QUESTION: Attorney's former law firm continues to post Attorney's picture and biographical profile on their website even though Attorney has not been with the firm for several months. Attorney wants the information removed from the website. Is there an ethical rule which prohibits firms from committing acts such as this? How can this situation be resolved without having it mushroom into professional misconduct that must be reported and investigated? ANSWER: It is recommended that Attorney review Rule 4-7.1 and bring that rule to the attention of Attorney's former firm. Attorney should document the communications to the former firm requesting that information about Attorney be removed from the firm's website. If the former firm does not remove Attorney's information within a reasonable time frame and does not provide a reasonable explanation for the failure to do so, under Rule 8.3, Attorney should report this matter to OCDC so they can investigate to determine whether a violation has occurred. An opinion about the conduct of the attorneys in the firm cannot be formed without the opportunity for those attorneys to provide information

QUESTION: Question 1. The judicial circuit operates a drug court on a county-by-county basis. Prosecuting Attorney has appointed an attorney in his county as "drug court prosecuting attorney." The attorney as not been sworn in as a county official and has specific and limited duties: (1) attends drug court meetings and votes on drug court matters as part of a six-person team; (2) duties are mainly administrative with no authority to file cases; (3) has no authority to dismiss cases; (4) has no authority to plea bargain or appear in court, other than as drug court prosecutor; (5) receives a small monthly salary; (6) has no authority to refer anyone to drug court; and (7) has no authority to terminate any participants from drug court. After reviewing informal advisory opinion C. of Int.-122 [this cite refers to the location of the opinion in The Missouri Bar's Advisory Committee Opinions deskbook, last revised 1996] and section 56.360, RSMo, there appears to be a conflict between the advisory opinion and the statute. Is there a conflict?

Question 2. Prosecuting Attorney wants to hire an attorney to handle child support cases. The attorney would handle collection for child support issues, including filing of criminal misdemeanor and felony non-support cases. May attorney continue his criminal defense practice if appointed child support prosecuting attorney?

ANSWER: Answer 1. C. of Int.-122 and section 56.360, RSMo, may conflict. If section 56.360 applies to the drug court prosecutor, nothing in the Rules of Professional Conduct or C. of Int.-122 permit the drug court prosecutor to do something prohibited by the statute. Rule 4-1.7 prohibits a drug court prosecutor from opposing the state in litigation, including criminal defense. C. of Int.-122 is limited to assistant prosecutors who only handle child support enforcement and who follow all the steps set forth in that opinion and the prior opinion to which it refers.

Answer 2. Assuming the arrangements with the individual to handle child support matters meet the requirements of C. of Int.-122 and the prior opinion to which it refers, the assistant prosecutor will not be subject to disciplinary action. Statutory provisions are completely separate from the Rules of Professional Conduct. If section 56.360 applies to this assistant prosecutor and the assistant engages in criminal defense work, it is possible the assistant could be convicted of a misdemeanor and consequently subjected to disciplinary action. As the assistant prosecutor's supervisor, the Prosecuting Attorney would be subject to disciplinary action, if the assistant is subject to disciplinary action.

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

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

QUESTION: Attorney's firm proposes to borrow money from a non-lawyer for the purpose of funding expenses in mass tort litigation. The loan will be on a non-recourse basis. The firm's duty to repay would be based on successful prosecution of the cases as a whole, but not on the recovery of any individual case. ANSWER: Generally, it is permissible for the law firm to borrow money from a third party to fund litigation. However, it is not permissible for the repayment of the loan to be based on the outcome of the lawsuit. An attorney cannot engage in conduct that would amount to champerty or maintenance.

The elements of champerty are "(1) an agreement by one with no interest in a lawsuit of another (2) to support or maintain the litigation at his own expense (3) in exchange for a part of the litigated matter in the event of a successful conclusion of the cause." [Schnabel v. Taft Broadcasting Company, Inc.], 525 S.W.2d 819, 825 (Mo. App. W.D. 1975). Maintenance of litigation requires proof that a non-party to a suit maintains or assists either party, with money or otherwise, in prosecuting or defending the suit. Id. at 823.

[Macke Laundry Serv. Ltd. v. Jetz Serv.], 931 S.W.2d 166 (Mo. App. W.D. 1996).

QUESTION: Attorney has submitted a solicitation from a Corporation with regard to loaning money to a client. Attorney's client wishes to borrow money from the Corporation by assigning a portion of client's interest in a personal injury case to the Corporation. The client would not have any obligation to repay the loan in the event that there is no settlement. Is this ethical? ANSWER: Attorney should advise the client whether Attorney believes that such an arrangement would constitute champerty. Attorney may wish to review Macke Laundry Serv. Ltd. v. Jetz Serv., 931 S.W.2d 166 (Mo.App.W.D. 1996) regarding champerty. If Attorney concludes that the arrangement would constitute champerty, Attorney should not agree to assist Attorney's client. Assisting with a champertous arrangement would violate Rule 8.4(d) of Supreme Court Rule 4, the Rules of Professional Conduct, relating to conduct prejudicial to the administration of justice. If Attorney concludes that the arrangement does not constitute champerty, before Attorney agrees to assist Attorney's client with a transaction with the Corporation, Attorney must counsel Attorney's client on the impact of the release and disclosure on confidentiality and the attorney-client privilege. Attorney should advise the client whether Attorney believes that providing the required access to information will also mean that the opposing party may have full access to the same information.

QUESTION: Attorney previously worked for a different firm. There was no employment contract. Attorney was paid a salary, reimbursed for mileage and also received a small share of attorney fees collected on any case in the firm that Attorney handled. Attorney changed firms over a year ago, but is still owed several thousand dollars in unreimbursed mileage and attorneys fees earned. Attorney has made numerous written demands for payment to no avail. While at the previous firm, Attorney handled a Social Security case from beginning to end and was the sole attorney of record. Attorney recently received a check from the Social Security Administration made payable to Attorney alone, which represents the attorneys fees approved by the Court. Attorney would like to keep the check and give the other attorney credit for the money that Attorney is owed. The client signed the petition for approval of attorney fees stating that he agreed to have the fees withheld. Would keeping the check be an ethical violation? ANSWER: As long as Attorney is honest and forthright with Attorney´s former employer, the disposition of the fee in the Social Security case is a matter for civil law. Other than Attorney´s obligation to be honest, the ethical rules do not address this situation.

QUESTION: Attorney represents both Husband and Wife in a personal injury claim against two defendants. Wife has a loss of consortium claim against the defendants and Husband has a claim for extensive physical injuries, lost wages, permanent disability and pain. Recently, Husband died from what appears to be unrelated causes. The week before Husband passed, Attorney sent a demand letter and all the medical records. When must Attorney inform opposing counsel that Husband is dead? Attorney has not made any representations that Husband is still alive. However, may Attorney go forward deposing fact witnesses and expert witnesses without disclosing this information? ANSWER: Attorney owes a duty to Wife to protect any interests she has in the deceased´s claim. Someone will have to obtain authority to represent Husband´s estate. Therefore, it seems likely that Attorney needs to disclose Husband´s death in order to pursue a valid settlement of his claim. Attorney may not expressly or impliedly represent that Husband is still alive. It would not be impossible to depose witnesses without making such a representation, but it seems unlikely.

QUESTION: Attorney is representing Client in a traffic matter. Client has a friend who is a friend of the Judge. Client had her friend contact the Judge regarding the traffic violation. The Judge responded that he could not speak about the case. What are Attorney´s ethical violations concerning either mandatory or discretionary withdrawal? ANSWER: Attorney should advise Client to cease this type of activity and contact. If Client is willing to do so, Attorney may remain in the case. If Client is not willing to do so, Attorney must withdraw.

QUESTION: Client would like to enter into an agreement with a company that essentially makes a loan against the potential recovery on Client´s personal injury case. The company will agree not to seek payment from Client for the loan if no recovery is made. Before the company will loan Client the money they require information concerning Client´s medical bills, medical records, police reports, liens,an estimated amount of recovery on the claim and Attorney´s estimated value of the claim. Client has directed Attorney to provide the information to the company. Question 1. Are there any ethical problems with divulging this information to a third party? Is it necessary to get a written waiver of the privilege from Client? Question 2. Is there any ethical problem with Attorney signing an agreement with the loan company to pay that company directly from Attorney´s trust account after the recovery is made? Question 3. If Client changes his or her mind and refuses to allow payment from Attorney´s trust, would Attorney violate Attorney´s fiduciary duty to Client by disbursing the payment when there is not a valid lien and only the signed agreement? ANSWER: Answer 1. This opinion only addresses Attorney´s responsibilities under Supreme Court Rule 4. It does not address the advantages and disadvantages of the arrangement nor the application of any other laws to the arrangement. If Attorney participates in this type of arrangement, Attorney must advise Client about all aspects of the arrangement and make sure that Client understands all of the implications. One aspect that Client must understand and agree to is that they cannot ensure that the other party would or could maintain confidentiality of the information Attorney provides. Attorney may not participate in the arrangement and then withhold information required by the arrangement, even if Client so requests, without disclosing that Attorney is withholding information. That conduct could involve assisting Client with a fraud or dishonest conduct under Rule 4-8.4(c). Answer 2. This is permissible, if Client consents. Answer 3. If Attorney enters into the agreement described in Question 2 and Client changes his or her mind, Attorney would not be able to disburse the funds to Client or the company, until the dispute is resolved. Under those circumstances, Attorney would hold the funds in Attorney´s trust account for a reasonable period of time to allow them to resolve the dispute. If they did not resolve the dispute in a reasonable period of time, Attorney would interplead the disputed funds.

QUESTION: Attorney is representing Client in a personal injury matter. Client is experiencing a financial hardship and has contacted a corporation that provides interim funding to individuals with claims or lawsuits pending. In order to consider providing an advance to Client, the corporation has asked Attorney to provide case documents for review and fill out necessary forms. The corporation has explained to Client that it is an advance against an impending settlement, not a loan, and the advance is risky and the corporation´s fees are high. Even though Attorney has fully discussed the matter with Client and expressed caution concerning the interest rates, Client has asked Attorney to provide the necessary paperwork to the corporation. Would it be ethical for Attorney to participate in this type of agreement? ANSWER: This opinion only addresses Attorney´s responsibilities under Supreme Court Rule 4. It does not address the advantages and disadvantages of the arrangement nor the application of any other laws to the arrangement. If Attorney agrees to participate in this arrangement, Attorney has obligations to advise Client about all aspects of the arrangement and to look after Client´s interests. One aspect would be ensuring that the other party agrees to maintain confidentiality regarding information Attorney provides. Attorney may not participate in the arrangement and then withhold information required by the arrangement without disclosing that Attorney is withholding information. That conduct could involve assisting Client with a fraud or dishonest conduct under Rule 4-8.4(c).

QUESTION: Attorney´s client was previously represented by another attorney. After taking over the case, Attorney immediately filed suit in the matter. The case was then settled. The settlement check did not include the name of the previous attorney. Attorney is aware that the previous attorney was claiming a lien on the file, but is unsure if the previous attorney sent this claim to the insurance company. The draft has been executed and is in Attorney´s trust account. The client disputes the claim for attorney´s fees by the previous attorney. The client has given Attorney authority to pay the previous attorney for out-of-pocket expenses and is demanding payment of the remaining proceeds, after Attorney´s fees. Attorney contacted the previous attorney with the client´s offer, but the offer was refused. Attorney is hesitant to release the funds from Attorney´s trust account. It is Attorney´s position that legally, Attorney can honor the client´s request and pay the client the proceeds of the settlement. What are Attorney´s ethical obligations? ANSWER: Attorney has not indicated whether Attorney has engaged in any communication with the previous attorney, which indicated that Attorney would honor his lien. If Attorney engaged in any such communications, Attorney may not disburse the disputed funds to Attorney´s client. If Attorney did not engage in such communications, Attorney may disburse the funds to Attorney´s client. However, even in the absence of such communications, Attorney is not required to disburse the funds to Attorney´s client, if Attorney believes that Attorney or Attorney´s firm would be exposed to civil liability for such actions. If Attorney does not disburse the funds to Attorney´s client, Attorney should hold the funds in Attorney´s trust account to provide a reasonable opportunity for Attorney´s client and the previous attorney to resolve the dispute. If the dispute is not resolved in a reasonable period of time, it will be necessary for Attorney to interplead the funds.

QUESTION: Attorney´s client was involved in an automobile accident and was treated by a doctor. The doctor required the client to sign forms attempting to create a lien. Attorney and client both signed the forms, because the doctor would not send the client records without having the forms signed first. The insurance carrier made a small offer which the client would like to accept, but there would not be sufficient funds to pay the doctor´s bill. Must Attorney honor the doctor´s lien if the client directs Attorney to disregard it? ANSWER: In light of the fact that Attorney participated in the arrangements with the doctor, Attorney may not disregard those arrangements, even if Attorney´s client directs Attorney to disregard them. When the settlement funds are received, Attorney must keep them in Attorney´s trust account until Attorney´s client and the doctor have reached an agreement regarding disbursement. Attorney may assist Attorney´s client in those efforts. If they don´t reach an agreement within a reasonable period of time, it will be necessary for Attorney to interplead the funds.

QUESTION: Attorney entered into a contract with a business for some work to be done for Attorney. The business owner has submitted some fraudulent bills to Attorney. May Attorney let the business owner know that this is a matter that the postal inspectors and the U.S. Attorney´s office should look into? May Attorney mention criminal prosecution to him? Because Attorney is a lawyer, does that mean that Attorney cannot, as a taxpayer, use the services of the U.S. Attorney´s office and the postal inspector´s office? ANSWER: Attorney may indicate to the business owner that Attorney is contemplating asking government officials to prosecute him for his conduct. Attorney should limit any such statements to actions which Attorney is genuinely contemplating. In other words, Attorney should not make idle threats of criminal prosecution in order to gain an advantage in Attorney´s negotiations with the business owner. Attorney may refer this matter to the U. S. Attorney´s office or the postal inspectors office or state law enforcement officials without violating Supreme Court Rule 4.

QUESTION: Attorney is licensed in a adjoining state and has filed an application to take the Missouri Bar Examination. Attorney´s office is located in Missouri and uses that address for mailing and on letterhead. Attorney also works out of Attorney´s home in the adjoining state. Attorney has not appeared in court in Missouri and only uses that office to type letters, draft motions and petitions and meet with Attorney´s supervising attorney. Attorney has always been careful to assert to clients that Attorney is not licensed in Missouri and will not represent clients in Missouri courts. Is this appropriate? ANSWER: Until Attorney is licensed in Missouri, Attorney may use Attorney´s Missouri office to type letters to clients, draft motions and petitions and to meet with the supervising attorney. Attorney may not use Attorney´s Missouri office as Attorney´s mailing address or to receive Attorney´s telephone calls. Attorney may not meet with clients in Attorney´s Missouri office, and Attorney may not advise clients from Attorney´s Missouri office. Attorney may not use Attorney´s Missouri office address on Attorney´s letterhead.

QUESTION: May Attorney permit a letter to be sent on the Attorney´s firm letterhead which is signed by a client? The letter is a request for a service letter. ANSWER: It is not permissible for Attorney to permit the firm´s letterhead to be used for client correspondence. Nothing in Supreme Court Rule 4, the Rules of Professional Conduct, would prohibit Attorney from sending a separate letter advising the employer that Attorney is representing the employee regarding this matter.

QUESTION: Attorney represents one of several defendants in a personal injury action. Attorney believes that the plaintiff may be exaggerating what injuries were sustained. Attorney has considered hiring someone to conduct surveillance on the plaintiff, without the plaintiff´s knowledge, to determine whether the plaintiff is engaging in activities that are inconsistent with the injuries claimed. Is it permissible to secretly videotape plaintiff? ANSWER: If the secret videotape is made in connection with a meeting between the person videotaped and the attorney or a representative of the attorney, the videotaping would violate Rule 4-8.4(d). If the secret videotape is made in a situation in which the person being videotaped does not have a reasonable expectation of privacy and could generally be viewed by other people, it would not violate the Rules of Professional Conduct as long as it does not violate any other laws.

QUESTION: Attorney´s firm represents Husband in a dissolution action. Pursuant to a subpoena duces tecum served upon Wife´s therapist, Wife´s therapist produced the contents of the file on Wife, including all notes of the sessions together and sessions that included Husband, both alone and with Wife. The bottom of each page is stamped "CONFIDENTIAL INFORMATION NOT FOR SECONDARY RELEASE´. What is Attorney´s obligation or limitation on producing copies of these documents to Husband, opposing counsel, or any expert retained by Husband via counsel? ANSWER: If Attorney obtained the information properly, through a deposition, and Attorney did not make any representations about use of the documents, Attorney may use the documents as appropriate in the representation of Attorney´s client without violating the ethical rules. Because Attorney asks about opposing counsel, it appears possible that Attorney used a subpoena to obtain production of these documents outside a deposition and possibly without providing notice of a deposition to opposing counsel. Such a procedure is inappropriate under the Rules of Civil Procedure and the Rules of Professional Conduct. Under those circumstances, it would not be appropriate to use the information without informing opposing counsel that it was obtained and how.

QUESTION: May Attorney or Attorney´s investigator take a taped statement from an unrepresented party or witness in a case without the knowledge of that party or witness? ANSWER: It would be a violation of Rule 4-8.4(c), for Attorney to tape record a conversation without the other party´s knowledge and consent. This is true whether Attorney tapes the conversation personally or through a representative or agent such as an investigator.

QUESTION: Attorney represents a plaintiff in a personal injury suit. Attorney would like to conduct an ex parte interview of the doctor whom defendant has identified as an expert. May Attorney do so? ANSWER: The Rules of Professional Conduct do not prevent an ex parte contact with the expert as long as such contact does not violate the rules of discovery. Whether such contact violates those rules has been the subject of several appellate opinions. A legal issue under the discovery rules is not within the scope of an informal advisory opinion.

QUESTION: Attorney is a quasi-judicial officer and is involved in a separate business. May Attorney involve people with whom Attorney has contact as a quasi-judicial officer in the separate business as customers or business associates? ANSWER: Although the Code of Judicial Conduct, does not technically apply to quasi-judicial officers, those canons provide assistance in determining whether conduct by a quasi-judicial officer would violate Rule 4-8.4(d). If Attorney uses Attorney´s position as a quasi-judicial officer to make business contacts or enter into an ongoing business relationship with people who are likely to come before Attorney, Attorney would violate Rule 8.4(d) in light of Canon 5.C of the Code of Judicial Conduct. It does not matter how far removed from Attorney the person is in Attorney´s organization if Attorney receives a benefit from that person´s activity.

QUESTION: Attorney is a prosecutor and also advises the sheriff´s department. (1) If the prosecutor´s office receives a notice from the public defender´s office indicating that they represent a particular defendant and that the defendant does not want to talk to anyone about matters regarding this case or any other matters that arise, does the prosecutor´s office have a duty to notify the police from the various jurisdictions not to contact or interview the inmate on this case or on matters unrelated to the pending case? (2) The sheriff´s department wishes to have a policy of refusing to allow the public defender to file such a letter in the inmate´s file and to allow police officers access to inmates to interview them on matters other than the matter in which they are represented by the public defender. May Attorney advise them to proceed with this policy? ANSWER: (1) Under Rules 4-3.8 and 4-8.4(d), Attorney has a duty to use Attorney´s best efforts to keep the police officers from contacting or interviewing an inmate or any defendant about any matter on which the person is represented. If there are unrelated matters on which the person is not represented by counsel, Attorney is not required to attempt to prevent law enforcement from contacting or interviewing the person about those matters. (2) If placing such a letter or other notice in an inmate´s file is necessary to prevent improper conduct with a represented person, Attorney should use Attorney´s best efforts to have such letters or notices placed in the file. Attorney is not required to advise the sheriff to prevent police officers from contacting or interviewing inmates on unrelated matters on which they are not represented by counsel. This opinion does not address the underlying legal question of whether the person is represented by counsel in a given situation.

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 represents Client A who is charged with defrauding X. (1) May Attorney request that X consider signing an affidavit of non-prosecution in which X would formally state that X does not desire that the criminal action proceed further? (2) May Attorney negotiate for Client A to make restitution to X in an amount that does not exceed X´s actual loss? ANSWER: (1) Yes. (2) Yes.

QUESTION: Attorney intends to subpoena records related to Attorney´s client. Attorney asks whether the procedures are different since the client´s, rather than a non-party´s, records are the subject of the subpoena. ANSWER: In Missouri, the purpose of a subpoena is to compel the attendance of an individual or representative of an organization. The subpoena may also compel the person to whom it is addressed to bring documents to this appearance. If the subpoena is used in litigation in which there is an opposing party, Attorney may not use the subpoena to obtain the documents and waive the appearance. The procedures do not change if the documents are documents to which Attorney´s client should otherwise have access. If Attorney must obtain the documents through subpoena because Attorney is unable to obtain them through a request or demand by Attorney´s client, Attorney must follow these procedures.

QUESTION: Attorney is a municipal prosecutor. Attorney´s relative is one of multiple municipal judges. May Attorney continue as municipal prosecutor if Attorney does not appear before Attorney´s relative? ANSWER: Attorney may serve as municipal prosecutor as long as Attorney does not appear before the relative. If a situation does arise in which Attorney is called upon to appear before the relative, Attorney may do so without violating the Rules of Professional Conduct. Attorney should disclose the relationship "on the record" or in some other formal manner. This opinion does not address the conduct of the municipal judge under the Code of Judicial Conduct.

QUESTION: May Attorney have Attorney´s paralegal sign Attorney´s name to documents? ANSWER: Attorney may direct Attorney´s paralegal to sign Attorney´s name to correspondence and pleadings on a document by document basis after Attorney has reviewed, supervised production of the document and approved the content. The paralegal should indicate that the paralegal signed Attorney´s name to the document. One method of indicating this fact is for the paralegal to initial the signature. There are other methods that are also acceptable.

QUESTION: Attorney has obtained the opinion of an expert in a workers compensation case that is adverse to Attorney´s client. Must Attorney disclose this information to opposing counsel? ANSWER: Attorney has not indicated whether the information in question has been requested through discovery or whether there are any workers compensation statutes or other statutes or rules which require disclosure of this information. If none of these requirements apply, the Rules of Professional Conduct, do not require disclosure of this information. However, Attorney may not represent to opposing counsel or the tribunal, expressly or by implication, that Attorney has not obtained such an opinion.

QUESTION: If Attorney hires an investigator as an independent contractor and does not instruct the investigator on the manner of taking statements from witnesses, will it have implications for Attorney if the investigator tape records a statement without informing the witness that the conversation is being recorded? ANSWER: Yes, under Rule 4-8.4(a) and (c).

QUESTION: May Attorney hire an investigator to do pretrial investigation who will make ex parte contact with witnesses whom with whom Attorney could not make ex parte contact under Rule 4-4.2? ANSWER: No. To the extent that the rules prohibit an attorney from engaging in particular conduct, Rules 4-5.3 and 4-8.4(a) prohibit an attorney from directing or permitting an agent to engage in that conduct.

QUESTION: Attorney has been asked to provide a testimonial for a person in another business. Attorney has had a few dealings with this person but has never been a customer or client of this person. Attorney will not have any control over how the testimonial is used. Attorney hopes this person will refer clients to Attorney if Attorney gives the testimonial. ANSWER: Because of the potential for this communication to be misleading, it may violate Rule 4-8.4(c). The danger is particularly acute in a situation such as this in which Attorney has no control over the manner in which the statements are used. Additionally, this situation would involve giving something of value for referrals in violation of Rule 4-7.2(c).

QUESTION: Attorney is practicing as a visiting attorney in a case in a jurisdiction in which Attorney is not licensed. Attorney would like to make ex parte contact with former employees of the opposing corporate party. The former employees were not upper level management but may have been lower or middle level management. The former employees were not involved in the occurrence giving rise to the suit. The rules of the jurisdiction in which the suit will be heard may allow such contact. If Attorney may not contact the former employees directly, may Attorney´s client discuss the matter with the former employees if Attorney does not "coach" the client. ANSWER: If the former employees were management at any level, Attorney may not engage in ex parte contact with those employees. If the former employees were not management, the remainder of the analysis set out in the comment to Rule 4-4.2 must be performed. If the client engages in ex parte communications with the former employees, Attorney will not be violating Rule 4-8.4 by having another person do what the attorney may not do if Attorney has not, in any way, expressly or impliedly indicated to the client that he should engage in such communication. Because Attorney is licensed in Missouri, the Missouri rules will apply under Rule 4-8.5 although the case is in another jurisdiction.

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 has not changed her name since she got married a number of years ago. Attorney now wishes to change her name but wants to continue to use her current name professionally. ANSWER: As long as Attorney maintains the same name in all aspects of her professional practice, it would not violate the rules. Attorney should be certain that she uses the same name on all pleadings and professional correspondence and in all advertising. Attorney should also make certain that the name used for her professional name is the name on file with the Missouri Supreme Court, The Missouri Bar and this office.

QUESTION: Is Attorney subject to discipline if Attorney personally files for bankruptcy? ANSWER: No. However, if fraud or dishonesty is involved, the fraudulent or dishonest conduct would be grounds for discipline independent of the bankruptcy.

QUESTION: Attorney is employed by a government agency in a non-attorney position which includes criminal investigations. The subject of a criminal investigation is also involved in related civil litigation with the agency and is represented by counsel. May Attorney interview the subject without going through the subject´s counsel? ANSWER: Rule 4-4.2 prohibits communication with a represented party "in representing a client." If Attorney is not practicing law, Attorney would not be representing a client and Rule 4-4.2 would not apply. However, if Attorney is operating at the direction of an attorney who is practicing law, Attorney´s conduct would be prohibited by Rule 4-8.4(a) because the attorney directing the conduct would be prohibited from contacting a represented party by Rule 4-4.2.

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.