Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Significant Changes |
| Rule 5.4(a) Fee-Sharing | Significant Changes |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Same as Model Rule |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Same as Model Rule |
| Rule 6.5 Limited Scope | Same as Model Rule |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | Yes |
| Technology Competency Rules | No |
ABA Rule 1.2(c) (Limited Scope)
RULE 4-1.2: SCOPE OF REPRESENTATION
…
(c) A lawyer may limit the scope of representation if the client gives informed consent in a writing signed by the client to the essential terms of the representation and the lawyer’s limited role. Use of a written notice and consent form substantially similar to that contained in the comment to this Rule 4-1.2 creates the presumptions:
(1) the representation is limited to the lawyer and the services described in the form, and
(2) the lawyer does not represent the client generally or in any matters other than those identified in the form.
Relevant Comments:
Scope of Representation
[1] Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Law defining the lawyer’s scope of authority in litigation varies among jurisdictions.
[2] A lawyer may assist a self-represented litigant on a limited basis without undertaking the full representation of the client on all issues related to the legal matter for which the lawyer is engaged. Any doubt about the scope of representation should be resolved in a manner that promotes the interests of justice and those of the client and opposing party. Use of a written agreement for limited representation is required, except as provided in this Rule 4-1.2. If a written agreement is not required by Rule 4-1.2, the better practice is for the attorney to memorialize in writing the contact and services provided. The initial consultation ends when the lawyer and the client agree that the lawyer will or will not undertake the representation. A lawyer may provide legal advice during an initial consultation. The lawyer who undertakes limited representation should explain to the client the risks and benefits of limited representation during consultation on limiting the scope of representation. An agreement for limited representation does not exempt a lawyer from the duty to provide competent representation; however, the limitation of the scope of representation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation as required in Rule 41.1.
The following is a notice and consent to limited representation form that is appropriate:
Notice and Consent to Limited Representation
To help you with your legal matters, you, the client, and _______________, the lawyer, agree that the lawyer will limit the representation to helping you with a certain legal matter for a short time or for a particular purpose.
The lawyer must act in your best interest and give you competent help. When a lawyer and you agree that the lawyer will provide limited help:
• The lawyer DOES NOT HAVE TO GIVE MORE HELP than the lawyer and you agreed; and
• The lawyer DOES NOT HAVE TO HELP WITH ANY OTHER PART of your legal matter.
While performing the limited legal services, the lawyer:
• Is not promising any particular outcome; and
• Is relying entirely on your disclosure of facts and will not make any independent investigation unless expressly agreed to in writing in this document.
If short-term limited representation is not reasonable, a lawyer may give advice, but will also tell you of the need to get more or other legal counsel.
I, the lawyer, agree to help you by performing the following limited services listed below and no other service, unless we revise this agreement in writing.
[INSTRUCTIONS: Check every item either Yes or No – do not leave any item blank. Delete all text that does not apply.]:
Y N
a) __ __ Give legal advice through office visits, telephone calls, facsimile (fax), mail or e-mail
b) __ __ Advise about alternate means of resolving the matter including mediation and arbitration
c) __ __ Evaluate the client’s self-diagnosis of the case and advise about legal rights and responsibilities.
d) __ __ Review pleadings and other documents prepared by you, the client
e) __ __ Provide guidance and procedural information regarding filing and serving documents
f) __ __ Suggest documents to be prepared
g) __ __ Draft pleadings, motions and other documents
h) __ __ Perform factual investigation including contacting witnesses, public record searches, in-depth interview of you, the client
i) __ __ Perform legal research and analysis
j) __ __ Evaluate settlement options
k) __ __ Perform discovery by interrogatories, deposition and requests for admissions
l) __ __ Plan for negotiations
m) __ __ Plan for court appearances
n) __ __ Provide standby telephone assistance during negotiations or settlement conferences
o) __ __ Refer you, the client, to expert witnesses, special masters or other attorneys
p) __ __ Provide procedural assistance with an appeal
q) __ __ Provide substantive legal arguments in an appeal
r) __ __ Appear in court for the limited purpose of ______________
_______________________________________________
s) __ __ Other: __________________________________________
I will charge to the Client the following costs: _____________________
__________________________________________________________
I will charge to the Client the following fee for my limited legal representation:
____________________________________________________________
______________________________________ Date: ______________
[Type Lawyer’s name)
Client’s Consent
I have read this Notice and Consent form and I understand it. I agree that the legal services listed above are the ONLY legal services to be provided by the lawyer. I understand and agree that the lawyer who is helping me with these services is not my lawyer for any other purpose and does not have to give me more legal help. If the lawyer is giving me advice or is helping me with legal or other documents, I understand the lawyer will stop helping me when the services listed above have been completed. The address I give below is my permanent address where I can be reached. I understand that it is important that the court handling my case and other parties to the case be able to reach me at the address after the lawyer ends the limited representation. I therefore agree that I will inform the Court and other parties of any change in my permanent address.
In exchange for the Lawyer’s limited representation, I agree to pay the attorney’s fee and costs described above.
Sign your name: ______________________________________________
Print your name: ______________________________________________
Print your address: ____________________________________________
Phone number: ____________________ FAX: _____________________
Message Phone: _______________ Name: _________________________
Email address: ________________________________________________
[3] In a case in which the client appears to be suffering a mental disability, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 4-1.14.
Independence From Client’s Views or Activities
[4] Legal representation should not be denied to people who are unable to afford legal services or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities.
Services Limited in Objectives or Means
[5] The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.
[6] An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 4-1.1 or to surrender the right to terminate the lawyer’s services or the right to settle litigation that the lawyer might wish to continue.
Modified By:
Advisory Committee of the Supreme Court of Missouri Formal Op. 124 (2008) (It is ethically permissible for Missouri attorneys to engage in collaborative law practice. The attorney must inform the client how the process works and must obtain the client’s written consent.)
Missouri Bar Ass’n Advisory Op. 940161 (It is impermissible for a lawyer to draft responsive pleadings to an unrepresented opposing party in a divorce. However, a lawyer may draft an entry of appearance if the lawyer includes a letter indicated that he or she represents the opposing party and that the unrepresented party should obtain counsel.)
Missouri Bar Ass’n Advisory Op. 940049 (It is impermissible for a lawyer to prepare an answer for an unrepresented opposing party in a divorce or marital separation.)
ABA Rule 5.4(a) (Fee-sharing)
RULE 4-5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer;
(3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 4-1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(4) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(5) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter.
Relevant Comments:
[1] Rule 4-5.4 express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in Rule 4-5.4(c), such arrangements should not interfere with the lawyer’s professional judgment.
ABA Rule 5.4(b – d) Non-lawyer ownership
Same as Model Rule.
Relevant Comments:
[2] Rule 4-5.4 also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 4-1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).
ABA Rule 5.5 (UPL)
RULE 4-5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
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(c) A lawyer admitted and authorized to practice law in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction if the lawyer or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted and authorized to practice law and are not services for which the forum requires pro hac vice admission;
(4) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted and authorized to practice law.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law and provide legal services in this jurisdiction that are provided to the lawyer’s employer or its organizational affiliates if the lawyer has obtained a limited license pursuant to Rule 8.105 or a general license pursuant to other provisions of Rule 8. When performed by a foreign lawyer and requiring advice on the law of Missouri or another United States jurisdiction, or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice.
(e) A lawyer shall not practice law in Missouri if the lawyer is subject to Rule 15 and, because of failure to comply with Rule 15, The Missouri Bar has referred the lawyer’s name to the chief disciplinary counsel or the commission on retirement, removal and discipline.
(f) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.
Relevant Comments:
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Rule 4-5.5(a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.
[2] The definition of “the practice of law” is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule 4-5.5 does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 4-5.3.
[3] A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
[4] Other than as authorized by law or this Rule 4-5.5, a lawyer who is not admitted to practice generally in this jurisdiction violates Rule 4-5.5(b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 4-7.1(a) and 4-7.5(b). Federal law, including but not limited to international treaties, may require that a lawyer be permitted to practice in this jurisdiction. Federal law that admits a lawyer to appear in a federal court or other tribunal does not authorize a lawyer to establish an office or other systematic and continuous presence to engage in other aspects of the practice of law in this jurisdiction. See In re: Page, 257 S.W. 2d 679 (Mo. banc 1953).
[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public, or the courts. Rule 4-5.5(c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. This Rule 4-5.5 does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice here under any provision of Rule 8.
[6] There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction and, therefore, may be permissible under Rule 4-5.5(c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.
[7] Rule 4-5.5(c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The phrase “admitted and authorized to practice law” in Rule 4-5.5(c) requires that the lawyer be authorized to practice in a jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.
[8] Rule 4-5.5(c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For Rule 4-5.5(c)(1) to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.
[9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice. Under Rule 4-5.5(c)(2), a lawyer does not violate this Rule 4-5.5 when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule 4-5.5 requires the lawyer to obtain that authority.
[10] Rule 4-5.5(c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule 4-5.5 when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.
[11] When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, Rule 4-5.5(c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.
[12] Rule 4-5.5(c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction and if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.
[13] Rule 4-5.5(c)(4) permits a lawyer who is admitted and authorized to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission. Rule 4-5.5(c)(4) applies to in-house corporate lawyers, government lawyers, and others who are employed to render legal services to the employer. Rule 4-5.5(c)(4) does not authorize the provision of personal legal services on a temporary basis to the employer’s officers or employees. Lawyers who wish to establish an office or other systematic and continuous presence in this jurisdiction to provide legal services to the lawyer’s employer or its organizational affiliates must be admitted to practice law in this jurisdiction pursuant to Rule 8.105 or other relevant provisions of Rule 8. See Rule 4-5.5(d).
[14] Rule 4-5.5(c)(5) permits a lawyer admitted in another jurisdiction to provide certain legal services in this jurisdiction on a temporary basis if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within Rule 4-5.5(c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.
[15] Rule 4-5.5(c)(3) and (c)(5) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
[16] Rule 4-5.5(d) applies to a lawyer employed exclusively for a corporation, its subsidiaries or affiliates; an association; a business; or a governmental entity if the employer’s lawful business consists of activities other than the practice of law or the provision of legal services. Rule 4-5.5(d) does not authorize the provision of personal legal services to the employer’s officers or employees. Rule 4-5.5(d) does not address federal practice; federal practice is addressed in Rule 4-5.5(b)(1) and paragraph 4 of this Comment. To further decrease any risk to the client, when advising on Missouri law or on domestic law of a United States jurisdiction or on the law of the United States, the foreign lawyer authorized to practice under paragraph (d) of this Rule needs to base that advice on the advice of a lawyer licensed in Missouri or the jurisdiction whose law is at issue and is authorized by this Court or that other United States jurisdiction to provide it.
[17] A lawyer who practices law in this jurisdiction pursuant to Rule 4-5.5(c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 4-8.5(a).
[18] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to Rule 4-5.5(c) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 4-1.4(b).
[19] Rule 4-5.5(c) does not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 4-7.1 to 4-7.5.
Modified By:
Binkley v. American Equity Mortgage, Inc., 447 S.W.3d 194 (Mo. 2014) (“Missouri restricts the practice of law solely to licensed attorneys to ‘protect the public from being advised or represented in legal matters by incompetent or unreliable persons’”)
Curry v. Dahlberg, 112 S.W.2d 345 (Mo. 1937) (contract permitting nonlawyer to transact legal business for clients in state and federal courts rendered void)
Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007) (unauthorized practice of law for bank to prepare mortgages for borrowers and charge discrete “document preparation” fee)
Hargis v. JLB Corp., 357 S.W.3d 574 (Mo. 2011) (noting it is judiciary’s responsibility to Hargis v. JLB Corp., 357 S.W. 3d 574 (Mo. 2011) (mortgage broker did not engage in unauthorized practice of law when it charged for preparation of loan application and financial disclosure forms or in acting as middleman in gathering and transmitting applicant’s financial information and documents to and from title companies and others who then prepared note and deed of trust.
In re First Escrow Inc., 840 S.W.2d 839 (Mo. 1992) (court has “duty to strike a workable balance between the public’s protection and the public’s convenience”)
In re Mid-Am. Living Trust Assocs. Inc., 927 S.W.2d 855 (Mo. 1996) (nonlawyers may sell generalized legal publications and “kits,” provided such activities do not involve giving personal advice regarding legal remedies or consequences flowing therefrom)
Janson v. LegalZoom.com, Inc., 802 F. Supp.2d 1053 (W.D. Mo. 2011) (internet company’s legal document preparation services constituted unauthorized practice of law under Missouri law.
Joseph Sansone Co. v. Bay View Golf Course, 97 S.W.3d 531 (Mo. Ct. App. 2003); Representing someone in court is practice of law.
McKeage v. Bass Pro Outdoor World, L.L.C., No. 12-03157-CV-S-GAF, 2015 WL 2093126 (W.D. Mo. May 5, 2015) (boat dealers engaged in unauthorized practice of law in charging fee for preparation of sale, title, license, registration, and power of attorney documents, explaining registration process, obtaining loan payoff information, and registering warranties.)
Other Definitions:
MISSOURI STATUTES TITLE XXXII. COURTS CHAPTER 484. ATTORNEYS AT LAW §484.010. Practice of the law and law business defined.
1. The “practice of the law” is hereby defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies.
2. The “law business” is hereby defined to be and is the advising or counseling for a valuable consideration of any person, firm, association, or corporation as to any secular law or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights or the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to obtain or securing or tending to secure for any person, firm, association or corporation any property or property rights whatsoever.
ABA Rule 5.7 (Law Related Services)
Same as Model Rule.
Relevant Comments:
[1] When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems. Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case.
[2] Rule 4-5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services are performed and whether the law-related services are performed through a law firm or a separate entity. Rule 4-5.7 identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 4-8.4.
[3] When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer’s provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in Rule 4-5.7(a)(1). Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Rules of Professional Conduct apply to the lawyer as provided in Rule 4-5.7(a)(2) unless the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply.
[4] Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services. If the lawyer individually or with others has control of such an entity’s operations, Rule 4-5.7 requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer’s control of an entity extends to the ability to direct its operation. Whether a lawyer has such control will depend upon the circumstances of the particular case.
[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 4-1.8(a).
[6] In taking the reasonable measures referred to in Rule 4-5.7(a)(2) to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Rules of Professional Conduct, the lawyer should communicate to the person receiving the law-related services, in a manner sufficient to assure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-lawyer relationship. The communication should be made before entering into an agreement for provision of or providing law-related services and, preferably, should be in writing.
[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a sophisticated user of law-related services, such as a publicly-held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a lawyer-accountant or investigative services in connection with a lawsuit.
[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related services are legal services. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by Rule 4-5.7(a)(2) cannot be met. In such a case a lawyer will be responsible for assuring that both the lawyer’s conduct and, to the extent required by Rule 4-5.3, that of nonlawyer employees in the distinct entity that the lawyer controls complies in all respects with the Rules of Professional Conduct.
[9] A broad range of economic and other interests of clients may be served by lawyers’ engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.
[10] When a lawyer is obliged to accord the recipients of such services the protections of those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the proscriptions of the Rules addressing conflict of interest (Rules 4-1.7 to 4-1.11, especially Rules 4-1.7(a)(2) and 4-1.8(a), (b) and (f)), and to scrupulously adhere to the requirements of Rule 4-1.6 relating to disclosure of confidential information. The promotion of the law-related services must also in all respects comply with Rules 4-7.1 to 4-7.3, dealing with advertising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction’s decisional law.
[11] When the full protections of all of the Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the Rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services. Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest, and permissible business relationships with clients. See also Rule 4-8.4.
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
Relevant Comments:
[1] Legal services organizations, courts, and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services — such as advice or the completion of legal forms – that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics, or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 4-1.7, 4-1.9, and 4-1.10.
[2] A lawyer who provides short-term limited legal services pursuant to this Rule 4-6.5 must secure the client’s informed consent to the limited scope of the representation. See Rule 4-1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule 4-6.5, the Rules of Professional Conduct, including Rules 4-1.6 and 4-1.9(c), are applicable to the limited representation.
[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule 4-6.5 ordinarily is not able to check systematically for conflicts of interest, Rule 4-6.5(a) requires compliance with Rules 4-1.7 or 4-1.9(a), only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 4-1.10, only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 4-1.7 or 4-1.9(a) in the matter.
[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, Rule 4-6.5(b) provides that Rule 4-1.10 is inapplicable to a representation governed by this Rule 4-6.5 except as provided by Rule 4-6.5(a)(2). Rule 4-6.5(a)(2) requires the participating lawyer to comply with Rule 4-1.10 when the lawyer knows that the lawyer’s firm is disqualified by Rules 4-1.7 or 4-1.9(a). By virtue of Rule 4-6.5(b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.
[5] If, after commencing a short-term limited representation in accordance with this Rule 4-6.5, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 4-1.7, 4-1.9(a), and 4-1.10 become applicable.
ABA Rule 7.2(b) (Lawyer referral)
RULE 4-7.2: ADVERTISING
…
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that:
(1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule 4-7.2;
(2) a lawyer may pay the reasonable cost of advertising, written communication, or other notification required in connection with the sale of a law practice as permitted by Rule 4-1.17; and
(3) a lawyer may pay the usual charges of a qualified lawyer referral service registered under Rule 4-9.1 or other not-for-profit legal services organization.
Relevant Comments:
[2] A lawyer is allowed to pay for advertising permitted by this Rule 4-7.2, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Rule 4-7.2(c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule. Rule 4-7.2(c) also does not prohibit paying a person for making a testimonial or endorsement in compliance with Rule 4-7.1(h).
Modified By:
Mo. Ethics Op. 970238 (1997) (law firm may allow clients to distribute coupons to their customers in mailers, provided firm pays only for expense of producing coupons and not for their distribution, and provided firm has no agreement with clients that clients will receive anything of value from firm).
Mo. Ethics Op. 960126 (1996) (lawyer may not give organization 10 percent of fees from cases it refers to him unless organization is qualified, registered referral service
Mo. Ethics Op. 970237 (1997) (impermissible for accounting firm to refer customers to law firm as quid pro quo for law firm’s agreement to hire accounting firm for its administrative work);
Cloud Computing
No opinions available.
Technology Competency
Comment to Rule 1.1
[6]To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.