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 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 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 …
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…
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…
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…
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…
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…
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…
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…
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 reveal client confidences to defend against a criminal accusation the client has made against the lawyer?
Yes. The opinion concluded that Rule 1.6(b)(2)'s self-defense exception lets a lawyer reveal confidential information to establish a defense when the client accuses the lawyer of criminal conduct, dis…
If a lawyer is a party in their own divorce, must they disclose client names, case details, and theories in discovery?
No. The opinion concluded that while public-record documents and knowledge must be produced on request, divulging client names, case details, advances, theories, injuries, and evidence would possibly …
If a lawyer learns that the client has committed perjury, must the lawyer disclose it to the court?
Yes. The opinion concluded that Rule 3.3's duty of candor toward the tribunal creates an affirmative obligation to inform the court of known client perjury, and that this duty overrides the confidenti…
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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.