May a Missouri lawyer submit a publicly filed client motion as a job-application writing sample?

Plain-English summary

The lawyer wanted to submit a recently filed summary-judgment motion with a job application. The opinion states that public-record status does not remove Rule 4-1.6 confidentiality.

One route is client informed consent under Rule 4-1.0(e), after disclosure of material risks and reasonable alternatives. Even with consent, the lawyer must consider whether redactions are appropriate to protect the client.

Without consent, the lawyer may use the document only if names, case numbers, and other identifying details can be removed so a third person cannot reasonably discover protected client information. Otherwise, the motion may not be used. A published article, hypothetical, or other sample not produced through a client relationship is another option identified by the opinion.

In practice

Under this opinion, public availability and lawyer disclosure are distinct. The lawyer's permitted routes are informed client consent, effective anonymization, or use of a nonclient writing sample.

Common questions

Q: Does filing the motion publicly end confidentiality?

A: No. The opinion treats it as protected client information despite public-record status.

Q: What must informed consent include?

A: Adequate explanation of material risks and reasonably available alternatives.

Q: Are redactions relevant after consent?

A: Yes. The opinion still requires consideration of redactions protecting the client.

Q: May anonymization replace consent?

A: Yes, if the removed information prevents a third person from reasonably discovering the client's protected information.

Background and rules framework

Rule 4-1.6 governs the motion as information related to a representation. Rule 4-1.0(e) and Comments [6] through [8] define informed consent, while Rule 4-1.6 Comment [4] addresses information that can lead to discovery of protected information.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.6, Comment [4]
• Missouri Rule 4-1.0(e), Comments [6], [7], and [8]

Other opinions cited:

• Missouri Informal Advisory Opinion 2015-02

See also

• Missouri Informal Op. 2024-10: Redaction Failure and Reporting
• New York State Op. 1032: Confidential Information in Lawyer Advertising

Source

• Landing page: Missouri Informal Opinion 2022-04

Original opinion text

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

Question: Attorney wants to apply for a job, and the job posting asks for a writing sample. Is it permissible for Attorney to simply submit a copy of a recently filed Motion for Summary Judgment as a writing sample with the job application?

Answer: Attorney must fully consider confidentiality of client information pursuant to Rule 4–1.6 when considering whether to use a writing sample that is from the representation of a client. Even if the Motion for Summary Judgment is a matter of public record, it is nevertheless confidential information and cannot be disclosed by Attorney unless an exception to Rule 4–1.6 is met. See Missouri Informal Advisory Opinions 2015–02.

As a first option, Attorney should consider whether it is appropriate to seek informed consent from the client to permit Attorney to use the Motion for Summary Judgment as a writing sample. Informed consent is defined in Rule 4–1.0(e) and requires the lawyer to adequately communicate information and explanation about the material risks of the proposed course of conduct and reasonably available alternatives. See Rule 4–1.0, Comments [6], [7], and [8]. If client provides informed consent, Attorney may use the Motion for Summary Judgment as a writing sample, but Attorney should still consider if any redactions are appropriate to protect the interest of the client. If client does not provide informed consent, Attorney should not use the client’s Motion for Summary Judgment as a writing sample.

As a second option, depending on the nature of the information contained in the Motion for Summary Judgment, Attorney may consider if information such as names, case numbers, and other personally identifiable information may be removed such that Attorney does not reveal protected information that could reasonably lead to the discovery of the client’s information by a third person. Rule 4–1.6, Comment [4]. If such information may be removed, it would not be necessary to seek the informed consent of the client.

Finally, Attorney should consider submitting a writing sample that was not drafted as a result of a lawyer-client relationship, but instead consider submitting a writing sample such as an article that has been published, or a document that has been drafted by Attorney based on a hypothetical.