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: Attorney would like to form professional corporations for each of the six attorneys in Attorney´s office. They currently operate as a limited liability company and Attorney would like for all of the professional corporations to become members of the limited liability company. Would this be a violation of the ethical guidelines? ANSWER: As long as Attorney complies with all statutes and regulations regarding the business structure Attorney has proposed, the proposed structure will not violate Supreme Court Rule 4.

QUESTION: Attorney has been approached by a former legal secretary who wishes to work-up personal injury files to the point of pre-litigation negotiation for a percentage of the fee. Attorney would do the negotiations. Is this ethical? ANSWER: The proposal Attorney has described would involve fee sharing with a non-lawyer in violation of Rule 4-5.4.

QUESTION: Attorney submits information about a business which refers clients to attorneys and charges a fee for the referral. Instead of accepting cash, attorney accepts a form of credit which can be used to pay other members of the system for their services. May Attorney participate in this program? Is the credit system fee splitting? ANSWER: Unless the program becomes registered as a qualified lawyer referral service under Rule 4-10.1, Attorney would violate Rule 7.2(c). Without more specific, detailed information regarding the program, it is not possible to determine whether the credit system would involve fee splitting prohibited by Rule 4-5.4.

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 is not licensed in Missouri but is licensed in another state and works for a general business corporation in Missouri. Attorney will have access to legal research tools at the corporation. Attorney would like to sell research services as a non-attorney to law firms. Attorney would not provide legal advice or otherwise practice law as a part of this arrangement. Would this involve the unauthorized practice of law in violation of Rule 4-5.5 or improper fee splitting under Rule 4-5.4? ANSWER: The proposal which Attorney has outlined would not involve prohibited fee splitting under Rule 4-5.4 or unauthorized practice under Rule 4-5.5 of Supreme Court Rule 4, the Rules of Professional Conduct. Two issues which Attorney has not addressed are conflicts of interest and confidentiality. These issues could certainly come into play if, for example, two local attorneys used Attorney´s research services for opposite sides of the same case. Attorney will need to establish a system to prevent problems in these areas.

QUESTION: Attorney files suits for a corporation based on defaults in payments on promissory notes. Some suits are contested, others result in default. Attorney is paid a flat fee on those that result in default. In contested cased, Attorney is paid at an hourly rate. The promissory note provides for a percentage to be paid for attorney´s fee. In many cases, this amount is more than Attorney´s actual fee. The corporation collects and retains amounts in excess of the attorney´s actual fee. Is this improper fee sharing under Rule 4-5.4? ANSWER: The situation Attorney has described does involve improper fee sharing under Rule 4-5.4. If the client has not previously agreed to pay the amount awarded as attorney´s fee to the attorney, there may also be an issue under Rule 4-3.3. Attorney should make sure that Attorney´s contract with Attorney´s client covers the possibilities such that violations of Rules 5.4 and 3.3 are avoided.

QUESTION: Attorney´s office is a non-profit organization. The office will directly represent indigent persons in civil and criminal proceedings as a public interest law firm. May community leaders who are not licensed attorneys participate in the policy making decisions of the board if these decisions did not involve controlling the professional judgment of attorneys? Does Rule 4-5.4(d) apply to this organization? ANSWER: Based upon the information provided, it does not appear that Rule 4-5.4(d) would apply to the proposed organization. However, Rule 4-5.4(c) would apply. Therefore, as with the current organization, the lay members should have no role in directing the attorneys in specific situations involving professional judgment. It would be permissible for the lay members to participate in establishing broad policies for the organization. The comment to Rule 5.4 states that it is advisable for attorneys who work for such an organization to have a written agreement which defines their role and provides for independence of the attorneys.

QUESTION: Attorney asks about participating in a credit card program which refers customers to member merchants. The member merchant pays a fee of twenty percent for participation. ANSWER: Based upon the information provided, Attorney would violate Rules 4-5.4(a) and 4-7.2(c), as a participating merchant in the program. Rule 4-5.4(a) prohibits fee splitting with a non-lawyer and Rule 4-7.2(c) prohibits an attorney from giving anything of value in exchange for a referral.

QUESTION: Attorney´s firm engages in collection work. The firm would like to pay its non-attorney collections employees an incentive based upon a percentage of the contingent fee. ANSWER: The proposal would violate Rule 4-5.4(a). A profit sharing plan must relate generally to the profits of the firm and not to the firm´s fee or profit on an individual matter.

QUESTION: Attorney proposes to practice only in the area of abstract opinions. Attorney would like to practice as the employee of the abstract company and provide abstract opinions for individuals purchasing property or banks financing the purchase. Another option would be for Attorney to be employed by a title insurance company and provide opinions for the use of that company in determining whether to issue title insurance. ANSWER: The first arrangement proposed would create a number of problems under the rules. Practicing law in a general business corporation, such as the abstract company, would involve assisting the unauthorized practice of law by the title company in violation of Rule 4-5.5(b) and fee splitting with a non-lawyer in violation of Rule 4-5.4(a). Additionally, the arrangement would involve possible problems with conflicts of interest between Attorney´s true client, the one receiving the abstract opinion, and the abstract company by which Attorney would be employed. If Attorney maintains an independent law practice, the abstract company can refer the clients to Attorney. Attorney may then give abstract opinions to the clients as long as the clients pay Attorney rather than the abstract company and as long as Attorney does not give the abstract company anything of value in exchange for the referral. Attorney may be employed by a title insurance company to provide opinions to that company upon which it would base its decision regarding the issuance of title insurance. In this situation, the client would be the title insurance company and the compensation would come from the client.

QUESTION: May Attorney pay a not-for-profit attorney referral service a fee which is a percentage of the attorney´s fees collected on a case referred to Attorney by that referral service? ANSWER: Yes, Rule 4-7.2(c) authorizes payment of "the usual charges of a not-for-profit lawyer referral service or other legal service organization."

QUESTION: Attorney owns an interest in Corporation A. Attorney and Corporation A will share a suite of offices. Corporation A will be operated completely separately and with proper designation. Attorney will only minimally be involved in the day to day operation of the corporation. Attorney B who also owns an interest will be involved in the day to day operation and will also share the office space. ANSWER: This arrangement would not violate Rule 4-5.4. The attorneys would have to make full disclosure any time they would refer a client to the corporation. Additionally, it would constitute prohibited "in person" solicitation for the corporation to make referrals to either attorney. The attorneys must also make certain that all information related to their clients is secure from access by anyone who shares space in the suite of offices who is not part of the attorney´s firm.

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: May Attorney accept credit cards for payment of fees? ANSWER: As a general rule, the answer is yes. However, this opinion does not imply blanket approval for any specific system an attorney may implement. Formal Opinion 112 which was issued in 1974 and indicated that this conduct was prohibited, because it would result in fee splitting, was withdrawn in 1982.

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: Several attorneys wish to form a partnership. Within the partnership will be professional corporations and limited liability companies. (1) May the letterhead only reflect the partnership name without referencing the professional corporations or limited liability companies? (2) Would it be OK if the partnership name is used and the professional corporations and limited liability companies are otherwise identified on the letterhead? (3) May a law firm be a limited liability company? ANSWER: (1) No. (2) Yes. (3) Yes.

QUESTION: May an attorney employee of a professional corporation who is not a shareholder serve as a director and officer? ANSWER: Yes.

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: Are there rule violations if: (1) a lay company prepares estate planning documents including living trusts and wills; (2) an independent contractor, who is not an attorney, makes the documents available to clients, takes the information from the clients, explains and recommends the documents to the clients and submits the information to the lay company; (3) the lay company prepares a set of documents which are returned to the client; (4) the client pays the independent contractor at the time of the sale and also writes a check for an attorney who works with the lay company; (5) an attorney receives the drafted living trust and prepares an opinion letter which is sent to the client; (6) the attorney does not give an opinion on the will and may or may not prepare documents to fund the living trust. ANSWER: (1) This would constitute the unauthorized practice of law. (2) and (3) Each would be engaging in the unauthorized practice of law and aiding and abetting the other in the unauthorized practice of law. (4), (5) and (6) This would be the unauthorized practice of law and assisting the unauthorized practice of law by the lay company and the independent contractor. It would be assisting the unauthorized practice by the attorney. The attorney would also be violating Rules 4-5.4 and 4-7.3(b) as a result of the solicitation.

QUESTION: Attorney proposes to produce a video on a legal topic. May Attorney form a separate corporation and share the profits from this venture with a non-attorney? ANSWER: The production of audio or video tapes for the general public on legal topics would not be the practice of law. Therefore, splitting the profits with a non-attorney would not violate Rule 4-5.4.

QUESTION: May Attorney´s firm reorganize from a partnership to a limited liability company? ANSWER: Yes, after the changes to Rules 4-5.4 and 4-9.1 become effective on January 1, 1994.

QUESTION: Attorney would hire a marketing firm to market the attorney´s services, generally, and specifically directed to a certain occupation. The marketing firm would be paid a set fee per month and would be paid an additional per call fee on calls received each month related to the marketing efforts. The per call fee would be paid regardless of whether Attorney receives any legal business from the call. ANSWER: This proposal would not violate the Rules of Professional Conduct as long as there is no direct personal or telephone solicitation.

QUESTION: May Attorney contract with a marketing firm to market Attorney´s services through contact, word of mouth, flyers and periodicals? The marketing firm would be paid based upon Attorney´s gross revenues or the number of calls made to an 800 number. ANSWER: This arrangement would violate Rules 4-5.4(a) and 4-7.3(a).

QUESTION: Attorney would contact church leaders and offer to prepare wills for congregation members who meet with Attorney. The church would communicate the availability of the service through general oral or written announcements. No one-on-one solicitation would occur. The church would schedule a time when interested persons would schedule appointments for private consultation and will preparation. The church might charge a fee to Attorney for use of the facility. Fees would be paid directly to Attorney or Attorney´s agent. No promise or expression of intention to contribute to the church would be made by Attorney in advance. ANSWER: This program would not violate the Rules of Professional Conduct. It would not be a violation for Attorney to pay the church a fee which is directly related to Attorney´s use of the facilities.

QUESTION: Company sets up a seminar on living trusts. An attorney presents legal information and answers questions. Complimentary consultations would be set up on request but not necessarily with the same attorney. The consulting attorney evaluates the client´s needs and prepares any necessary documents. Fees are pre-determined but may be lowered. Fees are paid to the attorney who pays the company for the seminar cost and secretarial support which amounts to approximately two thirds of the fee. All legal work and advice are provided by consulting attorney or associate. Company provides an office for attorney to meet with clients. There is a management agreement. ANSWER: No problem with attorneys being from different firms or with the company providing an office. However, it appears that fee splitting is occurring and that, therefore, concerns exist related to the unauthorized practice of law. There would be a problem with the management agreement if it contains anything similar to a covenant not to compete.

QUESTION: A separate business would be established which would offer will preparation to members of churches. If the church wants to make the service available, it will announce it and schedule appointments. A certain day will be set aside for appointments at the church. Clients will meet privately with attorney and documents will be prepared and executed. Attorney will not be a part of the separate business but will be paid an hourly rate by the business for will preparation. The business would make donations to the churches. ANSWER: The arrangement would be contrary to one or more of the Rules of Professional Conduct. Depending on the exact logistics of the arrangement, it could violate Rule 1.7, Conflict of Interest: General Rule; Rule 5.4, Professional Independence of a Lawyer; and Rule 7.3, Direct Contact with Prospective Clients. The relationship and role of the independent business creates many problems.

QUESTION: Attorney enters into a relationship with a company which makes the initial contact with individuals regarding possible estate planning. Estate planning documents are drafted by a lawyer employed by the company outside Missouri. The documents and data are delivered to the attorney for review. The documents are delivered to the individual by a representative of the corporation. ANSWER: The question does not provide enough specific information for an opinion. However, a number of rules may be involved depending on the exact nature of the relationships and procedures followed. These include: Rule 1.7(b), Conflict of Interest: General Rule; Rule 5.4, Professional Independence of a Lawyer; Rule 5.5, Unauthorized Practice of Law; Rule 7.2(c) Advertising; and Rule 7.3(b), Direct Contact with Prospective Clients.

QUESTION: Attorney enters into a business which will draw upon the attorney´s legal knowledge but which is not a law practice. The agreement with the financers calls for payment of a percentage of the revenues, including revenues from the attorney´s law practice. Is this a conflict? ANSWER: Yes.

QUESTION: May attorney enter into a relationship with insurance agents related to estate planning for clients of the insurance agents? ANSWER: If the insurance agents are ONLY identifying a potential need for legal estate planning work and informing the client of their belief that the client would benefit from legal advice, it would not constitute the unauthorized practice of law. No further opinion can be given without specific details of the proposed arrangement.

QUESTION: May a non-lawyer act as the secretary of a Missouri professional corporation engaged in the practice of law? ANSWER: Yes, Formal Opinion 102 is still valid despite statute and rule changes.

QUESTION: (1) May a lawyer enter into a direct contractual relationship with a potential client where the lawyer agrees to provide certain specifically delineated legal services in return for payment of a regular monthly retainer? (2) If yes, may a lawyer hire direct employees or contract with an independent contractor to promote, market, and sell the plan? (3) May an employee be compensated with a salary and receive bonuses based on performance? (4) May an independent contractor be used and paid on a flat fee or commission basis? ANSWER: The answer to all questions is yes. Neither an employee nor an independent contractor may be paid on the basis of the amount of fees paid to the attorney or billed by the attorney for legal services. That conduct would violate Rule 5.4, fee splitting with a non-lawyer.

QUESTION: May firm form a general for profit corporation for a client which would be advertised to the public to handle legal problems. The corporation would be owned by lawyers and non-lawyers. People who need legal assistance would contact the corporation which would help them find a lawyer. The corporation would charge a fee for this assistance. The client would pay the attorney´s fee. ANSWER: This program would involve fee splitting with non-lawyers which is prohibited by Rule 5.4(a).

QUESTION: Attorney has assumed representation in a case which was previously handled by an attorney who has pled guilty to a felony. Final disposition of the case, including any award of attorney fees, will probably occur after the previous attorney is disbarred. May the current attorney share the attorney fees with the previous attorney? ANSWER: Yes, as long as the previous attorney was licensed at the time the legal services were performed.