attorney would be paid a retainer by a title company to provide real estate related legal services to members of the public. No legal fees would be shared with the title company and Attorney would be independent of the title company in the course of representation. ANSWER: Attorney would have to follow the procedures in Rule 4-1.8(f) in addition to remaining independent under Rule 4-5.4. Attorney must recognize that an attorney client relationship is formed with each member of the public for purposes of the confidentiality and conflict of interest rules.

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 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 would participate in a living trust program run by a separate company. Non-attorneys who are not under the supervision of an attorney would contact the clients and gather information to prepare the living trust and would obtain a check for the company and a check for the attorney. Attorney would be a review attorney for documents sent by the company and advising the company of any changes needed to comply with Missouri law. Attorney will be compensated by the clients at a rate set by the company. Attorney is encouraged to make direct contact with the clients. Attorney will send the approved trust document or recommendations to the company. The company will send the final document to the client. ANSWER: This program would violate the following rules within Rule 4: 1.6, 1.7(b), 5.3, 5.4, 5.5, 7.3(b) and 8.4(a).

QUESTION: Attorney is a criminal defense attorney. Attorney´s client met with another criminal defense attorney and Attorney to discuss the client of the other criminal defense attorney. Attorney´s client made statements that would be exculpatory for the other criminal defense attorney´s client. Attorney´s client now refuses to testify to these statements or to allow Attorney to testify to them. If Attorney is subpoenaed, what must attorney do? ANSWER: If Attorney is called to testify, Attorney must assert the duty of confidentiality under Rule 4-1.6, which is separate from, and much broader than, the statutory attorney-client privilege. After Attorney has asserted the duty of confidentiality and fully presented the issue to the court, Attorney may comply with the court´s order without violating the rule.

QUESTION: A legal services program asks about two situations. In both situations, two people who are married may each qualify for services and may seek a dissolution of their marriage. When each potential client comes in, they will elicit information from the person regarding the circumstances. Situation 1: May the legal services program pay for an attorney for both parties? The legal services program would have an interest in keeping litigation costs to a minimum. Situation 2: In the same general situation, but one of the staff attorneys began representing one of the parties and then transferred the case to an outside attorney. May the legal services program pay for an attorney for both parties? ANSWER: Both situations would involve conflicts under Rules 4-1.7 and 4-1.8(f). They would also create problems involving confidentiality. Although these problems are not necessarily insurmountable, we must be presented with a specific plan before we can give an opinion. Also, it is clear that the legal services program will not be able to retain financial control even if the other conflict issues can be handled.

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).

QUESTION: Attorney represented a criminal defendant who was found not guilty by reason of insanity. Attorney no longer represents this person. The former client continues to contact Attorney and, based on past actions, Attorney believes these communications indicate that the former client is still dangerous and, possibly, dangerous to Attorney. The former client is in a mental health institution. May Attorney disclose this information to the mental health personnel? ANSWER: Even though the person is a former client, these circumstances give rise to an obligation of confidentiality under Rule 4-1.6. However, Rule 4-1.6(b)(1) allows Attorney to disclose that information Attorney reasonably believes is necessary to prevent this person from committing a criminal act that "is likely to result in imminent death or substantial bodily harm."

QUESTION: Attorney prepared a will for a decedent. The decedent´s heirs and their attorney want to discuss it with Attorney related to a will contest action. (1) Does Rule 1.6 apply after the client´s death? (2) May Attorney discuss decedent´s competency without a court order? (3) May the interested parties sign a consent for Attorney to discuss and testify without a court order? (4) What is the proper procedure for Attorney to testify under court order? (5) Is Attorney´s file open for inspection or must it be covered by the court order? ANSWER: Yes, confidentiality under Rule 1.6 is different than the attorney-client privilege. (2) No. (3) No. (4) The procedure does not matter under the rules as long as the issue is fully presented to the court. (5) The court order should be specific. Attorney may only disclose confidential information covered by the court order.

QUESTION: Office manager of a law firm wants to set up a separate business which would be run out of the same space as the law firm. The business would be a placement service for law firm support staff. The placement would be permanent (not a temporary service). The fee would be a flat fee paid by the employer. ANSWER: The proposed arrangement would not violate the rules. Care should be taken to ensure confidentiality of the law firm´s records. Steps should be taken to make sure that all signs, etc. reflect the separateness of the two businesses.

QUESTION: Attorney represented a client who entered a plea of stealing from an employer. The employer has now asked Attorney to represent it in an action against a person who should have detected the theft. The employer says it has no interest in bringing an action against Attorney´s former client. ANSWER: Attorney may only represent the employer if the former client consents after full disclosure. The situation will be further complicated if the former client is brought in as a defendant by the other defendant. In that situation, Attorney will have to withdraw.

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.

QUESTION: Attorney was contacted by Wife regarding her intention to file for divorce. Attorney declined to discuss the matter with Wife because of Attorney´s personal relationship with Husband´s family. Husband has now contacted Attorney for representation in the divorce. May Attorney represent Husband? ANSWER: Yes, if Attorney did not obtain any information from Wife that would be confidential under Rule 1.6.

QUESTION: Would it solve the confidentiality problem in Opinion No. 930172 if the client were asked to sign a waiver of confidentiality statement before the information is gathered by the agent and sent to Attorney? ANSWER: No. An attorney should not be encouraging clients to waive confidentiality without first advising them of the ramifications of that action. Since the attorney will not be present at that time, this would constitute further unauthorized practice of law by the agent.

QUESTION: Attorney accepts referrals for estate planning from insurance agents. Attorney is available in person or by telephone to answer legal questions. The agent is not obligated to recommend Attorney. The agent obtains basic estate planning information using a form and sends it to Attorney. Attorney is paid directly by the client and pays no part of the fee to the agent. Attorney reviews the information and contacts the client. Attorney prepares estate planning documents. Attorney gives the documents to the agent for delivery to the client. The agent assists the client with execution and transfer of assets. Clients are told to contact Attorney with que ANSWER: It appears the agent is engaging in in person solicitation on Attorney´s behalf in violation of Rule 4-7.3(b). Based on a review of the forms, it appears legal advice would be needed to fill them out. Since they are filled out by the agent and the client, it appears the agent is engaged in the unauthorized practice of law and Attorney is violating Rule 4-5.5 by assisting the unauthorized practice. Because the agent does not have a relationship with Attorney and is not supervised by Attorney, giving the documents to the agent for delivery would create problems with confidentiality under Rule 4-1.6 and would further involve the unauthorized practice of law.

QUESTION: Attorney is president of a small corporation (not a law firm). Attorney does not provide legal representation to the corporation. All of the records and business transactions of the corporation are kept separate from Attorney´s law practice. May Attorney have the executive offices of the corporation housed within Attorney´s law offices? This would include notation on the door and the building directory as well as the office address being listed on the corporation´s letterhead. ANSWER: Sharing space with another business is permitted but the two businesses must be maintained separately. The corporation must have a separate phone number answered for the business and not the law office. The files and other information must be separately maintained to ensure confidentiality of information related to the law practice. The physical arrangement should be one which enables clients of both businesses to understand that the businesses are separate. Also, aside from the executive office question, Attorney should be very careful to take Attorney´s relationship to the corporation into account in Attorney´s conflicts checking system.

QUESTION: Attorney was prosecuting attorney. A private client told Attorney that the client had information about the county which the client indicated was the basis for a lawsuit. The client assisted another individual to bring suit against the county and county officials. Attorney has been asked to testify on behalf of the county regarding this conversation. ANSWER: The communication from the private client is confidential under Rule 4-1.6. This opinion does not relate to the attorney-client privilege which is statutory and legal in nature. That privilege is not the same as the confidentiality referred to in Rule 4-1.6. Attorney may only testify regarding that communication if the private client consents or if Attorney is ordered to do so by a court after the issue is fully presented to the court.

QUESTION: Attorney represents guardian and conservator and helped her file annual settlement. Attorney obtains information from conservator to file next settlement. The information indicates that conservator may have misappropriated funds. Conservator resigns. What should attorney do about filing settlement and communicating the information to the court or the bonding company? ANSWER: Attorney may not communicate the information to the court or the bonding company unless conservator consents. Attorney may inform the bonding company that the conservator resigned. Under Rule 3.3 attorney may not file anything with the court which is false or contains omissions. Therefore, attorney must either refrain from filing the settlement or must file it with complete and accurate information. Attorney must try to persuade conservator to file a complete and accurate settlement. If conservator will not do so, attorney must withdraw.

QUESTION: Attorney represented adoptive parents in an adoption. Natural mother and adoptive parents now have a dispute. Natural mother wants copies of documents she signed. May attorney provide them to her? ANSWER: Only with the consent of the adoptive parents or through a subpoena or other lawful discovery if a lawsuit is filed.

QUESTION: Attorney represents several individual clients who are also clients of a business client of attorney. Another client tells attorney confidentially that business client has committed acts which are criminal and may adversely affect one or more of the individual clients. (1) What obligation does attorney have to tell business client? (2) What obligation does attorney have to individual clients? (3) What information can attorney tell law enforcement officials if they request it? ANSWER: (1) Attorney may not tell the business client information obtained from the other client. Attorney must withdraw from representation of business client and follow requirements of Rule 1.16. (2) Attorney may not tell the individual clients the information obtained from the other client. Attorney may not disclose to the individuals information obtained from law enforcement if the contact with law enforcement relates to attorney´s representation, past or present, of the business client. (3) Attorney must not disclose any information related to representation of any client to law enforcement unless attorney has been ordered to do so after the issue of confidentiality has been fully presented to the court.

QUESTION: Client has presented attorney with a sealed container which attorney has reason to believe contains drug paraphernalia and possibly illegal drugs. The materials belonged to another person with whom client is now in litigation. Attorney wants to use the materials as evidence in this litigation. ANSWER: Attorney must return the container to the client or, with the client´s permission, to the police or prosecuting attorney.

QUESTION: To what extent is an attorney disqualified from handling cases against attorneys in a firm which previously employed the attorney´s paralegal? ANSWER: Attorney would not be required to withdraw from or decline cases adverse to clients of the paralegal´s former firm as long as (1) the paralegal is screened from participation in those cases and (2) the paralegal does not reveal any confidential information from the former employment to any person in the attorney´s firm. These measures apply to all situations in the former firm, regardless of whether the paralegal had any involvement in those cases.

QUESTION: Attorney prepared a will for client A. During some will drafting conferences, A´s adult child was present. The will is being contested. Does the attorney client privilege apply to the conversations if the child or others were present or could hear the conversations. If the court determines the privilege has been waived, is attorney obligated to seek review. ANSWER: The attorney client privilege is a statutory privilege not within Rule 4. However, Rule 1.6 also relates to the question. That rule requires attorney to assert the confidentiality of any information relating to representation of a client. If ordered by a court to testify, attorney would not violate the rule by testifying as long as attorney had adequately presented the issue to the court.