Misc.-88

QUESTION: What is the proper disposition of a client's unused funds remaining in a lawyer's trust fund after termination of representation when every reasonable effort has been made to locate the client and refund the funds?

ANSWER: While this situation is not uncommon, it is troublesome, particularly in that the amounts sought to be refunded are typically only a few dollars, representing refunds on unused filing fees or what remains unspent of money deposited for future expenses.

The lawyer's duty to safeguard all clients' funds in his possession continues after the representation of the client has ended. The lawyer's duty, after all reasonable efforts to find the client and refund the funds are in vain, is a matter of Missouri law, which currently is stated in RSMo 447.500-447.585, Uniform Disposition of Unclaimed Property. All such unclaimed funds, including any interest, are presumed abandoned property after seven years (447.530) and shall be reported to the director of the Missouri Department of Economic Development under the provisions of 447.539 and the director shall cause notice to be published at least once each week for two successive weeks in a newspaper of general circulation (447.541). The lawyer at the time of filing such report shall pay the funds to the Missouri State Treasurer, retaining the reasonable costs of compliance with Sections 445.500-447.585 (447.543).

Adopted October 21, 1988.

Misc.-89

Attorney represents husband in wrongful death case on death of wife. Husband dies during case. Husband is survived by children. Can attorney proceed with settlement negotiations without disclosing death of husband? How soon must attorney disclose death of husband?

Attorney must disclose death of client to the defendant's attorney and the court within a reasonable time. Attorney may not continue to actively negotiate without disclosure.

[Rule 4 3.3]

Misc.-90

QUESTION: Attorney represented client in a civil case. Attorney was allowed to withdraw and civil case ended. Former client now has another attorney in a different case which is tangentially related. What part of file must original attorney provide to client or current attorney?

ANSWER: Attorney must provide all of file unless he advanced litigation expenses for which he was not reimbursed under Formal Opinion 115, as amended.

[Formal Opinion 115]

[Rule 4 1.16]

Misc.-91

QUESTION: How can attorney go about setting up a plan in which indigents or low income persons would pay a low fixed annual fee and receive unlimited legal services in a limited legal area?

ANSWER: This office cannot answer general questions. However, ABA Opinion 87-355 on Prepaid Legal Plans may provide a starting place, although the ABA opinion is not binding on this office.

[ABA OPINION 87-355]

Misc.-92

QUESTION: May an attorney withdraw from a case due to the client's interference with the representation?

ANSWER: Yes. Attorney must comply with all of the requirements of Rule 1.16(d).

[Rule 4 1.16]

Misc.-93

QUESTION: A member of the firm is a municipal judge in one municipality. The firm handles municipal cases in other municipalities. Is this a conflict?

ANSWER: It is not a conflict under the Rules of Professional Conduct for attorneys. However, this office cannot give opinions on the Code of Judicial Conduct. Also, the judge and the firm members should be alert to the fact that conflicts could arise if the judge substitutes for another municipal judge.

[Code of Judicial Conduct]

Misc.-94

QUESTION: Municipal judge has a question regarding a possible conflict of interest in using a particular service.

ANSWER: This question relates to the Code of Judicial Conduct and should be directed to the Judicial Commission.

[Code of Judicial Conduct]

Misc.-95

QUESTION: Attorney represented client at one stage of case while attorney was part of a firm. Client now wants attorney to resume representation at a later stage. Defendant indicates it "may possibly" call attorney as a witness since acts or omissions of attorney's former firm is an issue. Must attorney withdraw at this point?

ANSWER: Rule 3.7 does not require attorney to withdraw at this time. This opinion in no way affects the ability of a judge to disqualify attorney. If attorney is actually a witness, attorney would be prohibited from being an advocate at trial but would still be able to work on briefs, pleadings, etc.

[Rule 4 3.7]

Misc.-96

QUESTION: Attorney's client has failed to respond to correspondence over several years. Attorney's accountant says Attorney must now open a separate account for the funds held or report the money as Attorney's own income. What should Attorney do?

ANSWER: Under Rule 4-1.15, Attorney must not treat the funds as income. The funds must be held in a trust account. From the perspective of Rule 4-1.15, it does not matter whether the funds are held in a general office trust account such as an IOLTA account, or a separate trust account unless the funds are a substantial amount. However, the funds should not be held in a separate account if the expenses associated with maintaining the separate account will reduce the funds available to the client.

[Rule 4 1.15]

Misc.-97

QUESTION: Attorney is likely to be a witness at trial and Attorney's deposition has been taken. Does this prevent Attorney from engaging in pre-trial discovery and arguing pre-trial motions?

ANSWER: No. However, Attorney should refrain from engaging in discovery and arguing pre-trial motions which relate to Attorney's veracity.

[Rule 4 3.7]

Misc.-98

QUESTION: Attorney represented client at trial and client received an SIS. Attorney had agreed to represent client on appeal if a conviction and jail time were received. Client wishes to appeal the SIS. May Attorney withdraw?

ANSWER: Yes. Attorney must comply with the provisions of Rule 4-1.16(d). This opinion is based solely on the facts in the letter. If the client files a complaint, this office would still investigate.

[Rule 4 1.16(d)]

Misc.-99

QUESTION: Attorney accepted a client in a dissolution case. Attorney accepted the retainer and the filing fee but has not filed. If Attorney returns the filing fee and retainer, may Attorney withdraw?

ANSWER: Yes.

[Rule 4 1.16]

Misc.-100

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.

[Rule 4 8.4]

Misc.-101

QUESTION: Question 1. May Attorney move to withdraw from a criminal case if the client is uncooperative and will not communicate or assist with the defense? The Attorney will warn the client that Attorney will withdraw if the situation doesn't improve before the Attorney actually withdraws. Question 2. If a client who is a criminal defendant fails to make a court date and a warrant is issued and the client has had no contact with Attorney for several weeks or months, may Attorney move to withdraw?

ANSWER: Yes to both questions. However, the fact that the Rules of Professional Conduct allow Attorney to move to withdraw does not affect the authority of the court to refuse to sustain that motion.

[Rule 4 1.16]

Misc.-102

QUESTION: Question 1. In representing a bank, is it a violation of the Rules of Professional Conduct to inform the debtor that failure to deliver the collateral may be a criminal violation at the same time the demand for the collateral is made? Question 2. If a client bank is required by law to notify federal officials of criminal activity, may Attorney also give notice to the alleged perpetrator that the bank is required to notify the federal officials?

ANSWER: Question 1. No, if there is good faith belief that the conduct would be criminal and if there is no actual threat to prosecute. Question 2. Yes, unless prohibited by law. Attorney should not counsel clients to ignore a federal law to gain an advantage in a civil matter.

Misc.-103

QUESTION: Attorney has a client who has been charged with passing a bad check. The client states that he did not intend to defraud or know that the check would not be paid. Attorney believes the client. In order to plead guilty, the client must state the opposite of what he has told Attorney because an "Alford plea" is not an option. The client wants to plead guilty for economic reasons.

ANSWER: Under Rule 4-3.3, Attorney may not assist his client in providing false information to the court. That rule also prohibits Attorney from standing silent while the client provides false information. If the client insists on providing false information, Attorney must seek leave to withdraw.

[Rule 4 3.3]

Misc.-104

QUESTION: Attorney and the client have disagreed over the amount of settlement that would be reasonable. As a result, the client has discharged Attorney twice but has returned when other attorneys told the client that Attorney's assessment of the case was reasonable. May Attorney withdraw?

ANSWER: Yes. Attorney must comply with all of the requirements of Rule 4-1.16(d), including the requirement that Attorney not withdraw if the withdrawal would have a materially adverse impact on the interests of Attorney's client.

[Rule 4 1.16]

Misc.-105

QUESTION: Attorney represents a client in a case in which a third party has relevant information. Attorney has been notified that third party will commit suicide if deposed. The information cannot be obtained from any other source and the other side will not stipulate.

ANSWER: Attorney has a duty to fully discuss the ramifications of proceeding with the deposition with the client. This discussion must include not only the purely legal issues but also the practical issues of the effect on the case and the effect on the client. After fully discussing the matter, Attorney will not be violating the Rules of Professional Conduct by proceeding.

[Rule 4 1.4]

Misc.-106

QUESTION: Attorney is representing the class in a class action suit. One of the members of the class is recruiting class members and obtaining the attorney fee which is forwarded to Attorney. May Attorney accept these people as clients in this manner?

ANSWER: Yes. Once Attorney accepts them as clients, Attorney must communicate with them directly affirming Attorney's representation and communicating about the case before taking any action as their attorney. If they change their mind after direct communication, Attorney must refund the fee under Rule 4-1.16. This opinion does not consider any restrictions the court may impose.

[Rule 4 1.4; 1.16(d)]

Misc.-107

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

ANSWER: Yes.

[Rule 4 5.4(d)]

Misc.-108

QUESTION: Attorney A was present at a deposition at which Attorney B sought a continuance of the deposition. The deposition was of a non-party witness. When the other attorneys would not agree to continuing the deposition, Attorney B entered his appearance for the witness and instructed the witness to leave the deposition. The witness was under subpoena. The interests of the witness are potentially adverse to the party whom the other attorney was representing. Must Attorney A report the Attorney B under Rule 4-8.3(a)?

ANSWER: If Attorney B entered into a conflict of interest by appearing for the non-party witness, Attorney A must report Attorney B's conduct to this office.

[Rule 4 8.3(a)]

Misc.-109

QUESTION: Attorney has a trust account which has been in existence for a large number of years. The trust account contains a significant amount of money for which the firm cannot account. Some of the funds cannot be attributed to a particular file, although there are some records which indicate that they do belong to a particular file. For the remainder of the funds, there is no record at all and it is possible that the money relates to amounts that should have been disbursed to the firm. What should the firm do with these funds?

ANSWER: The amount which can be attributed to files, must be placed in a separate, interest bearing trust account and Attorney must continue to attempt to make appropriate disbursement of those funds. Attorney should maintain an accounting of the interest attributable to each file so that it can be disbursed once the client is identified and the funds are disbursed. The funds which are not attributable to a file, may not be disbursed to the firm unless the firm can establish that they are firm funds. In the absence of clear evidence to the contrary, funds in the trust account are presumed to be client funds. These funds should also be placed in a separate, trust account. The funds may not be distributed to the firm unless it is established that they are firm funds. The firm should maintain clear documentation to explain all of the steps taken, including the steps involved in the ultimate disbursement.

[Rule 4 1.15]

Misc.-110

INFORMAL OPINION 940115

QUESTION: Attorney does not have a trust account. Attorney has taken a case that will involve payment of a retainer. Attorney will bill against the retainer. Attorney anticipates billing the full amount of the retainer in a very short time. Must Attorney set up an IOLTA account?

ANSWER: Attorney must establish a trust account. If it is interest bearing, it must be an IOLTA account unless the funds of the individual client can be segregated so that the interest can be paid to that client. Even for a short period of time, the funds may not be in the operating account or any account other than a trust account. Once Attorney has earned the fee and billed the client and the client has had sufficient time to notify Attorney of any objection to the fee, Attorney may transfer the funds into the operating account.

[Rule 4 -- 1.15]

Misc.-111

QUESTION: Client signed a contract authorizing Attorney to withhold amounts due to health care providers when Attorney distributes proceeds to client. Health care provider makes a claim. Client disputes the terms of the arrangement with the health care provider. Client instructs Attorney to pay no portion of the proceeds to the health care provider and to pay those amounts to client.

ANSWER: If Attorney was not involved in any of the agreements between the client and the doctor, Attorney may honor the client's directive and pay the proceeds to the client. Alternatively, Attorney may hold the funds in Attorney's trust account until the dispute can be resolved. If the dispute is not resolved in a reasonable time, Attorney would have to interplead the funds. If Attorney was a participant in the agreement between the client and the health care provider, Attorney must hold the funds in Attorney's trust account until the dispute is resolved. If the dispute is not resolved in a reasonable time, Attorney must file an interpleader action. This advice only addresses the ethical aspects of this question. It does not address issues of possible civil liability.

[Rule 4 -- 1.2]

Misc.-112

QUESTION: May Attorney have a provision in the fee agreement which requires that any dispute, including claims for malpractice, be submitted to binding arbitration?

ANSWER: This would not violate any provision of the Rules of Professional Conduct.

Misc.-113

QUESTION: Does the title "general counsel" create any different obligations than the titles "legal counsel" or "corporate counsel"?

ANSWER: No. Under the Rules of Professional Conduct, the attorney's actual role rather would determine the attorney's responsibilities regardless of the title. If individuals within the organization might be led to believe that the attorney has a role other than the actual role, perhaps the title used should be reconsidered.

Misc.-114

QUESTION: Attorney asks a number of questions in which a client indicates that the client has the authority to speak for other clients and whether Attorney may proceed without direct verification.

QUESTION 1. Client A indicates that A and B own property which was damaged and they want to file suit against a 3rd party. Must Attorney verify this with B?

QUESTION 2. If a partner or co-owner wants to file suit and indicates that the other partner is inactive and has given all necessary authority to the active partner, what must Attorney do to verify this? QUESTION 3. Husband and Wife jointly own a small business. Only one is active in the business. Must Attorney obtain authorization from both before representing the business?

QUESTION 4. What if the business is a corporation?

QUESTION 5. What must Attorney do to verify the information when a case is referred from another attorney?

QUESTION 6. Attorney is asked by father to represent son on a traffic ticket. Must Attorney obtain authorization from the son directly? Does this differ if the son is away at college?

ANSWER 1. Yes. Attorney must verify this information before filing suit unless it is an emergency situation. If it is an emergency situation, Attorney must verify the information as soon as possible.

ANSWER 2. Attorney should obtain authorization from all partners before representing the partnership. Whether that authorization is written or oral will depend on the circumstances.

ANSWER 3. Yes.

ANSWER 4. Attorney must determine that the individuals with whom Attorney is dealing have authority to act on behalf of the corporation. This authority may be with regard to the individual situation or ongoing authority. The issue of what specific action must be taken by the board of directors, etc., is a legal issue not addressed by the Rules of Professional Conduct.

ANSWER 5. Attorney may rely on the representations of another licensed attorney unless Attorney has reason to doubt the credibility of the other attorney. Attorney should make sufficient inquiry of that attorney to be assured that all of the information has been obtained that would have been obtained if Attorney dealt with the client directly.

ANSWER 6. Attorney must obtain authorization from the son directly regardless of where the son resides.

[Rule 4 -- 1.4]

Misc.-115

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 5.26 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 5.26 should make an effort to return the files to the clients.

[Rule 4 -- 1.16; 5.26]

Misc.-116

QUESTION: Attorney represented a defendant in a trial resulting in a defense verdict. Plaintiff's counsel is alleging juror misconduct and indicates that one juror will provide testimony on that allegation. Attorney proposes to contact the juror to interview the juror.

ANSWER: No provision of the Rules of Professional Conduct prohibits this contact. As with any witness, the juror has no obligation to speak to Attorney. Attorney must be especially careful in contacting jurors to avoid any conduct or questioning that might be viewed as harassment.

[Rule 4 -- 4.3; 4.4]

Misc.-117

QUESTION: Attorney proposes to contact jurors from a trial in which Attorney represented a party. Attorney will ask the jurors to sign an affidavit.

ANSWER: No provision of the Rules of Professional Conduct prohibits contacting the jurors to ask them to sign an affidavit. As with any witness, the juror has no obligation to speak to Attorney or cooperate with Attorney's efforts. Attorney must be especially careful in contacting jurors to avoid any conduct or questioning that might be viewed as harassment.

[Rule 4 -- 4.3; 4.4]

Misc.-118

QUESTION: Attorney represents W in a dissolution. H is also involved in a pending social security disability claim in which he is not represented by Attorney. W disputes that H is disabled. May Attorney advise W to volunteer evidence in the social security proceeding?

ANSWER: Yes.

Misc.-119

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 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.

[Rule 6.02; Rule 5.28]

Misc.-120

QUESTION: Attorney paid the category 3 fee under Rule 6.01(d) as an attorney who does not reside in Missouri. May attorney practice in Missouri in this status?

ANSWER: No. That fee is only available to attorneys who neither reside nor practice in Missouri.

[Rule 6.01(d)]

Misc.-121

QUESTION: Attorney represents a client in a case which was appealed and will now go to trial on remand. Opposing counsel has indicated an intention to call Attorney as a witness regarding a statement Attorney made during a conference with the judge about whether Attorney's client was requesting attorney fees.

ANSWER: If Attorney is called as a witness to testify solely about Attorney's statement in court regarding whether Attorney's client was requesting fees, Rule 4-3.7 would not prohibit Attorney from continuing to serve as counsel at trial. However, if Attorney's testimony relates to any other issue, the conclusion might change. Additionally, this opinion has no effect on the discretion of the court to rule on a motion to disqualify.

[Rule 4 -- 3.7]

Misc.-122

QUESTION: Attorney represents a client in a case that has been resolved through arbitration. A company claims that a portion of the award was for that company. Attorney is holding the disputed amount in Attorney's trust account. What should Attorney do?

ANSWER: Once a reasonable time for the various parties to resolve their dispute over the money has passed, Attorney has no option other than to interplead the funds. Perhaps when the disputing parties are advised of this fact and that the costs associated with the interpleader will use a significant portion of the funds, they will be able to resolve the dispute.

[Rule 4 -- 1.15]

Misc.-123

QUESTION: Attorney is licensed in Missouri and state X. It appears that another attorney with whom Attorney has practiced has signed Attorney's name without permission and entered an appearance in state X. The other attorney is not licensed in state X. Must Attorney report the other attorney to the Chief Disciplinary Counsel?

ANSWER: Yes, under Rule 4-8.3(a).

[Rule 4 -- 8.3(a)]

Misc.-124

QUESTION: Attorney represented a client in a personal injury case. Attorney assisted the client in arrangements with health care providers that they would be paid out of the settlement or judgment. Now, the case has been settled and the client does not want to pay the health care providers.

ANSWER: In light of Attorney's involvement in representing to the health care providers that they would be paid out of the proceeds of the settlement, Attorney may not disburse the disputed funds to Attorney's client. However, Attorney may not pay the disputed funds to the health care providers contrary to the client's instructions. Attorney may hold the funds in Attorney's trust account for a reasonable period of time to allow for the client and health care providers to resolve this dispute. If the dispute is not resolved within a reasonable period of time, Attorney must file an interpleader action to present the legal issue to the court for determination.

[Rule 4 -- 1.15]

Misc.-125

QUESTION: Attorney has knowledge that another attorney continued to negotiate settlement of a case and to engage in discovery after the other attorney's client was deceased. The other attorney did not disclose the fact of the client's death to the court or opposing counsel during this period. Does Attorney have a duty to report the other attorney's conduct?

ANSWER: Yes, Rule 4-8.3(a) requires the attorney to report the other attorney's conduct. Attorney may indicate that Attorney is only reporting as a result of the duty to do so and that Attorney does not wish to be considered a complainant. Under those circumstances, Attorney will not be identified as a complainant and you will not be treated as a complainant under Missouri Supreme Court Rule 5.

[Rule 4 -- 8.3(a)]

Misc.-126

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.

[Rule 4 -- 8.4(c)]

Misc.-127

QUESTION: Attorney represented a client in a workers' compensation case. The client obtained medical treatment without authorization from the employer or insurer. The employer is denying liability for these bills. The client has since died leaving a minor child who is the sole beneficiary.

ANSWER: If Attorney did not participate in the formation of an agreement that the medical providers would be paid from the proceeds of the workers' compensation case and there are no valid liens or assignments which would make Attorney liable for the claims of the medical providers if they are not paid from the proceeds, Attorney may distribute the proceeds directly to the current client or according to the client's directions. However, if Attorney did participate in the formation of an agreement, Attorney may not pay the proceeds to the client. If the client and the medical providers cannot come to an agreement within a reasonable period, Attorney will have to interplead the disputed funds. If Attorney did not participate in formation of an agreement but there is a lien or assignment that Attorney believes is arguably valid that would subject Attorney to personal liability for payment of the funds, Attorney may pay out the funds according to the client's direction or Attorney may interplead the funds.

[Rule 4 -- 1.2; 1.15]

Misc.-128

QUESTION: Attorney represents a client who received a judgment in a case arising out of an automobile accident. The defendant is uninsured and has not satisfied the judgment. Attorney is contemplating notifying the Department of Revenue of these facts so that drivers license revocation proceedings will be initiated. Attorney is contemplating giving the defendant advance warning of this intention.

ANSWER: The proposal of reporting the judgment debtor to the Department of Revenue would not violate any provision of the Rules of Professional Conduct. The decision regarding whether to report the judgment debtor is one to be made in consultation with the client. Attorney does not have an ethical obligation under the rules to make the report except to the extent that it serves the client's interests.

[Rule 4 -- 1.2]

Misc.-129

QUESTION: Attorney asks which files Attorney may destroy versus which files Attorney must retain.

ANSWER: No provision of Supreme Court Rule 4, the Rules of Professional Conduct, specifically addresses file retention. However, the original file actually belongs to the client. Therefore, Attorney should not destroy an original file without the consent of the client. Attorney may obtain the consent of the client by notifying the client that Attorney will retain the file for a certain period of time after which it will be destroyed or by specifically asking the client for permission to destroy the file. Of course, Attorney must inform the client that the client has the right to take possession of the file at any time. Additionally, Attorney may not destroy an item within a file which has inherent value if it has been left with Attorney for safekeeping. If the files about which Attorney is concerned are copies of files, Attorney may establish Attorney's own file retention program. Various law practice management books contain suggestions regarding this topic. The Law Practice Management Information Center at The Missouri Bar has publications on this topic available for loan. For information on this center, contact Linda Oligschlaeger at 573-635-4128. Attorney may also want to consult with Attorney's malpractice insurance carrier on this topic.

[Rule 4 -- 1.16]

Misc.-130

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.

[Rule 4 -- 5.4(a)]

Misc.-131

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.

[Rule 4 -- 8.4(c)]

Misc.-132

QUESTION: Attorney asks for clarification of opinion 950071 regarding payments to a third party from the proceeds of a case.

ANSWER: Rule 1.15(c) of Supreme Court Rule 4, the Rules of Professional Conduct, governs the conduct of an attorney who is in possession of funds in which the client and a third party claim an interest. If a third party claims an interest, Attorney must comply with that rule. Informal advisory opinion 950071, and others rendered before and since, involve situations where either the attorney has been involved in an agreement made or ratified by the client for the third party to be paid from any settlement or recovery, or where the third party has perfected a lien or demonstrated an apparently valid claim on the proceeds such that the attorney may be held personally liable to the third party. Under these circumstances the attorney is not committing an ethical violation by withholding the disputed amount from the client. In other circumstances, an attorney is not ethically prohibited from paying the money to the client and accepting the legal consequences including the possibility of being held personally liable to the third party.

[Rule 4 -- 1.15]

Misc.-133

QUESTION: Attorney is current defense counsel. Attorney asks whether Attorney has a duty under Rule 4-8.3 to report previous defense counsel for disclosing confidential information. The information was disclosed in court after current defense counsel raised the issue of confidentiality to the court and current defense counsel's objections were overruled.

ANSWER: Based upon the information provided, the answer is: "No."

[Rule 4 -- 8.3]

Misc.-134

QUESTION: Attorney represents H and W as defendants in a personal injury case. W's mental abilities are fine but H has Alzheimer's Disease. H continues to function on a daily basis but H has no recollection of the incident leading to the lawsuit and there is some question as to his mental acuity. H has never been declared incompetent. Does Attorney have an obligation to seek a guardian ad litem for H?

ANSWER: Based on the information provided, it does not appear that Attorney has an obligation under the Rules of Professional Conduct to seek to have a guardian ad litem appointed for H. However, because this question is very fact dependent and somewhat subjective, Attorney should review Rule 4-1.14 for guidance in this situation. Attorney should discuss the matter with H, to the extent this is feasible. This opinion does not address whether any statutory provisions may apply to this situation.

[Rule 4 -- 1.14]

Misc.-135

QUESTION: Attorney will be leaving the firm. Attorney asks about the obligation to inform the clients Attorney brought to the firm and the clients whom Attorney is currently representing. Attorney asks whether the firm file is available to clients who wish to be represented by Attorney or someone else outside the firm.

ANSWER: Attorney does have an obligation to inform clients Attorney brought to the firm and clients whom Attorney is currently representing of Attorney's departure. The firm has a concurrent obligation to make sure that these clients are informed. There is no set procedure for accomplishing this notification. It is best if the firm and the attorney who is leaving work together on this matter. Regardless of who informs the client, the client may be told that the client has the option of staying with the firm, going with the attorney or going with any other attorney of the client's choice. Of course, if either of the first two choices are not available due to conflicts or some other reason, the client should not be presented with the option that is not available. The original of the file on the case belongs to the client. Therefore, the attorney or firm chosen by the client should have the original file unless the client consents to receiving only a copy. This should be accomplished by working with the firm. If the firm has advanced expenses to purchase items, such as copies of records or transcripts, it does not have to relinquish those items until it has been reimbursed. Formal Opinion 115, as amended, addresses this topic.

[Rule 4 -- 1.16]

Misc.-136

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.

[Rule 4 -- 8.4]

Misc.-137

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.

[Rule 4 -- 5.4(c)]

Misc.-138

QUESTION: Attorney represents a client in a suit regarding conduct which Attorney witnessed. The information provided by Attorney indicates that Attorney is not likely to be a witness at trial. Must Attorney withdraw?

ANSWER: Rule 4-3.7(a) provides, in part, that a "lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . ." Even if Attorney is likely to be a necessary witness, Attorney may continue to be an attorney of record in the case but Attorney may not be an advocate at trial. Under the circumstances described, Attorney may continue in the case as an advocate at trial. This opinion does not, in any way, affect the ability of a judge to rule on a motion to disqualify.

[Rule 4 -- 3.7]

Misc.-139

QUESTION: Attorney asks about Attorney's obligations to a client with whom Attorney has brief in-person or telephone contact but whose case Attorney declines. What obligation does Attorney have to inform the client of the statute of limitations? Does it matter how much initial investigation Attorney has done?

ANSWER: Under Rule 4-1.16 Attorney must take steps reasonably practicable to protect the client's interests. However, the extent of the information which attorney must provide the client regarding the statute of limitations relates more to malpractice than to ethical standards. The Missouri Bar operates a risk management program which attorney can reach at 1-800-555-9721.

[Rule 4 -- 1.16]

Misc.-140

QUESTION: Attorney has lost contact with the clients. Attorney wishes to withdraw. What is Attorney required to do to notify the clients?

ANSWER: Attorney has a duty to take all reasonable steps to contact the clients. It is unclear from the information Attorney has provided whether Attorney has taken sufficient steps under the circumstances. Attorney is not required to hire a private investigator but Attorney should conduct a reasonable investigation. Attorney has not indicated whether Attorney has checked with various agencies or businesses that may have received notification of an address change. The Department of Revenue (drivers and motor vehicle licenses), employers, banks and relatives all may be appropriate to contact, depending on the circumstances. Attorney is not required to give notification to the clients by publication if Attorney is unable to contact them any other way, but Attorney may do so. Attorney should also seek guidance from Attorney's malpractice insurer's claims prevention office, regarding any additional steps they may recommend.

[Rule 4 -- 1.16]

Misc.-141

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.

[Rule 4 -- 3.4(d)]

Misc.-142

QUESTION: Attorney is a prosecuting attorney and asks about the applicability of Rule 4-1.15 to funds received by the prosecutor's office. The funds include restitution and payment of delinquent taxes. ANSWER: Under Rule 4-1.15, Attorney must maintain one or more separate trust accounts as prosecuting attorney for the funds of third persons. This account would include any payments Attorney receives as restitution. This account should be an IOLTA account pursuant to Rule 1.15(d) unless the cost of the account would outweigh the interest produced by the account. However, funds Attorney receives on behalf of the Department of Revenue or any other state agency should be kept in a separate trust account with interest payable to the appropriate state entity. The state monies may be commingled as long as the interest will all ultimately be deposited into the same state fund. Attorney may wish to contact the IOLTA office if Attorney needs further information about the IOLTA program. The address is: P.O. Box 63, Jefferson City, MO 65102. The telephone number is: 573-634-8117.

[Rule 4 -- 1.15]