Supreme Court of Missouri
en banc
June 30, 2020
Effective July 1, 2020
In re:
Repeal of paragraphs [8], [9], and [10] of the Comment of subdivision 4-1.2, entitled "Scope of Representation," of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of new paragraphs [8], [9], [10], and [11] of the Comment of subdivision 4-1.2, entitled "Scope of Representation."
ORDER
1. It is ordered that, effective July 1, 2020, paragraphs [8], [9], and [10] of the Comment of subdivision 4-1.2 of Rule 4 be and the same are hereby repealed and new paragraphs [8], [9], [10], and [11] of the Comment of subdivision 4-1.2 are adopted in lieu thereof to read as follows:
4-1.2 SCOPE OF REPRESENTATION
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COMMENT
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[8] In counseling or assisting a client, if state law conflicts with federal law, the lawyer should advise the client of that fact but cannot (1) undertake conduct that would violate federal law or (2) counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under state statutory or constitutional law. See Rules 4-1.1 and 4-1.4.
[9] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 4-1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required.
[10] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
[11] Rule 4-1.2(f) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability. Rule 4-1.2(f) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of Rule 4-1.2(f) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.
2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.
Day – to – Day
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GEORGE W. DRAPER III
Chief Justice