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 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.
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…
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 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…
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…
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 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 …
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 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…
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…
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 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…
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…
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 former county lawyer represent a private client against the county on a road matter the lawyer did not personally handle in office?
Yes, if the new matter is not substantially related to the lawyer's prior county work. The opinion concluded that Rules 1.11(a) and 1.9(a) bar a former government lawyer only where the private matter …
Can a firm represent a plaintiff against an insured whose claim is handled by the same adjusting company that refers the firm defense work in unrelated cases?
Yes, with valid consent. The opinion concluded the situation is governed by Rule 1.7(b) because the firm's interest in keeping the adjuster's defense referrals could materially limit its plaintiff rep…
Can a prosecutor represent someone in a civil matter while investigating possible criminal charges against that same person?
No. The opinion concluded that loyalty under Rule 1.7 bars a lawyer from simultaneously representing a client and acting as the client's adversary, even in unrelated matters; a lawyer may decline repr…
If a lawyer represents a partnership, can the lawyer sue a partner who was expelled from it?
Yes. The opinion concluded that under the entity theory of Rule 1.13, the lawyer represents the partnership as a separate legal entity, not the individual partner, so suing an expelled partner does no…
Can a part-time county attorney who is partly paid by the state sue a state department for a private client?
Yes, with consent. The opinion concluded that because a part-time county attorney represents the state on a limited civil basis, the suit creates a Rule 1.7 conflict that can be cured by obtaining the…
Can a lawyer borrow money in the firm's name to advance to a client, or guarantee a client's loan, while the client's lawsuit is pending?
No. The opinion concluded that borrowing to advance funds to a client or guaranteeing a client's loan is prohibited financial assistance under Rule 1.8(e) and acquires a proprietary interest in the li…
Can one lawyer or firm represent both the survivors in a wrongful-death action and the decedent's estate?
No, not without consent. The opinion concluded that representing both the survivors and the estate can create an impermissible conflict under Rule 1.7, imputed across the firm under Rule 1.10(a), and …
If one partner in a firm represents a client in a divorce, can another partner in the same firm sue that client in an unrelated matter?
No. The opinion concluded that loyalty under Rule 1.7 bars any lawyer in the firm from suing a person another firm lawyer currently represents, even in a completely unrelated matter, absent the client…
Can a lawyer whose firm represents the government or prosecution accept a court appointment to defend a criminal case?
Possibly. The opinion found no per se conflict, but the lawyer and firm must work through Rules 1.11, 1.7, and 1.9 case by case, with screening and notice where required; simultaneous representation o…
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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.