QUESTION: Attorney was recently contacted by a finance company that advances funds to plaintiffs. The company only makes loans to people with pending personal injury or workers compensation cases, prior to the appellate stage. The plaintiff is not required to repay the loan if plaintiff is not successful, and the attorney is expected to disburse funds to the company directly from the attorney's trust account. The company claims that its loans are not champerty because they are not overtly supporting litigation. Can Attorney ethically get involved with this company?

ANSWER: Under Rule 4-1.8(e), an attorney may not provide financial assistance to a client. It is likely that an attorney's involvement with loans by this company would be considered champertous. Despite the fact that a client might not use the funds directly for litigation, it appears that the funds are intended to support litigation. If the transaction is champertous, it is not permissible for an attorney to be involved. In Rancman v. Interim Settlement Funding Corp., 789 N.E.2d 217,221 (OH 2003), the Ohio Supreme Court stated:

Except as otherwise permitted by legislative enactment or the Code of Professional Responsibility, a contract making the repayment of funds advanced to a party to a pending case contingent upon the outcome of that case is void as champerty and maintenance. Such an advance constitutes champerty and maintenance because it gives a nonparty an impermissible interest in a suit, impedes the settlement of the underlying case, and promotes speculation in lawsuits.

QUESTION: Attorney A was asked to represent Client on separate felony matters. Client's Mother and Father own property which is free and clear. Mother and Father are willing to execute a deed of trust and a note payable on the property. Attorney A explained to Mother and Father that Attorney A does not represent them and that Mother and Father would execute the note payable and deed of trust. Attorney A would prepare deed of trust and note payable but would have Attorney B, from a different firm, review the documents with Mother and Father. Legal fees for Attorney B would be advanced by Attorney A's firm but would ultimately be charged to Client. An employment contract outlining the above would be executed by Attorney A and Client.

ANSWER: Attorney A may take a deed of trust as long as Attorney A closely follows the requirements of Rule 4-1.8(a). Although Attorney B may provide a second opinion regarding the deed of trust, Attorney B would not necessarily be viewed as independent counsel in light of the fact that Attorney A obtained Attorney B's services and will advance payment of fees. Attorney A is encouraged to read In re Snyder, 35 S.W.3d 380 (Mo. banc 2001), regarding this issue. Because the deed of trust is not from Client, Attorney A must also follow Rule 4-1.8(f). Attorney A should explain to any third party who is providing consideration for representation that they do not have any right to information about the representation, that they have no control over the representation, and that what they say to Attorney A is not confidential. In most circumstances when a third party pays, it is useful to have an agreement about what happens to the funds if: (a) the representation is prematurely terminated, or (b) the representation terminates normally, but there are funds left, or (c) the third party demands his or her money back while the representation is ongoing.

QUESTION: For a number of years, Attorney has represented a couple, who were friends of Attorney's family. Attorney prepared the original will and other documents. Husband died recently. Attorney is personal representative of Husband's estate. Wife told Attorney she wants to make changes to her will and wants to leave Attorney a substantial sum of money. Attorney told Wife Attorney could not do that as her lawyer. Wife requested Attorney find another attorney to revise her will.

Attorney plans to call a respected attorney and tell that attorney of the situation. Attorney plans to give that attorney Wife's phone number and request the attorney make contact with her. Attorney plans to advise the other attorney to discuss with Wife all of the negatives about leaving Attorney any bequest. Attorney will tell the other attorney to advise Wife that Attorney is not to know about the bequest. Attorney would not be named as personal representative in Wife's new will. Is Attorney violating any disciplinary rule or ethics rule by undertaking the proposed action?

ANSWER: The proposed course of action will not violate the Rules of Professional Conduct.

QUESTION: Attorney practices exclusively in Social Security Disability. Long-term disability insurance providers refer clients to Attorney and pay the attorney fees. The policies require that Clients refund to the insurance company past due benefits (overpayments) paid by Social Security. May Attorney obtain an agreement from the clients that they would release the overpayments to Attorney who would then pay the insurance company and refund the remainder to the client?

ANSWER: Attorney can proceed in the manner proposed. Attorney must comply with Rule 4-1.8(f) regarding third party payments. Attorney must also obtain "consent after consultation" regarding the "overpayment" procedure." "Consultation" is defined in Rule 4-9.1. It may be difficult to obtain consent after consultation from some clients with disabilities.

QUESTION: Attorney wants to establish a separate investment advisory and/or life insurance business. There would be a referral relationship between Attorney and the new business. May attorney do this? If so, what information must be disclosed to clients when referred to the side business?

ANSWER: Attorney is permitted to establish the side business. All communications should clearly state that it is a completely separate business from the law firm. All referrals will need to make full disclosure regarding Attorney's interest in the side business and that the client has the option of going to any other similar business for that type of service. Attorney must follow the steps outlined in Rule 4-1.8(a), which requires written disclosure and consent, among other things.

QUESTION: Attorney has a contingent fee contract with a client. Is the client responsible for costs and expenses in the event that Attorney decides to discontinue prosecution of the claim? Is there a requirement that the client is responsible for expenses in this instance? ANSWER: Rule 4-1.8(e)(1) allows Attorney to provide financial assistance to a client by advancing court costs and expenses. That rule also allows Attorney to make the client's obligation to repay Attorney contingent on the outcome. If discontinuing the prosecution means that the case never results in a settlement or judgment, it would not be necessary for Attorney to require the client to repay Attorney.

QUESTION: Attorney's practice is limited to estate planning. Attorney accepts referrals from CPA's, financial service professionals, other attorneys and existing clients. Attorney is not providing financial planning advice for a fee or receiving commissions for the sale of financial products related to such advice, even though Attorney is qualified to do so. Attorney is a certified financial planner and serves as faculty in an estate planning department of a financial planning college. Attorney is also licensed to sell securities and insurance. Attorney plans to become a registered investment advisor. Attorney maintains separate Errors & Omissions insurance coverage for financial planning. Attorney would like to offer financial planning services and products both physically and administratively independent of Attorney's firm. The financial planning firm would have a separate address, phone number, fax number, business card and support staff. Client files will be separately maintained at the law firm and the financial planning firm, even in instances where the respective firms share the same client. Clients of the law firm will be informed orally and in writing regarding the availability of the financial planning services and products. The communication will inform clients regarding confidentiality, conflicts of interest and independent judgment. May Attorney practice law as an estate planning attorney in a law firm, while offering financial planning advice for a fee and receiving commissions for the sale of financial products related to such advice, as a certified financial planner, in a financial services firm? ANSWER: It is permissible for Attorney to maintain a financial planning/insurance practice, independent of Attorney's practice of law. Attorney may refer legal clients to Attorney's financial planning/insurance practice if, as Attorney has indicated, Attorney advises the clients in writing of (1) the differences in confidentiality, (2) the fact that Attorney will receive compensation if they purchase the products from Attorney's financial planning practice, and (3) that they have the right to consult with independent legal counsel regarding the advisability of purchasing these products. In addition, Attorney must notify the clients that they have the right to purchase the products from a different financial planning/insurance business. Attorney should review Rule 4-1.8(a), which requires client consent in writing. It will not be permissible to refer clients who come to the financial planning/insurance practice to Attorney's law practice. That type of referral by Attorney or staff of Attorney's financial planning/insurance practice would be considered in-person solicitation. It is permissible to let the clients know that Attorney is an attorney and of Attorney's affiliation with Attorney's firm.

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 has been retained to represent a client in a legal malpractice action against defendant attorney. The client retained the defendant attorney for representation in an employment discrimination suit. The defendant attorney drafted a complaint for the client to file pro se. The defendant attorney entered into an agreement with the client limiting defendant attorney's liability to the client for malpractice and the client was not independently represented. The defendant attorney also failed to advise the client that the client should obtain independent representation. Does Attorney have an obligation under Rule 4-8.3(a) to report the defendant attorney's violation of Rule 4-1.8(h)? ANSWER: Attorney should report this information, if Attorney's client consents. This opinion does not indicate a conclusion about whether the defendant attorney committed a violation of the rules. However, the information Attorney has described is information that should be provided to OCDC so a determination regarding whether a violation has occurred can be made.

QUESTION: Would it be proper for Attorney to form a partnership with a client in connection with a matter that would otherwise have been handled on a traditional fee basis? The client would contribute the cause of action and Attorney's firm would contribute its expertise in converting the cause of action into settlements or awards. Attorney would like to consider the use of such a partnership arrangement in the types of cases where the settlement or award would be considered taxable income to the client. ANSWER: As I understand it, the proposed partnership arrangement would involve Attorney's firm acquiring a proprietary interest in the litigation. Such an arrangement would violate Rule 1.8(j) of Supreme Court Rule 4, the Rules of Professional Conduct.

QUESTION: Attorney's firm does primarily plaintiff's personal injury work. Attorney's firm is frequently faced with the situation where their client, because of injury, has lost his or her job and taken another job. Many of Attorney's clients are not paid if they must take a day off of work to give a deposition or take a week off to sit in trial. As part of their case expense, may Attorney's firm advance money to their clients for lost wages that are incurred as a result of a deposition or trial? ANSWER: Attorney would violate Rule 4-1.8(e) if Attorney advanced Attorney's clients for their lost wages incurred in relation to the litigation.

QUESTION: Attorney is in the process of incorporating a new company for a client and doing other corporate related work for the new company. May Attorney accept a percentage of stock as payment and if so, under what circumstances? ANSWER: It is permissible to accept payment for services in stock or some other ownership interest in the client. Attorney must follow the steps set forth in Rule 4-1.8(a). This situation creates the potential for a number of types of conflicts of interest to arise. Attorney should discuss the potential for conflicts and the result if they do arise with Attorney's clients. For example, the discussion should include the potential that Attorney might have to withdraw and that Attorney might personally be in a position adverse to Attorney's current clients.

QUESTION: Attorney represents a client in a personal injury action. Because of financial distress, the client does not have the funds to pay for transportation to and from the doctors that the client needs to see. Is it permissible for Attorney to advance the funds to pay for taxi service to and from the client´s doctors? ANSWER: It may be possible for Attorney to advance the expenses of transportation to and from doctors whom the client needs to see for purposes directly related to the litigation. It would violate Rule 4-1.8(e) for Attorney to advance these expenses for transportation to doctors the client needs to see solely for treatment.

QUESTION: Attorney´s firm handles both injury claims and personal bankruptcy matters. Frequently, Attorney provides dual representation for both an injury matter and the separate bankruptcy matter. Many of these clients find it difficult, if not impossible, to come up with the filing fee and attorney´s fee for the bankruptcy matter. May Attorney be reimbursed for advancing costs of bankruptcy filing fee and attorney´s fee if such repayment is to come from the contingent settlement of a separate personal injury or workers" compensation matter? Does Rule 4-1.8 require that a separate lien or contract be signed by the client in order to avoid a conflict of interest? ANSWER: Attorney may advance the filing fee with the understanding that Attorney will be reimbursed at a later time with funds obtained from another source, including a judgment or award in another case. Attorney should enter into a separate agreement with the client to make certain that Attorney has a clear understanding with the client. Whether or not Attorney will have an enforceable lien against the other judgment or award is a legal question which I cannot address. If Attorney advances the costs and fees of the bankruptcy case, repayment of those fees may not be contingent on success in the personal injury or workers compensation case. Attorney must also consult with the client regarding the fact that this arrangement may have to be disclosed in the bankruptcy and any ramifications of that disclosure.

QUESTION: Attorney and client have worked out a contingent fee arrangement by which, if no recovery is obtained by Attorney, the client and Attorney will split the expenses and costs of litigation equally. In all other events, the costs and expenses will be deducted from the client's share of any recovery. The client is not indigent. Is this a violation of Rule 4-1.8? ANSWER: The arrangement Attorney has proposed is in compliance with Rule 4-1.8(e)(1).

QUESTION: Attorney is assisting a client in establishing a new company. The client would like for Attorney to receive an equity position in the new company for the work performed by Attorney. Attorney has complied with Rule 4-1.8(a), Conflict of Interest: Prohibited Transactions. May Attorney and Attorney´s firm accept the equity position in the newly formed company? ANSWER: In light of the fact that Attorney has complied with Rule 4-1.8(a) Attorney may accept the equity interest in the newly formed company. Attorney should be aware that establishing such a relationship creates the potential for conflicts of interest. If such conflicts develop, it is likely that Attorney would be unable to continue as counsel for the company.

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

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

QUESTION: Attorney has been approached by several people over the years seeking to have Attorney´s firm provide cash payments to help the clients sustain themselves and their families during the pendency of their person injury actions. Attorney has always told the potential client that it would not be permitted under the Rules of Professional Conduct. Is this correct? ANSWER: Attorney is correct in Attorney´s understanding that Rule 4-1.8(e) prohibits Attorney from loaning money to a client or providing any other form of financial assistance, other than advancing the costs and expenses of litigation.

QUESTION: May attorney, who is one of three trustees of a 501(c)(3) charitable trust, be employed by the trust to perform such legal services required by the trustees, including preparation of necessary documents for loans from trust funds secured by real estate. ANSWER: As one of the trustees of a charitable trust, Attorney is not prohibited from performing legal services for the trust if Attorney follows the steps required by Rule 4-1.8(a). Attorney must also abstain from any participation in the decisions by the trustees regarding hiring and compensation of the attorney to perform the legal services.

QUESTION: The majority of Attorney´s practice is handling collection matters. May Attorney advance costs to file suit? May Attorney advance the cost for post-judgment action? Attorney would be reimbursed for the costs after they collect on the case, if they collect. ANSWER: Attorney may advance the costs of filing fees and garnishment without violating Rule 4-1.8(e).

QUESTION: Does Rule 4-1.8(f)(1) require Attorney to obtain a client´s consent before representing that client for a fee, when the client´s legal fees are being paid for by someone other than the client such as an insurance company? Is written consent from the insured/client required under Rule 1.8(f)(1)? ANSWER: Rule 4-1.8(f) does apply to the insurance defense situation. This is a situation involving third party payment and also multiple representation. It is necessary for the insured to consent to the third party payment as well as any other conditions or limitations imposed on the representation. The rules do not require that this consent be in writing, but it is recommended.

QUESTION: Attorney has a practice limited to the area of estate planning. Attorney is drafting an irrevocable life insurance trust (ILIT) on behalf of a client. The client requests that Attorney serve as the primary trustee under the ILIT. Attorney has explained to the client that Attorney´s standard hourly fee would be charged for work performed as the trustee. Under what circumstances may Attorney serve as trustee for the client? ANSWER: If Attorney will be named as the primary trustee under a trust Attorney drafts, Attorney must comply with all of the requirements of Rule 4-1.8(a).

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

QUESTION: Attorney represents an indigent client in a civil matter that is going to trial soon. May Attorney advance transportation expenses, lodging and meals for the client to come to the two day trial? ANSWER: Under these circumstances, advancing the reasonable costs of transportation, lodging and meals for Attorney´s client to attend the trial would be expenses of litigation. Therefore, Attorney will not violate Rule 4-1.8(e) by advancing these expenses.

QUESTION: Attorney represents two clients who were severely injured, both have been rendered destitute and they have no insurance. An advance against the settlement is being offered by the insurance company to help the clients get through the upcoming months. May Attorney defer collecting a fee until a later date? ANSWER: Attorney will not violate Rule 4-1.8(e) by deferring collection of Attorney´s fee until a later date.

QUESTION: Does Rule 4-1.8(j) prohibit Attorney from representing a corporation in which Attorney is a shareholder? ANSWER: No.

QUESTION: May Attorney serve as general counsel for a corporation and sit on the Board of Directors and have an ownership interest? What precautions must Attorney take to avoid conflict of interest? ANSWER: This situation would involve a conflict of interest. Rule 4-1.8(a) sets out the steps Attorney must follow to enter into such a business relationship. This situation creates numerous opportunities for conflicts under Rule 4-1.7(b). Attorney should study the last paragraph under the heading "Other Conflict Situations" in the comments to this rule.

QUESTION: May Attorney pay a diagnostic fee to a physician for an indigent client? ANSWER: If the diagnostic fee is related to an evaluation which Attorney will use in representing the client, Attorney may advance that expense without violating Rule 4-1.8(e). If the client is indigent, it is not necessary that Attorney require reimbursement for these expenses, regardless of the outcome.

QUESTION: Attorney is representing a client in a matter in which Attorney´s spouse may be representing the opposing party. May Attorney continue to represent the client, if the client consents? ANSWER: Under Rule 4-1.8(i), Attorney may continue to represent the client if the client consents after full disclosure. It is not necessary, under the rules, for the opposing party or counsel to consent to Attorney´s continued representation.

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

QUESTION: Attorney represents injured employees in workers compensation cases. May Attorney pay the cost of medical treatment and transportation for medical treatment for the employee while the case is pending if the employee cannot afford it otherwise? ANSWER: Under Rule 4-1.8(e) an attorney may not provide financial assistance to a client except to advance costs and expenses or, if the client is indigent, to pay costs and expenses. Therefore, Attorney may not pay or advance the costs of the client´s medication, treatment or travel expenses related to treatment. However, if the visit to the health care provider is genuinely for the purpose of evaluation for the litigation, even if it is also for treatment, Attorney may advance the expenses of the visit and the transportation. However, to the extent that the evaluation portion of the visit can be segregated from the treatment portion, Attorney may only advance the expenses related to the evaluation.

QUESTION: For tax purposes, Attorney would like to charge only a straight contingent fee without recouping expenses in personal injury cases. May Attorney do so? ANSWER: Under Rule 1.8(e), Attorney may provide that repayment of costs and expenses is contingent on the outcome of the matter. In other words, Attorney may indicate that repayment of costs and expenses would not be required if Attorney is not successful in the litigation. If Attorney is successful in the litigation, Attorney must provide for repayment of costs and expenses. The only exception would be when Attorney is representing indigent clients.

QUESTION: Attorney works as in house counsel for a corporation. Attorney sometimes defends both the corporation and individual employees. Would it be permissible under Rule 4-1.8(h) if the corporation passes a resolution to indemnify Attorney if Attorney is sued for malpractice related to representation arising out of Attorney´s employment by the corporation? The indemnification would include attorney fees and payment of any judgment. ANSWER: Yes, under the specific facts and relationships in this situation.

QUESTION: Attorney proposes to enter into a settlement regarding a lawsuit over fees with a former client. Attorney asks about specific language proposed for the settlement. ANSWER: The language stating that this would settle "specifically any and all complaints to the Missouri [Office of Chief Disciplinary Counsel] arising from a dispute over fees charged by [Attorney] or incurred by [Client]" would not violate the rules. However the portion which includes a release of "any and all other claims that cannot be ascertained at this time even if later discovered" is overly broad and could be construed as including disciplinary complaints unrelated to the amount of fees and would, therefore, be improper.

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 in several cases. The client is delinquent in paying attorney´s fees in all of the cases. One of the cases is set for trial fairly soon. (1) May Attorney agree with client that, in addition to Attorney´s statutory lien, the proceeds of the case set for trial will be used to pay the outstanding bills in the other cases without violating Rule 4-1.8(j)? (2) May Attorney take assignment of the client´s claims in the case set for trial to satisfy the client´s outstanding bills in the other cases through the date of assignment. ANSWER: (1) No. (2) No.

QUESTION: Attorney is also licensed to sell life insurance. After Attorney completes an estate plan for a client, Attorney sends a letter to the client outlining reasons why they may want to consider purchasing life insurance. Attorney indicates that Attorney, as an insurance agent would be happy to discuss this with them. In this letter, Attorney discloses the terms of the transaction, suggests that the client seek the advice of independent legal counsel and advises the clients that Attorney will not be functioning as their legal counsel in the insurance transaction. ANSWER: Attorney appears to be complying with the requirements of Rule 4-1.8(a) regarding business transactions with clients except, Attorney must expressly disclose that Attorney will be making a commission or have some other financial interest in the sale. Regardless of these steps, Attorney would violate Rule 4-1.7(b) if Attorney recommended life insurance for reasons other than Attorney´s genuine judgment that life insurance is appropriate for the particular 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: Attorney would like to co-sign a consumer loan for a client in a personal injury case. ANSWER: This would violate Rule 4-1.8(e).

QUESTION: Attorney is a minority shareholder in a corporation but owns more than five percent (5%) of the stock. May Attorney enter into a contract with the corporation prospectively limiting Attorney´s liability for negligence if the corporation is represented by independent counsel? ANSWER: No, this would be prohibited by Rule 4-1.8(h).

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

QUESTION: 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 conducts administrative hearings. A closely related "in-law" is a party who regularly appears before Attorney. Do the conflict of interest provisions of the Code of Judicial Conduct or the Rules of Professional Conduct apply? ANSWER: The Chief Disciplinary Counsel does not interpret the Code of Judicial Conduct, including its applicability. However, we understand that the Judicial Commission has taken the position that that Code does not apply to quasi-judicial administrative officials. Attorney may preside over cases in which this relative is a party if Attorney gives full disclosure of the relationship to the parties and if all parties consent. Although the government cannot normally consent to a conflict, this situation is an exception. Canon 3(C)(4) of the Code of Judicial Conduct is helpful in determining how the conflict under Rule 4-1.7(b) can be handled. Although Rule 1.8(i) does not strictly apply in this situation, it is instructive in this regard because it indicates that conflicts of this sort can be waived.

QUESTION: Attorney is the corporate attorney for a corporation. The corporation would like Attorney to serve on its Board of Directors. May Attorney do this and remain the corporate attorney? ANSWER: This would be a conflict of interest but Rule 4-1.8(a) sets out the steps an attorney must follow to enter into such a business relationship. This situation creates numerous opportunities for conflicts under Rule 4-1.7(b). Attorney should study the last paragraph under the heading "Other Conflict Situations" in the comments to this rule.

QUESTION: FACTUAL SITUATION 1: Attorney will purchase information from a separate business obtained from police reports of traffic accidents. Attorney will solicit prospective clients from this information, by mail only. FACTUAL SITUATION 2: Attorney will be retained to represent drivers employed by a business in traffic ticket cases. Either the company or the drivers will retain Attorney. Attorney would charge a flat monthly fee per driver. Would this violate the rule on fees for months when a driver received ANSWER: FACTUAL SITUATION 1: This would not, as a general rule be a violation. However, special attention must be paid to Rule 4-7.3(c). It seems particularly likely that Rule 4-7.3(c)(1) would apply to some accident victims. FACTUAL SITUATION 2: This arrangement would not violate Rule 4-1.5. However, if the employer pays the retainer fee, special attention should be paid to Rule 4-1.8(f).

QUESTION: Attorney proposes to send prospective clients a letter which states that Attorney "specializes" in automobile law. The letter would also convey that people who have been injured in an automobile collision should consider hiring an experienced attorney. The letter would offer a free office conference and would indicate that the recipient may be eligible for healthcare without out of pocket expense. ANSWER: The word "specializes" would require inclusion of the Rule 4-7.4 disclaimer. Although healthcare without out of pocket expense may be available from some sources, Attorney should be aware that Rule 4-1.8(e) prohibits Attorney from advancing money to clients for expenses other than litigation expenses.

QUESTION: Attorney is on the Board of Trustees of a town. The town sometimes asks Attorney to represent it, in some instances with compensation and in some instances without compensation. Is this a conflict of interest? ANSWER: If no compensation is received, it is not a conflict. If compensation is received, it is not a conflict if Attorney takes no part in, and uses no influence to affect,the selection or compensation.

QUESTION: What are the implications of a member of the firm being the child of a local judge? Is that member or any other member disqualified? ANSWER: This question really relates to the Code of Judicial Conduct. The judge should ask for an opinion from the Judicial Commission.

QUESTION: Attorney represents a union and one of its employees in a grievance proceeding. Union is responsible for the fees. Union cannot pay the fees. The employee is willing to pay the fees and be reimbursed by the union. May the attorney accept payment from the employee? ANSWER: Yes, if the employees waives the Rule 1.8(a) conflict in writing after full disclosure.

QUESTION: May a lawyer advance housing and living expenses to a client? ANSWER: No, this conduct violates Rule 1.8(e).

QUESTION: May attorney enter into a contingent fee arrangement to collect on final judgment which was entered in a domestic relations case? Because payments to client as a result of collection action will be in installments over a lengthy period, may attorney require that client irrevocably designate attorney as payee of the payments? ANSWER: The contingent fee arrangement is not prohibited. The irrevocable assignment implicates Rule 1.8(a) on conflicts of interest.