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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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.
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 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 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 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…
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…
When a representation ends, who owns the client's file and can the lawyer hold it for unpaid fees?
The file belongs to the client. The opinion concluded that under Rule 1.16(d) a discharged lawyer must promptly surrender the client's papers to protect the client's interests, that retaining liens ar…
Can a lawyer hold a client's file as security for an unpaid fee until the client pays or posts security?
Yes. The opinion concluded that the conduct rules defer the question to other law, and under Montana law a lawyer may assert a passive common-law retaining lien on a client's papers until the client p…
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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.