Yes. “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b).” MO R BAR Rule 4-1.6.

N/A

There is no distinction between applying the rules to civil or criminal proceedings. An attorney may disclose information related to representation to the extent the lawyer believes necessary to comply with court order or other law. If the law supersedes the professional rules of conduct and requires disclosure, the rule permits a lawyer to make such disclosures. MO R BAR Rule 4-1.6(b)(4).

Missouri follows the ruling in Diversified Industries v. Meredith, where the court upheld a subject-matter test, which is similar to the Upjohn test. 572 F.2d 596 (8th Cir. 1977).

An attorney representing an individual is prohibited from disclosing “information relating to the representation of a client” in the course of securing legal advice, while in-house counsel for a corporation may assert privilege when the following are met: “(1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee's corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.” Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977).

In-house counsel may assert the privilege when the following are met: (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee's corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977).

Rule 8.105 provides for limited admission in Missouri of a lawyer licensed in another United States or foreign jurisdiction who is employed in Missouri as a lawyer exclusively for a corporation, its subsidiaries or affiliates, an association, a business, or a governmental entity, whose lawful business consists of activities other than the practice of law or the provision of legal services.

Yes. See State ex rel. Winkler v. Goldman, 485 S.W.3d 783, 790 (Mo. Ct. App. 2016).

The “common interest” doctrine allows parties with a community of interests to preserve the privilege's protections where the parties had “joined forces for the purpose of obtaining more effective legal assistance.” State ex rel. Winkler v. Goldman, 485 S.W.3d 783, 790 (Mo. Ct. App. 2016) (citing Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D.Cal.2007)).

Missouri case law does not specifically state that such agreements must be in writing. See Green Edge Enterprises, LLC v. Rubber Mulch, LLC, No. 4:02CV566TIA, 2006 WL 2623855, at *1 (E.D. Mo. Sept. 12, 2006).

Generally, it is permissible for the law firm to borrow money from a third party to fund litigation. However, it is not permissible for the repayment of the loan to be based on the outcome of the lawsuit. An attorney cannot engage in champerty or maintenance. The elements of champerty are “(1) an agreement by one with no interest in a lawsuit of another (2) to support or maintain the litigation at his own expense (3) in exchange for a part of the litigated matter in the event of a successful conclusion of the cause.” Schnabel v. Taft Broadcasting Company, Inc., 525 S.W.2d 819, 825 (Mo. App. W.D. 1975). Maintenance of litigation requires proof that a non-party to a suit maintains or assists either party, with money or otherwise, in prosecuting or defending the suit. Macke Laundry Serv. Ltd. v. Jetz Serv., 931 S.W.2d 166, 183 (Mo. App. W.D. 1996).

MO R BAR Rule 4-1.8: A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

1. a lawyer may advance court costs and expenses of litigation, including medical evaluation of a client, the repayment of which may be contingent on the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

A lawyer shall not accept compensation for representing a client from one other than the client unless:

1. the client gives informed consent;
2. there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
3. information relating to representation of a client is protected as required by Rule 4-1.6.

See Rule 4-1.8: “A lawyer shall not accept compensation for representing a client from one other than the client unless…information relating to representation of a client is protected as required by Rule 4-1.6.”

Yes. Missouri courts will apply a two-prong test: First, the seeking party must make a prima facie showing that the privileged party has committed a crime or fraud. Second, the seeking party must demonstrate that the privileged information bears a direct and contemporaneous relationship to the crime or fraud alleged. State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 608 (Mo. 1993).

Disclosure is not appropriate where there has been no prima facie showing that the legal advice was obtained in furtherance of illegal activity. The client had to have been engaged in the illegal activity when seeking advice of counsel to further the activity. State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 608 (Mo. 1993) (The Missouri Supreme Court did not hold in Clark that this exception applied in a civil context, and expressly did not decide that issue in that case).

Mo. Sup. Ct. R. 56.01: Trial Preparation: Materials. Subject to the provisions of Rule 56.01(b)(6), a party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recordings, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded.

“In order to invoke work product protection, the party opposing discovery ‘must establish, via competent evidence, that the materials sought to be protected (1) are documents or tangible things, (2) were prepared in anticipation of litigation or for trial, and (3) were prepared by or for a party or a representative of that party.’” State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. 2004).

The doctrine protects tangible (trial preparation documents, written statements, briefs) and intangible (mental impressions, conclusions, legal opinions) work from disclosure. Id.

Mo. Sup. Ct. R. 56.01
(9) Claiming Privilege or Protecting Trial Preparation Materials.

(A) Information produced.

(i) If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (ii) An attorney who receives information that contains privileged communications involving an adverse or third party and who has reasonable cause to believe that the information was wrongfully obtained shall not read the information or, if he or she has begun to do so, shall stop reading it. The attorney shall promptly notify the attorney whose communications are contained in the information to return the information to the other lawyer and, if in electronic form, delete it and take reasonable measures to assure that the information is inaccessible. An attorney who has been notified about information containing privileged communications has the obligation to preserve the information.

(B) The production of privileged or work-product protected documents, electronically stored information or other information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in the proceeding.

Yes, see MO Rev Stat § 326.322.

1. Except by permission of the client for whom a licensee performs services or the heirs, successors or personal representatives of such client, a licensee pursuant to this chapter shall not voluntarily disclose information communicated to the licensee by the client relating to and in connection with services rendered to the client by the licensee. The information shall be privileged and confidential, provided, however, that nothing herein shall be construed as prohibiting the disclosure of information required to be disclosed by the standards of the public accounting profession in reporting on the examination of financial statements or as prohibiting disclosures in investigations, in ethical investigations conducted by private professional organizations, or in the course of peer reviews, or to other persons active in the organization performing services for that client on a need-to-know basis or to persons in the entity who need this information for the sole purpose of assuring quality control.

2. A licensee shall not be examined by judicial process or proceedings without the consent of the licensee's client as to any communication made by the client to the licensee in person or through the media of books of account and financial records, or the licensee's advice, reports or working papers given or made thereon in the course of professional employment, nor shall a secretary, stenographer, clerk or assistant of a licensee, or a public accountant, be examined, without the consent of the client concerned, regarding any fact the knowledge of which he or she has acquired in his or her capacity as a licensee. This privilege shall exist in all cases except when material to the defense of an action against a licensee.

Yes, see MO Rev Stat § 435.014.

1. If all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration, conciliation or mediation, then no person who serves as arbitrator, conciliator or mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the arbitration, conciliation or mediation.

2. Arbitration, conciliation and mediation proceedings shall be regarded as settlement negotiations. Any communication relating to the subject matter of such disputes made during the resolution process by any participant, mediator, conciliator, arbitrator or any other person present at the dispute resolution shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.

Yes, see MO R BAR Rule 17.06.

(a) An alternative dispute resolution process undertaken pursuant to this Rule 17 shall be regarded as settlement negotiations. Any communication relating to the subject matter of such dispute made during the alternative dispute resolution process by a participant or any other person present at the process shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such process shall be admissible as evidence or subject to discovery, except that, no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication.

(b) No individual or organization providing alternative dispute resolution services pursuant to this Rule 17 or any agent or employee of the individual or organization shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the alternative dispute resolution process.

(c) Settlement shall be by a written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process.

(d) An individual or organization providing alternative dispute resolution services pursuant to this Rule 17 or any agent or employee of the individual or organization may be called in an action to enforce the written settlement agreement reached following the conclusion of the alternative dispute resolution process for the limited purpose of describing events following the conclusion of the alternative dispute resolution process.