May a lawyer contact a former client who threatens a bar complaint and keep a supposedly nonrefundable retainer?

Plain-English summary

A former client threatened a bar complaint unless a retainer was refunded. The lawyer asked whether further direct contact was allowed.

The opinion says direct contact is not barred merely by a fee dispute or complaint. Under Rule 4-4.2, contact must go through counsel or have counsel's consent if the client is represented in that matter; disciplinary counsel or the fee dispute program does not itself represent the client. The opinion also says Missouri has no nonrefundable fees: only a fee earned by the lawyer can be retained, with Rule 4-1.5(a) factors relevant to whether it was earned.

In practice

The opinion separates permission to contact the former client from the fee question. It conditions contact on whether counsel represents the client in that matter and retention of money on whether the fee was earned.

Common questions

Q: Does a threatened bar complaint bar direct contact?

A: No. The opinion permits contact unless the client is represented by counsel in that matter.

Q: Does disciplinary counsel represent the complainant for Rule 4-4.2?

A: The opinion says the client is not considered represented by disciplinary counsel simply because of a bar complaint.

Q: Can the lawyer keep a nonrefundable retainer?

A: The opinion says Missouri has no nonrefundable fees and only an earned fee may be retained.

Background and rules framework

The opinion applies Rule 4-4.2 to contact with a represented person and Rule 4-1.5(a) to whether the disputed fee was earned.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.2
• Rule 4-1.5

See also

• Missouri Informal Op. 2011-03: Represented Parents
• Missouri Informal Op. 2010-0005: Pre-Disbarment Fee

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20050059/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION: Attorney was hired to get Client’s sick leave benefits from former employer and to apply them retroactively to Client’s retirement. Client was advised that the retainer would not cover filing fees. Attorney offered to prepare a petition and first set of discovery, after which Client would have 60 days to decide if more legal assistance was needed. Attorney immediately prepared the documents and sent them to Client. When Client later inquired about the status of the case, Attorney advised Client of the situation over the phone and again in writing. Client replied with a letter stating that Attorney was to file the petition. Attorney informed Client that Attorney’s office would not be further involved. Client responded by threatening to file a bar complaint against Attorney if Client’s retainer fee was not refunded. Attorney feels uncomfortable with further direct contact with Client and solicits advice and guidance.

ANSWER: The Rules of Professional Conduct do not prohibit Attorney from having further direct contact with Client, based on the information presented. Even if Client files a fee dispute or bar complaint, Attorney is not prohibited from direct contact unless Client is represented by counsel in that matter. In that event, any contact would have to be through Client’s counsel or with the counsel’s consent, under Rule 4–4.2. Under 4–4.2, Client would not be considered to be represented by disciplinary counsel in a bar complaint, nor would Client be considered to be represented by the fee dispute program if Client filed a fee dispute. There are no “nonrefundable” fees in Missouri. The only fee where a client is not entitled to a refund is a fee that has been earned by the attorney. In determining whether the fee has been earned, all factors set forth in Rule 4–1.5(a) may be considered.