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Webinar - Missouri Legal Ethics Update 5-20-2020

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Slides for CLE presentation "Legal Ethics Update" on May 20, 2020.

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Webinar - Missouri Legal Ethics Update 5-20-2020

  1. 1. © 2020 Downey Law Group LLC. For educational purposes only. Legal Ethics Update Michael Downey May 2020
  2. 2. 2
  3. 3. Competency 3
  4. 4. Duty of Competency – Rule 4-1.1 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 4
  5. 5. In re Valentine (Bankr. E.D. Mo. January 2020) • Husband filed modification proceeding • Wife obtained order requiring Husband to sell house to satisfy child support debt • Wife obtained appointment of real estate commissioner to compel selling of house • Husband filed for bankruptcy on 2-1-2019 • On 2-4-2019, state court held husband in contempt and placed him in custody until he paid debt 5
  6. 6. • “Rule 4.1-1 Comment 5 states in part ‘[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.’ MO. SUP. CT. R. 4.1-1 Comment 5.” • “The State Court Action required some knowledge regarding bankruptcy, once the Main Case was filed. Even recognizing the current Missouri state case law . . . would have been helpful, but the Attorney did not even utilize that resource.” • If the Attorney had followed these guidelines it is unclear if the facts leading to the incarceration would have ever occurred. However, the Attorney made no attempt to familiarize himself with the Bankruptcy Code, the automatic stay, the Missouri case law, or the impact the Suggestions of Bankruptcy actually had on continuing to pursue the Pre-Petition Debt. Therefore, the Court can find no evidence to refute the assertion that the Attorney egregiously violated the automatic stay by participating in post-Petition Date collection efforts that resulted in the incarceration of the Debtor.” 6
  7. 7. Court’s Sanctions • $520 in lost wages • $400 in pain and suffering • $5,974 in attorney fees • $1,000 in punitive damages (against attorney) 7
  8. 8. Conflicts of Interest 8
  9. 9. Dealing with Potential Conflicts • Identify potential conflicts • Assess whether those conflicts are “disqualifying conflicts” • Can the conflict be resolved by waiver or screen? • Resolve any disqualifying conflicts • Withdraw/decline if unresolved conflicts 9
  10. 10. Rules Differentiate Levels of Conflicts • (Absence of any conflicts) • Those do not even require client consent – those that are insignificant/non-material • Those that can be waived through informed consent – aka “disqualifying conflicts” • Those so serious, lawyer must turn down second client (or withdraw) – nonconsentable or nonwaivable conflicts Insignificant – No consent required Consent can waive Nonwaivable No Conflict 10
  11. 11. Rules Differentiate Source of Conflict Focus Client Non-Client Former Client Former Client Prospective (Declined) Client Client Non-Client Lawyer’s Own Interest Client 11
  12. 12. Concurrent Conflict Rule – Rule 4-1.7(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 12
  13. 13. Current Clients • Cannot be directly adverse (without consent) on any matter – No relation between matters required • Cannot have significant risk of material limitation on representation of client – Usually would involve some relationship • Also “special conflicts” in Rule 4-1.8, many of which involve lawyer-client relationship 13
  14. 14. Former Clients – Rule 4-1.9 (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 4-1.6 and 4-1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. 14
  15. 15. Prospective (but Declined) Clients – Rule 1.18 (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. 15
  16. 16. • Former clients – cannot be “materially adverse” to a former client on the “same” or “substantially related matters” – Rule 4-1.9 – When there is a conflict, the former client can always waive • Prospective (but declined) clients – like former clients, except screening is allowed more often, when lawyer sought to restrict information received – Rule 4-1.18 16
  17. 17. Prospective (But Declined) Clients – Informal Opinion 2020-01 Is Attorney permitted to represent Husband in filing a motion to modify a judgment of dissolution against Wife, where Wife consulted with Associate in Attorney’s firm about representation in the dissolution, but no client-lawyer relationship ensued? 17
  18. 18. “Prospective Client” – Rule 4-1.18(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. 18
  19. 19. Duty to Protect Information – Rule 4-1.18(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 4-1.9 would permit with respect to information of a former client. 19
  20. 20. (Imputed) Disqualification – Rule 4-1.18(c) A lawyer subject to Rule 4-1.18(b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in Rule 4-1.18(d). If a lawyer is disqualified from representation under Rule 4- 1.18(c), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in Rule 4- 1.18(d). 20
  21. 21. “Disqualifying Confidences” A lawyer subject to Rule 4-1.18(b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in Rule 4- 1.18(d). 21
  22. 22. Rule 4-1.18(d) When the lawyer has received disqualifying information as defined in Rule 4-1.18(c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and the disqualified lawyer is timely screened from any participation in the matter. 22
  23. 23. Decision Tree for Potential Clients Did Lawyer provide legal advice/services? Yes Still client? Rule 4-1.7 Former Client? Rule 4-1.9 No Rule 4-1.18 No disqualifying confidences: No conflict Disqualifying confidences but reasonable measures to limit info received: lawyer disqualified, screening possible Disqualifying Confidences and no reasonable measures to limit info received – lawyer and firm disqualified 23
  24. 24. Missouri Rule 4-1.10 While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 4-1.7 or 4-1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm 24
  25. 25. Imputation of Conflicts • Does Conflicted Lawyer's conflict affect Lawyer's colleagues? – Rule 4-1.10 (or 4-1.11 or 4-1.12 or 4-1.18) Conflicted LawyerColleague ColleagueColleague Colleague 25
  26. 26. No Imputation With Screen Conflicted LawyerColleague Colleague Ethical Screen 26
  27. 27. Ethics Screen – Common Elements • Limit communications – to and from conflicted lawyer – Limit paper access – Limit electronic access – Send reminders not to discuss • No fee-sharing • Notice of screen (usually) • Education and enforcement 27
  28. 28. Opinion 2020-01 – Answer Part 1 Wife is a prospective client of Associate per Rule 4-1.18, Duties to Prospective Client. A motion to modify a judgment of dissolution is substantially related to the dissolution, so Rule 4-1.18(c) governs. Attorney would be prohibited from representing Husband in filing the motion to modify if Associate received information from Wife that could be significantly harmful to Wife in the motion to modify. Rule 4-1.18(c). If Associate would be disqualified from representing Husband, all lawyers with whom Associate is associated in a firm would be prohibited from representing Husband except as provided in Rule 4-1.18(d). 28
  29. 29. Opinion 2020-01 – Answer Part 2 If Associate would be disqualified under 4-1.18(c), Attorney may only represent Husband if both Wife and Husband grant informed consent, confirmed in writing, or if Associate took reasonable measures to avoid receiving more disqualifying information than was reasonably necessary to determine whether to represent Wife in the dissolution and Associate is timely screened from any participation in the matter. Rule 4- 1.18(d). See Rules 4-1.0(e) (“informed consent), 4-1.0(b) (“confirmed in writing”), and 4-1.0(k) (“screened”). 29
  30. 30. “Substantially Related” – Rule 4-1.9 cmt [3] Matters are "substantially related" for purposes of this Rule 4-1.9 if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. . . . 30
  31. 31. Examples of “Substantially Related” • [A] lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a dissolution of marriage or divorce. • Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. 31
  32. 32. More on “Disqualifying Confidences” • Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. • Information acquired in a prior representation – may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. – In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. 32
  33. 33. “Normally have been obtained” • A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. • A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. 33
  34. 34. Affiliations with Law Firms: “Of Counsel” or Not? 34
  35. 35. Attorney Retiring – “Of Counsel” to Firm Informal Opinion 2020-11 QUESTION: Attorney is retiring from the full-time practice of law, will maintain an active Missouri law license, and is considering associating with a firm Of Counsel. What are the elements of an Of Counsel relationship between Attorney and the firm? 35
  36. 36. Of Counsel Attorney Sharing Fees Informal Opinion 2020-12 QUESTION: What requirements govern a firm’s division of fees with Attorney who is associated with the firm in an Of Counsel relationship? 36
  37. 37. Of Counsel to Firm, Working at Nonprofit Informal Opinion 2019-07 • Attorney has an Of Counsel relationship with Law Firm. • Attorney also plans to provide pro bono representation at a nonprofit entity serving low income clients. Attorney will have access at the nonprofit entity only to the client files of those clients Attorney represents. • To what extent will Attorney’s conflicts of interest be imputed to the other attorneys in Law Firm and to the other attorneys associated with the nonprofit entity? 37
  38. 38. What Is “Of Counsel” • “IN” the firm – for purposes of sharing fees and conflicts • Attorney’s association with the firm is accurately characterized as an Of Counsel relationship if – Attorney’s relationship with the firm is close, regular, and personal; – Attorney is not a partner, associate, or shareholder in the firm; – Attorney’s involvement with the firm is not limited to forwarding or receiving business, acting in only a single case, providing only occasional collaboration, or acting as an outside consultant; and – Attorney’s Of Counsel relationship with the firm is disclosed in all materials in which the firm and Attorney hold themselves out to the public. Rule 4-7.1; Informal Opinion 980143. 38
  39. 39. Opinion 2020-11 – Answer “Retiring from full-time practice” • Attorney’s association with the firm is accurately characterized as an Of Counsel relationship if – Attorney’s relationship with the firm is close, regular, and personal; – Attorney is not a partner, associate, or shareholder in the firm; – Attorney’s involvement with the firm is not limited to forwarding or receiving business, acting in only a single case, providing only occasional collaboration, or acting as an outside consultant; and – Attorney’s Of Counsel relationship with the firm is disclosed in all materials in which the firm and Attorney hold themselves out to the public. Rule 4-7.1; Informal Opinion 980143. • Attorney must maintain an active license to practice law. • In an Of Counsel relationship, Attorney is associated with the firm for purposes of mutual imputation of conflicts of interest per Rule 4-1.10. Informal Opinion 2019- 07; see Rule 4-1.0(c) (defining “firm” or “law firm”); see also Rule 4-1.0, Comment [2]. 39
  40. 40. Opinion 2020-12 – Answer ANSWER: If Attorney’s association with the firm is accurately characterized as an Of Counsel relationship (see Informal Opinion 2020-11), Rule 4-1.5(e) does not regulate the division of a fee between the firm and Attorney. Instead, the fee must comply with the remaining provisions of Rule 4-1.5, as must any fee charged by any other lawyer associated with the firm. 40
  41. 41. Dividing Fee – Two Firms Rule 4-1.5(e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the association and the agreement is confirmed in writing; and (3) the total fee is reasonable. 41
  42. 42. Of Counsel to Firm, Working at Nonprofit Informal Opinion 2019-07 • Attorney has an Of Counsel relationship with Law Firm. • Attorney also plans to provide pro bono representation at a nonprofit entity serving low income clients. Attorney will have access at the nonprofit entity only to the client files of those clients Attorney represents. • To what extent will Attorney’s conflicts of interest be imputed to the other attorneys in Law Firm and to the other attorneys associated with the nonprofit entity? 42
  43. 43. Missouri Rule 4-1.10 While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 4-1.7 or 4-1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm 43
  44. 44. Opinion 2019-07 – Answer Part 1 • Attorney’s conflicts of interest from Law Firm will not be imputed to the other lawyers at the nonprofit entity if Attorney’s association at the entity is as a contract lawyer only. • To work as a contract lawyer, Attorney’s representation of clients must be on a case-by-case basis, and Attorney must not have access to confidential information, electronically stored or otherwise, of clients Attorney does not represent at the nonprofit entity. See Informal Opinion 20030020. • Attorney must avoid any communication with other lawyers at the nonprofit entity about other representations at the entity, and Attorney must protect the confidentiality of all information related to Law Firm representations. 44
  45. 45. Opinion 2019-07 – Answer Part 2 Because Attorney is associated Of Counsel with Law Firm, Attorney’s conflicts of interest will be imputed to all lawyers at Law Firm. Rule 4-1.10. Provided Attorney works at the nonprofit entity exclusively as a contract lawyer, as described above, the firm-wide conflicts of the nonprofit entity will not be imputed to the other lawyers at Law Firm. Only the conflicts arising from Attorney’s representations at the nonprofit entity will be imputed to the other lawyers at Law Firm. If Attorney were to become associated with the nonprofit entity in a capacity that allows Attorney access to client files or information generally, both Law Firm and the nonprofit entity would share all conflicts of interest as if they are a single firm, and both Law Firm and the nonprofit entity would be required to disclose Attorney’s dual association in all materials in which they hold themselves out to the public. Rules 4- 1.10 and 4-7.1. See Informal Opinion 980143. 45
  46. 46. Threatening Criminal and Discipline Prosecution 46
  47. 47. Informal Opinion 2019-02 Threat of Criminal/Disciplinary Prosecution • Attorney represents Employer in the defense of a civil employment matter related to the employment and subsequent discharge of Plaintiff. • Employer believes Plaintiff engaged in criminal conduct during employment. • Based on information Attorney has learned during discovery, Attorney has reason to believe evidence of Plaintiff’s criminal conduct during employment, which was in the possession of Plaintiff’s counsel, has been destroyed. 47
  48. 48. Question – Threat of Prosecution Is it permissible for Attorney to inform Plaintiff’s counsel that unless Plaintiff dismisses the civil matter or enters into a settlement as proposed by Employer, Attorney will refer Plaintiff’s employment-related conduct to the prosecutor for possible criminal charges? 48
  49. 49. Opinion 2019-02 – Answer Part 1 Attorney’s threat to refer the employment-related conduct of Plaintiff for criminal prosecution would constitute conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d) unless • Attorney has actual intent to refer the matter for prosecution if the matter is not dismissed or settled (see Rule 4-4.1); • the conduct underlying the alleged criminal offense is related to the civil action and the use of the threat does not constitute a crime (see Rule 4-8.4(b)); • Attorney has a non-frivolous, good faith belief based in law and fact that the employment- related conduct of Plaintiff was unlawful (see Rule 4-3.1); and • Attorney’s use of the threat would not lack a substantial purpose other than to embarrass, delay, or burden the Plaintiff or another person (see Rule 4-4.4(a)). See also Informal Opinions 990042 and 20010149. Because some jurisdictions consider the use of a threat to file criminal charges to gain leverage in civil litigation to be a violation of the Rules of Professional Conduct regardless of the circumstances, Attorney should use caution if the conduct could be judged by the rules of professional conduct of another jurisdiction. See Rule 4-8.5. 49
  50. 50. Opinion 2019-02 – Question #2 – Threat of Discipline Complaint • In the course of settlement negotiations, may Attorney inform Plaintiff’s counsel that a lawyer’s unlawful destruction of documents with potential evidentiary value is unethical, and unless Plaintiff dismisses the lawsuit or reaches a settlement as proposed by Employer, Employer or Attorney will file a disciplinary complaint or report against Plaintiff’s counsel? 50
  51. 51. Opinion 2019-02 – Answer Part 2 • If Attorney has a duty under Rule 4-8.3 to report the conduct of Plaintiff’s counsel to the Office of Chief Disciplinary Counsel, any offer by Attorney to forego the complaint or report would violate Rule 4-8.4(a) as an attempt by Attorney to violate the Rules of Professional Conduct or to do so through the acts of another. • Attorney’s threat may violate Rule 4-3.1 if Attorney lacks a well-founded basis for believing Plaintiff’s counsel violated the Rules of Professional Conduct. • Attorney’s threat is likely to violate Rule 4-4.4, Respect for Rights of Third Persons, and/or Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice, if threatening to file a disciplinary report or complaint in order to extract settlement concessions is likely to be a factor Plaintiff or Plaintiff’s counsel will have to consider in the representation. 51
  52. 52. Duty to Report – Rule 4-8.3(a) and (c) (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority. (b) . . . (c) This Rule 4-8.3 does not require disclosure of information otherwise protected by Rule 4-1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. 52
  53. 53. Opinion 2019-02 – Answer Part 3 • Finally, a threat which itself constitutes criminal conduct would violate Rule 4-8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. • Attorney should also be mindful of the Scope paragraph of Rule 4 at [20], which explains that the Rules are to provide guidance for lawyers and a structure for regulating conduct through discipline, but “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.” 53
  54. 54. Client Misconduct and Clients with Diminished Capacity 54
  55. 55. Client Threatens Suicide – Informal Opinion 2020-03 In a conversation with Attorney, Client has threatened suicide. What is Attorney ethically obligated or permitted to do? 55
  56. 56. Opinion 2020-03 Answer – Part 1 Advice on Non-Legal Issues • In representing Client, Rule 4-2.1, Advisor, permits Attorney to refer not only to law but to other considerations such as moral and social factors that may be relevant to Client’s situation. • Comments [4] and [5] to Rule 4-2.1 provide guidance that where consultation with a professional in another field is something a competent lawyer would recommend, Attorney should make such a recommendation. Although an attorney ordinarily has no duty to give advice the client has indicated is unwanted, Attorney may initiate such advice to Client if doing so appears to be in Client’s interest. 56
  57. 57. Rule 4-2.1 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation. 57
  58. 58. Lawyer Confidentiality – Missouri Rule 4-1.6(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b). 58
  59. 59. "Information relating to the representation of a client . . ." Rule 4-1.6 Client Court Filings Real Estate Records Newspaper Depositions Pleadings Opposing Party Lawyer
  60. 60. Opinion 2020-03 Answer – Part 2 Disclosure of Client’s Statement • Client’s statements to Attorney are confidential per Rule 4-1.6. If Client grants specific informed consent for Attorney to disclose client’s threats to one or more individuals or entities who may be able to assist Client, Attorney may do so. See Rule 4-1.6, Comment [2]; see also Rule 4-1.0(e) and Comments [6] – [8] (regarding “informed consent”). 60
  61. 61. 2020-03 – Answer Part 3 Permissive Exceptions in Rule 4-1.6(b) • Without Client’s informed consent, Rule 4-1.6 permits Attorney to disclose Client’s threats to the extent required by other law or a court order. Rule 4-1.6(b)(4). Whether Attorney has any such legal obligation is a question of law outside the scope of the Rules of Professional Conduct. • Rule 4-1.6(b)(1) permits Attorney to disclose Client’s threats to the extent reasonably necessary to prevent death or substantial bodily harm that is reasonably certain to occur. Death or substantial bodily harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Rule 4-1.6, Comment [6]. The decision as to whether Attorney reasonably believes disclosure is necessary to accomplish the purpose specified in Rule 4-1.6(b)(1) will require the use of Attorney’s professional judgment in light of all the circumstances known to Attorney. See Informal Opinion 2019-05; see also Rule 4, Scope, at [14]. • Rule 4-1.6 permits, but does not require, disclosure in accordance with paragraph (b). Rule 4-1.6, Comment [13]. Any disclosure per 4-1.6(b) should be no greater than what Attorney reasonably believes is necessary to accomplish the specified purpose. Rule 4-1.6, Comment [12]. 61
  62. 62. Opinion 2020-03 – Answer Part 4 Diminished Capacity? – Rule 4-1.14 • If Attorney believes Client is suffering from diminished capacity because of mental impairment, or for some other reason, Attorney should review Rule 4-1.14, Client With Diminished Capacity. Rule 4- 1.14 may permit Attorney to take other reasonably necessary protective action to protect Client from substantial physical, financial, or other harm if Client is unable to act in his or her own interest. 62
  63. 63. Communications with Former Constituent of Represented Entity 63
  64. 64. Anti-Contact Rule 4-4.2 In representing a client, a lawyer shall not • communicate • about the subject of the representation • with a person the lawyer knows to be represented by another lawyer in the matter, • unless the lawyer has the consent of the other lawyer or • is authorized to do so by law or a court order. 64
  65. 65. Constituents of Represented Entities In the case of a represented organization, Rule 4-4.2 prohibits communications with • a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or • has authority to obligate the organization with respect to the matter or • whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. 65
  66. 66. Former Constituents Consent of the organization’s lawyer is not required for communication with a former constituent. 66
  67. 67. Constituent With Personal Counsel If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule 4-4.2. Compare Rule 4-3.4(f). 67
  68. 68. Overreaching Prohibited In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4-4.4. 68
  69. 69. Respect for Rights of Third Persons Rule 4-4.4(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or use methods of obtaining evidence that violate the legal rights of such a person. 69
  70. 70. Speaking With Witness/Former Constituent Informal Opinion 2020-10 QUESTION: May Attorney communicate with a witness who is a former member and director of an association without the consent of the association’s counsel about facts related to Client’s defamation claim against the association? • The witness was a member of the association at the time of the allegedly defamatory statements but had resigned from its board of directors prior to the date the statements were made. • Counsel for the association asserted a client-lawyer relationship with all members of the association, including the witness by name, but the membership of the witness in the association has since been terminated. 70
  71. 71. Opinion 2020-10 – Answer Part 1 • The association is a represented organization. See Rules 4-1.13 and 4-4.2, Comment [7]. • Rule 4-4.2 prohibits direct contact about the subject of the representation with a person Attorney knows to be represented by another lawyer in the matter, unless Attorney has consent of the other lawyer or is authorized to do so by law or court order. • The witness’s status as a former constituent of the organization does not place the witness within a category of individuals with whom communication is prohibited without consent of the organization’s lawyer, per the guidance in Comment [7] to Rule 4-4.2. See Informal Opinion 2013-01. • However, if Attorney knows the witness is represented in this matter by the association’s lawyer or another lawyer, Rule 4-4.2 prohibits Attorney from communicating with the witness without the consent of the other lawyer, authorization by law, or a court order. See Rule 4-1.0(e), Terminology (defining “knows” as “actual knowledge, which can be inferred from the circumstances”). • Whether a client-lawyer relationship exists between counsel for the association and the witness is a question of fact and law outside the scope of the Rules of Professional Conduct. 71
  72. 72. No Improper Interference With Discovery – Rule 4-3.4 A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; . . . (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. 72
  73. 73. Opinion 2010 – Answer Part 2 • If Attorney communicates with the witness, the lawyer must not use methods of obtaining evidence that violate the legal rights of the organization, such as engaging in unwarranted intrusions into a privileged relationship. See Rule 4-4.2, Comment [7], and Rule 4-4.4 and Comment [1]. • If Attorney knows the witness is not represented by counsel in the matter, any communication with the witness must comply with Rule 4-4.3, Dealing With Unrepresented Person. 73
  74. 74. Dealing with Unrepresented Person Rule 4-4.3 • In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. • When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. • The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 74
  75. 75. Handling Client Information 75
  76. 76. General Duties with Client Information • Protect client confidences – Not “disclose” information unless consent or exception – Rule 4-1.6(a) – Not “use” information against client – Rule 4-1.8(a) – Take reasonable steps to prevent unauthorized/inadvertent access or disclosure – Rule 4-1.6(c) • Keep client reasonably informed – Rule 4-1.4 • Turn over information at end of representation – mainly Rule 4-1.16(d) 76
  77. 77. Informal Opinion 2020-07 May Attorney comply with a protective order or participate in a settlement agreement requiring return or destruction of documents produced during discovery? 77
  78. 78. Opinion 2020-07 – Answer Part 1 General Rules: Turn Over on Termination • Documents in Attorney’s possession acquired during discovery are part of the client file. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. • Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” Rule 4-1.16(d). • Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” • Rule 4-1.22, Retaining Client Files, permits a lawyer to destroy a client file, or portions of the file, prior to the expiration of the six-year or ten-year default retention period, but only if the client grants informed consent, confirmed in writing; the items are not of intrinsic value; and none of the conditions in paragraphs (a) through (d) of Rule 4-1.22 exist. See Rule 4-1.0(e) (defining “informed consent”) and Rule 4-1.0(b) (defining “confirmed in writing”). 78
  79. 79. Opinion 2020-07 – Answer Part 2 Protective Orders • In the event a client refuses to grant informed consent, confirmed in writing, to Attorney’s handling of file documents in accordance with a protective order, Attorney should seek to modify the order if Attorney can do so in compliance with Rule 4-3.1, Meritorious Claims and Contentions. • If unsuccessful, Attorney is permitted by Rules 4-1.15(d) and 4- 1.16(d) to comply with the terms of the protective order. See also Rule 4-3.4(c). • Attorney must deliver to the client the remainder of the file or maintain the remainder of the file in accordance with Rule 4-1.22. 79
  80. 80. Opinion 2020-07 – Answer Part 3 Settlement Agreement • A lawyer is to abide by a client’s decision whether to accept an offer of settlement, subject to the limits imposed by the lawyer’s professional obligations. Rule 4-1.2(a) and Comment [1]. • A lawyer is prohibited from participating in a settlement agreement restricting the lawyer’s right to practice. Rule 4-5.6(b). • If Attorney obtains the client’s informed consent, confirmed in writing, to destroy portions of the file, or obtains the client’s agreement to return to another party portions of the file, in accordance with the proposed settlement agreement, Attorney may participate in the settlement agreement on behalf of the client. See Rules 4-1.22 and 4-1.15(d). 80
  81. 81. Restrictions on Right to Practice Rule 4-5.6(b) A lawyer shall not participate in offering or making: . . . (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. 81
  82. 82. Departing Attorneys 82
  83. 83. Informal Opinion 2020-05 Attorney is negotiating with a law firm for future employment. May Attorney make limited disclosure of a client’s confidential information in order to check for conflicts of interest? 83
  84. 84. Opinion 2020-05 – Answer • Lawyers have an ethical obligation to protect against conflicts of interest. See Rules 4-1.7 and 4-1.9. • Rule 4-1.6(b)(5) permits Attorney to reveal information relating to the representation of a client for the limited purpose of detecting and resolving conflicts of interest arising from Attorney’s change of employment, but only if doing so would not compromise the attorney- client privilege or otherwise prejudice the client. • Whether the attorney-client privilege would be compromised is a question of law outside the scope of the Rules of Professional Conduct. See Rule 4-1.6, Comment [3]. • A disclosure pursuant to Rule 4-1.6(b)(5) should not be made until substantive discussions about the new relationship have occurred. Rule 4-1.6, Comment [18]. Ordinarily, any such disclosure should be limited to “the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated.” Rule 4-1.6, Comment [18]. Information disclosed may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Rule 4-1.6, Comment [19]. 84
  85. 85. Notice When Departing Firm – Informal Opinion 2020-04 To which clients must Attorney and Attorney’s law firm provide notice of Attorney’s departure from the firm, and what information should the notice include? 85
  86. 86. Opinion 2020-04 – Answer Part 1 • All current clients for whom Attorney has provided material representation should be notified promptly of Attorney’s departure from the firm in a professional manner consistent with the opinion of the Supreme Court of Missouri in In the Matter of Cupples, 952 S.W.2d 226 (Mo. banc 1997). • Notice should be timed to serve the client’s best interest rather than the interests of the departing lawyer or firm. Ideally, the communication will be in writing, issued jointly by Attorney and the firm. Informal Opinion 950184. • If circumstances will not allow for joint notice, both the firm and Attorney are obligated to ensure clients receive proper notice. Informal Opinion 970197; In the Matter of Cupples, 952 S.W.2d at 235-236. • The firm and Attorney are not required to send a notification letter to Attorney’s former clients. • Whether Attorney has a current client-lawyer relationship with a client or former client is a question of fact and law outside the scope of an informal advisory opinion. See Rule 4, Scope, at [17]. 86
  87. 87. Opinion 2020-04 – Answer Part 2 • The communication should seek the client’s informed direction as to whether the client wishes to be represented in the matter by Attorney, the law firm, or new counsel of the client’s choosing. • If Attorney or the firm is unable or unwilling to continue the representation, the client should be so informed, and the remaining available options for representation should be offered to the client. Informal Opinion 950184. • Clients should be notified of the expected date of the departure and Attorney’s new contact information, if applicable. • The communication should explain who will be handling the client’s matter until the client affirmatively communicates the client’s choice of counsel. • The notice should explain that a client’s original file will remain with the firm until or unless the client elects to be represented by Attorney or new counsel. Informal Opinion 2019-03. • Attorney and the firm may choose to explain to the client that if the client wishes to be represented by Attorney or new counsel, funds in the trust account will be refunded to the client or transferred per the client’s direction. • The notice may also instruct clients as to whom the client should pay any balance due for fees or expenses. 87
  88. 88. Missouri Opinion 2019-03 • An attorney is leaving a law firm. The departing attorney has been the lead attorney or assisted another attorney at the firm in a number of client matters. • What should the firm’s remaining attorneys do with the files for those clients? 88
  89. 89. Answer • The file for each client matter belongs to the client, except for those items in the file for which the firm has borne uncompensated out-of-pocket expenses, such as, but not limited to, transcripts. Formal Opinion 115, as amended. • Even if the attorney or firm has not been paid for services rendered, a firm or lawyer must comply with a client’s direction to transmit the file to the departing attorney or new counsel. • A client who is notified of the departure of that client’s attorney should be informed that the client file will continue to be housed at the firm until and unless the client communicates his or her wishes as to the disposition of the file. • The client file should not be removed or copied by the departing attorney unless the client so directs. 89
  90. 90. ABA Formal Opinion 489 (2019) This opinion discusses the ethical obligations of both a departing lawyer and their former firm in protecting client interests during the lawyer’s transition. Such ethical obligations include • providing the firm with sufficient notice of the intended departure for the firm and departing lawyer to notify clients • work together to ensure that the transition of files as directed by clients is orderly and timely • return firm property • update remaining firm staff/lawyers and • organize files that clients authorize to remain with the firm 90
  91. 91. Other Points to Emphasize • A departing lawyer’s and law firm’s agreement to cooperate in these matters post-departure is relevant in determining whether notice provided by such lawyer to the firm is consistent with these obligations and with Rule 5.6(a) as further discussed below. • Ideally the firm will have written policies to provide guidance to lawyers about the procedures the firm anticipates following when a lawyer leaves the firm. 91
  92. 92. • Firm . . . agreements cannot impose a notification period that would unreasonably delay the diligent representation of the client or unnecessarily interfere with a lawyer’s departure beyond the time necessary to address transition issues, particularly where the departing lawyer has agreed to cooperate post-departure in such matters. • Nor may a firm penalize a client who wants to go with a departing lawyer by withholding firm resources the lawyer needs to continue to represent the client prior to departure. • Departing lawyers also have a duty, pre- or post-departure to cooperate with the firm they are leaving to assist in the organization and updating of client files for clients remaining with the firm, including docketing of deadlines, updating lawyers at the firm who will take over the file and the like, and similarly to cooperate reasonably in billing. • A departing partner may be required to return or account for firm property, such as intellectual property, proprietary information, and hardware/phones/ computers, and to allow firm data to be deleted from all devices retained by the departing attorney, unless the 92
  93. 93. Steps for Departing Beyond Client Notice Informal Opinion 2020-06 In addition to notifying clients for whom Attorney is providing material representation, what other steps should be taken by Attorney and the firm following Attorney’s departure from the firm? 93
  94. 94. Opinion 2020-06 – Answer • Firm lawyers should promptly update advertising materials, the firm’s website, the firm’s name if necessary, and other communications to avoid false or misleading information as to the lawyers associated with the firm. See Rules 4-7.1 – 4-7.5. • Attorney’s access to the firm’s trust account(s) should be terminated upon departure. See Rule 4-1.15. • Attorney should furnish the Supreme Court of Missouri with updated information as required by Rule 6.01(b) and provide updated contact information to The Missouri Bar. • Other steps may be appropriate to protect the interests of clients as required by Rule 4-1.16, Declining or Terminating Representation, Rule 4- 1.1, Competence, or Rule 4-1.3, Diligence. 94
  95. 95. Missouri Opinion 2019-04 What steps can be taken by a firm and departing attorney having a dispute over compensation, professionalism, or other issues surrounding a lawyer’s departure from a firm? 95
  96. 96. Opinion 2019-04 – Answer • Firm lawyers and a departing attorney who have a dispute about division of client fees have an obligation to cooperate as necessary to allow for the client’s timely receipt of funds in which the client has an undisputed interest. Rule 4-1.15(d). • If a dispute between the firm and departing lawyer over proper division of the fee cannot be resolved, the involved lawyers should consider taking part in The Missouri Bar’s Lawyer-to-Lawyer Dispute Resolution Program. • Rule 4-1.5(e), which governs the division of fees between lawyers not in the same firm, does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a firm. Rule 4-1.5(e), Comment [8]. 96
  97. 97. Informal Opinion 2020-02 Is a retired lawyer exempt from paying the annual enrollment fee? Is a retired lawyer able to work as a paralegal? Is a retired lawyer exempt from reporting Continuing Legal Education hours? 97
  98. 98. Opinion 2020-02 – Answer Part 1 • There is no “retired” enrollment status in Missouri. • A Missouri lawyer who ceases to practice law in Missouri may elect to become inactive pursuant to Rule 6.03 and pay an annual inactive fee. • Inactive lawyers are prohibited from engaging in the practice of law or the doing of a law business in Missouri. Rule 6.05. • [Next slide] • An inactive lawyer may apply for return to active status under Rule 6.06. • A Missouri lawyer in good standing is exempt under Rule 6.01(d) from paying annual enrollment fees or inactive fees if the lawyer has been licensed to practice in Missouri for fifty years or more or has reached the age of seventy-five years. Rule 15, Continuing Legal Education, governs whether a lawyer is required to complete or report Continuing Legal Education (CLE) credit hours. Questions about what constitutes the active practice of law in Missouri for purposes of Rule 15 should be directed to The Missouri Bar. 98
  99. 99. Opinion 2020-02 – Answer Part 1 • Inactive lawyers are prohibited from engaging in the practice of law or the doing of a law business in Missouri. Rule 6.05. • Whether work as a paralegal by a lawyer whose license is inactive constitutes the unauthorized practice of law is a question of law and fact outside the scope of the Rules of Professional Conduct. In Missouri the judiciary is the sole arbiter of what constitutes the practice of law. • Generally, a lawyer who is not permitted to practice law because the lawyer’s license is inactive is permitted to do law-related work that a nonlawyer, such as a paralegal, is permitted to perform. However, inactive lawyers working as paralegals must exercise caution. It can be difficult for an experienced lawyer to refrain from providing legal services, even when the lawyer’s title is that of legal assistant or paralegal. 99
  100. 100. Dealing With Client Information 100
  101. 101. Not Sharing Criminal Discovery Responses With Client – Informal Opinion 2020-08 May Attorney representing Client charged with a crime in federal court enter into an agreement by which the prosecutor will provide discovery to Attorney under circumstances advantageous to Client in return for Attorney’s agreement not to turn over discovery to Client? 101
  102. 102. Opinion 2020-08 – Answer • Attorney must consult with Client about the means by which Client’s objectives for the representation are to be pursued, including whether to enter into a discovery agreement that would prevent Client from obtaining the entire client file. See Rule 4-1.2(a). • Attorney should explain the proposed agreement to the extent reasonably necessary to allow Client to make an informed decision. See Rule 4-1.4(b). • Comment [1] to Rule 4-1.2 provides guidance that a lawyer is not required to employ particular means in pursuing Client’s objectives simply because a client so directs, and the lawyer should assume responsibility for technical and legal tactical issues while deferring to the client regarding questions such as expense and concern for third persons. 102
  103. 103. Opinion 2020-08 – Answer • The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” • Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” • When a discovery agreement is in place, whether other law would permit Attorney to deny a request from Client to obtain the entire file, including discovery, is a question of fact and law outside the scope of the Rules of Professional Conduct. 103
  104. 104. Informal Opinion 2020-09 Attorney stores client files electronically. In what format should Attorney provide the client file to Client upon request? 104
  105. 105. Opinion 2020-09 - Answer The client file belongs to the client. Formal Opinion 115, as amended; In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997). If a client requests an electronically maintained file during the file retention period, Formal Opinion 127 requires the file be provided to the client in a manner in which the client will be able to access it using commonly used, relatively inexpensive, software and hardware . . . . Alternatively, the attorney may provide the file to the client in paper format, unless that is contrary to an agreement between the attorney and client. Upon termination of representation, Rule 4-1.16(d) requires a lawyer to take steps to the extent reasonably practicable to protect the client’s interests, including surrendering papers and property to which the client is entitled. If Client has requested the file in a particular format, Attorney should prioritize protection of Client’s interests and take all reasonably practicable steps to accommodate Client’s format request. 105
  106. 106. Obeying (Child Support) Orders 106
  107. 107. Missouri Rule 4-3.4 A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. 107
  108. 108. Child Support Orders [4] Lawyers have an ethical duty to comply with court orders in both their professional and personal capacities. As an example, a lawyer's failure to comply with court-ordered child support obligations may violate Rule 4-3.4(c) or other rules of professional conduct. See Rules 4-8.4(b), 4-8.4(c), and 4-8.4(d). [5] Rule 4-3.4(f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4- 4.2.
  109. 109. Elimination of Bias CLE Requirement 109
  110. 110. Missouri Rule 15.05(a)(2) [E]ach lawyer shall complete and report, during each reporting year, a total of at least 15 credit hours of accredited programs, seminars, and activities. For each reporting year: 1) at least three of the total 15 credit hours must be devoted exclusively to accredited ethics programs . . . ; and 2) at least one of the three ethics credit hours required under Rule 15.05(a)(1) must be devoted exclusively to explicit or implicit bias, diversity, inclusion, or cultural competency. 110
  111. 111. Missouri Rule 15.01.10 • Programs, seminars, and activities in the area of explicit or implicit bias, diversity, inclusion, and cultural competency shall focus on issues in the legal profession and in the practice of law. • Such programs, seminars, and activities shall not include the substantive law of illegal discrimination except to the extent that the topics set forth above are directly and substantially discussed in relationship with such topics. 111
  112. 112. Michael Downey Downey Law Group LLC (314) 961-6644 (844) 961-6644 toll free mdowney@DowneyLawGroup.com Thank You

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