May a Missouri lawyer hold advance expert witness fees and another lawyer's fee share in a trust account?

Plain-English summary

The first question concerns an advance deposit for a lawyer's expert witness fees and expenses. The opinion permits the lawyer to place those funds in the trust account and bill against them, following the deposit and disbursement procedures it cites along with Formal Opinion 128 and Informal Opinion 20030001.

The second question concerns fees shared by lawyers in separate firms under Rule 4-1.5(e). The opinion treats a share held by one lawyer for the other as third-person property in the lawyer's possession in connection with a representation. Rule 4-1.15(a) calls for holding it in trust; Rule 4-1.15(d) calls for prompt notice and delivery to the entitled lawyer, subject to the opinion's listed exceptions.

The official text expressly says its trust-account analysis uses Rule 4-1.15 as it stood before January 1, 2019, when subsection (c) and several comments changed.

Currency note

The official opinion states that Rule 4-1.15(c) and Comments [5] and [6] were replaced effective January 1, 2019, and that this opinion applies the earlier rule. Its trust-account analysis is historical to that text.

In practice

For the two deposits addressed, the opinion permits the expert-fee advance in trust and requires treatment of the other lawyer's share as third-person property. Its prompt notice and delivery holding is subject to the rule, law, and client-agreement exceptions named in the opinion.

Common questions

Q: May an expert witness deposit an advance for fees and expenses in a lawyer trust account?

A: Yes. The opinion permits it when the lawyer follows the cited deposit and disbursement procedures.

Q: Must a lawyer notify co-counsel when holding that lawyer's fee share?

A: Yes. For a share in which the other lawyer has an interest, Rule 4-1.15(d) requires prompt notice and delivery of funds the other lawyer is entitled to receive, subject to stated exceptions.

Q: Which version of the trust-account rule does the opinion apply?

A: The opinion says it applies Rule 4-1.15 as it stood before the January 1, 2019 changes.

Background and rules framework

The opinion cites Rule 4-1.5(e) for sharing fees between lawyers in separate firms and Rules 4-1.15(a) and (d) for holding and delivering third-person property. Its reference note identifies later changes to Rule 4-1.15(c) and Comments [5], [6], and [20].

Citations and references

Missouri Rules of Professional Conduct:

• Rules 4-1.5(e), 4-1.15(a), and 4-1.15(d)
• Rule 4-1.15(c) and Comments [5], [6], and [20] (2019 change noted in source)

Other opinions cited:

• Missouri Formal Opinion 128
• Missouri Informal Opinion 20030001

See also

• Missouri Informal Op. 2026-10: Fee Claim and Confidentiality

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2017-01/

Original opinion text

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

Reference Note: Effective January 1, 2019, Rule 4–1.15(c) was repealed and a new 4–1.15(c) was adopted. Effective January 1, 2019, Comments [5] and [6] to 4–1.15 were repealed, and new Comments [5], [6], and [20] were adopted. This opinion is based on Rule 4–1.15 in effect prior to that date.

Question 1: Where Attorney serves as an expert witness and receives an advance deposit for fees and expenses, may Attorney place those funds in Attorney’s trust account and bill against the funds for work done as an expert witness?

Answer 1: Attorney may put the funds in Attorney’s trust account, following the procedures in Rules 4–1.145-4–1.155 and Formal Opinion 128 for deposit and disbursement. See also Informal Opinion 20030001.

Question 2: Where Attorney A and Attorney B (who are not in the same firm) agree to share fees pursuant to Rule 4–1.5(e), may Attorney A hold the fees due Attorney B in Attorney A’s trust account before disbursing them to Attorney B?

Answer 2: Rule 4–1.15(a) requires Attorney A to hold in Attorney A’s trust account any fees in Attorney A’s possession in connection with representation which are the property of a client or third person, including another attorney (in this case, Attorney B). If the other attorney with whom fees are being shared pursuant to 4–1.5(e) has an interest in the property, Rule 4–1.15(d) requires Attorney A to promptly notify Attorney B and promptly deliver to Attorney B any funds Attorney B is entitled to receive, except as provided in Rules 4–1.145-4–1.155 or otherwise permitted by law or by agreement with the client.