State Bar of Montana Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar of Montana, with full citations and source links on every page.
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If a lawyer learns a bankruptcy client hid assets or lied to the court, when do the candor duties override confidentiality?
It turns on whether the proceeding has concluded. The opinion concluded that once a matter is complete the lawyer has no duty to disclose a past misrepresentation, but while a proceeding is ongoing Ru…
Can a lawyer who will be a witness still work on the case before trial under Rule 3.7?
Yes. Rule 3.7(a) bars only acting as advocate at trial, not pretrial work, and the disqualification is not automatically imputed to other lawyers in the same office.
Can a Montana lawyer agree to indemnify the defendant's insurer against Medicare and other liens in a settlement?
No. The committee concluded a lawyer should not personally agree to hold harmless and indemnify the releasee from any lien claims; holding disputed funds in trust is the permissible alternative.
Does Montana allow limited-scope or 'unbundled' legal representation?
Per this opinion, yes under existing Rule 1.2(c) when the limitation is reasonable; the Ethics Committee recommended against proposed amendments to expand unbundling.
Can a small-town prosecutor married to a police officer prosecute that officer's cases?
The opinion finds a personal-interest conflict under Rule 1.7 that the government client can waive by informed consent confirmed in writing; the scenario with two separate firms presented no conflict.
Can a lawyer withhold a client's psychotherapy notes from the client when HIPAA restricts the client's access to them?
In this limited context, yes. The opinion concludes a client is not entitled to every part of the file, and an attorney may restrict access to psychotherapy notes consistent with HIPAA and a fee agree…
Must a lawyer who is a notary, or who employs a notary, file the notary journal publicly when doing so would reveal confidential client information?
No. The opinion concludes the confidentiality rule, adopted under the judiciary's constitutional power over the practice of law, overrides the general notary statute, and because Rule 1.6 is permissiv…
Can a Montana lawyer charge a fixed or flat fee, and can such a fee be called 'nonrefundable' or 'earned on receipt'?
Yes to flat fees, with conditions. The opinion concluded Rule 1.5 permits a fixed or flat fee if the agreement meets disclosure, reasonableness, refund, and trust-deposit obligations, and discouraged …
Can a lawyer disclose a deceased client's confidential information to a state fatality-review commission?
Yes. Rule 1.6(b)(4) permits disclosure to comply with 'other law'; because the statute itself protects the information, the lawyer need not demand a court order, but disclosure is permissive.
When a judge or prosecutor asks defense counsel whether a client is complying with a call-in bond condition, what should counsel say?
Counsel should treat the information as confidential under Rule 1.6 and respond that it is protected attorney-client information, unless the client has consented to disclosure or a judge specifically …
Does a deputy county attorney who signs and swears to a charging affidavit become a witness in the case, in violation of the lawyer-as-witness rule?
No. The opinion concludes that signing a charging affidavit does not make a prosecutor a necessary witness under Rule 3.7, because the affidavit supports the court's probable-cause finding rather than…
When an insurer or a court pays a lawyer to defend a client, must the lawyer get the client's written informed consent and explain the fee and scope in writing?
Yes. Under Montana's 2004 rules, a lawyer paid by an insurer to defend its insured must obtain the insured's written informed consent under Rule 1.8(f) and communicate the scope, fee rate, and the cli…
Can a lawyer use a contingent fee to pursue assets an ex-spouse hid during a divorce, after the dissolution is already final?
Yes, on these facts. Once the dissolution and property settlement are final, the policy behind Rule 1.5(d)'s ban on domestic-relations contingent fees no longer applies, so a contingent fee to chase h…
Can Montana lawyers form a private for-profit lawyer referral service?
No. The opinion concludes the proposed private referral service violates Montana Rule 7.2(c), which permits paying only the usual charges of a not-for-profit lawyer referral service.
When a judge asks a lawyer to draft a proposed order, must the lawyer serve it on opposing counsel at the same time it goes to the judge?
The opinion concluded that simultaneous service is not strictly mandated as a matter of law, but under Rule 3.5 it is the more professional practice to serve a proposed order on opposing counsel, idea…
May a defense lawyer contact a complaining witness to propose a civil settlement that releases the lawyer's client from liability?
Yes, within limits. The opinion concluded a lawyer may suggest and negotiate a civil compromise with an unrepresented complaining witness, but must clarify the lawyer's role, avoid giving advice, and …
Can a Montana provider firm for a prepaid legal plan send marketing mailings to members, and can the plan sponsor see the firm's client intake records?
The opinion concluded the proposed postcard and letter complied with the advertising and direct-contact rules, though the letter raised concerns about overstating the firm's experience under Rules 7.1…
If someone sends a lawyer a letter hinting at confidences and then the lawyer is asked to take the opposing spouse's case, is the lawyer disqualified?
Not automatically. The opinion concluded the lawyer was not per se disqualified, but had to weigh whether confidential information was actually conveyed and proceed with caution, telling the wife only…
Can one lawyer work as a city prosecutor and a county public defender at the same time when the jurisdictions overlap?
No. The opinion concluded the dual role created a non-consentable Rule 1.7 conflict, because a criminal defendant's interests are adverse to the law-enforcement authority and a disinterested lawyer wo…
Can a lawyer elected to a full-time constitutional regulatory office keep practicing law on the side, keep the firm name, or share post-election fees?
The committee concluded the answer to all three was no: the lawyer may not continue private practice, the office holder's name may not be used in the firm name (and a family member cannot be made 'of …
When a lawyer is elected to a full-time constitutional public office, must the lawyer dissolve the law partnership, and what happens to fees and a shared office building?
The committee concluded the lawyer must dissolve the firm under an appearance-of-impropriety standard, may still collect a share of receivables earned before leaving (disentangling contingent cases at…
Can a lawyer use a collection agency to pursue unpaid legal fees, and can the lawyer report the non-paying former client to a credit bureau?
The opinion concluded a lawyer may use a collection agency for unpaid fees after exhausting other reasonable efforts and revealing no more than necessary under Rule 1.6, but may not report a non-payin…
Can a lawyer hold a client's file as a retaining lien until an unpaid bill is paid?
The opinion concluded Montana's rules recognized retaining liens only in limited circumstances and only where the client had agreed to the lien in writing; without that written consent the lawyer had …
When a lawyer leaves a firm and takes a contingent-fee case, how is the disputed fee divided between the departing lawyer and the firm?
The committee treated entitlement as a contract question outside its charge, but concluded that both lawyers' first duty is to disburse the client's share promptly, the disputed fee should be held in …
Can a lawyer practice law as an employee of a nonlawyer professional-services firm if the lawyer puts safeguards in place?
No. The opinion concluded the proposed safeguards did not overcome Rule 5.4's bar on practicing law within a nonlawyer organization, because they did not protect professional independence, confidentia…
Can a lawyer take a contingent fee to establish paternity and collect past-due child support, despite the ban on contingent fees in domestic-relations matters?
Narrowly, yes. The opinion concluded that, on these facts, a contingent fee is permissible because the reconciliation rationale for Rule 1.5(d)'s ban does not apply, provided the lawyer first disclose…
Can one lawyer draft a contract for deed for both buyer and seller, and later represent the seller when the buyer defaults and sues?
Yes to the joint drafting, no to the later switch. The opinion concluded the lawyer may represent both buyer and seller only with full disclosure and each client's consent, and may not later represent…
What must a Child Support Enforcement Division attorney do when an investigation or hearing reveals tax evasion, perjury, or parental kidnapping?
It depends on when. The opinion concluded that violations found during investigation are a CSED policy matter, not governed by the conduct rules, because the agency (not the parties) is the client; vi…
When the lawyer who handled a firm's contingent case leaves, what are the firm's duties to the client, and can the firm withdraw after the appeal?
The firm must stand in the departed lawyer's place and may withdraw only under Rule 1.16. The opinion concluded the firm may move to withdraw if it can do so without material adverse effect, giving no…
Can a public defender office represent co-defendants with conflicting interests by setting up a separated 'conflict counsel' office within the same agency?
Yes, if walled off. The opinion concluded that a public defender office is not automatically a single firm for conflicts, and a conflict-counsel office with separate files, systems, space, and autonom…
Can a law firm route its client billing through a bank that sends the invoices, without breaching client confidentiality?
Probably, but unwisely. The opinion concluded that with client consent a firm may use bank billing without violating Rule 1.6 only if the statements are sterilized of substantive information, detrimen…
Does a prosecutor have a conflict of interest when part of his fixed county salary is budgeted from a drug-forfeiture account he helps fill?
No. The opinion concluded that because the prosecutor's salary is fixed and not tied to forfeiture outcomes, the funding source does not create an impermissible personal interest under Rule 1.7(b), th…
Can a lawyer represent both a landowner suing a federal agency and an agency employee who negotiated the disputed lease and will be the agency's witness?
No. The opinion concluded that representing both is improper under Rule 1.7 because the employee is a material witness against the landowner and her negotiating role is the subject of her own grievanc…
Must a lawyer always give a Rule 1.7 conflict warning and get a written waiver from every married couple who jointly hires the lawyer for estate planning?
No. The opinion concluded that marriage alone does not create a conflict, so no warning or waiver is required absent an actual or developing conflict; once a material potential for conflict appears, R…
Can a lawyer join a chamber-of-commerce 'leads network' that requires members to exchange a quota of referrals to keep their spot?
No. The opinion concluded that joining such a reciprocal leads network violates Rules 5.4(c) and 7.2(c), because the point-quota pressure can bias the lawyer's judgment and the exchanged leads are thi…
Can a lawyer draft a client's will that names the lawyer as personal representative or trustee?
Yes. The opinion concluded that Rule 1.8(c) only bars drafting an instrument that gives the lawyer a substantial gift, not one naming the lawyer as personal representative or trustee, so a lawyer may …
Can a lawyer run a newspaper ad telling people they may have been victims of a party's discrimination and inviting them to contact the firm?
Yes. The opinion concluded that a truthful newspaper advertisement informing potential discrimination claimants of a possible cause of action and inviting contact does not violate Rule 7.3, because it…
If a lawyer's investigator contacts a represented opposing party under a pretext against the lawyer's instructions, has the lawyer violated Rule 4.2, and what must the lawyer do with the information?
No violation, but limited use. The opinion concluded that a lawyer who instructed the investigator not to make contact did not violate Rule 4.2, but must notify opposing counsel and refrain from using…
A lawyer who defended a company in a federal Superfund case joins the state Superfund program; is there a conflict now, and can she later act against her former client?
Not yet, but later yes. The opinion concluded there is no present conflict given the screening in place, but the lawyer may not participate in any future state action against her former client without…
Can a firm do criminal defense when an attorney's spouse is a deputy sheriff, and can that attorney sit as judge pro tem in the same jurisdiction?
Qualified yes. The opinion concluded the firm may defend criminal cases under Rule 1.7(b) if the lawyer reasonably believes the client will not be adversely affected and the client consents after disc…
Can a lawyer give a collection agency a share of the recovery for nonlegal help, or pay forwarding lawyers and agencies a referral fee?
No to both. The opinion concluded that paying a collection agency a percentage of the recovery is improper fee-splitting with a nonlawyer under Rule 5.4(a), and referral fees are barred except for per…
Can married lawyers be opposing counsel, can one's firm oppose the other when that firm member is not on the case, and can a judge married to a firm member preside?
No, yes, no. The opinion concluded that married lawyers may not directly oppose each other without client consent under Rule 1.8(i), that the disqualification is not imputed to their firms, but that a…
When representation ends, which file materials can a lawyer keep as personal or internal, and which must go to the former client?
Only candid internal items. The opinion concluded that under Montana's Rule 1.16(d) a lawyer may retain personal or internal-use papers such as the lawyer's own notes and intraoffice memos, but must d…
Can a law firm send targeted letters to homeowners with suspected defective plumbing, and promise they owe no costs if there is no recovery?
Yes to both. The opinion concluded that under Montana's permissive Rule 7.3 a non-misleading targeted mailing is proper solicitation, and Rule 1.8(e) lets a firm make repayment of advanced costs conti…
In a suit against the State, can the plaintiff's lawyer interview government employees ex parte without going through government counsel?
Usually yes. The opinion concluded that under Rule 4.2 a lawyer may interview government employees ex parte unless they have significant managerial authority to bind or settle for the government, or t…
Can a former deputy county attorney later represent a county employee suing the county over earlier grievances handled by that office?
Yes, qualified. The opinion concluded a former deputy county attorney may take the case if it is a distinct matter or he did not personally and substantially participate in the prior grievances, and i…
When a lawyer works for a state agency, is the client the agency itself or its individual officials and employees?
The agency. The opinion concluded that a staff attorney for a state administrative agency represents the agency as a discrete entity under Rule 1.13, owing confidentiality to the agency as a whole and…
Can a lawyer who handled a man's first divorce later represent his second wife against him in their divorce, where both involve child-custody issues?
Not without the former client's consent. The opinion concluded the two divorces are substantially related, so Rule 1.9 disqualifies the lawyer from representing the second wife against the former clie…
Can an out-of-state law firm pay 'runners' to recommend the firm to injured railroad workers in another state?
No. The opinion concluded that paying nonlawyer runners to recommend a firm violates Rule 7.2(c), and an out-of-state firm soliciting Montana cases is bound by Montana's rules, with possible unauthori…
Can a lawyer take an assignment of a client's new claim to secure unpaid fees from an earlier case, and then testify about the value of those earlier services?
Yes, with limits. The opinion concluded a lawyer may take a security-only assignment to secure an earlier fee if the client can consult independent counsel under Rule 1.8(a)(2), and may testify to the…
Can a county attorney run a criminal investigation of a decedent when the deputy who shares his office is handling that decedent's estate?
No. The opinion concluded that the office-sharing county attorney and deputy are analogous to a firm, so the county attorney cannot conduct the investigation while his deputy represents the estate, an…
Can a lawyer or law corporation act as trustee to collect clients' delinquent accounts receivable, filing suit when needed, for a contingent fee?
Yes, if the trust is properly established. The opinion concluded the arrangement is not prohibited by ethics or statute, but the contingent fee must be freely contracted and reasonable, and the lawyer…
How long must a lawyer keep closed client files before destroying them, and what has to be returned to the client first?
For a reasonable time judged file by file. The opinion concluded the rules set no fixed retention period, but a lawyer must return client property, keep what may be needed later, notify the client bef…
Can a lawyer keep disputed unpaid fees by withholding them from settlement funds the lawyer holds for the client?
No. The opinion concluded that a lawyer may not unilaterally set the fee and withhold it from funds held for the client over the client's objection; under Rule 1.15(c) the disputed portion must stay s…
Can a lawyer sign opinion letters for a company that sells living-trust packages prepared by its nonlawyer salespeople, who then steer customers to that lawyer?
Generally no. The opinion concluded the company's individualized trust preparation is the unauthorized practice of law, and a lawyer who supplies opinion letters for it assists that practice under Rul…
If a lawyer once advised a married couple about child custody, can the lawyer later represent the wife in their divorce?
Not without the husband's written consent. The opinion concluded the earlier custody advice and the divorce are substantially related, so Rule 1.9 bars representing the wife unless the husband consent…
Can a lawyer give a second opinion to someone already represented by another lawyer without violating the no-contact rule?
Yes. The opinion concluded that giving a disinterested second opinion to a person represented by other counsel, without interfering in the existing representation, does not violate Rule 4.2, which tar…
When an insurer defends under a reservation of rights and pays for independent counsel, can the lawyer follow the insurer's billing and litigation-control requirements?
Only to a limited extent. The opinion concluded that independent counsel may not comply with insurer billing or litigation-control requirements that materially limit the representation or interfere wi…
Can a lawyer ethically sell 'do it yourself' divorce kits to the public?
No. The opinion concluded that selling self-help divorce kits is inconsistent with the competence duty of Rule 1.1, because the buyer is likely to assume the kit meets their needs without further advi…
Can lawyers who only share office space keep using their names together on one letterhead after they stop practicing together?
No. The opinion concluded that lawyers who merely share office space may not keep their names together on a letterhead, because doing so falsely implies a partnership in violation of Rules 7.5 and 7.1…
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Legal ethics opinions from the State Bar of Montana interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.