QUESTION: Attorney has taken possession of the files belonging to a deceased attorney. Attorney has returned all abstracts to their owners, most original wills have been sent to the testator and in the few cases in which the testator could not be found, the will was deposited with the court. All that remains are a few boxes containing old tax returns, wills and other attorney papers. No one has sought to retrieve these papers in over five years. Attorney would like to destroy these files. Would this be appropriate? ANSWER: Attorney has already taken most of the steps that should be taken prior to destruction of the papers and files. In addition, notice should be given to the clients, at their last known address, that these items will be destroyed after a certain date unless they make arrangements to obtain them. The date specified should permit a reasonable period of time for written notice to be forwarded, if necessary.

QUESTION: Attorney represents Defendant in a criminal case in which there is Victim A and Victim B and in a companion civil suit. Attorney would like to settle the civil matter and obtain an agreement not to prosecute from the victims. Question 1. May the parties negotiate an agreement not to prosecute as a part of the settlement? Question 2. If the answer to 1 is no, to what extent can any plea proposals in the criminal case be agreed upon as consideration for the civil case settlement? Question 3. Should the prosecutor be included in the civil case settlement negotiations? Question 4. Does it matter if no civil case has actually been filed? ANSWER: Questions 1 and 2. This conduct would not be prohibited by the Rules of Professional Conduct, unless some other factor such as coercion or misrepresentation were involved. However, this opinion is limited to the Rules of Professional Conduct and does not address statutory provisions such as section 575.270, RSMo 1994. Question 3. In light of the statutory provision cited above, Attorney should involve the prosecuting attorney in these negotiations. Question 4. The fact that a civil suit has been filed does not change the analysis.

QUESTION: Attorney has been suspended with leave to apply for reinstatement in six months. May Attorney stay in a case in which there will be no further action for six months? ANSWER: No. Under Rule 5.25, Attorney must withdraw. Under Rule 5.26, reinstatement is not automatic.

QUESTION: Must a Missouri attorney pay a fee to maintain inactive status? ANSWER: Missouri has a reduced enrollment fee for out of state attorneys who do not practice in the state. If an attorneys stop paying fees, they are listed as suspended/delinquent. This is not a disciplinary action. They may pay all outstanding fees and penalties and be retroactively reinstated within the first three years. After three years, they must pay the outstanding fees and penalties and petition the Supreme Court for reinstatement. Attorneys may also notify the Clerk of the Supreme Court of their desire to go on inactive status and not pay fees. They will be listed as inactive rather than suspended/delinquent. However, the conditions for reinstatement to active status are the same.

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