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QUESTION. A Prosecuting Attorney in this state submits thefollowing question and asks the opinion of the Committee:

A man and wife disagreed, and the wife was either forced to orvoluntarily left their home with her new-born baby. She filed a criminalcharge against her husband, alleging non-support of herself and child. Thecriminal case is now pending. Her husband then sued for a divorce. Thewife, as the defendant in the divorce action, seeks to retain the prosecutingattorney to defend her in the civil action. The prosecuting attorney asks theCommittee for its opinion as to whether it would be unethical for him toaccept a retainer and represent the wife in the divorce suit.

ANSWER: The Advisory Committee is of the opinion that it wouldbe unethical for the prosecuting attorney to accept civil employment torepresent the wife in this case, since undoubtedly the facts that come to theprosecuting attorney's knowledge by reason of his official position will betaken advantage of by him in representing the wife in this privateemployment.

Furthermore, a prosecuting attorney is vested by law with adiscretion to bring or to dismiss prosecution. He is bound to refuse to bringprosecutions which he knows are legally unfounded. He is bound to dismissprosecutions which have been brought, and which he later finds to belegally unfounded. Throughout the course of investigation, institution ofcriminal actions and maintenance thereof the prosecuting attorney mustrefuse to accept civil employment which is likely to cause him to be unableto justly and fairly exercise his discretion to bring or dismiss unfoundedprosecutions. By becoming an advocate in a civil action involving the veryissue which would influence the exercise of his discretion as a public officialhe places himself in a position where he cannot fairly exercise thatdiscretion.

In addition the injury which results to a person rightfully orwrongfully prosecuted and the fear of punishment are of such importanceto the individual that coercion may be easily practiced upon him by one whohas the power to prosecute. Therefore, a prosecuting attorney shouldrefrain from accepting employment in a civil case under circumstanceswhere investigation or prosecution of the opposite party gives him aposition of undue influence in the civil action.

Public policy forbids a prosecutor from profiting by informationgained in the course of the performance of his duties as a public official. Itis improper for a lawyer who has held public employment to acceptemployment after his retirement in any matter which he investigated orpassed upon in such public employment or office. If he cannot accept suchemployment after retirement, it would be improper for him to acceptemployment before retirement.

Canon 7 DR7-105(A); [Rule 4 1.7(b); 1.11; 8.4(e)]





QUESTION: May a lawyer who was formerly Prosecuting Attorneyof a County and prosecuted one of three persons charged generally withmurder, after retirement from office, defend one of the alleged murderers?

ANSWER: The Advisory Committee is of the opinion that this isprohibited by Section 558.310, RSMo of the Revised Statutes of Missouriand Rule 4 of the Supreme Court of Missouri.

[Rule 4 1.7(b); 1.9; 1.11]





QUESTION: Is it ethical, legal and lawful for a Circuit, CourtPresiding Judge to accept a felony case wherein the two attorneys involvedare of blood relationship, being "Father" and "Son"?


[See Code of Judicial Conduct; Rule 2]





(Withdrawn 12/31/94).





QUESTION: May a member of the force of the Attorney Generalbe appointed appraiser in inheritance tax cases?

ANSWER: The Revised Statutes of 1939 of Missouri make theAttorney General the Attorney for the Department of Revenue ininheritance tax proceedings; it would therefore be improper to appoint anAssistant Attorney General in such cases.

[Rule 4 1.7]





QUESTION: Is it proper for a judge of record in this state to act ascampaign manager for (a) another political candidate (b) another Judge?

ANSWER: The answer to both (a) and (b) is No. The American BarAssociation adopted Canons of Judicial Ethics, paragraph 28 of whichprovides:

"Partisan Politics While entitled to entertain his personal viewsof political questions, and while not required to surrender his rights oropinions as a citizen, it is inevitable that suspicion of being warped bypolitical bias will attach to a judge who becomes the active promoter of theinterests of one political party as against another. He should avoid makingpolitical speeches making or soliciting payment of assessments or contributions to party funds, the public endorsement of candidates for politicaloffices and participation in party conventions. He should neither accept norretain a place on any party committee nor act as party leader nor engagegenerally in partisan activities." (Vol. 62 A.B.A. Reports, page 1132, 1937).

The 1945 Constitution of the State of Missouri (Section 29,f)provides:

"Prohibition of Political Activity by Judges. No judge of any courtof record in this state appointed to or retained in office in the mannerprescribed in Section 29 (a) - (g), shall directly or indirectly make anycontribution to or hold any office in a political party or organization, or takepart in any political campaign."

See Supreme Court Rule 12.

[See Code of Judicial Conduct; Rule 2]





QUESTION: Some thirteen or fourteen years ago, at the requestof the Governor, a Missouri lawyer was appointed Special AssistantAttorney General to prosecute a band of bank robbers. All were prosecutedto the ultimate conclusion. One was convicted and given a term of ten yearsin the Missouri Penitentiary. While out on a bond pending appeal which wasnever perfected, this party was arrested on a Federal charge, convicted andhas served a term in Leavenworth. He will be released next year and hisfamily desires to employ the Missouri lawyer who prosecuted him in thefirst instance, to investigate and possibly make application for a parole fromthe Missouri Penitentiary sentence above mentioned. Is acceptance of suchemployment proper?


[Rule 4 1.9]





(Withdrawn 12/31/94).





(Withdrawn 12/31/94).





QUESTION: A Missouri lawyer is elected Circuit Judge. At thetime of his election he is a member of a law firm which has cases pending inother circuits than the one to which the lawyer is elected judge and theAppellate Courts. Under these circumstances is it proper for this lawyer tosit in the trial of these cases after his taking the Bench?


[See Code of Judicial Conduct; Rule 2]





QUESTION: Lawyer A. tried a suit for personal injuries representing plaintiff against X Corporation, the jury returning $5,000.00 verdict forplaintiff. X Corporation filed motion for new trial alleging usual grounds.Then X Corporation filed supplemental motion for a new trial alleging thatJuror W was disqualified because Juror W was an alien, had a previousfelony conviction and served penitentiary sentence. No questions asked onvoir dire on such disqualifications, and such statements were thereforeprobably not privileged and became immaterial having been waived. LawyerA contacted Juror W to investigate allegations of disqualification of JurorW denied all allegations and produced proof of birth in U.S., and service inArmed Forces at time of alleged confinement in penitentiary. Juror Wrequested Lawyer A to represent him in suit against X Corporation for libel.Further investigation by Lawyer A proved allegations against Juror Wuntrue. After two months investigation following filing of supplementalmotion, X Corporation withdrew supplemental motion stating in court thatallegations about Juror W were not true. An employee of X Corporation,conducting an investigation of Juror W, stated orally that Juror W was analien and an ex-convict. Motion for new trial granted on other grounds, andpersonal injury ease presently awaiting re-trial. Would it be unethical forLawyer A to represent Juror W in suit against X Corporation for libel andslander?

ANSWER: The Advisory Committee is of the opinion that it wouldnot be unethical for Lawyer A to represent Juror W in suit against XCorporation for libel and slander.

[Rule 4 1.7]





QUESTION: May a lawyer, under Supreme Court Rule 4, who isa testamentary trustee, legally become the attorney and counsel of theExecutor of the trust estate, without the previous "expressed consent of allconcerned given after a full disclosure of the facts?"

ANSWER: Yes, unless or until there arises a conflict of interests ascontemplated under said Rule 4.

[Rule 4 1.7]





QUESTION: Applicants at a municipally maintained Free Legal AidBureau lacking qualification entitling them to legal assistance by theBureau, are told to employ an outside lawyer. WheN they ask to be referredto a lawyer, in some cases are told to consult a lawyer who is connected withthe bureau on a part time voluntary basis, without compensation. Thislawyer is sometimes the one to whom the applicants first apply forassistance at the Bureau. Such reference frequently results in the applicantemploying the lawyer, who then represents him in his private capacity fromhis own office. Is it proper for the lawyer to accept employment under thesecircumstances?


[Rule 4 1.7(b); 7.3(b)]





QUESTION: (a) Is it proper and ethical for a lawyer representinga plaintiff in a divorce case to prepare waiver of issuance of summons andentry of appearance and forward same with a copy of the petition todefendant with request that he sign it before a Notary Public of hischoosing and return to plaintiff's attorney for filing in Court?

(b) Is it proper for plaintiffs lawyer to prepare an answer for thedefendant, incorporate it in the above mentioned waiver and entry ofappearance and forward it to defendant with a copy of the petition forsigning before a Notary Public with the request to return it to plaintiff'sattorney for filing in Court?

ANSWER: (a) Yes. (b) No. (Note: Modified by Formal Opinion 109below.)

[Rule 4 1.7; 4.3]





QUESTION: Would it be proper and ethical for the duly electedProsecuting Attorney of a Missouri County, to represent a landowner ofanother County in a condemnation suit brought to condemn the owner'sland for highway purposes, such suit being brought by the State HighwayCommission of Missouri?


[Rule 4 1.7]





QUESTION: (1) Opinion 48 of the Missouri Advisory Committeestates that an Assistant Attorney General cannot ethically serve as anappraiser in Missouri Inheritance Tax proceedings. In view of this opinion,could any of the following properly be appointed?

(a) A partner of an Assistant Attorney General?

(b) The employer (who is a lawyer) of an Assistant AttorneyGeneral?

(c) The employee (who is a lawyer) of an Assistant AttorneyGeneral?

(2) The Revised Statutes of 1949 of Missouri make the AttorneyGeneral the attorney for the Industrial Commission. In view of this statute,Section 287.620, could any of the following ethically accept employment inWorkmen's Compensation cases or prevailing wages on public work cases:

(a) An Assistant Attorney General;

(b) A partner of an Assistant Attorney General;

(c) The employer (who is a lawyer) of an Assistant AttorneyGeneral;

(d) The employee (who is a lawyer) of an Assistant AttorneyGeneral.

(3) Would it be ethical and proper for an Assistant AttorneyGeneral, his partner, employer (who is a lawyer), or employee (who is alawyer) to accept employment on behalf of a defendant in any of thefollowing cases:

(a) Condemnation suit brought by the Missouri Highway Department;

(b) Any matter involving violation of the liquor control law;

(c) State criminal prosecution;

(d) Federal criminal prosecution;

(e) Municipal prosecution for ordinance violation.

ANSWER: Under the Constitution and Statutes, The AttorneyGeneral is the Chief Legal Officer for the State of Missouri and all StateDepartments and Bureaus. While in actual practice some State Departments and Bureaus have their own legal counsel, the Attorney General isstill their Chief Legal Counsel. Under such circumstances, for obviousreasons the Attorney General may not with propriety represent partiesother than the State before State Departments and Bureaus of StateGovernment.

An Assistant Attorney General acts for the Attorney General andin his name. While the Statutes provide for Assistant Attorneys General,in practice Special Assistant Attorneys General are also appointed inMissouri. Assistant Attorneys General are by law of only one class, excepta person appointed a Special Assistant Attorney General for one case only,and they act under and by appointment and authority of the AttorneyGeneral. It follows that Assistant Attorneys General and Special AssistantAttorneys General cannot ethically represent parties other than the Statebefore State Agencies.

The Attorney General holds a public office by election and he andhis appointed assistants must avoid all conduct which might lead the publicto infer that an attorney is utilizing an official position to further theattorney's professional or personal interests or representing interestsrespecting which there is a possibility of a conflict of interest, either publicor private. A law firm may not render professional services with regard toany matter which any partner, associate or employee could not properlyperform. Whether a Special Assistant appointed for one case only is subjectto the foregoing would depend upon the facts and circumstances involved.

For the foregoing reasons, the Advisory Committee answers yourvarious questions as follows:

(1) (a) No.

(b) No.

(c) No.

(2) (a) No.

(b) No.

(c) No.

(d) No.

(3) (a) No.

(b) No.

(c) No.

(d) No.

(e) No.

[Rule 4 1.7]



QUESTION: Is it ethically proper for a Missouri lawyer to act as"Attorney-in-Fact" and sign bonds as agent for a surety or bondingcompany?

ANSWER: The Advisory Committee agrees with American BarAssociation Informal Opinion 45, which holds a lawyer may be the agent ofa bonding company and write formal bonds in cases he is in, but should notwrite large bonds where the clients' adverse interest might lead him to takea chance at the expense of the bonding company. The Committee holds thatthe lawyer so acting must fully disclose to his client his connection with suchbonding company and the fact he gets a fee for signing as such "Attorney-in-Fact."

The Committee holds it not improper to write bonds in cases inwhich the lawyer is not of counsel.

Under no circumstances should the writing of bonds be engaged inby a lawyer to directly or indirectly induce professional employment.

[Rule 4 1.7]





QUESTION: Is it ethical for a Missouri lawyer to suggest to a clientfor whom he is drafting a will to provide that the lawyer-draftsman benamed as attorney for the executor?

ANSWER: The Advisory Committee is of the opinion that it isunprofessional for a lawyer drafting a will to suggest that he be named inthe will as attorney for the executor.

Canon 2 DR2-103; [Rule 4 1.7]





QUESTION: (1) Is it proper for a licensed Missouri attorney whois also serving on a part time basis as Deputy Juvenile Officer to representpersons who are not juveniles accused of misdemeanors or felonies in theMagistrate and Circuit Courts of the county where he serves? (2) Is theopinion the same as to the Courts in other counties of the State ofMissouri?

ANSWER: The Advisory Committee is of the opinion that it isimproper for a licensed Missouri attorney serving as a Juvenile Officer,whether for a circuit or as a deputy, to represent any person charged witha misdemeanor or a felony in any of the courts of the State of Missouri.Adopted October 11, 1973.

[Rule 4 1.7]




QUESTION: (1) Is there a conflict of interest which prohibits aCity Attorney from representing a defendant in a criminal case growing outof a situation which arises within the boundaries of the city? (2) Is there aconflict if the situation arises outside the boundaries of the city?

ANSWER: The Advisory Committee is of the opinion that a conflictof interest does exist in both situations set out in Questions 1 and 2 if oneof the duties of the City Attorney is to prosecute violations of the cityordinances of the city. If this were not the ruling, the City Attorney couldrefuse to prosecute under the ordinance and then accept representation inthe defense of a criminal case if one were filed.

ABA Formal Opinion #34 holds there is an inherent conflictbetween a City Attorney's public duty where he prosecutes violations of cityordinances and the representation of criminal defendants. It is a conflictwhich cannot be resolved by consent of the parties because the publiccannot consent. The opinion makes no distinction between cases arisingwithin the confines of the city and cases arising outside its boundaries.

Canon 9, Rule 4, states, "A lawyer should avoid even the appearance of professional impropriety." The Committee is of the opinion that theprosecution of ordinance violations and simultaneous representation ofdefendants in criminal cases gives the public an impression of lawyersdetrimental to the legal profession and it should not be allowed.

Adopted November 2, 1973



The Advisory Committee, Missouri Bar Administration, at ameeting on January 11, 1974, concluded that part of Formal Opinion #107as it pertains to Question #2 set out in the opinion should be withdrawn forreconsideration by the Committee. The answer to Question #1 stands asadopted on November 2, 1973, and reaffirmed on January 11, 1974.

[Rule 4 1.7]




QUESTION: May a Prosecuting Attorney in the course of hisprivate law practice, represent clients who are parties to an action broughtunder Chapter 452 effective January 1, 1974? Is there a conflict of interestwith the duties of the Prosecuting Attorney set out in paragraphs 4, 5 and6 of Section 10 of said chapter?

ANSWER: It is the opinion of the Advisory Committee that thereis no inherent conflict between the duties of the Prosecuting Attorneyunder the bill and the representation of a party to an action brought underthe bill in the first instance. In other words, the Prosecuting Attorney canethically represent a party in an original divorce action under the provisionsof said bill. If, however, after the termination of the original divorce action,the Prosecuting Attorney is called upon to fulfill his duties under Section10 and if at that time a conflict of interest exists, then, of course, theconflict must be resolved. It might be accomplished by withdrawal asattorney for the private client, the request for appointment of a specialProsecutor in that particular case, or both, depending upon the circumstances.

Adopted December 6, 1973.

[Rule 4 1.7]




QUESTION: Under Missouri's Dissolution of Marriage law, whichwent into effect January 1, 1974, is it ethically proper for an attorney todraw a joint petition for signature by both parties to a marriage?

ANSWER: The Advisory Committee is of the opinion that it isethical for an attorney to draw a joint petition for Dissolution of Marriageprovided the parties are in agreement on all things and the attorney makesit clear that he represents only one of the petitioners. If disagreementsarise, then he must advise the unrepresented petitioner to consult othercounsel.

The Advisory Committee has reached this conclusion because of thechange in the law of Missouri and to the extent the opinion expressedherein conflicts with Formal Opinion #82, said Formal Opinion #82 ishereby modified.

Adopted March 28, 1974.

[Rule 4 1.7]




QUESTION: (1) Is it proper for a prosecuting attorney in the stateof Missouri to engage in the defense of prosecutions of violations ofmunicipal ordinances, either in the county for which he is elected or anyother county? (2) In the event the answer to Question 1 is "No", would it beproper for a law partner of the prosecuting attorney to engage in suchdefense work?

ANSWER: The Committee is of the opinion that it is improper fora prosecuting attorney to defend prosecutions of violations of municipalordinances. While it is true that such actions are historically classed asquasi-criminal, and thus civil in nature, the general public does not know orunderstand this fine line of distinction drawn by judicial opinions. Thus, tothe public a person charged in Municipal Court is no less a defendant thanone charged in Magistrate Court. To be a prosecuting attorney on one handand defending a municipal charge on the other gives the appearance ofimpropriety in contravention of Canon 9, Rule 4, Supreme Court ofMissouri.

There are additional ethical prohibitions if the municipality iswithin the county for which the prosecuting attorney is elected. Many actswhich violate municipal ordinances also violate the laws of Missouri whichthe prosecuting attorney is sworn to uphold. Thus, there might be a dutyto prosecute the very charge under state law which he was defending undermunicipal ordinances. Clearly, this violates the basic principles of legalethics. In addition, such conduct puts in jeopardy the close workingrelationship of the prosecuting attorney and municipal police officersnecessary for effective law enforcement.

It has been consistently held that a lawyer's partner is prohibitedfrom representation which is prohibited to the lawyer himself. The AdvisoryCommittee reiterates that ruling here.

Thus, since, in the opinion of the Advisory Committee, Question #1must be answered in the negative, so, too, must Question #2 be answeredin the negative.

Adopted June 14, 1974.

[Rule 4 1.7; 1.10]


(Opinion omitted. See Notes on Use.)


QUESTION: Can a director (who is an attorney) sell land to thecorporation, if he makes a full disclosure to the board of directors and doesnot vote and his presence is not needed for a quorum?

ANSWER: Yes. The committee has the view that the director isacting in his capacity as a member or the board of directors and he is notacting as the attorney for the corporation. The committee assumes therehas been no usurpation of the corporate opportunity by the director in theacquisition of the land by the director in the first instance. RenderedJanuary 24, 1977.

[Rule 4 1.7]


QUESTION: Can partners of a present Missouri prosecutingattorney undertake the defense of criminal cases outside the State ofMissouri?

ANSWER: Yes, rendered January 24, 1977.

[Rule 4 1.7; 1.10]


(Opinion omitted. See Notes on Use.)


QUESTION: Can a member of the firm assist in a motion to modifya decree on behalf of the respondent if another member of the firm was ofcounsel for the petitioner at the time when the original decree was entered?

ANSWER: No. The fact that no evidence of any activity that tookplace prior to the original decree is not admissible on the motion to modifyis not controlling. Rendered March 7, 1977. Modified March 31, 1995.

[Rule 4 1.9(a); 1.10]


(Opinion omitted. See Notes on Use.)


QUESTION: Can a prosecuting attorney, whose term expiresDecember 31, 1976 and who does not seek reelection, represent thedefendant after January 1, 1977, on charges arising from an alleged offensewhich occurred on December 3, 1976?

ANSWER: No. The committee unanimously is of the opinion thatsuch representation would give a clear appearance of impropriety since thisalleged offense occurred during the prosecuting attorney's term of office.This is true even though the prosecuting attorney did not participate in anyofficial investigation of the alleged crime nor request any reports thereon.Rendered March 27, 1977.

[Rule 4 1.7; 1.9]


(Opinion omitted. See Notes on Use.)


QUESTION: What steps should be taken by Attorney "A" who hasshared office space with Attorney "B" for a number of years and Attorney"A" is about to become the City Attorney of a small city? Can Attorney "A"continue to represent a client before the City's Board of Aldermen on azoning question?

ANSWER: No. Attorney "A" is not permitted to represent saidformer client before the Board of Aldermen on the zoning question or anyrelated matter in the City Municipal Court for alleged violation of operatinga commercial establishment in violation of zoning ordinance. Attorney "B"can not represent said client, because it appeared to the public thatAttorneys "A" and "R" were partners by use of their joint letterhead andoffice signs.

In the future, if steps are taken to indicate to the general publicthat Attorneys "A" and "B" are sole practitioners and are not in factpartners, then it would nut be improper for Attorney "B" to representclients before a city board or in the municipal court while Attorney "A" isCity Attorney. Rendered May 31, 1977.

[Rule 4 1.7; 7.5(e)]


QUESTION: Can a Prosecuting Attorney of one county ethicallyrepresent a client in another county where the Prosecuting Attorney of thatcounty is pursuing a motion for contempt against the client pursuant to thedissolution law?

ANSWER: No. The committee feels that since it is an official actionby the Prosecuting Attorney pursuant to law, it would give a clearappearance of impropriety for one Prosecutor to be defending a motion forcontempt brought by another Prosecutor as a part of his official duties.Rendered June 30, 1977.

[Rule 4 1.7]


QUESTION: A driver and his passenger are represented by thesame law firm in separate suits arising from a rear-end collision whichoccurred in September 1974. In December of 1974, these same individualsare involved in a similar rear-end collision and as a result their prior injurieswere aggravated. In November 1976, P (passenger) was riding with D(driver) and involved in a wrong side of road collision receiving an additionalinjury to the cervical area of her body. The driver's cases resulting from the1974 collisions have been settled and P's cases from the two 1974 rear-enders remain pending. Can the law firm represent P in a combined lawsuitagainst all drivers for injuries received by her in all three collisions?

ANSWER: Yes, provided P and D, after a full disclosure, consentto this representation by the law firm. Rendered July 29, 1977.

[Rule 4 1.9]


QUESTION: What should the Prosecuting Attorney do whenpossible conflicts occur between his official duties and his duties as a privateattorney engaged in civil litigation under the following fact situations:

1. Prosecuting Attorney representing plaintiff. Plaintiff vs.Defendant in a civil action.

a. P raises a criminal charge vs. D What should P.A. do?

b. D raises a criminal charge vs. P What should P.A. do?

c. 3rd party raises a criminal charge vs. P What should P.A. do?

d. 3rd party raises a criminal charge vs. P What should P.A. do?

2. Prosecuting Attorney representing Defendant. Plaintiff vs.Defendant in a Civil Action.

a. P raises a criminal charge vs. D What should P.A. do?

b. D raises a criminal charge vs. P What should P.A. do?

c. 3rd party raises a criminal charge vs. D What should P.A. do?

d. 3rd party raises a criminal charge vs. P What should P.A. do?

ANSWER 1. a.: The Prosecuting Attorney should disqualify himselfand request the appointment of a Special Prosecuting Attorney by theCourt. The Prosecutor can continue with the civil case and let the SpecialProsecutor investigate and decide whether or not to file the criminal case.

ANSWER 1. b.: The Prosecutor should disqualify himself andrequest the appointment of Special Prosecuting Attorney by the Court. TheSpecial Prosecutor should investigate and file the criminal case if justified.The Prosecutor can continue in the civil case but, of course, cannot defendthe criminal case.

ANSWER 1. c.: If there is any connection with the civil case, thesame procedure as 1. a. and 1. b. If no connection, the Prosecutor can stayin the civil case if in his judgment his decision is not influenced by the factof civil representation. The Prosecutor should understand that this coursemight make him vulnerable to public criticism as "giving the appearance ofimpropriety."

ANSWER 1. d.: Same as 1. b. above.

ANSWER 2. a.: Same as 1. b. above.

ANSWER 2. b.: Same as 1. a. above.

ANSWER 2. c.: Same as 1. b. above.

ANSWER 2. d.: Same as 1. c. above.

Rendered August 2, 1977.

[Rule 4 1.7]


QUESTION: Can a former member of quasi-judicial governmentalcommission, after resigning said position, thereafter appear as counsel onany matters which were on file with said commission prior to his resignation?

ANSWER: The former commission member is disqualified fromaccepting employment in any matters upon which the commission had actedupon the merits during this term of office and any other matter which thecommissioner had primary responsibility of seeing that it went forward toa proper conclusion.

In any other case, the mere fact that the matter was on file duringhis term of service without more, doesn't disqualify the former member inevery instance. The former lawyer-commissioner should consider in everysuch case before accepting employment whether or not his prior personalparticipation might raise some question of propriety. In every case involvingmore than mere procedural matters by the former member personally, heshould seriously consider refusing said employment. Rendered August 2,1977.

[Rule 4 1.7(b)]


(Withdrawn 1/26/90).


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: A. Is it proper for a Municipal Judge, or his partneror associate, to represent a defendant in a state criminal charge where thealleged facts leading to the criminal charge occurred within the municipalitywhere the attorney is the Municipal Judge?

QUESTION: B. Is it proper for a Municipal Judge, or his partneror associate, to represent a defendant in a state criminal charge where thealleged facts pertaining to the criminal charge occurred outside of themunicipality where the lawyer serves as Municipal Judge?

ANSWER A: It is the opinion of the Advisory Committee that theMunicipal Judge and his partners and associates cannot ethically defend astate criminal case which arises within the boundaries of the city for whichhe is the Municipal Judge.

ANSWER B: If the matter arises outside the jurisdiction for whichhe is the Municipal Judge, then the Municipal Judge, his partners orassociates, can represent the defendant in the state criminal case. RenderedOctober 28, 1976. Reaffirmed on October 4, 1977.

[Rule 4 1.7(b)]


QUESTION: Can Attorney B represent clients in the MunicipalCourt under the following facts? Attorney B is by city ordinance a full CityJudge, who can serve in the absence or in the case of incapacity of AttorneyA.

ANSWER: It is the opinion of the Committee, that since AttorneyB is designated as associate City Judge by ordinance to serve in the absenceor in the case of incapacity of Attorney A, that Attorney B would beprecluded from representing clients in the Municipal Court. RenderedOctober 21, 1977.

[Rule 4 1.7]


QUESTION: Is the practice of a lawyer-member of the CountyCourt of a 1st class county limited before the Magistrate, Probate or CircuitCourts of said county?

ANSWER: No. It is the opinion of the Advisory Committee thatsuch a position would not limit the right of the attorney to practice beforethe Magistrate Court, Probate Court or the Circuit Court of the county. Ofcourse, if the lawyer-member attempted to use his position as a CountyCourt Judge to influence the Judges of any other court, that would beunethical conduct. Rendered October 24, 1977.

[Rule 4 1.7(b)]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: A. Can a prosecutor or assistant prosecuting attorneyof a 2nd or 3rd class county accept employment in civil litigation, either forthe plaintiff or the defendant, arising out of a set of facts in which apatrolman issued a summons in that county?

B. Can these attorneys accept such employment after there hasbeen a final disposition of the case?

C. Would the answers to above questions A and B be different oraffected by any of the following facts:

(1) if the defendant enters a routine guilty plea which is acceptedby the prosecutor and the court?

(2) if the case is dismissed by the prosecutor for lack of sufficientevidence?

(3) if the prosecutor tries the defendant and the court finds thedefendant innocent?

ANSWERs: A. No; B. No; C.(1) No. (2) No. (3) No. RenderedJanuary 13, 1978.

[Rule 4 1.7(b)]


(Opinion omitted. See Notes on Use.)


QUESTION: An associate of law firm became an assistantprosecuting attorney in January, 1978. At that time the firm had pendingtwo cases involving condemnation proceedings with the State HighwayDepartment in which the firm represented the condemnee. The firm, atthat time, had a church client involved in a tax dispute with the countyassessor. (1) Does the first have a conflict in these cases based upon theassociate's position as an assistant prosecuting attorney? (2) Can the firmcontinue to represent the foregoing clients if the associate promptly resignsthat position?

ANSWER: (1) The firm does have a conflict in each of the abovecases and if the associate retains his position as assistant prosecutingattorney, the firm will have to withdraw from each case.

(2) If the associate promptly resigns from his position as assistantprosecuting attorney and has served only 30 days in that position, theconflicts problem for the firm is eliminated and the firm may continue torepresent those clients. This assumes no information has passed either wayconcerning these cases. Rendered January 30, 1978.

[Rule 4 1.7(b)]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: A present part-time municipal judge of a city presentsthe following questions:

1. Is it proper for an attorney who is presently Municipal Judge inone city within the county to accept the position of City Counselor inanother city within the same county where all prosecutions for violations ofcity ordinances are made by a separate City Attorney and not by the CityCounselor?

2. Is it proper for an attorney who is presently Municipal Judge ona part-time basis in one city within the county

(a) to accept indigent appointments in criminal cases in theMagistrate and Circuit Courts within same county?

(b) to accept employment in criminal cases in the Magistrate andCircuit Courts within the same county?


1. Yes. It is the conclusion of the Committee that if the CityCounselor of a city within the county where the attorney is presentlyMunicipal Judge does not prosecute any violations of city ordinances anddoes not have the duty of handling any appeal taken from convictions forsuch prosecutions, there would be no objections to the same attorneyholding the position of Municipal Judge of one city in the county and CityCounselor in another city in the same county.

2. (a & b) No, if the matter arises within the boundaries of the cityfor which he is Municipal Judge; Yes, if the matter arises outside of theboundaries of the city. It is immaterial whether the defendants are indigentor employ the attorney. Rendered February 23, 1978.

[Rule 4 1.7(b)]


(Opinion omitted. See Notes on Use.)


QUESTION: Is it proper for an attorney who is presently MunicipalJudge on a part-time basis in one city within the county?

(a) to accept indigent appointments in criminal cases in theMagistrate and Circuit Courts within same county?

(b) to accept employment in criminal cases in the Magistrate andCircuit Courts within the same county?

ANSWER: (a & b) No, if the matter arises within the boundariesof the city for which he is Municipal Judge; Yes, if the matter arises outsideof the boundaries of the city. It is immaterial whether the defendants areindigent or employ the attorney. Rendered February 23, 1978.

[Rule 4 1.7(b)]


(Opinion omitted. See Notes on Use.)


QUESTION: An attorney is appointed as a member of the Boardof Police Commissioners and his appointment was confirmed by the countycouncil.

Is the attorney prevented from appearing before the county councilin an unrelated private civil matter?

ANSWER: No. There is no conflict of interest in the representationof private clients in matters which must be passed upon by the countycouncil, even though the attorney's appointment had to be confirmed by thecouncil. Rendered April 6, 1978.

[Rule 4 1.7]

C.ofInt. -59

QUESTION: Can a City Attorney undertake to defend a criminalcase which arose within the corporate limits of said city under the followingcircumstances?

The attorney before agreeing to accept the position, had a writtenresolution passed by the city council "that his duties did not include the dutyof prosecuting cases in municipal court." The City Judge every month filesa report containing this language, "The Court feels that it is not essentialfor the City Attorney to appear in Court each Court day." and the Judgestated upon the record "that he only required the presence of the CityAttorney in Court on those occasions that he (the Judge) would request."The City Attorney would undertake to advise the police officers inperformance of their duties.

ANSWER: No. See Formal Opinion 107. The Committee is of theopinion that before the city attorney could ethically undertake to representcriminal defendants for offenses occurring within the city limits it must bemade perfectly clear by resolution that such city attorney had no authorityto prosecute violations of city ordinances, as distinguished from no duty toprosecute such violations.

To avoid any appearance of impropriety, the city attorney's dutiesmust be confined to advising the mayor, council and other departmentheads and his duties should not include the duty to advise the city policedepartment concerning violations of city ordinances. Rendered May 22,1978.

[Rule 4 1.7(b)]


QUESTION: The attorney involved has previously represented thesole shareholder of a corporation and the corporation. He served upon itsboard of directors until after the shareholder's death. The shareholder diedintestate. After his death, the shareholder's former wife issued checks uponthe corporate account to pay medical and burial expenses of the soleshareholder.

The administrator of the shareholder's estate intends to file suit torecover on behalf of the corporation for the amounts paid out of corporatefunds. Does the fact that the attorney formerly represented the corporationprohibit him from defending suit on behalf of the former wife?

ANSWER: Yes. The attorney's prior representation of thecorporation and its sole shareholder and his service upon the board ofdirectors of the corporation does prevent him from defending the suit onbehalf of the former wife brought by said corporation.

The Committee does not attempt to answer the legal question ofthe attorney's possible personal liability to the corporation, if he hadknowledge while serving as a member of the board of directors and advisedthat such payment of corporate funds was permissible. Rendered May 22,1978.

[Rule 4 1.9(b)]


QUESTION: Can a prosecuting attorney, who prosecuted thealleged uninsured driver for leaving the scene of an accident, ethicallyundertake to represent the injured other driver in an action seeking torecover under that driver's uninsured motorist coverage?

ANSWER: No. The Committee is of the opinion that it is improperfor the attorney who has prosecuted the uninsured driver to undertake torepresent the injured other driver in a claim against his own insurancecarrier.

In addition to the general principle that a prosecuting attorneyshould not engage in any civil litigation for any party growing out of a set offacts which resulted in a criminal action of any person, it is the opinion ofthe Committee that the uninsured criminal defendant would have to be anamed party in the litigation to collect on the uninsured motorist coverage.Rendered May 22, 1978.

[Rule 4 1.7(b)]


QUESTION: The Committee has received requests from severalsources for an informal opinion under the following basic facts.

An associate of a law firm is employed by the county prosecutingattorney in a 3rd class county for the purposes of handling non-supportcases under the provision of Chapter 208, RSMo, as amended by laws 1977,H.B. No. 601 and the related federal statutes. The associate's only contactwith the prosecuting attorney's office is in connection with the collection ofnon-support and the associate has no relationship or involvement in anyother cases in that office.

1. Can the other members of the firm represent clients in civil oradministrative proceedings in front of or involving state agencies such asthe State Highway Commission, Division of Employment Security, etc.

2. Can the members of the firm accept employment in civil litigationeither for the plaintiff or defendant arising out of a set of facts in which apatrolman issued summons as set forth in informal opinion renderedJanuary 13, 1978?

3. Does employment as an attorney, but not as a prosecutingattorney for the circuit juvenile officer, produce the same results?

ANSWER: If the contract of employment for the associate of a lawfirm with the county clearly sets out the scope of his duties and clearlydelineates that the attorney has no other connection with the functions ofthe office of prosecuting attorney and he has no opportunity to gaininformation about any other function of the prosecuting attorney's office,then it is our conclusion that said attorney and other members of the firmcan represent clients in civil or administrative proceedings in front of orinvolving other state agencies (with the exception of the Division of FamilyServices). The attorney involved and other members of the firm canproperly accept employment in civil litigation arising out of facts which giverise to a criminal prosecution by the prosecutor.

We stress that the contract of employment should be in writing andit must be very specific to delineate the specific duties of his employmentand to screen that attorney from any other information available in theoffice of the prosecuting attorney.

The Committee has previously ruled that an attorney employed toadvise the circuit juvenile officer is not precluded from criminal defensework. The same rules would apply to civil litigation, assuming the sameparties and same set of facts are not involved as are involved in hisrepresentation of the juvenile officer. Rendered June 16, 1978.

[Rule 4 1.7; 1.10]


QUESTION: An attorney submits the following ethical problem forguidance from the Committee. He has previously been employed as thepublic defender in a rural outstate circuit. He now has filed and is the solecandidate for the office of prosecuting attorney of one of the counties inthat circuit.

1. Assuming his election as prosecuting attorney, may an assistantprosecuting attorney prosecute a case which was assigned to the publicdefender's office during his prior tenure as public defender, if he completelydivorces himself from the prosecution of such case and in no way participates in or discusses such case?

2. Would the Advisory Committee's opinion be affected by whetheror not the attorney had been actively involved in the handling of a givencase when he served as public defender?

ANSWER: See 7a and 7b above. This fact situation differs from thesituation present in that question. Here the attorney is not a member of thestaff of the prosecuting attorney's office or on the staff of the AttorneyGeneral's Office, but the attorney will himself be the elected prosecutingattorney. It is the opinion of the Advisory Committee that in both instancesset out above, the prosecuting attorney should get a special prosecutingattorney appointed to prosecute any case which was pending and assignedto the public defender's office while he served as the public defender. To dootherwise, would engage in acts disapproved of in State v. Boyd, 560 S.W.2d296. Rendered June 16, 1978.

[Rule 4 1.7(b); 1.9]


QUESTION: "A" law firm files an action on behalf of an insureragainst the name insured and a "potential insured" for a declaratoryjudgment. The "potential insured" is represented by his private attorney.The trial court has ruled adversely to the insurer and that case remainspending on appeal.

A second lawsuit is then filed against the "potential insured", by oneof the injured parties. An attorney with "A" law firm as attorney for insurer,writes to the private attorney for the "potential insured" entering hisappearance as attorney for that "potential insured" under a reservation ofrights. The private attorney responds to the "A" law firm that such defenseunder a reservation of rights is not acceptable to the "potential insured"defendant.

Can "A" law firm continue to represent the "potential insured"defendant in the latter case in view of its position of apparent conflict ofinterest?

ANSWER: No. It is the Committee's conclusion that "A" law firmcannot ethically continue to represent the "potential insured" defendant inthe second case without that defendant's permission. The other considerations involved present legal or economical questions and the Committeevoices no opinion on those considerations. Rendered June 16, 1978.

[Rule 4 1.7(a)]


(Opinion omitted. See Notes on Use.)


QUESTION: The law firm was consulted by the sole stockholderand officers of a small corporation to represent them in a sale of the entirecorporate stock and physical assets of the corporation to two individuals andtheir respective wives. The firm prepared the necessary documents onbehalf of the sellers and the transaction was completed and the corporationpaid the law firm for its services.

A year later the corporation, through its attorney, demandsrestitution from the sellers to the corporation of the sum of $12,000.00 forallegedly wrongful payments by them from corporate assets.

If such a suit is filed by the corporation against the individualformer sole stockholder and officers, is there a conflict of interest whichwould prevent the law firm from representing such individual defendants?

ANSWER: No. The Committee feels that the law firm under thefacts herein at all times represented the individual sole shareholder, formerofficers and board of directors of said corporation and did not represent saidcorporation except incidentally. Hence, no conflict to represent these sameinterests, in a suit brought by the corporation. Rendered June 16, 1978.

[Rule 4 1.11]


(Opinion omitted. See Notes on Use.)


QUESTION: An attorney has entered into a contract with a largecity to represent the city prosecutor in Municipal Court in cases involvingordinance violations.

A. Can this part-time city prosecutor ethically represent criminaldefendants in the local circuit court?

B. Does the answer to the above question vary where the defendant has been at one time charged and dismissed on the same offense bythe city prosecutor's office?

C. Can the attorney above described receive appointments from thejuvenile division of the local circuit court for parents charged under thejuvenile code with either abuse or neglect of their children?

D. Can the attorney above described represent juveniles chargedunder the juvenile code with acts that would be crimes if the juveniles wereadults?

E. Can a city attorney "employed full time" to represent the city incivil matters represent parents who are charged under the juvenile codewith abuse or neglect of their children in proceedings before the juveniledivision of the local circuit court?


A. A private attorney who contracts as city prosecutor cannotdefend any criminal action which arises within the boundaries of the city.If the criminal action arose outside the city, then he could represent thecriminal defendant.

B. It makes no difference whether the defendant has been chargedand dismissed on the same offense by the city prosecutor's office.

C. The committee does not believe that the attorney could receiveappointments to represent parents, who reside within the city limits, oncharges under the juvenile code of either abuse or neglect of their children.

D. The committee believes the attorney could not representjuveniles charged under the juvenile code with acts that would be crimes ifmatters arose within the city limits of the city.

E. The answer of this question depends upon the definition of"employed full time". This actually presents a legal question and not one ofethics. If the city ordinances under which the city attorney is employedstate he shall devote all of his time to representation of the city in civilmatters, such language would prevent his representation.. Absent such anordinance, the committee sees no conflict in representation of the parentsor juveniles in the juvenile division, subject to the limitation contained inanswers C & D. Rendered July 28, 1978.

[Rule 4 1.7(b)]


Q QUESTION: The attorney has previously represented A and B,husband and wife, both jointly and individually in unrelated legal matters.The attorney and his wife have been social guests in the home of A and B.A files a dissolution of marriage action against B. The attorney at that pointdeclines offered employment to represent A. At that time, the attorney hadseveral conferences with A regarding the case before declining theemployment by A. During the same time period, he had some conversationswith B during which the pending action was mentioned and discussed in alimited manner.

The attorney recommended several other local attorneys torepresent A, one of which instituted the present dissolution action andsubsequently withdrew. The attorney is then requested by A to representhim.

Under these circumstances, can the attorney undertake torepresent the husband A as against B?

ANSWER: No. The committee is of the opinion that the attorney'srepresentation of husband A would give the appearance of improprietybecause of the close relationship to the wife B and the attorney's previousconversations with her. Therefore, the committee is of the opinion that theattorney should not undertake this representation. Rendered July 28, 1978.

[Rule 4 1.9]


QUESTION: A constitutional charter city maintains a full-timelegal department and occasionally the city retains outside special counsel toassist in certain designated cases.

Such outside special counsel are employed upon a written contractbasis with the city manager on behalf of the city with the approval of thecity council and the contract limits the work of the special counsel to oneparticular lawsuit.

The firm is employed under such a contract with the city in alawsuit involving project "X". The lawyer for the firm has completedpresentation on behalf of the city in the trial court and the case is underadvisement.

Both sides have indicated they intend to appeal that case, if thetrial court's decision is adverse.

Another member of the firm of said outside special counsel isoffered employment by several long-standing clients of the firm in acondemnation proceeding instituted by the city involving project "Y", atotally different matter from project "X".

The city, by its authorized representatives, has given its writtenconsent for the firm to represent defendants-clients in the proposedcondemnation case involving project "Y".

Can the firm, under these circumstances, represent defend ants inthe proposed condemnation proceedings?

ANSWER: Yes. It is the opinion of the committee that representation of the defendants in the condemnation suit and matters directly relatedto project "Y" would not in any way present a conflict of interest because ofthe employment of the firm as special counsel for the city in litigationinvolving project "X". This is particularly true since the firm has notified thecity of the firm's projected employment on behalf of defendants in thecondemnation matter and the city has agreed in writing that this ispermissible and does not represent a conflict of interest. (Caveat: If aconflict of interest actually existed the city could not waive the conflict,being a public body.) Rendered July 28, 1978.

[Rule 4 1.7(b)]


QUESTION: Attorney A is the city attorney of a fourth-class cityand his partner is the prosecuting attorney for the county in which the cityis located. A vehicle belonging to the city and driven by a city employee inthe course of his employment is involved in a collision with another vehicledriven by a third party. That third party was given a summons for failureto yield the right-of-way and posted bond which was forfeited when thatparty failed to appear in Magistrate Court. Can Attorney A represent thecity in civil litigation for damages to its vehicle under these facts?

ANSWER: No. Since Attorney A's law partner prosecuted the civildefendant in his official duties as the prosecuting attorney of the county, nomember of his firm can ethically take part in any civil litigation arising outof the same set of facts. Rendered July 28, 1978.

[Rule 4 1.7(b); 1.10]


QUESTION: Can an attorney, who is employed as a part-time legaladvisor to the juvenile officer, ethically appear before the circuit judge inother matters not connected with his official duties?

ANSWER: Yes. Rendered September 15, 1978.

[Rule 4 1.7(b)]


QUESTION: Can a municipal judge of a city of the fourth class whoholds court several evenings a month, but who is otherwise a full-timepracticing attorney engaged in general practice, represent an officer of thepolice department of the municipality in which he sits as a municipal judgein a civil matter in circuit court, which matter is in no way related to orconnected with or has arisen out of the duties or employment of such policeofficer for such municipality or as an officer of the law in general?

ANSWER: The Advisory Committee is of the opinion that it wouldbe ethically proper for an attorney to represent an officer of a policedepartment of a municipality in which the attorney sits as municipal judgein a civil matter in circuit court since the matter is not related to orconnected with and has not arisen out of his duties or employment as suchpolice officer. Rendered September 15, 1978.

[Rule 4 1.7(b)]


QUESTION: A legal aid corporation furnishes defender services bycontract in the municipal court of a large city.

On several occasions, an individual who, as a defendant in a priorprosecution was represented by a legal aid attorney, has appeared as aprosecuting witness in a municipal prosecution in which a legal aid attorneyhas entered an appearance on behalf of the defendant. Knowledge obtainedwhile representing the prosecuting witness at the time he was a defendantmay be relevant for purposes of impeaching his credibility in the latter case.

The legal aid corporation submits the following specific questions:

(1) May the attorney, who represented the prosecuting witness atthe time he was a defendant, properly represent the defendant in thesubsequent action?

(2) May an attorney employed by legal aid who did not participatein the first action and who has no personal knowledge of any of thecircumstances and therefore could not use any information obtained in thecourse of an attorney-client relationship, consistent with the Code ofProfessional Responsibility, represent the defendant in the secondprosecution?


(1) No. In answer to the first question, the committee is of theopinion that the attorney who represented the prosecuting witness at thetime the witness was a defendant cannot properly represent the defendantin the subsequent action?

(2) In answer to question two, another attorney employed by legalaid, but who did not participate in the first action and who has no personalknowledge of any of the circumstances pertaining thereto, can representthe defendant in the subsequent action, but he must make a full disclosureof the previous representation of the prosecuting witness by anotherattorney on the staff of the legal aid corporation. This gives the defendantin the subsequent action all the pertinent information so if he desires toobject to the representation by the legal aid staff attorney, he can do so.Rendered September 15, 1978.

[Rule 4 1.9(b); 1.10]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: A county prosecuting attorney submits a questionconcerning his duties as legal advisor to various county officers and apossible conflict with his duties as prosecuting attorney, if the countyofficers act improperly and engage in misconduct in their official duties.

ANSWER: It is the opinion of the Committee that there is noattorney-client relationship established as a matter of law between aprosecuting attorney of a county and other county officials. That relationship depends upon confidential consultation between the officials.

The prosecuting attorney would be free to make such investigationsof improper conduct of a public official which he deemed advisable, in hisofficial capacity as prosecuting attorney of the county. Rendered October20, 1978.

[Rule 4 1.7(b)]

C.ofInt. -80

QUESTION: Attorney A was "of counsel" to the firm of X, Y and Z.The firm dissolved and A, X, Y, and Z have an office sharing agreement. Allattorneys use their own letterhead. If A becomes a part-time city prosecutor, can X, Y, and Z continue to represent their clients in municipal court?

ANSWER: Yes. It is the Committee's conclusion that in thesituation outlined above, if one of the attorneys becomes a part-time cityprosecutor, the other attorneys can continue to represent their clients inmunicipal court. Rendered October 20, 1978.

[Rule 4 1.7(b); 1.10]


(Opinion omitted. See Notes on Use.)

C.ofInt. -82

QUESTION: Attorney A is also a notary public in this state. Canhe ethically notarize signatures and acknowledgements of clients to variousaffidavits and petitions filed in both the circuit and probate courts by himin which he or a partner are attorney of record"

ANSWER: Yes. There is no conflict of interest for an attorney tonotarize signatures and acknowledgements of clients to various affidavitsand petitions filed in court provided he follows the law for notaries public.We are sure that the law provides that a notary public should only takeacknowledgements on signatures which are made in his presence. RenderedOctober 20, 1978.

[Rule 4 1.7]

C.ofInt. -83

(Opinion omitted. See Notes on Use.)


QUESTION: The law firm of A, B and C has existed for severalyears. It presently owns a building, fixtures and law library.

Partner A will become a judge and partner B and C will become solepractitioners, with each carrying out his separate practice with his ownseparate secretary. B and C will purchase A's interest in the building andother assets and will modify the building to make two separate law officesuites (except they will share a common waiting room for clients).

Partner B is the elected prosecuting attorney for the county and allduties relating to that office are carried on in the courthouse office of B.

Under these physical arrangements,

a. Can B & C represent new opposing clients after dissolution of thepartnership?

b. Can C represent criminal defendants in cases in which B is theprosecuting attorney, which arise after dissolution of partnership?

c. What steps should B and C take regarding clients of A, B and Cpartnership?


a Yes. It is the opinion of the Committee that if the law officebuilding is modified as outlined above, it would be ethically proper for B andC to represent opposing clients after the partnership is dissolved.

b. Yes. Assuming the modification of the office and that B willexclusively operate his prosecutorial duties from his courthouse office, theCommittee believes that C can ethically represent criminal defendants incases which B is prosecuting which arose after dissolution.

[Rule 4 1.7; 1.10]

C.ofInt. -85

(Opinion omitted. See Notes on Use.)

C.ofInt. -86

QUESTION: Assume that Attorney A represents a plaintiff inlitigation challenging the validity of a certain ordinance and of a redevelopment project proposed to be constructed under the ordinance. The case isthen settled in a manner so as to confirm the validity of the ordinance andthe legality of the project.

As a part of the settlement, the plaintiff is to become a part of theproject.

Assume farther that any subsequent attack on the ordinance or theproject by another complainant would not be in the best interest of theoriginal plaintiff and that, therefore, representation of a subsequentcomplainant by Attorney A would create a conflict with the interest of hisoriginal client.

Under the above stated circumstances, does DR2-108(B) create anybarrier to an agreement by Attorney A that neither he nor any member ofhis firm will represent any subsequent complainant in litigation attackingthe ordinance or the project?

ANSWER: No. Based upon the fact situation set out, the Committee does not believe that DR2-108(B) would create any barrier to anagreement by Attorney A that he nor any member of his firm will representany subsequent complainant in litigation attacking the ordinance or theproject. The agreement should recite that any such representation wouldconstitute a conflict of interest with Attorney A's original client andtherefore such a contract would not be in violation of DR2-108(B). In thisparticular case, it would not be the contract which would be restricting thepractice of law of Attorney A. It would be the conflict of interest whichwould exist between the interests of his present client and the subsequentcomplainant, which prevents the acceptance of the subsequent complainantas a client. Rendered December 8, 1978.

[Rule 4 1.9(a)]


(Withdrawn 1/26/90).


QUESTION: A is insured by XYZ Insurance Company for liabilityand uninsured motorist coverage. A is involved in a collision with B(uninsured) and C (also uninsured). A files suit against B, XYZ InsuranceCompany, and C.

Attorney M is retained to represent XYZ Insurance Company.Before time of trial defendant XYZ Insurance Company is dismissedwithout prejudice by plaintiff A. Attorney N represents B, and they bothrequest Attorney M to join N as co-counsel for defendant B at trial. Afterexplaining his possible conflicts with B and N, Attorney M acts as co-counselat trial which results in a verdict in favor of Plaintiff A and againstdefendants B and C. An appeal is taken by defendant B.

After the brief has been filed by defendant B, attorney for Aadvised B that if he would dismiss the appeal, no attempt will be made tocollect judgment from defendant B.

Attorney M, who still represents XYZ Insurance Company, believesplaintiff A intends to collect the judgment from that company.

Attorney M receives a letter from B instructing him to dismiss theappeal.

Attorney M submits these facts and requests an informal opinionon what steps he should take to resolve the conflicts of interest herein.

ANSWER: It is the opinion of the Committee that defendant Bneeds independent legal advice. The Committee believes that Attorney Mshould withdraw from any representation in the case whatsoever and thatXYZ Insurance Company should be instructed to obtain new counsel. SinceAttorney M acted as co-counsel for defendant B, he is now in a position ofconflict so that he cannot advise either the insurance company or defendantB under the fact situation which has developed. Rendered December 8,1978.

[Rule 4 1.7]


QUESTION: Can a city attorney draw the necessary ordinance anddeed to complete execution of a lease-purchase agreement previouslyentered into between the city and a corporation which also is representedby said attorney?

ANSWER: Yes. The Advisory Committee believes the attorney canethically proceed to draw the ordinance and deed to complete the contractwhich the city has with the corporation since there is no discretionarydecision to be made with regard to that matter. This is really a ministerialduty in connection with the complete execution of the existing contractpreviously negotiated. The attorney will be acting for the city in thisinstance and any charges should be made to the city under the regularcharge schedule therefore. Rendered December 8, 1978.

[Rule 4 1.7(b)]


QUESTION: If the original crime took place within the city limitsof the city for which the attorney is employed as a part-time assistant cityprosecutor, is it proper for the attorney to accept appointment as counselfor the movant in a 27.26 motion filed in the circuit court?

ANSWER: No. Since he could not represent the defendant in theoriginal criminal prosecution, the Committee believes it would be improperfor him to represent the movant in the 27.26 action. Rendered December8, 1978.

[Rule 4 1.7(b)]


QUESTION: A law firm's client invested certain funds in a newcorporation formed in 1973 receiving a 49 percent interest. The law firmadvised on the structuring of the new corporation, including advising it ofSubchapter S status. Since then, the law firm has prepared the minutes ofthe annual meeting, prepared the franchise tax reports and prepared theannual registration reports. A member of the firm acted as registeredagent.

A dispute arose between the 51 percent stockholder and theminority stockholder client of the law firm. Both shareholders are theofficers and directors of the corporation.

The minority shareholder now wishes to institute a stockholder'sderivative suit against the majority shareholder, to sue the majorityshareholder individually, and to sue for an accounting of the corporatefunds.

a. May the law firm file such a suit?

b. If not, may the law firm give a draft of its petition to another lawfirm to file, provided that it gave no other assistance except as it may berequired by discovery.


a. No. It is our conclusion that the law firm should not file thederivative suit on behalf of the minority shareholder, because under all thecircumstances set out therein, the firm would be in a position of conflict indoing so.

For instance, since one member of the firm is the registered agentof the corporation and the corporation would have to be named as a partydefendant, service would have to be had upon a member of the firm. Inaddition, while the things the firm has done for the corporation might beconstrued to be more or less ministerial in nature, nevertheless, the firmhas acted as the corporate counsel for those purposes.

While we are reluctant to say that there could never be a set ofcircumstances under which a law firm could bring an action on behalf of theminority shareholder in a corporation when they had acted as corporatecounsel, we do think there would have to be a highly unusual set ofcircumstances justifying such an action on the part of a law firm.

b. No. Since the law firm cannot represent the minority shareholder, we think it would be equally improper for the firm to provide a draftof its petition to another law firm to file.

Rendered January 25 1979.

[Rule 4 1.7]

C.ofInt. -92

QUESTION: Seller sells a motel to buyer. Buyer gives a first Deedof Trust to bank and a second Deed of Trust to Seller. A & B are lawpartners. A is Trustee on both Deeds of Trust. Buyer sues Seller allegingfraudulent misrepresentation as to the construction of the motel prior tosale. B represents Seller. Both Deeds of Trust are in default and the bankand Seller initiate foreclosure proceedings. Can A act as Trustee in theforeclosure sale?

ANSWER: Yes. It is the Committee's conclusion that Attorney A,acting as trustee under both deeds of trust in question, can proceed withthe foreclosure sale, unless some judicial order preventing the sale isobtained by the buyer. This is conditioned, however, upon the Committee'sconclusion that only the trustee's fee will be charged against the proceedsin the event of foreclosure and there is no attempt by the law firm to collectan attorney's fee, in addition to the trustee's fee, from the proceeds of theforeclosure sale.

The Committee sees no difference in this partnership situation andthe situation where a sole practitioner represents the holder of a note andhe is also named as the trustee on a deed of trust to secure the note.

The fact that the buyer has sued the seller alleging fraudulentmisrepresentation does not affect the validity of the deeds of trust, unlessa judicial order enjoining the foreclosure is obtained by the buyer. RenderedJanuary 25, 1979.

[Rule 4 1.7]


QUESTION: Is it proper for an elected Prosecuting Attorney tohold the position of City Attorney for a city within the same county?

ANSWER: Yes. The Advisory Committee has again considered theabove question and again rules that there is no inherent conflict betweenthe positions of Prosecuting Attorney of a county and City Attorney for acity within the county. (The Committee is aware that an opinion of theAttorney General's office holds contra.) Should circumstances bring abouta conflict between the two positions with regard to a particular set of facts,then, like any other conflict question, it must be resolved.

In that case, it would not be proper for the attorney to representeither the county or the city. He should advise both political subdivisionsthat they should obtain other counsel to represent their interests in theexisting circumstances. Rendered January 25, 1979.

[Rule 4 1.7]

C.ofInt. -94

QUESTION: Is it proper for a City Attorney to represent, as aprivate attorney, individuals who hold offices, such as mayor or a memberof the board of aldermen of said city, in matters which are completelyoutside the scope of the city's operation and which is not in conflict with thecity's interests?

ANSWER: Yes The fact that the attorney is the City Attorney ofa city for which the prospective private clients are city officers, does notpreclude the attorney's representation of any individual officer or memberof the board of aldermen in matters which have no connection with the cityand which arise out of the private business interests of said officers. Thisassumes that there is no conflicting city interest involved in the samematter. Rendered January 25, 1979.

[Rule 4 1.7]


QUESTION: "A" law firm has previously been asked and hasundertaken to represent a hospital and/or its insurer in the defense of amedical malpractice case. Now that same firm is asked by a co-defendantphysician on the staff of that hospital and/or his insurer, to defend theco-defendant physician. There is no effort made by either the hospital orthe doctor to blame the other.

In other words, there is no controversy between those defendantsand both are taking the position that neither did anything wrong, and thefiles were sent to "A" law firm by two different insurers.

"A" law firm has or will receive clearance from both of the defendants personally and from their respective insurers.

Under these circumstances may "A" law firm handle the defense ofthe hospital defendant and the doctor defendant in the same lawsuit by twodifferent lawyers of the same firm?

ANSWER: Yes. It is the Advisory Committee's conclusion that ifthere is a solid agreement between the doctor and the hospital who areco-defendants in the malpractice action that no conflict exists between themand if they both agree that the same firm should represent them both, thenit is permissible for one lawyer to represent both defendants in that case.

However, if in the course of the litigation, a conflict does developbetween the co-defendants, then the "A" law firm would have to withdrawfrom representation of both defendants and could not elect to stay with oneand withdraw from the other one. Rendered January 25, 1979.

[Rule 4 1.7(a)]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: The following possible conflict of interest factualsituation is submitted to the Committee for its comments and suggestions.

Attorney A is a partner with Attorney B. Attorney B is a part timeassistant prosecuting attorney in Cole County, Missouri. Attorney A isrequested by the United States District Court to accept an appointment torepresent an inmate of the Missouri Department of Corrections torepresent said inmate in a proposed civil rights lawsuit to be filed in DistrictCourt alleging violation of the civil and constitutional rights of said inmateand naming as defendants therein the warden, guards and other employeesof the Missouri State Penitentiary.

Those named defendants would be represented by the Office of theAttorney General of the State of Missouri.

a. Should Attorney A undertake to represent this inmate underthese circumstances?

b. Would the opinion of the Advisory Committee be changed if theState of Missouri and/or the Department of Corrections were included asnamed defendants in this proposed lawsuit?


a. No. The Advisory Committee is of the opinion that Attorney Ashould not represent the inmate in his civil rights action against the wardenand guards employed at the penitentiary since his partner, Attorney B, isan assistant prosecuting attorney in Cole County, Missouri.

While there would not be an actual conflict of interest in suchrepresentation, since the defendants are to be represented by the AttorneyGeneral's office, the situation would give the appearance of improprietywhich the Committee feels the public would not understand.

b. If the State of Missouri or the Department of Corrections wereto be named as a party defendant in the proposed lawsuit, then it is theopinion of the Committee that a clear conflict of interest would exist andAttorney A could not represent the proposed plaintiff.

Rendered March 2, 1979.

[Rule 4 1.7(b)]


QUESTION: The following ethical question is submitted to theCommittee.

Attorney A is employed by the city council of a fourth class city asspecial counsel to handle a civil suit regarding annexation in the circuitcourt of that county.

This city has a separate city attorney who handles all prosecutionsfor violations of city ordinances in the municipal court of said city.

Does the employment of Attorney A as special counsel disqualifyhim from appearance in municipal court representing defendants therein.

ANSWER: No. The Committee is of the opinion that the limitedemployment of Attorney A as special counsel in the annexation matter doesnot prohibit him from representing defendants in the municipal court ofthat city. Rendered March 2, 1979.

[Rule 4 1.7]


QUESTION: An attorney submits the following factual situation forthe Committee's examination for possible conflict of interest.

Attorney A represents Mr. S in a criminal case in 1975. The resultof that case was that Mr. S pleaded guilty to a charge of assault and was puton probation by the court for a period of two years.

Attorney A also represented Mr. S when Mr. S had his driver'slicense revoked in 1975 and again in 1977 when Mr. S's marriage wasdissolved.

In an unrelated case, Mr. and Mrs. C's marriage is dissolved in1978, with Mrs. C being granted custody of the sole child and reasonablevisitation rights are granted to Mr. C.

Thereafter, in 1978, Mrs. C marries Mr. S and words are hadbetween Mr. C and Mr. S.

In 1979 Attorney A undertakes to represent Mr. C in a motion tomodify the decree between Mr. C. and Mrs. C (now Mrs. S), in which Mr.C is seeking custody of the child born to Mr. C and Mrs. C.

Mr. C states to Mrs. C (now Mrs. S) that a major part of his reasonfor a change of custody motion is that he doesn't like Mr. S's "past".

Should Attorney A continue to represent Mr. C under thesecircumstances?

ANSWER: No. It is the opinion of the Committee that sinceAttorney A will have to cross-examine his former client (Mr. S) and mightbe restricted in such by confidential information he obtained from hisformer client, the attorney should not represent Mr. C without the consentof Mr. S, and then only after a full disclosure is made to Mr. C of hisprevious representation of Mr. S. If these conditions are complied with,Attorney A can continue to represent Mr. C. Rendered March 3, 1979.

[Rule 4 1.9(b)]


(Opinion omitted. See Notes on Use.)


QUESTION: Would an attorney who is employed by a county,under contract for the sole purpose of enforcement of child support underTitle IV-D, be permitted to serve a municipality located within the samecounty as an associate circuit judge -- municipal division?

ANSWER: Yes. It is the opinion of the Committee that there wouldbe no ethical violation for an attorney employed by a county, under contractfor the sole purpose of enforcement of child support under Title IV-D, toserve a municipality located within the same county as an associate circuitjudge -- municipal division.

The same emphasis is placed on the contract of employment as wasincluded in our informal opinion rendered on June 16, 1978, see Summary4/1/1978 to 6/30/1978, Question No. 22. (Editor's Note: See C.ofInt.-62)

That opinion stated in part: "We stress that the contract ofemployment should be in writing and it must be very specific to delineatethe specific duties of his employment and to screen that attorney from anyother information available in the office of the prosecuting attorney."

Rendered March 23, 1979.

[Rule 4 1.7(b)]


QUESTION: An attorney employed by a legal services program isappointed to serve as guardian ad litem for a juvenile in an abuse andneglect proceeding in Juvenile Court wherein it is alleged that the juvenilehas been abused by his parents. Subsequently a municipal charge of assaultof the juvenile is lodged in Municipal Court against the parents. Theparents, who are indigent, request appointment of counsel.

May an attorney employed by the same legal aid program beappointed by a municipal judge to represent the parents.

ANSWER: No. It is the opinion of the Committee that an attorneyemployed by the same legal aid program cannot be appointed by themunicipal judge to represent the parents in a charge of abuse of a juvenilewhen an attorney from the same legal aid office has been previouslyappointed to serve as guardian ad litem for the same juvenile in an abuseand neglect proceeding in the Juvenile Court.

We think this is a very apparent conflict. The same attorney clearlycould not be appointed and the same restriction applies to any other staffattorney in the office. Rendered March 23, 1979.

[Rule 4 1.9(a)]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: An attorney represents two co-administrators of anestate.

Decedent had deeded one-half interest in certain real property toa son, who is one of the co administrators, and said grantee agreed to "makeit right" with the other heirs.

Can the attorney undertake to represent the heirs in a suit againstthe son-grantee to enforce a constructive trust on the real property?

ANSWER: No. A majority of the Committee holds that the attorneyalready represents the son-grantee as a co-administrator of the estate, whois one of the potential defendants in the lawsuit. Thus, the majority feelthat there is a conflict of interest in this case.

The entire Committee share the opinion that whether or not anactual conflict exists, there is such an appearance of impropriety in thematter that the attorney should not undertake to represent the other heirs.Rendered March 23, 1979.

[Rule 4 1.7(a)]

C.ofInt.- 108

QUESTION: Attorneys A and B represent a number of amusementand vending machine companies regarding an investigation conducted bythe Anti-Trust Division of the State Office of the Attorney General. TheAttorney General's Office commenced discovery proceedings and certaincivil investigative demands were served upon a number of A and B's clients.Some of said clients were subpoenaed to appear before the county grandjury.

Discussion was had between Attorneys A and B and the AssistantAG handling the investigation whereby the question arose whether A andB could continue to represent a number of the clients involved in theinvestigation or whether A and B should withdraw from representing saidnumerous clients.

It is the position of A and B that since no formal charges, either civilor criminal, have been filed against any of their clients involved in theinvestigation and until such charges were filed, they could continue torepresent all of their numerous clients.

At the time of submission, no conflict of interest had developedregarding the numerous clients of A and B.

Can A and B continue to represent their numerous clients involvedin the investigation?

ANSWER: Yes. It is the opinion of the Committee that A and Bhave no present obligation to withdraw from the representation of theirmultiple clients; but if a conflict of interest does appear in the future, thenit may be necessary for A and B to withdraw from representation of allclients, depending upon the nature of the conflict of interest. There is noobligation to withdraw from representation of multiple clients until aconflict of interest does appear. The mere possibility of a conflict is notsufficient reason to state that an attorney must forego representation, solong as the client fully understands the situation and desires the representation to continue. Rendered April 19, 1979.

[Rule 4 1.7]


QUESTION: Is there any conflict of interest when an attorney isa member of the Landmarks Commission of the city and at the same timecontinues to represent defendants in municipal court charged with violationof city ordinances?

ANSWER: No. Rendered April 19, 1979.

[Rule 4 1.7]

C.ofInt.- 110

(Opinion omitted. See Notes on Use.)


QUESTION: A Criminal defense attorney submits the followingfactual situation for advice:

1. May a lawyer represent a defendant in a criminal charge in thecounty where his spouse is employed as an assistant prosecuting attorneyin the prosecutor's office bringing the charge?

2. If the Committee's opinion in the above question is in theaffirmative, what disclosure to the defendant is necessary, and secondly,should there be a formal record made by the defendant and his counsel?


1. Yes. It is the Committee's conclusion that a lawyer, whose spouseis employed as an assistant prosecuting attorney, may represent adefendant on a criminal charge. This is true, even though the spouse, asassistant prosecuting attorney, was responsible for the screening of policefiles, filing of complaints, informations, and presentment to the grand jury.

2. Yes. A record should be made to protect the defense attorneyand the record from a possible attack by a 27.26 motion. The attorneyshould disclose to the defendant on the record the fact that his spouse is anassistant prosecuting attorney and obtain the consent of the defendant, onthe record, to his continued representation. From the prosecutor'sstandpoint, if he knows that the defense attorney is married to theassistant prosecuting attorney, he should insist on the above mentioneddisclosure on the record to protect against a potential post-convictionmotion.

Rendered May 18, 1979.

[Rule 4 1.7(b); 1.8(i)]


QUESTION: A first class prosecuting attorney's office submits thefollowing inquiry. It concerns all IV-D cases, statutory trusteeships, andcriminal non-support cases referred to the office by the Division of FamilyServices.

Problem 1. The Prosecutor's Office is also required to prosecutewelfare fraud cases, which are referred to them after investigation by theDivision of Investigation of the Department of Social Services. In thosecases where fraud was used to obtain an AFDC grant, the prosecutor isasked to prosecute a client on whose behalf he is trying to collect childsupport. Is there a conflict of interest?

Problem 2. Occasionally one of the AFCD recipients, representedby the support enforcement attorney, is charged with an unrelated crime.Is there a conflict of interest? Should special procedures be used in handlingthese cases?


Problem 1. No. It is the conclusion of the Advisory Committee thatno conflict of interest exists in the prosecution of welfare fraud cases, eventhough the office is engaged in the collection of monies to be paid to theDivision of Family Services in reimbursement of AFDC grants. The moniescollected from the non-paying parent are returned to the state and thestate is prosecuting the grant recipient for fraud in obtaining the grant inthe first place. The Committee does not see a conflict of interest in thatsituation.

Problem 2. No. The Committee sees no conflict of interest whenone of the AFDC recipients is charged with an unrelated crime and we seeno special procedures being necessary in handling those cases.

Rendered June 28, 1979.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


QUESTION: A, represented by firm X, files suit against B and C.A and B had entered into a contract whereby B agreed to construct aresidence for A. Count I of the lawsuit claims breach of contract by B. C isthe real estate agent and is named as defendant in Count II of A's petitionbecause C agreed at the closing to hold certain funds in escrow untilresolution of a dispute as to whether certain work performed by B waswithin the scope or outside the scope of the contract. C has been represented in the past by a partner of firm X.

Assuming firm X obtains the consent of A and C to the following,can law firm X enter its appearance or on behalf of C and file an interpleader for the purpose of turning over the escrow fund to the court andthen have C discharged from the lawsuit?

ANSWER: No. It is the opinion of the Advisory Committee that theaction proposed on behalf of the real estate agent C could only be undertaken with the consent of all parties to the lawsuit. It would require theconsent of A, B and C as outlined in the above fact situation and not just Aand C. If B objects, then C will need to obtain separate representation.Rendered August 3, 1979.

[Rule 4 1.7]


QUESTION: Attorney A originally consulted with individualplaintiffs and the school district plaintiff and participated in the drafting oforiginal petition involving class action litigation. In a ruling of the court onpreliminary matters, the parties are realigned by order of court and theoriginal party plaintiff school district represented by Lawyer A wasrealigned as a party defendant.

Lawyer B is then retained by individual plaintiffs to draft and filethe first amended petition. Lawyer A has conferred with Lawyer B in thedrafting of the amended petition and Lawyer A now seeks to enter hisappearance as additional counsel for the individual plaintiffs.

A. Is Lawyer A in a position of conflict of interest if he undertakesto represent the individual party plaintiffs in the above action?

B. Is Lawyer B in a position of conflict because of his conferringwith Lawyer A?


A. It is the opinion of the Advisory Committee that Lawyer A wouldbe in a position of conflict if he undertakes representation of the individualplaintiffs in the action.

B. It is the further opinion of the Committee that Lawyer B is alsoin a position of conflict because of his association and consultation withLawyer A.

Rendered August 3, 1979.

[Rule 4 1.9(a)]


(Opinion omitted. See Notes on Use.)


QUESTION: The prosecuting attorney prosecuted a driver forfailure to yield the right of way to another vehicle and secured a convictionin circuit court. Thereafter, the husband of the deceased passenger in theother vehicle filed suit for wrongful death against the convicted driver andan amended petition is filed joining the county as a party defendant, for thereason that the negligent driver was alleged to have been an employee ofthe county at the time the accident occurred.

Can the prosecuting attorney represent the interest of the countysolely in the civil litigation after previously prosecuting the driver?

ANSWER: No. It is the view of the Advisory Committee that theprosecutor, having prosecuted the defendant on the charge of failure toyield the right of way, was disqualified from representing the county in thecivil litigation which has arisen out of the same accident. The Committeehas consistently held that when a party to an accident is prosecuted for acriminal violation, then the prosecuting attorney is disqualified fromparticipating on either side of any civil litigation arising out of the sameincident and the same set of facts. Rendered August 29, 1979.

[Rule 4 1.9(a)]


QUESTION: What ethical problems are presented when the samelawyer represents both driver and passenger of a motorcycle who werekilled in a collision with another vehicle that was driving on the wrong sideof the road. There is no evidence of negligence on the part of the driver ofthe motorcycle and both the driver and the passenger of the motorcyclewere minors.

A full and frank discussion has been had with the parents of bothdeceased boys. It is agreed by all parties, including counsel, that a separateaction should be brought for each and that the driver's action should bebrought first to avoid consolidation. The attorney submits the followingquestions;

1. Is it ethical for the law firm to represent the parents of both thedriver and the passenger of the motorcycle with respect to their claims, ifthe lawsuits are directed solely against the owner and operator of the othervehicle as the sole defendant?

2. If, in the passenger's lawsuit, a third party petition is filed by theother driver against the motorcycle driver's estate, which would bedefended by the motorcycle driver's insurer and a guardian ad litemappointed for that defendant, is it still ethically proper for the law firm torepresent the survivors of the motorcycle passenger on their death claim?

3. Assuming the law firm in the passenger's death case, fortechnical reasons, includes as defendant a guardian ad litem for thedeceased motorcycle driver, can the law firm ethically pursue the passenger's lawsuit while at the same time representing the mother of themotorcycle driver?

ANSWER: The Committee views the factual situation submittedas one wherein a possible conflict can arise in the representation of theparents of the driver and the parents of the passenger on the motorcycle.This conflict can be waived, however, and if the waiver is obtained, it ispermissible for the attorney to take all the actions set out in Questions 1,2, and 3.

The Committee suggests that all waivers of conflict be obtained inwriting and the parents of the passenger be given an opportunity to consultoutside counsel on the question of whether or not the driver of themotorcycle should be named as a party defendant in their lawsuits.Rendered August 29, 1979.

[Rule 4 1.7]


QUESTION: The ABC law firm represents X and Y, who areofficers and sole stockholders of Z Corporation. Z Corporation got intofinancial difficulties and the ABC law firm filed a voluntary petition forbankruptcy for the Z Corporation. A trustee was appointed and he filed suitagainst the bonding companies of Z Corporation alleging that the officershad loaned funds of the corporation without corporate authority. ABC lawfirm appeared representing the stockholder X at his request on the thirdparty petition filed against him therein.

The trustee felt that an anti-trust suit for the corporation againstcertain eastern financial interests was necessary and X and Y urged theABC firm to institute the anti-trust action and consented to ABC firm'sinstitution of same. The bankruptcy judge authorized the ABC firm toproceed and the cause is still pending.

Now X seeks to withdraw his consent to the ABC firm's representation of the trustee in the anti-trust case.

ABC firm has advised X that they will withdraw from representinghim in the bonding company case, but that they felt it unfair and not properto withdraw from the anti-trust case at this time.

What action should ABC firm take?

ANSWER: The Committee concludes that by giving his initialapproval to ABC firm's representation of the trustee in the anti-trustaction, X cannot, at a later time, interrupt that attorney-client relationshipwith the trustee by withdrawing his approval to ABC's continued representation. This ruling assumes that there is no substantive conflict of interestbetween ABC firm's representation of the stockholder in the bond case andABC firm's representation of the trustee in the anti-trust case.

If X desires that ABC firm withdraw from representing him in thebonding case, then ABC firm should do that. But in absence of a substantiveconflict, the Committee believes the initial waiver of the conflict of theparties is continuing and not subject to the whims of the client. If asubstantive conflict does develop in the future, it would be necessary forABC firm to withdraw from representation of both parties. RenderedAugust 29, 1979.

[Rule 4 1.7]


QUESTION: Plaintiff was an employee of X TransportationCompany, who received substantial personal injuries while working in therailroad company yard. X Transportation Company is a wholly ownedsubsidiary of the Railroad Company. X Transportation Company is qualifiedas self-insurer for state workmen's compensation act. X TransportationCompany hires an attorney in ABC law firm to represent its interest and toprocess plaintiff's workmen's compensation claim.

Thereafter, plaintiff files his lawsuit against the Railroad Companyunder the Federal Employer's Liability Act and the Railroad Company hiresan attorney in the ABC law firm to defend the railroad's interests. Theentire workmen's compensation file of X Transportation Company is turnedover to that attorney for use.

Is it ethical for attorneys of the ABC firm to represent the interestof the railroad company in defense of this action?

ANSWER: Yes. Under the above facts, there is a conflict of interestbetween the Railroad Company and the X Transportation Company. Butthose two entities can waive any conflict of interest which exists betweentheir separate interests so that the continued representation of theRailroad Company by the ABC firm would not be unethical. Since the XTransportation Company is a wholly owned subsidiary of the RailroadCompany, we assume that this has been done. Rendered August 29, 1979.

[Rule 4 1.7]


QUESTION: Attorney A was appointed to represent a criminaldefendant. Attorney A talked with the criminal defendant on numerousoccasions concerning the facts of the case. Attorney A attempted tonegotiate plea bargaining; criminal defendant refused to accept prosecutor'soffer. Attorney A filed numerous motions regarding the particular chargeand after client obtained money, client retained Attorney B, Attorney Awithdrawing from the case. Subsequently, two years later Attorney A isemployed by a city to defend a policemen charged with violation of theformer client's constitutional rights with regards to an unrelated incidentwhich occurred after Attorney A had withdrawn from representation of theformer client.

Can Attorney A represent the policeman, when Attorney A's formerclient becomes the government's prosecuting witness against the policeman?

ANSWER: It is the opinion of the Committee that it is permissiblefor Attorney A to defend the policeman charged with the violation of formerclient's constitutional rights, unless information obtained in the course ofthe attorney-client relationship with the former client could be used againsthim on cross-examination.

If that were true, then the representation would be improper.Rendered August 29, 1979.

[Rule 4 1.9]


QUESTION: The Committee en banc reconsidered its informalopinion rendered on June 16, 1978 on the question of Assistant ProsecutingAttorneys who were hired for the exclusive purpose of collecting childsupport judgments on cases referred to the Prosecuting Attorney's office bythe Division of Family Services.

ANSWER: Informal opinion of June 16, 1978 reaffirmed. TheCommittee concludes that such specially hired Assistant ProsecutingAttorneys or any members of their firms (so long as the restrictionsimposed in the informal opinion are met) can properly represent criminaldefendants as court appointed or retained attorneys; they and their firmscan also represent clients in civil or administrative proceedings in front ofor involving other state agencies (with the exception of the Division ofFamily Services). Such an Assistant Prosecuting Attorney can opposeanother Assistant Prosecuting Attorney or the Prosecuting Attorney of thesame county in civil litigation, if they both disclose to their respective clientstheir relationship as Prosecuting Attorneys and both clients consent to suchrepresentation. Rendered September 7, 1979.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)

C.ofInt.- 124

QUESTION: A and B are father and son, who are adults whoreside in the same residence. The son B, has retained Law Firm D torepresent him individually in a replevin suit to regain custody of personalproperty owned by B.

A third party X desires to retain Law Firm D to represent her forpersonal injuries and damages sustained by X as a result of an automobilecollision between vehicles owned by X and A.

Can Law Firm D represent X and her personal injury claim againstA?

ANSWER: Yes. It is our opinion that Law Firm D may acceptemployment offered by X to represent her in her personal injury claimagainst A, who is the father of another client of said firm. This is true eventhough the father, A, and the firm's present client B reside in the sameresidence. There is no conflict of interest in this factual situation.

The Committee points out that if Law Firm D undertakes therepresentation against the client B's father, then client B may take a "dimview" of the action by Law Firm D and may seek other counsel. RenderedOctober 18, 1979.

[Rule 4 1.7]


QUESTION: Attorney X is consulted by the wife about representing her in a dissolution matter. Attorney X is not employed by the wife andshe later obtained a different attorney who filed and later dismissed adissolution action for her.

Several years later another dissolution action was filed and tried byattorneys other than Attorney X, and the case proceeded to judgment.

The former husband then consulted Attorney X to complete theafter-trial matters and Attorney X contacts the present attorney for thewife. That attorney, after consulting the wife, advised Attorney X that theyhad no objection if he undertook to represent the former husband.

Later, the wife, through her attorney, sought to withdraw herconsent to the representation of the husband by Attorney X.

Can Attorney X continue to represent the husband under thesefacts?

ANSWER: Yes. It is the conclusion of the Committee that ifAttorney X had obtained the consent of the opposing party and herattorney before he undertook to represent the husband, Attorney X canethically continue in the representation unless there is a substantiveconflict. If Attorney X doesn't see a substantive conflict but the opposingparty and her attorney do, then they are free to file a motion to disqualifyAttorney X on the basis of such conflict. The trial court clearly hasjurisdiction to rule on the question. Rendered October 18, 1979.

[Rule 4 1.9(a)]

C.ofInt.- 126

QUESTION: Can a Prosecuting Attorney, who is permitted toengage in outside civil practice, represent the former wife in an action tomodify the decree of divorce or dissolution? He has previously filed acriminal case against the respondent husband and then dropped the chargewhen the complaining witness wouldn't testify.

Does the fact that he formerly filed criminal charges against theproposed respondent prevent him from undertaking to represent thepetitioner-movant-wife in this case?

ANSWER: No. The Committee's opinion is, since the criminalaction against the former husband has been dropped and the ProsecutingAttorney has no pending charge against him, the fact that the ProsecutingAttorney once filed a charge against the husband does not disqualify theProsecutor from representing the wife on the civil motion to modify. Theprohibition is against prosecuting an individual and undertaking at the sametime to represent an adverse party against that same individual in a civilmatter. Rendered October 18, 1979.

[Rule 4 1.7]


QUESTION: Attorney A is a member of the Board of Directors ofa Savings and Loan Association. Attorney A is also engaged in the privatepractice of law. Borrower B desires to secure a loan on residential propertyfrom the Savings and Loan Association.

The Savings and Loan Association advises Borrower B, in writing,that certain legal work will be required in order for Borrower B to obtainhis loan and further advises Borrower B that he may choose any attorneyhe desires to do such legal work.

The legal work includes preparation of a note, deed of trust, a titleopinion to the Savings and Loan Association and, possibly, the drafting ofa deed and other necessary documents. Borrower B, for the reason that hehas always used Attorney A or now desires to use Attorney A does, in fact,request that Attorney A do the required legal work.

The Savings and Loan Association then advises Borrower B thatdue to Missouri law (Revised Statutes of Missouri Chapter 408.052) thatthe attorney fees and charges will be billed separately to Borrower B andBurrower B will need to make payment for said services directly toAttorney A.

Is it unethical or improper for Attorney A to do the required legalwork for Borrower B and to bill Borrower B directly and collect from him?

ANSWER: No. It is our opinion that so long as the borrower isadvised that Attorney A, whom he intends to retain, also represents theSavings and Loan Association from whom the borrower is obtaining theloan, then it is proper for the attorney to render the legal service and forhim to bill the borrower direct for said service. Rendered October 18, 1979.

[Rule 4 1.7(b)]


QUESTION: Can an attorney properly act as counsel for afraternal insurance association to which he has previously provided legalcounsel and advice, after he has filed a lawsuit against said association foralleged breach of contract of employment?

ANSWER: Clearly, the attorney cannot give advice to theassociation with regard to the lawsuit he filed as plaintiff against theassociation. As to any other matters, if the association desires that theattorney continue to advise it, he may do so. That lies within the provinceof the client (association) to decide. Rendered November 2, 1979.

[Rule 4 1.7]

C.ofInt.- 129

(Opinion omitted. See Notes on Use.)


QUESTION: A is the city attorney for M. He is appointed torepresent, on a felony charge, a certain defendant. The offense occurredjust out of the city limits of M, but the offense was investigated jointly byM city police and the county officers.

Can he serve as the court appointed counsel for the defendant inthe above case?

ANSWER: Since the attorney is the city attorney for the city of Mand because it appears that M city officers will be called as witness for theState, it is the opinion of the Advisory Committee that the attorney shouldwithdraw from representing the defendant. The events occurred outsidethe city limits of M in this case (See Formal Opinion No. 107 as modified,which does use the city limits as a line of demarcation) but because of theinvolvement in the investigation of M city officers, the reasoning whichprohibits such representation if the offense occurred within the city isequally applicable here. Rendered November 2, 1979.

[Rule 4 1.7]


QUESTION: "A" law firm is general counsel for XYZ Hospital. XYZHospital carries liability insurance.

A patient claims he fell off an operating room table during surgeryand files suit against the hospital, the operating room surgeon and theanesthesiologist. The anesthesiologist has malpractice insurance; theoperating surgeon has none.

The hospital and anesthesiologist are represented in this litigationby attorneys employed by their respective insurance carriers.

The surgeon seeks to employ "A" law firm to represent him in thelitigation. The hospital has no objection if "A" law firm undertakes torepresent the surgeon.

Can "A" law firm ethically represent the surgeon?

ANSWER: Yes. The surgeon has promised that the hospital and thesurgeon will not try to push the blame upon the other and both liabilitycarrier and hospital will give their written consent. The Committee believesthat "A" law firm can represent the surgeon, upon the condition that a fulldisclosure to him of the law firm's employment by the hospital is made anda complete exploration of the possible lines of defense is given to him. Thelaw firm will also need a written waiver of the conflict of interest by thesurgeon which comes about due to the on-going attorney-client relationshipwith the hospital, which is a party defendant in the same case. See alsoprecious opinion rendered by the Committee on January 25, 1979.Rendered November 29 1979.

[Rule 4 1.7]


QUESTION: John Doe is an attorney member of a country cluband also a member of its Board of Governors. He represents A who is afellow member of the club who sustained personal injuries on the club'sgrounds. The club is fully insured.

A. Can John Doe attorney represent A in his claim for personalinjuries against the country club?

B. Will the answer change if John Doe resigns from the Board ofGovernors?


A. No. It is the opinion of the Committee that the lawyer cannotaccept representation of A against the country club since the cause of actionarose while the lawyer was on the Board of Governors of the country club.

B. No. Resignation from the Board of Governors would not cure theconflict which arose at the time that the cause of action did. Therefore, ifJohn Doe has undertaken representation of A, it is the Committee's opinionhe should withdraw from the case and advise A to seek other counsel.

Rendered December 14, 1979.

[Rule 4 1.7]


QUESTION: The attorney represents the natural mother andguardian of the person and of the estate or three minor children whosefather was killed in an industrial accident. The attorney filed a wrongfuldeath action against the alleged tort feasors in a different county.

The attorney also represents the administratrix of the estate of thedecedent, and said administration is currently pending in L County,Missouri. The administratrix of this estate is the decedent's sister.

A claim against the decedent's estate is filed by the stepfather andnatural mother of the decedent and administratrix. The claim is for backrent allegedly owed by the decedent to the step-father and natural motherfor the last four years in the total sum of $4,080.

The only beneficiaries of the decedent's estate are the three minorchildren of the decedent (the natural mother of said children havingdivorced decedent prior to his death).

Administratrix desires to consent to the claim in full. The attorney,under belief that there are several defenses to the claim, advises theadministratrix not to consent to the claim but does allow her to waiveservices of same.

What should the attorney do?

ANSWER: In the opinion of the Committee, the attorney cancontinue to represent the administratrix, but should request the court toappoint an administrator ad litem for the purposes of representing theestate on this claim, just as if the administratrix herself had a claim againstthe estate. This is necessary because the administratrix has stated herintention to testify on behalf of the claimants. Rendered December 14,1979.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)

C.ofInt.- 135

QUESTION: A law firm is employed in a personal injury case by apatient riding in a public ambulance to the hospital. The ambulance isowned by the County Ambulance Board and leased to a city within thecounty for operation by the city's drivers. After accepting the employment,one of the partners of the firm is appointed as City Municipal Judge.

A. Can the firm continue to represent the client on the personalinjury case, if the city is a defendant?

B. Does the answer change if the city is not a defendant?


A. In the Committee's opinion, in view of the fact that the partnerhas become the Municipal Judge for the city, there would be a conflict ofinterest and the firm could not continue to represent the client in the claimagainst the city.

B. If the city is not a defendant (and the propriety of that course ofaction has been cleared with the client) then the firm can continue torepresent the client against the County Ambulance Board. RenderedJanuary 21, 1980.

[Rule 4 1.7]

C.ofInt.- 136

QUESTION: Attorney "A" represents a utility company in collectionmatters for a period of time. All matters have, in fact, either been taken tojudgment or the collection accounts have been closed by Attorney "A".Approximately six months later, Attorney "A" makes a demand upon thesame utility for damages to a third party client of Attorney "A". The utilitycompany raises the question of whether or not Attorney "A" is involved ina conflict of interest problem in that he has, in the past, represented theutility company in collection matters.

Can Attorney "A" represent a third party claimant against a utilitycompany when, in fact, Attorney "A" has no outstanding cases pending onbehalf of the utility company?

ANSWER Yes. So long as Attorney "A" has completed the casesprior to undertaking the other, there is no conflict in the absence ofconfidential information being used or disclosed. The prohibition is againstrepresenting a client and suing the client at the same time. The fact that anattorney has once represented a client does not mean that he cannot laterundertake representation against the client. In this situation, Attorney "A"can represent a third party claimant against the utility company when thereare no outstanding cases pending on behalf of the utility company so longas the attorney did not obtain any confidential information which could beused or disclosed during the representation of the utility company.Rendered January 24, 1980.

[Rule 4 1.9(b)]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)

C.ofInt.- 140

QUESTION: In a proceeding for a dissolution of marriage, thefather of a minor child alleges unfitness on the part of the mother andrequests that custody be awarded to the paternal grandparents. Thepaternal grandparents enter as intervenors, also alleging unfitness on thepart of the mother and requesting that custody be awarded to them.

Can Attorney "A" ethically represent both the father and thegrandparents, in the absence of an actual conflict; or, does the merepotential for conflict or for collusion require that both the father and thegrandparents seek independent legal counsel? Must Attorney "A" withdrawas counsel for both the father and the grandparents, or may he continue asrepresentative of one but not the other?

ANSWER: In our opinion, so long as the father of the minor childand the paternal grandparents are requesting the same results, then thereis no conflict of interest. The attorney can continue to represent all parties.Rendered January 24, 1980.

[Rule 4 1.7]


QUESTION: A Public Defender submits the following questions:

1. A and B are co-actors in a crime. Upon arraignment, both areindigent. The Public Defender is appointed to represent A. Attorney Smithis appointed to represent B. Prior to conclusion of either case, the PublicDefender appoints Attorney Smith as a Special Assistant Public Defenderfor a two-week period during the Public Defender's absence.

If no action is taken on the case of either A or B during the periodof time that Smith is a Special Assistant Public Defender, is there a conflictcreated that would require the appointment of new counsel for A and/or B?

2. A commits multiple stealing offenses. He disposes of the propertyto B, C, D, E and F. B, C, D, E and F do not receive the property with anyknowledge of the others' participation. All defendants (A, B, C, D, E and F)are indigent. It is obvious that the Public Defender could not simultaneously represent A and any of the other defendants based on Holloway v.Arkansas.

If a member of the private bar were appointed to represent A,could the Public Defender represent B, C, D, E and F where the onlyconnection between them is that they received stolen property from thesame individual (A)?


1. No. It is the Committee's opinion that no conflict is created bythe appointment of a private attorney to act as Special Assistant PublicDefender for a two-week period during the Public Defender's absence whichwould necessitate withdrawal of that individual from other litigation wherehe represents criminal defendants. On matters where the Public Defenderand private attorney are appointed to represent co-defendants there wouldbe no requirement for the appointment of new counsel for either defendantif no action was taken on either case during the period when the privateattorney is acting as the Special Assistant Public Defender.

2. Yes. If a member of the private bar is appointed to represent thedefendant who commits multiple stealing offenses, the Public Defendercould represent the other defendants charged with receiving the stolenproperty if there is no connection between any of the defendants except thefact that they received stolen property from the same individual. RenderedFebruary 29, 1980.

[Rule 4 1.7]

C.ofInt.- 142

QUESTION: A law firm is retained as attorneys for a pre-paid legalplan. A participant of the plan consults the firm seeking advice on adifferent plan which the client was intending to sell which would assistpersons in the evasion or nonpayment of federal income taxes. The law firmadvised the client that such scheme was illegal and that he should notattempt to go through with it.

Thereafter, the client formed a corporation and sold his plan whichincluded a pre-paid legal plan for that plan's members.

Can the law firm represent persons who have claims against itsformer client or are they prevented from the possible conflict of interest,they must decline such employment?

ANSWER: It is the opinion of the Advisory Committee that the lawfirm may not represent persons in civil actions against an individual wherethe firm has previously advised that individual, even though the firm'sadvice to him was that the scheme was illegal and he should not attempt togo through with it. Rendered February 29, 1980.

[Rule 4 1.9(b)]

C.ofInt.- 143

QUESTION: A lawyer has been appointed as guardian ad litem ina juvenile court matter affecting "X", daughter of "A" and "B". At that pointin time, the juvenile office had assumed jurisdiction over "X" and "A" and "B"are fighting in a dissolution case additionally over her custody. Theattorney's representation of "X", however, is limited to the juvenile courtmatter which has been set for a hearing in front of the juvenile judge. Theattorney is consulted by "Z" and is requested to represent "Z" and his wifein a matter wherein they are sued as third party defendants in thedissolution action brought by "B" against "A", and in the third party petitionagainst "Z", "B" requests that "Z's" deed be set aside as a deed that was givenin fraud on "A" marital rights and is actually marital property and that "Z"obtained the property in fraud of her marital rights.

Does the attorney have a conflict of interest by reason of representing the juvenile "X" and "Z" in the third party petition'~

ANSWER: No. It is the opinion of the Advisory Committee thatthere is no conflict of interest in the above fact situation in which theattorney represents the juvenile and "Z", the defendant in the third partyaction which seeks to set aside the deed previously given to that individual.The fact that the lawyer represents the daughter of the parties to thedissolution action in a separate juvenile court proceeding creates no conflictof interest preventing such representation. Rendered February 29,1980.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


QUESTION: Can the holder of a special power of attorney from aclient institute incompetency proceedings against that former client?

ANSWER: No. It is the opinion of the Committee that the holderof a special power of attorney cannot properly initiate an incompetencyproceeding and thus become in an adversary position to his client. If anincompetency proceeding should be started, it is a matter for the court todecide whether or not the public administrator should he informed of thesituation. Whether the checking account of the client could properly be usedto pay for any expenses or fees in such a proceeding is a legal question andoutside the jurisdiction of this Committee. Rendered February 29, 1980.

[Rule 4 1.7; 1.14]

C.ofInt.- 146

(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)

C.ofInt.- 148

QUESTION: "A" law firm has become counsel for a Cooperative.Approximately six months later a strike of employees of the Cooperativecommenced and all striking employees of the Cooperative have beenreplaced. The union, the striking employees and friends seek to have theBoard of Directors dismiss the Cooperative manager. Another circulatingpetition charges malfeasance and negligence against the Board of Directors.

The same law firm is also representing several school boards inlawsuits filed by teachers who allegedly have been terminated for allegedunion activities. One S and one L were members of the School Board of onecommunity and they are at the same time highly active in the unioncommittee seeking to oust the Board or Directors of the Cooperative.

Can "A" law firm act as counsel for the Cooperative in a lawsuitbrought by L and others and, at the same time, act as counsel for the SchoolBoard in which L and the School Board are named parties? Is there aconflict involved?

ANSWER: In view of the attorney's proposed "full disclosure"before undertaking such representation to both the School Board and theCooperative and procuring from each client an agreement that theyunderstood the situation and agreed to the respective representation ofboth parties, we believe such disclosure by the law firm to each client wouldcure any possible conflict if one does exist. Rendered March 7, 1980.

[Rule 4 1.7]

C.ofInt.- 149

QUESTION: In October of 1978 firm "AB" split into two firms, onebeing headed by "A" and the other being headed by "B". Since that time, thenew firms "A" and "B" continue to share the same building and act entirelyseparate from one another.

In 1977 firm "AB" represented a client in a real estate transactionand auto accident. After the firm split, a new client contacted "A" firm topursue a claim against a former client of "AB". The defendant soughtservices of the new firm headed by "B". The firm now headed by "B" haswithdrawn from representing the defendant. "A" has knowledge from priorrepresentation which is potentially damaging to former client. The new firmheaded by "A" submits the following questions, as representing plaintiff:

1. Is "A" in conflict in any way by representing the potentialplaintiff?

2. Is "A" in conflict in any way with the potential defendant andformer client of "AB"?

3. If "A" is in conflict with the potential defendant as a result ofinformation that has come to light, since their representation of plaintiff, is"A" ethically bound not to disclose any information in "AB" file in referringthe individual to another attorney, even if withholding the informationmight seriously jeopardize a potential recovery for the plaintiff?


1. Yes.

2. Yes.

3. Yes.

It is the opinion of the Advisory Committee that the firm headedby "A" cannot represent the potential plaintiff in the matter about whichadvice is requested. Having represented the potential defendant in a realestate transfer in question while the firm of "AB" was in existence, the firmnow headed by "A" cannot fully represent the plaintiff as against thatdefendant. Neither can the firm headed by "A" reveal to the plaintiff or anyother attorney representing him any information which he has which mightprove to be a detriment to the defendant growing out of the real estatetransfer in which "A" and "B" represented him. In short, the Committeebelieves all the answers to the three questions propounded is "Yes".Rendered March 7, 1980.

[Rule 4 1.9]

C.ofInt.- 150

QUESTION: Attorney A has been requested to enter his appearance as cocounsel for plaintiff in a civil rights action presently pending inCounty X. The petition seeks damages for personal injuries allegedlysustained by plaintiff as a result of a being allegedly delivered by a citypoliceman employed in a city within County X.

Attorney A is the elected prosecuting attorney of County Y whoseterm expires in 1980. Attorney A has a private practice in County Y.

Is Attorney A disqualified from undertaking private employmentin the above case?

ANSWER: No. It is the opinion of the Committee that there is noprohibition against Attorney A acting as co-counsel and representingplaintiff in the above case. Rendered April 4, 1980.

[Rule 4 1.7]

C.ofInt.- 151

QUESTION: "A" Law Firm has hired as a law clerk a first year lawstudent, whose father is a Judge.

a. Is it unethical for any practicing attorney in the "A" Law Firm toappear before that particular Judge?

b. What duty rests upon "A" Law Firm to advise opposing counselof the relationship between its law clerk and the Judge?


a. In the Committee's view the initial responsibility for disclosingthe relationship between the Judge and the law clerk rests with the Judgeunder Rule 2 of the Supreme Court, the Code of Judicial Conduct. It is notunethical for any attorney in "A" Law Firm to appear before the Judge inquestion.

b. If the Judge does not reveal the relationship, the Committeebelieves that the member of the firm handling the case should reveal it toopposing counsel. Rendered April 11, 1980.

[See Code of Judicial Conduct; Rule 2]

C.ofInt.- 152

(Opinion omitted. See Notes on Use.)


QUESTION: (Unrelated Situation 1 is not included).

Situation 2. Unrelated to Situation 1 except that A is the sameattorney.

A is a stockholder, director, officer and general counsel of acorporation whose business is diversified into insurance sales, real estatesales, mortgage banking, and other activities which are permitted undercertain licensing statutes of Missouri and for which the corporation isproperly licensed. The corporation will as a matter of policy, pursuant toboard resolution, disclose to its clients the entire interest of A in thecorporation.

1. May A draw documents for the corporation to facilitate itsproviding to its clients those services for which it is licensed?

ANSWER: Situation 2.

The answer to this question depends on the kind of documentswhich are being drawn. The corporation may not provide documents forclients in such a fashion that it is engaged in the unauthorized practice oflaw. Neither may the corporation make an additional charge for thedrawing of documents even if the drawing of the documents is proper inconnection with the business transaction being carried on.

Situation 3.

May A engage in the private practice of law, providing ordinarylegal services to persons who are or have been clients of:

a. The lobbying sole proprietorship.

b. The corporation of which he is counsel in matters not connectedwith the corporation.

ANSWER: Situation 3.

The answer to both questions a and b is yes. The lawyer mayengage in private practice of law provided that such private practice doesnot place him in a conflict of interest with one of his other clients and hislaw office is not carried on in conjunction with other activities from thesame office. Rendered May 23, 1980.

[Rule 4 1.7]

C.ofInt.- 154

QUESTION: Is it ethical for a Prosecuting Attorney in a third-classcounty to accept appointment by the Court as guardian ad litem in anincompetency proceeding?

ANSWER: In the Committee's view, if the subject of the proceedingis not to be a state supported patient, then we see no conflict in therepresentation. If the ward would be a state supported patient, then webelieve a conflict would exist. Rendered May 23, 1980.

[Rule 4 1.7]

C.ofInt.- 155

(Opinion omitted. See Notes on Use.)

C.ofInt. -156

QUESTION: Plaintiff Corporation has retained AB Law Firm as itscounsel on a contingent fee basis to represent it against DefendantInsurance Company for breach of contract. Ten years ago, PlaintiffCorporation, represented by Attorney M (who is not involved here)initiated suit against this same Defendant Insurance Company for the sameclaim for breach of contract. The prior suit was subsequently withdrawn byPlaintiff Corporation; Plaintiff Corporation now wishes to renew the suitbecause of the continuing nature of the breach.

Attorney A is now a partner in AB Law Firm. However, at the timeof the original suit ten years ago, A was an associate of XYZ Law Firm,which was retained to represent Defendant Insurance Company in defenseof Plaintiff Corporation's claim for breach of contract. Attorney A presentlyhas no recollection of the specific facts and legal theories advocated byPlaintiff or Defendant ten years ago, but he apparently actively participatedin the legal representation of Defendant Insurance Company at that time.Defendant Insurance Company has not yet retained XYZ Law Firm or anylaw firm to represent it in the defense of Plaintiff Corporation's claim.

If Attorney A agrees not to participate in any manner in the suit,should AB Law Firm continue to represent Plaintiff Corporation?

ANSWER: It is the Committee's opinion that AB Law Firm cancontinue to represent Plaintiff Corporation only if Defendant InsuranceCompany is apprised of Attorney A's present affiliation with AB Law Firmand consents to AB Law Firm's continued representation of Plaintiff.Rendered May 23, 1980.

[Rule 4 1.9]

C.ofInt.- 157

QUESTION: A number of years ago a grocery store owner in XCounty was a victim of a burglary in which several thousand dollars weretaken from him. The defendant was apprehended, charges were brought bythe P.A., defendant pled guilty to the charge, and was placed on probationand ordered to make restitution. For several years restitution was paidthrough the office of the Prosecuting Attorney and the payments were thenforwarded by the Prosecutor to the owner of the grocery store.

Several years later a petition was forwarded to the P.A.'s office bythe Missouri Department of Revenue in which the owner of the grocerystore was sued for money damages for nonpayment of the Missouri SalesTax, The P.A. obtained a judgment by default.

The Prosecuting Attorney never connected the grocery ownervictim with the defendant in the Sales Tax case until after the judgmentwas obtained for the State against the grocery store owner.

The Prosecuting Attorney continues to be paid restitution by thedefendant and the Department of Revenue of the State of Missouri wantsthe money as does the grocery store owner who now lives out of state.

What should the Prosecuting Attorney do under these circumstances?

ANSWER: It is the opinion of the Committee that the Prosecutorhas no conflict of interest in proceeding as he has to date. He has beenrepresenting the State in both cases. As to the disposition of the moneycollected, the Committee believes the Prosecutor should file an interpleadersuit or possibly file a motion in the pending probation case seeking directionfrom the Court. Rendered May 23, 1980.

[Rule 4 1.7; 1.15(c)]


(Opinion omitted. See Notes on Use.)

C.ofInt.- 159

QUESTION: A Prosecuting Attorney is considering hiring anAssistant Prosecuting Attorney who, at the present time, is representinga defendant charged with first degree assault.

Can the new Assistant Prosecuting Attorney join the staff of theProsecutor's office or will it require the withdrawal of the principalProsecutor and appointment of a Special Prosecutor?

ANSWER: It is the opinion of the Committee that there is noconflict of interest if the new Assistant does not participate in the prosecution of the criminal case and he is completely screened from any discussionof the case with the Prosecutor or the members of his staff. It would begood practice and protection against a future 27.26 motion if, after newcounsel has been appointed for the defendant, the defendant should beapprised of the situation on the record and waive any objection to the ChiefProsecutor continuing to prosecute the case after his former lawyer hasjoined the prosecution staff. The Committee feels that unless this is done,the Prosecutor is setting up a certain 27.26 proceeding (and there may beone even if the defendant waives any objection on the record). RenderedJune 23, 1980.

[Rule 4 1.9(a); 1.11]

C.ofInt.- 160

QUESTION: An attorney, with others, joins to form a corporationto acquire an existing business through purchase of stock and financing ina new corporation to acquire the existing corporation. The attorney andanother majority stockholder jointly guarantee some indebtedness.

Many disagreements follow after the acquisition is consummated.The attorney is General Counsel and an officer-director and he is terminated except as a director and claims unpaid compensation which is deniedby the corporation.

The following questions are submitted for the opinion of thiscommittee.

1. Does the attorney have any right to retain or direct otherattorneys under threat of suit, to retain the minute books, stock ledgers,by-laws and other records of the corporation?

2. Does the attorney have any right to obtain a check payable to thecorporation and retain it and threaten the issuer or their local agent to notdeliver a reissued check payable to the corporation under threat of lawsuitfor delivery to the named payee? (The check is a refund of unearnedinsurance premium paid by the corporation.)

3. Does the attorney have a right to represent that he is still anofficer and authorized to act for the corporation after being terminated?

4. Does the attorney have a right to deliver corporation papers toopposing counsel in a pending case between the majority shareholders ofthe corporation and others in matters where the corporation and theattorney were neither parties nor directly affected by the pending case?

5. Does the attorney have a duty to refrain from repeated letterwriting to accountants, directors, counsel, and others threatening suits andother actions that are designed to intimidate the addressees, instead of justfiling the suit against. those who he alleges are liable for whatever healleges?

ANSWER: It is the conclusion of the Committee that Questions 2,4 and 5 present legal questions which this committee is not authorized toanswer. The corporation should consult its own attorney with regard tothose matters. With regard to Question 1, No. See Formal Opinion No. 115previously adopted by the Advisory Committee. In answer to Question 3,an attorney would not have the right to represent that he is still an officerand authorized to act for the corporation after he has been terminated,unless he questions the manner of termination and the effectivenessthereof. Rendered June 23, 1980.

[Rule 4 1.16(d)]


QUESTION: Can a Municipal Attorney and a Municipal Judge ina given municipality share a telephone number in their respective law officepractice without resulting in a conflict of interest or an appearance ofimpropriety?

ANSWER: If the two attorneys holding the offices of MunicipalAttorney and Municipal Judge are not in partnership or associated in theprivate practice of law, it is the Committee's opinion that they may share atelephone number in their respective private law practices without aconflict of interest or an appearance of impropriety. Rendered June 23,1980.

[Rule 4 1.7]


QUESTION: For several years A Law Firm has represented acorporation on a contingent-fee basis filing collection suits. The law firmadvanced costs in connection with the collection suits. It billed thecorporation for the costs advanced. Cases were handled on a contingent-feebasis whereby, if no money was collected or personal property repossessed,there was no fee. If money was recovered or personal property wasrepossessed, the attorney's fee was a percentage of the money recovered orpercentage of the balance due on the account at the time the property wasrepossessed.

The corporation stopped sending collection matters to the law firmand it is clear that the law firm will not receive any further cases. The lawfirm is still actively pursuing collection efforts in several dozen of thecollection suits which had been previously sent to the law firm for suit.

The law firm is offered employment by another attorney to file asex-discrimination suit against the corporation. The wife of one of thepartners in the law firm is an employee of the corporation, and it is possiblethat the wife will either be a party plaintiff in the sex-discrimination caseagainst the corporation, or that the wife will be called as a non-partywitness on behalf of the plaintiff in the sex-discrimination case, and hertestimony as a witness would be favorable to the plaintiff and damaging tothe corporation employer.

The law firm has not had access to any facts pertaining to thesex-discrimination claim by reason of its previous collection efforts for thecorporation.

The question is whether the law firm can act as a co-counsel or localcounsel for the plaintiff in the sex-discrimination case assuming the abovefacts.

ANSWER: No. It is the opinion of the Committee that the firmcannot accept representation against the corporation while it is still activelypursuing collection efforts in several dozen collection suits which havepreviously been sent to the firm. In short, while the firm is receiving no newcollection suits, the firm still represents the corporation in those previouslysent to the firm. The firm cannot ethically represent the corporation andsue the corporation at the same time without the consent of the corporation. If the corporation has no objection to the firm acting as local counselin the sex-discrimination suit and would waive any conflict, then the firmcan proceed. The firm should advise the proposed plaintiffs of the firm'sprevious association with the corporation and the firm's continuingcollection efforts on behalf of the corporation. In this manner, the plaintiffswould have an opportunity to object to the firm representing them andmake a proper waiver of any possible conflict of interest. Rendered June 23,1980.

[Rule 4 1.7(a)]


(Opinion omitted. See Notes on Use.)


QUESTION: "May Law Firm "A" hire a former "Assistant AttorneyGeneral" and contract with the Attorney General's office to permit thatassociate to continue to handle certain litigation on appeal which he handledwhile on the staff of the Attorney General? Would this require Law Firm"A" to cease to represent other clients against other agencies of the StateGovernment?

ANSWER: No. It is the conclusion of the Committee that the hiringof an associate by Law Firm "A" who had formerly been an "AssistantAttorney General" and contracting for the purpose of completing the appealon litigation in which he was involved while an Assistant Attorney Generalwould not disqualify Law Firm "A" in other cases in which the State or aState agency or officer is a party. Rendered September 12, 1980.

[Rule 4 1.7]

C.ofInt.- 165

QUESTION: An assistant prosecuting attorney for County X hasapplied for the position of circuit public defender. The circuit is a ruralcircuit composed of Counties X, Y and Z.

The circuit public defender's office is composed of the publicdefender and several assistants.

What should be done with the pending cases in the various countiesif the former assistant prosecuting attorney is selected as the circuit publicdefender?

ANSWER: It is the conclusion of the Committee that the formerassistant prosecuting attorney of County X could not take part in any casewhich had been filed in that county while he was an assistant prosecutingattorney. His assistants could handle any case in which the new publicdefender was not active in the prosecution in County X. Neither the newpublic defender nor his assistants can properly handle any case which wasformerly personally handled by him.

In counties Y and Z of the circuit the new public defender or any ofhis assistants can properly defend all cases. Rendered October 2, 1980.

[Rule 4 1.9(a); 1.11]


(Opinion omitted. See Notes on Use.)


QUESTION: Can a part-time assistant county prosecuting attorneywho handles the traffic violation docket engage in private practice in theProbate Division of the Circuit Court in civil cases serving ascourt-appointed attorney as follows:

a. Alleged incompetency proceedings as attorney for the allegedincompetent.

b. Involuntary detention in mental health center.

c. Guardian ad-litem in cases where the county counselor represents the county and state.

ANSWER Yes. It is the opinion of the Advisory Committee thatthere is no conflict where an assistant prosecuting attorney who handlesthe traffic violation docket for the state on a part-time basis is appointed asan attorney in his private practice in the Probate Division of the CircuitCourt for any of the three categories of hearings stated above. RenderedNovember 7, 1980.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)

C.ofInt.- 169

QUESTION: The attorney is the prosecuting attorney of a thirdclass county and also represents a fourth class city in said county as cityattorney. An employee of the city admits to embezzlement from the city, ischarged by attorney as prosecutor and pleads guilty to the charge. The cityrequests the attorney to institute civil proceedings for recovery of theembezzled funds.

May the attorney represent the city in a civil action for recovery ofthe embezzled funds?

ANSWER: No. It is the opinion of the Advisory Committee that itwould be improper for an attorney representing a fourth class city to bringa civil action for recovery of embezzled funds when he has previouslyprosecuted the proposed defendant in a criminal action as prosecutingattorney of that county. The Committee has consistently held that aprosecuting attorney cannot take part in any civil litigation growing out ofthe same facts in which there has been a criminal prosecution unless it is apart of the prosecuting attorney's statutory duty to take part in such civillitigation. The Committee reaffirms that position. Rendered November 7,1980.

[Rule 4 1.7]


QUESTION: An attorney submits the following facts for aninformal opinion:

Lawyer L is called on the telephone by N, niece of Decedent D, inMay, 1978 for an appointment to prepare a Will for D. Neither N nor D areknown to L prior to the telephone request for an appointment. At theappointed time, N brings D to L's office and D informs L what she desiresto put in the Will, N being present or in the near vicinity during theconversation. L tells D that the Will will be typed in accordance with herwishes but he tells D to come back alone after it is typed and he will thendiscuss the Will with her. No discussion is had with D except D telling Lwho she desires as legatees and who should be executor. N pays L with herN's, check and tells L that she, N is going to return to her home in Floridaand that another friend of D (who is a former client of L) will bring D in tosign the Will. After the Will is typed, L attempts to contact D, but is unableto do so, so he contacts the friend of D, who informs him that D will notcome in to see L. He informs N of this fact, and no further contact is madewith D or N. D then has another Will written by another lawyer which Nand L discover only after D's death.

N retains L to represent her in a Will contest. Can L or L's law firmrepresent N in the Will contest in view of DR5-102?

ANSWER: Based upon the statement of facts, it is the opinion ofthe Advisory Committee that the lawyer should not undertake representation of the proposed litigant, the niece, in the Will contest because in ourview, the lawyer ought to be a witness in the Will contest and, therefore,could not undertake to represent the litigant. Rendered November 7, 1980.

[Rule 4 3.7]


(Opinion omitted. See Notes on Use.)


QUESTION: A is charged with the violation of state law whereinV is the victim. A retains C to represent him in the matter. V is notrepresented.

1. May C contact V concerning the subject matter of the suit?ANSWER: Yes.

2. May C request V consider signing an affidavit of nonprosecutionwherein V would formally state that V does not desire the criminal actionto proceed further? Answer: Yes, if no consideration is proposed for signingsuch affidavit.

3. Must C obtain permission from the prosecuting attorney's officeprior to contacting V or any other witness in the criminal action? Answer:No.

4. Does the prosecuting attorney's office have an attorney-clientrelationship with V? Answer: No.

(a) If so, is there a conflict with the interests of the State ofMissouri? Answer: See above.

(b) May the prosecuting attorney claim to represent V without V'sconsent? Answer: No.

(c) May the prosecuting attorney claim to represent V over V'sobjections? Answer: No.

(d) May the prosecutor's office prohibit C from contacting V or anyother potential witness at trial, and if so, under what circumstances?Answer: Not unless a court order prohibiting such contact is obtained.

(e) May the prosecutor properly instruct V or any other witness inthe criminal action not to communicate with C concerning the subjectmatter of the suit? Answer: The prosecutor can advise V he does not haveto communicate with C, but V doesn't have to abide by the prosecutor'sadvice.

V approaches C and requests C represent V as well as A. V is notcharged with any offense against the laws of the State of Missouri, but feelsthat he is in need of representation in his dealings with the prosecutor'soffice.

5. May C agree to represent V, and if so, under what circumstance?Answer: No.

V obtains counsel, either retained or appointed. During pre-trialproceedings, and after V informs the prosecutor of a desire not to testify Coverhears the prosecutor attempting to change V's mind. During the courseof that conversation C overhears the prosecutor intentionally not representfacts and the law in his effort to change V's mind.

6. May the prosecutor communicate with V without first complyingwith the provisions of DR7-104(1)? Answer: Yes, if the interests of the stateand V are not adverse.

7. May C advise V to contact V's own lawyer for advice prior toacceding to the prosecutor's desires? Answer: Yes.

8. May the prosecutor advise V as to the law concerning the subjectmatter of the action where the prosecutor is aware that V has retainedprivate counsel (DR7-104)? Answer: If the advice concerns only the criminallaw, this is permissible.

9. What, if any, is C's duty concerning reporting the prosecutor'sapparent intentional misrepresentation of law and facts to V. Answer: Sameas 7 advise V to contact V's own lawyer advice prior to acceding to theprosecutor's desires.

10. Is there a "Prosecutorial Exception" to the Canons of Ethics, ifso, what does it encompass? Answer No.

Rendered November 7, 1980.

[Rule 4 1.7; 4.2; 4.3]


QUESTION: A prosecuting attorney submits the followingquestions:

1. May a part-time assistant prosecuting attorney also serve ascounsel to the Juvenile Court? Said role of Juvenile Court counsel wouldinvolve the filing of complaints, representation of the juvenile officers inpresentation of evidence at juvenile hearings and the advising of thejuvenile officers as to matters of law. This request is made in light of thelanguage found in Section 211.411, RSMo 1979.

2. The elected prosecuting attorney for said county, Mr. A, resignedand entered private practice of law as a partner with Mr. B.

(a) What participation, if any, may A have in the representation ofdefendants against whom complaints were filed during his pendency inoffice?

(b) Do both A and his law partner B have conflicts of interestarising out of the firm's representation of said individuals? There are anumber of cases pending at the present time filed by A wherein B is theattorney of the defendant?


1. A part-time assistant prosecuting attorney may also serve ascounsel to the Juvenile Court.

2. The former prosecuting attorney A may not participate in therepresentation of any defendants against whom complaints were filedduring his pendency in office. In addition, it is our opinion that both A andhis present law partner, B, have conflicts of interest arising out of the firm'srepresentation of said individuals. Since A was the prosecuting attorney andhad the responsibility for all cases filed during that time, his joining B as alaw partner serves to disqualify B from representation of any of saidindividuals as well. Rendered December 12, 1980.

[Rule 4 1.7; 1.9]

C.ofInt.- 174

QUESTION: The attorney has acted for several years as generalcounsel for ABC Bank. He is paid an annual retainer for rendering legalopinions to the Bank and additional fees for representing the Bank inlitigation.

The attorney also represents Mr. C. D. on a speeding charge andhas been paid $150.00 by him.

Mr. C. D. is also a loan customer and depositor of the ABC Bank.Mr. C. D. is represented on his financial affairs by another attorney. C. considering filing bankruptcy.

At no time while representing Mr. C. D. did the ABC Bank attorneyever discuss that individual's financial situation and there was no information of a privileged nature revealed by Mr. C.D. that would in any way affectthe bankruptcy proceedings.

The attorney has refunded to Mr. C. D. the entire retainer fee paidto him and he has withdrawn from the speeding case.

Under these circumstances, may the attorney represent ABC Bankwith regard to any actions it might take against Mr. C. D.? If a bankruptcyaction should be filed, may that attorney represent the ABC Bank inopposing a discharge in bankruptcy?

ANSWER: Yes. The Advisory Committee sees no conflict of interestin the fact situation outlined. It believes the attorney is free to representthe ABC Bank in any bankruptcy matters or any other action which mightbe necessary against his former client. Rendered December 12, 1980.

[Rule 4 1.9(b)]

C.ofInt.- 175

(Opinion omitted. See Notes on Use.)


QUESTION: X and Y are partners in the practice of law. X becamean Assistant Prosecuting Attorney in a county of the third class on January1, 1981. In October of 1980, a police officer of the city of the fourth classwithin the same county arrested plaintiff and her husband. Plaintiff and herhusband were charged with state misdemeanor charges. Y has been askedto act as co-counsel in a suit against the city employing the police officer andthe police officer alleging violation of civil rights.

May Y act as co-counsel in the suit?

ANSWER: It is the opinion of the Advisory Committee that Y canact as co-counsel in the civil rights suit if the criminal actions weredismissed prior to the date X became an Assistant Prosecuting Attorney. Ifthe charges were dismissed after X became an Assistant ProsecutingAttorney, the Committee thinks it would be improper for Y to act asco-counsel in the civil suit.

Rendered January 15, 1981.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


QUESTION: On January 1, 1981, A became the ProsecutingAttorney of a third class county. In such a county, it is classified as a part-time job. A is also a partner in private practice with three other attorneys.A has appointed B, one of his partners, as Assistant Prosecuting Attorney.Prior to January 1, 1981, B was appointed to represent Defendant X in acriminal matter. After A became Prosecuting Attorney, new counsel wasappointed Defendant X and a Special Prosecutor was appointed toprosecute him. However, Defendant X is to be used as a state witness in acase against Defendant Y. Defendant X is alleged to have participated in aburglary involving Defendant Y and there was a plea bargain beforeJanuary 1, 1981 regarding disposition of Defendant X's case, on the basisthat he would testified against Defendant Y. The plea bargain was notcompleted, but it is A's understanding from the Special Prosecutor that theplea bargain recommendation made before the first of the year will becarried out.

Can A prosecute Defendant Y under these circumstances'?

ANSWER: It is the opinion of the Committee that there is noconflict in the situation given above. The Committee believes A canprosecute Defendant Y even though the testimony of Defendant X, who wasformerly represented by Attorney B, may be necessary.

Rendered March 5, 1981.

[Rule 4 1.9; 1.10]


QUESTION: May an attorney serve as attorney of the schooldistrict if he serves as secretary of the school board and also serves as apart-time attorney for the county counselor's office for the same county asthe school district?

ANSWER: It is the Committee's opinion that an attorney mayrepresent a school district if he also serves as an appointed secretary to theschool board of that school district. The Committee sees no conflict eitherif he is a part-time county counselor, unless there is a dispute between thedistrict and the county or the state. If a dispute arose, then he could notrepresent the school district or the county in litigation.

Rendered March 5, 1981.

[Rule 4 1.7]


QUESTION: A Public Defender supervises defense of indigents infour counties. She and the Prosecuting Attorney of one of the counties planto be married. The Prosecutor's cases constitute 6% of the Public Defender's caseload. All Public Defender cases in the Prosecutor's county arehandled by an Assistant Public Defender who is supervised by the PublicDefender.

A. After they are married, does one of the two lawyers have toresign?

B. May the Public Defender be employed as an Assistant PublicDefender if she does not handle cases in the Prosecutor's county?


A. It is the opinion of the Committee that if she remains the PublicDefender for the circuit and marries the Prosecuting Attorney of one of thefour counties in the circuit, then the entire staff of the Public Defender'soffice would be disqualified from defending any criminal case in the countywhere the husband is the Prosecuting Attorney. The reason for suchdisqualification is that she, as the supervising office holder, would have aconflict of interest and therefore, the entire staff of the office would bedisqualified.

B. If someone other than the present Public Defender is appointedas Public Defender for the circuit and she becomes an Assistant PublicDefender, there would be no disqualification of the office so long as she didnot personally undertake defense of any cases in the county where thehusband is the Prosecuting Attorney and so long as the office proceduresused screened her from any information on the cases in his county.

Rendered March 5, 1981.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: ABC law firm has represented "Z" School District fora long time. Partner "B" of that firm currently serves as a board member for"Z" School District. No charge has ever been made to the School District andother firms in the past have represented the "Z" School District in litigatedmatters. ABC submits the following specific questions:

1. May ABC firm ethically represent the district in litigation while"B" is a member of the Board. (No fee to be charged for such services.)

ANSWER: A Board member cannot vote to hire himself or his firmwith or without a fee. If the vote to have the firm represent the district isdecided by other members of the Board, then there is no impropriety insuch representation.

2. May the firm provide informal legal services, such as real estatecontracts, advice to the administration, as authorized by the Board? (Again,no fee to be charged.)

ANSWER: The Committee can see no ethical difference betweenQuestions No. 1 and No. 2. The Committee has no knowledge of anyapplicable statutes which might affect the decision of either No. 1 or No. 2.

3. Would the situation be altered if during the trial, Attorney "B"was called as a witness by the opposing counsel?

ANSWER: If Attorney "B" were called as a witness by opposingcounsel and his testimony would be adverse to the client Board, then theABC law firm must withdraw from the representation.

4. Are the answers the same as to whether Attorney "B" or anothermember of the ABC law firm handled this litigation?

ANSWER: This is a matter of trial tactics. From an ethicalstandpoint it makes no difference whether Attorney "B" or another memberof the firm acts as counsel.

5. ABC law firm represents School District "Z" and all other SchoolDistricts in the County. May the firm appear in litigation against Countyofficials for payment of interest on Collectors Funds, etc.? The fee would beallocated among districts based upon budget or enrollment on a pro ratabasis. No fee is then paid by School District "Z" for its pro rata part of thetotal fee. Can the fee arrangements bc handled in this manner?

ANSWER: This would be permissible if we assume that there is noconflict between the various districts the firm undertakes to represent. TheCommittee points out that a conflict question might arise in allocating thefees to be charged the various districts particularly if the firm waives its feefrom "Z" School District.

All of the above answers are based upon the assumption that theSchool District is the entity that the firm is representing and not theindividual members of the Board of Education. The Committee alsoassumes that there are no conflicts between the firm, the School District orany other individuals on the Board of Education. Rendered July 16, 1981.

[Rule 4 1.7; 3.7]


QUESTION: May a legal service corporation lease space from afederally funded community action program agency? The program will sharethe services of a receptionist, who will only give out forms to potentialclients. She will give out no legal information. An attorney will be presentone or two days a week and the office is used solely as a place to interviewclients.

ANSWER: Yes. The rental of space seems proper. The Committeedoes stress that the legal service corporation must scrupulously protect theclients' confidences. Rendered July 16, 1981.

[Rule 4 1.6; 1.7]


QUESTION: Attorney "B" initially agrees with client to file anaction against "C", a state conservation agent, and "D", a federal conservation agent. The attorney then becomes the Prosecuting Attorney for theCounty. Assuming the client will consent, is there any conflict if "B" were tofile the action against "D"?

ANSWER It is the opinion of the Committee that Attorney "B"would have no conflict in bringing the action against "D", the federalconservation agent. The Committee suggests that the attorney considerwhether or not such representation could result in a poor workingrelationship with "C" and "D" in the future Rendered July 16, 1981.

[Rule 4 1.7]


QUESTION: The ABC law firm has represented the "wife"individually on unrelated matters and also jointly with the "husband". Theyhave represented the "husband" individually regarding his businessinterests.

The "wife" and "husband" intend to dissolve their marriage and haveagreed upon division of their property. The "wife" has executed a writtenconsent for the firm to represent her in the dissolution action. The"husband" has executed a similar written consent for the firm to representhis wife in the action.

Under these circumstances can the firm represent the "wife" in thedissolution action?

ANSWER: Yes. The Committee is of the opinion that ABC firm'srepresentation of the wife in the dissolution proceedings is permissible.Since both parties have executed the consents, any possible conflict wasthereby waived. Rendered July 16, 1981.

[Rule 4 1.9]


QUESTION: Attorney "A" is the attorney charged with collectionof child support for "X" County. He obtains a support order againstDefendant Jones. Jones at that time is represented by Attorney "B".

Attorney "B" joins the staff of "X" County Prosecuting Attorney'soffice. Attorney "A" is seeking a Citation Order against Jones for failure topay the ordered child support. Attorneys "A" and "B" have agreed not todiscuss the Jones case.

Does the fact that Jones' former Attorney "B" is on the Prosecutor'sstaff prevent Attorney "A" from proceeding against Jones?

ANSWER: No. It is the conclusion of the Committee that Attorney"B" is not in a position of conflict in his present employment as a member ofthe Prosecuting Attorney's staff. Since no information or discussion of theJones case has occurred or will occur between Attorney "A" and Attorney"B", the Committee can see no conflict in "A" proceeding in the above case.Should Jones believe that a conflict does exist, then Jones has a right to filea motion to disqualify Attorney "A" and have the motion ruled by the Courthaving jurisdiction of the matter. Rendered September 3, 1981.

[Rule 4 1.9; 1.11]


QUESTION: Lawyer A is the City Attorney for the City of X. Heis paid a salary plus hourly fee for certain extraordinary legal mattershandled by the City.

He is requested to file a condemnation suit for the City against lotowners in a subdivision for a water well and associated buildings.

Lawyer A is owner of a lot in that subdivision. He and his wife willbe named as party defendants in the action. He intends to accept whatevercompensation that is awarded him by the commissioners. A full disclosureof his ownership has been made to the city council.

Can Lawyer A represent the City in this proposed litigation?

ANSWER: No. It is the Committee's conclusion that for Lawyer Ato represent the City as City Attorney in litigation where the attorney ispersonally named as a party defendant is improper. The attorney is advisedto request the city council to secure other counsel for this case. RenderedOctober 1, 1981. Modified March 31, 1995.

[Rule 4 1.7]


QUESTION: Attorney C is the former county prosecuting attorney.While in office he prosecuted defendant X.

Now X and Y (her husband) are charged in a new unrelated offense.Attorney C has been requested to represent X and Y.

Can he ethically represent defendant X?

ANSWER: Yes. It is the opinion of the Committee that Attorney Ccan properly represent defendant X in the present felony case who he hadpreviously prosecuted for a different crime, unless the matters now beforethe Court involve the prior case in some way. The mere fact that AttorneyC had once prosecuted defendant X, so long as that matter has beencompleted and out of the way, would not bar his representation of thatdefendant at this time. Rendered October 1, 1981.

[Rule 4 1.9(b)]

C.ofInt.- 190

QUESTION: Attorney B is representing a minor child in connectionwith injuries she sustained arising out of a dog bite. He also represents bothparents on their loss of services claim. No lawsuit has been filed to date.

The father has filed a dissolution of marriage action. The motherwants Attorney B to represent her.

Can Attorney B undertake to represent the wife in the dissolutioncase?

ANSWER: No. Where Attorney B has been employed by theparents to represent the parents and the child, it would be improper forhim to represent the wife in the parents' dissolution action. If the husbandconsents to Attorney B representing the wife, then such representationwould be proper. Any conflict of interest can be waived by the consent ofthe opposing party Rendered October 1, 1981.

[Rule 4 1.9(b)]


QUESTION: Would a City Attorney, because of appearance alone,be prohibited from handling defense cases that arise within the city herepresents in the following situations:

(a) Where the offense occurred solely within the city but no policedepartment personnel or other city personnel were involved in handling theoffense, i.e., a bad check offense.

ANSWER: Yes, he is prohibited.

(b) If the offense occurred in part within the city and in partoutside the city.

ANSWER: Yes, he is prohibited.

(c) If the offense was discovered as the result of clandestineoperations by a law enforcement agency other than the City PoliceDepartment, with or without knowledge of the City Police Department.

ANSWER: Yes, he is prohibited.

(d) Where the offense occurs outside of the city limits but becauseof the jurisdiction of the Circuit Court would bc tried within the city limits.

ANSWER: No, he is not prohibited.

(e) Are these questions answered differently if the attorneyappears as retained counsel, having advised his client, or if he appears byappointment of the Court?

ANSWER: No, there is no difference.

Rendered October 29, 1981.

[Rule 4 1.7]


QUESTION: May an attorney ethically accept employment bydefendant to defend him in the following cases: (Attorney is an activeCommissioned Reserve Police Officer in City X in County Y).

(a) Defendant is charged with a traffic violation in City X MunicipalCourt.


(b) Defendant is charged with a general ordinance violation in CityX Municipal Court.


(c) Defendant is charged with a violation of the state criminalstatutes in Y County Circuit Court, offense committed in City X.


(d) Defendant is charged with violation of the state criminalstatutes in Z County Circuit Court, offense committed outside of City X.


(e) Defendant is charged with a traffic violation and generalordinance violation in City U, a city located in County Y.


(f) Defendant is charged in federal court under federal criminalstatutes.

ANSWER: Yes, if the City X Police are not involved.

(g) Defendant is charged with a traffic violation and generalordinance violation in a city in another county.


(h) Defendant is charged with violation of the state criminalstatutes in another county.


If the attorney is in a partnership rather than being a solepractitioner, his partner is disqualified in any case in which the attorney isdisqualified. Rendered October 29, 1981.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


QUESTION: A prosecuting attorney submits for guidance twofactual situations involving possible conflicts of interest between his officialduties and his outside civil practice.

(1) His civil client is involved in two pending civil cases wherein theprosecuting attorney is representing the client individually and as acorporation. Six months later the client is charged in unrelated cases withassault and DWI charges. The attorney files the charges and informs theclient to seek other counsel to defend him on those charges. What shouldthe prosecutor do in these civil and criminal cases?

ANSWER: A prosecuting attorney must ask for appointment of aSpecial Prosecutor if a case is to be filed against an individual who he iscurrently representing in civil litigation. The reason for that is the publiccould well believe that the prosecutor's decisions in the prosecution wereinfluenced by the fact of his private representation and that the client wasgiven preferential treatment. He can continue to represent the client in thepending civil actions.

(2) The prosecuting attorney confers with a prospective civil clientconcerning a fire loss and undertakes representation in that case. Negotiations are conducted with the attorney representing the fire insurancecarrier. The insurer contends that arson was the cause of the fire butforwarded no evidence to support that contention. What should theattorney do?

ANSWER: The prosecuting attorney can accept the civil representation if he has no reason to think there would be a conflict at the time thatthe representation is accepted. If evidence of arson is subsequently givento him, then he must withdraw from the civil representation. He shouldhave a Special Prosecutor appointed to investigate and determine if anarson case should be filed.

This case is treated differently from the one above, because boththe civil representation and the possible criminal prosecution arise out ofthe same set of facts. In the first case, it is permissible for him to continuethe civil representation since the client is being prosecuted for somethingentirely different.

Rendered October 29, 1981.

[Rule 4 1.7]

C.ofInt.- 195

(Opinion omitted. See Notes on Use.)

C.ofInt.- 196

QUESTION: Can a county prosecuting attorney represent apotential federal defendant on an alleged ASCS violation?

ANSWER: Yes. It is the opinion of the Committee that no conflictof interest exists if a county prosecuting attorney counsels and representsa potential federal defendant on an ASCS violation since there could be nobasis for an action to be filed from the prosecutor's office. RenderedDecember 10, 1981.


QUESTION: Attorney A now represents a client who desires a suitbe brought against Y, who is X's husband in an unrelated matter.

Can Attorney A represent the new client in the unrelated matteragainst the husband of a former client?

ANSWER: Yes. In the Committee's view, there is nothing toprevent Attorney A from filing this lawsuit against his former client'shusband on the unrelated case unless the attorney obtained information inthe course of his representation of the wife which could be used against herinterest. Rendered December 10, 1981.

[Rule 4 1.9(b)]

C.ofInt.- 198

QUESTION: Is it improper for a part-time Assistant ProsecutingAttorney and a part-time Special Assistant Public Defender to act as co-counsel for plaintiff in a personal injury case? The part-time SpecialAssistant Public Defender is currently representing a convicted defendantin a case on appeal. In that case the State is now represented by theAttorney General's Office.

ANSWER: No. It is the Committee's conclusion that there isnothing improper in the association of the part-time Assistant ProsecutingAttorney and the part-time Special Assistant Public Defender in thepersonal injury case. The continued representation of the defendant by thelawyer would not prohibit the association. There is nothing in the status ofthe two lawyers as a part-time Prosecutor and part-time Public Defenderwhich would prohibit their association on the civil matter. RenderedJanuary 11, 1982.

[Rule 4 1.7]


QUESTION: The attorney submits the following factual situationfor review of the Committee for possible conflict of interest.

He represents the property owner in a pending condemnation casein which exceptions are filed by the State and landowner. Thereafter, he isretained to act as attorney for the personal representative of Mr. X. Mr. Xhad acted as one of the appraisers for the State. That appraisal will not beused in evidence at the trial of the condemnation case.

Is there a conflict present under these facts?

ANSWER: No. It is the opinion of the Committee that the attorneyrepresenting the property owner has no conflict under the above facts. Itis our belief that the representation of the personal representative of adeceased appraiser would not prohibit the attorney from serving asattorney for the property owner in the condemnation case. RenderedFebruary 12, 1982.

[Rule 4 1.7]


QUESTION: An attorney submits the following for an opinion:

A and B were formerly partners in A and B law firm. Both partnersat various times represented C and D, husband and wife, in various realestate and business matters in which C and D were jointly interested.Partner B has now withdrawn from the firm.

The wife, D, wishes for remaining partner A to represent her in herdissolution action against her husband, C.

Although A is of the opinion that he possesses no "inside" information which would give D, the wife, an undue advantage, he neverthelessquestions whether or not he can ethically represent D, the wife.

ANSWER: If A possesses no confidential information obtained fromthe husband which could be used to his detriment, then the Committeebelieves A can represent the wife, D, in the dissolution proceeding. If C, thehusband believes that A does possess privileged information which could beused to his detriment, then C can file a motion to disqualify A and have itruled upon by the trial court. Rendered February 12, 1982.

[Rule 4 1.9]


QUESTION: What conflicts, if any, would there be for an attorneyin the county to hold the office of Circuit Clerk?

ANSWER: It is the Committee's opinion that an attorney who wasthe Circuit Clerk in a county could not practice in any court in the county.It believes that his position of advocate for a client would be in conflict withhis official duty to maintain a complete accurate, unbiased record of theproceedings in the court. Rendered February 12, 1982.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: A law school is engaged in a clinical legal educationprogram for its students. Sometimes low-income clients seek assistance onclaims against the university. Can the program undertake to represent suchclients against the university?

ANSWER: No. It is the opinion of the Committee that the programcannot represent individuals who have claims against the university withoutthe consent of both the university and the client. Rendered April 29, 1982.

[Rule 4 1.7]


QUESTION: X and Y are partners in a law practice. Y is the electedCity Attorney for a city of the third class. A police officer of the same citywas injured during the time Y was serving as City Attorney.

The police officer desires to retain X to represent the police officeron his worker's compensation claim. The City had worker's compensationinsurance. Y has no substantial involvement in the case nor has he had anyprior involvement in any worker's compensation claim. Y as City Attorneyadvises the City Council, draws ordinances, and represents the City inlitigation where there is no insurance. He also prosecutes violations of cityordinances.

(a) Can X accept the employment?

ANSWER: No. It is the opinion of the Committee that the partnerof elected City Attorney Y cannot accept representation of a police officerof the same city in his worker's compensation claim against the City eventhough such claim will be defended by counsel for the worker's compensation insurance carrier.

(b) May X accept the employment if Y resigns as City Attorney?

ANSWER: Yes, if the City Attorney-partner should elect to resignas City Attorney, then the other partner (X) can accept the employment if(Y) has no knowledge of the facts giving rise to the claim against the City.

Rendered June 3, 1982.

[Rule 4 1.7]


QUESTION: Can attorney represent B and C in their suit againstA for fraud in the inducement in the following factual situation?

The attorney represented individuals A, B and C in forming ageneral business corporation in which A, B and C were the shareholders,officers and directors. The corporation operated a retail business for aperiod of two years. During the two years of the corporation's existence, theattorney performed functions of a bookkeeping/clerical nature for thecorporation, such as preparation of annual reports and routine annualcorporate minutes. After approximately two years, Shareholder Aconvinced Shareholders B and C to quit business operations and to liquidatethe corporation. The attorney prepared the necessary documents forliquidation. Among the assets of the corporation at the time of liquidationwas a lease with option to purchase real estate. Prior to inducing the othershareholders to liquidate, Shareholder A convinced the Lessor/Optioner totransfer the option to Shareholder A, with the credits off of the optionpurchase price generated by the corporation over the previous two years,and concealed this information from Shareholders B and C until after thecorporation had been liquidated. B and C now wish to sue A for fraud in theinducement concerning the liquidation of the corporation.

ANSWER: It is the Committee's conclusion that the attorneycannot represent two of the shareholders in a suit against the thirdshareholder for fraud in the inducement growing out of the liquidation ofthe corporation.

Rendered October 1, 1982.

[Rule 4 1.9]


(Opinion omitted. See Notes on Use.)


QUESTION: A former Assistant Attorney General is now inprivate practice. He is handling one lawsuit for the State as a SpecialAssistant Attorney General.

He is offered employment as Assistant Public Defender in a JudicialCircuit.

Can he continue in the one case and simultaneously serve asAssistant Public Defender?

ANSWER: Yes. The Committee concludes such employment ispermissible. The Committee has the view that this situation is analogous toan attorney who has criminal defendants as clients and is then appointedas a Special Prosecuting Attorney for the purpose of prosecuting one caseon behalf of the State. Rendered January 27, 1983.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


(Opinion omitted. See Notes on Use.)


QUESTION: An Assistant Prosecuting Attorney works almostexclusively as a salaried attorney collecting child support payments. He haspreviously represented the wife in proceedings against the husband insecuring a court order requiring partial wage assignment by the husband.The husband is current in child support as per decreed amount.

The wife seeks to retain the Assistant Prosecutor as her privateattorney to seek additional order requiring husband to maintain medicalinsurance.

Can the Assistant Prosecutor accept the civil employment?

ANSWER: No. The Committee concluded that the AssistantProsecutor could not accept civil employment where the ProsecutingAttorney's Office has previously taken any official action regarding thematter. Rendered January 27, 1983.

[Rule 4 1.7]


QUESTION: Is it permissible for the Prosecuting Attorney tosimultaneously prosecute an individual defendant for a criminal offense andat the same time defend in Federal Court a civil rights suit filed by theindividual against the County and Sheriff for alleged injuries sustained asa pre-trial detainee in County Jail?

ANSWER: Yes. The Advisory Committee is of the opinion thatthere would be no conflict in the Prosecutor proceeding against anindividual on a specific felony charge and for the same Prosecutor to defendthe County in a civil action instituted by that individual. The facts of thetwo actions are not the same. The Committee has previously ruled that aProsecutor cannot engage in any civil litigation growing out of the same setof facts upon which he is prosecuting a criminal defendant. That does notappear to be present in this case. Rendered March 31, 1983.

[Rule 4 1.7]


(Opinion omitted. See Notes on Use.)


QUESTION: Lawyer A and Lawyer B are partners in atwo-member law firm. Lawyer A is currently hired as Treasurer of a CitySpecial Road District. Attorney A is an employee of the Road District.Attorney A sometimes acts as Attorney for the Road District on an hourlyfee basis separate and apart from his employment as Treasurer of the RoadDistrict.

Attorney A has been requested to consider accepting appointmentas City Attorney of a City of the Fourth Class on a basis of an annual salaryset by ordinance.

By statute the City receives up to one-fourth of the Road districtsannual revenue. Traditionally there is a contract entered into between theRoad District and the City for payment of this money to the City.

1. May Attorney A accept appointment as City Attorney andcontinue his employment as Treasurer of the Road District?

ANSWER 1: In the opinion of the Committee, Attorney A canaccept appointment as City Attorney and continue employment asTreasurer of the Road District.

2. May Attorney A continue to act as legal counsel for the RoadDistrict in matters not involving the City?

ANSWER 2: He may continue to act as legal counsel for the RoadDistrict in matters not involving the City.

3. May Attorney A draft a contract between the Road District andthe City for the one-fourth of Road District revenue if the terms of saidcontract are negotiated by the officers of the Road District and the City.

ANSWER 3: Attorney A may not draft the contract between theRoad District and the City for the Road District revenue even though saidcontract is negotiated by the officers of the Road District and the City.Rendered April 14, 1983.

[Rule 4 1.7]



QUESTION: Does Rule 4 Professional Conduct prohibit a lawyerfrom advancing any funds other than court costs and expenses of litigationin connection with pending or contemplated litigation?

ANSWER: A lawyer can advance only court costs and expenses oflitigation. Rule 1.8 Conflict of Interst: Prohibited Transactions states atRule 1.8(e)(1):

1.8(e) A lawyer shall not provide financial assistance to a client inconnection with pending or contemplated litigation, except with:

(1) A lawyer may advance court costsand expenses of litigation, therepayment of which may be contingent on the outcome of thematter, . . .

The Advisory Committee believes that "court costs and expenses oflitigation" do not include daily living costs, housing, payment of personalproperty debts or any expense other than specific court costs and expensesdirectly related to litigation such as discovery expense and expert witnessfees. Further, Rule 8.4 Misconduct, declares that it is professionalmisconduct for a lawyer to violate, or attempt to violate, the Rules ofProfessional Conduct through the acts of another. This would prohibit anattorney from providing improper financial assistance to a client through athird party.

Adopted: August 30, 1990

[Rule 4 1.8(e)(l); 8.4]



QUESTION: Child A held durable power of attorney for parentsand was personal representative of father's estate. Child B was concernedabout Child A's actions and sued for an accounting. Mother later joined insuit. Mother later changed attitude toward Child A. Mother has now suedChild B for an accounting. May a member of the firm which representedMother and Child B against Child A now defend Child B in the suit byMother?


[Rule 4 1.9; 1.10]



QUESTION: Wife and Husband 1 had Child A. After divorce, Wifehad custody of Child A. Wife remarried and Attorney's firm representedWife in case involving custody of Child B. May attorney now representHusband 1 in custody case involving Child A?

ANSWER: No, unless Wife gives a knowing and intelligent waiverof the conflict.

[Rule 4 1.9; 1.10]



QUESTION: May attorney enter into a contingent fee arrangement to collect on final judgment which was entered in a domestic relationscase? Because payments to client as a result of collection action will be ininstallments over a lengthy period, may attorney require that clientirrevocably designate attorney as payee of the payments?

ANSWER: The contingent fee arrangement is not prohibited. Theirrevocable assignment implicates Rule 1.8(a) on conflicts of interest.

[Rule 4 1.5(d)(1); 1.8(a)]



QUESTION: Client seeks representation in a personal injury caseagainst owners of a building in which attorney offices. Is this a conflict?

ANSWER: The Rules do not require the attorney to voluntarilywithdraw from the representation.

[Rule 4 1.7; 1.16]



QUESTION: May a lawyer advance housing and living expenses toa client?

ANSWER: No, this conduct violates Rule 1.8(e).

[Rule 4 1.8(e)]



QUESTION: (1) May a law student who works part time on casesfor the prosecuting attorney's office under an assistant prosecuting attorneyalso work for a private law firm which handles criminal cases? (2) Wouldscreening be a solution?

ANSWER: The answer to both questions is no.

[Rule 4 1.7; 1.10]



QUESTION: To what extent is an attorney disqualified fromhandling cases against attorneys in a firm which previously employed theattorney's paralegal?

ANSWER: Attorney would not be required to withdraw from ordecline cases adverse to clients of the paralegal's former firm as long as (1)the paralegal is screened from participation in those cases and (2) theparalegal does not reveal any confidential information from the formeremployment to any person in the attorney's firm. These measures apply toall situations in the former firm, regardless of whether the paralegal hadany involvement in those cases.

ABA Informal Opinion 88-1526

[Rule 4 1.6; 1.7; 5.3]



QUESTION: Attorney enters into a relationship with a companywhich makes the initial contact with individuals regarding possible estateplanning. Estate planning documents are drafted by a lawyer employed bythe company outside Missouri. The documents and data are delivered to theattorney for review. The documents are delivered to the individual by arepresentative of the corporation.

ANSWER: The question does not provide enough specific information for an opinion. However, a number of rules may be involved dependingon the exact nature of the relationships and procedures followed. Theseinclude: Rule 1.7(b), Conflict of Interest: General Rule; Rule 5.4, Professional Independence of a Lawyer; Rule 5.5, Unauthorized Practice of Law;Rule 7.2(c) Advertising; and Rule 7.3(b), Direct Contact with ProspectiveClients.

[Rule 4 1.7(b); 5.4; 5.5; 7.2(c); 7.3(b)]



QUESTION: May a law student who works part time on cases forthe prosecuting attorney's office under an assistant prosecuting attorneyalso work for a private law firm that does defense work in municipal courtin that county?


Formal Opinion 110

[Rule 4 1.7]



QUESTION: Attorney represented Entity A in a previous case onthis issue. Entity B now wants attorney to represent it on the same issueagainst Entity A. A recent court decision has ruled that a statutory changesince the previous case has completely changed the legal issues. Attorneyhas no confidential information related to representation of Entity A whichcould be used to Entity A's disadvantage in the case of B vs. A.

ANSWER: Attorney may represent B in its litigation with A if therecent case which ruled that the issues are now completely changed is final.

[Rule 4 1.9]



QUESTION: Does the answer to the previous opinion request(930109) change if the recent court decision is still subject to appeal?

ANSWER: Yes. Under these circumstances, attorney may notrepresent Entity B in its litigation with Entity A.

[Rule 4 1.9]



QUESTION: A separate business would be established whichwould offer will preparation to members of churches. If the church wantsto make the service available, it will announce it and schedule appointments. A certain day will be set aside for appointments at the church. Clients will meet privately with attorney and documents will be preparedand executed. Attorney will not be a part of the separate business but willbe paid an hourly rate by the business for will preparation. The businesswould make donations to the churches.

ANSWER: The arrangement would be contrary to one or more ofthe Rules of Professional Conduct. Depending on the exact logistics of thearrangement, it could violate Rule 1.7, Conflict of Interest: General Rule;Rule 5.4, Professional Independence of a Lawyer; and Rule 7.3, DirectContact with Prospective Clients. The relationship and role of theindependent business creates many problems.

[Rule 4 1.7; 5.4; 7.3]



QUESTION: Attorney is employed as an assistant prosecutor.Attorney plans to leave the prosecutor's office and join a private firm whichhas one or more cases with that prosecutor's office. Is this acceptable?

ANSWER: Yes, Rule 1.11 allows for screening of the formergovernment attorney. Be sure to carefully study and follow the requirements of that rule.

[Rule 4 1.11]



QUESTION: Attorney represents a union and one of its employeesin a grievance proceeding. Union is responsible for the fees. Union cannotpay the fees. The employee is willing to pay the fees and be reimbursed bythe union. May the attorney accept payment from the employee?

ANSWER: Yes, if the employees waives the Rule 1.8(a) conflict inwriting after full disclosure.

[Rule 4 1.8(a)]



QUESTION: What are the implications of a member of the firmbeing the child of a local judge? Is that member or any other memberdisqualified?

ANSWER: This question really relates to the Code of JudicialConduct. The judge should ask for an opinion from the Judicial Commission.

[Rule 4 1.8(i)]



QUESTION: Attorney works in a private firm but works part timefor the prosecutor handling child support enforcement. Attorney onlyworks on cases establishing paternity and child support but not modifications or jury trials if paternity is contested. Is attorney's firm disqualifiedfrom doing criminal work?

ANSWER: Follow the procedures in Conflict of Interest Opinions62 and 122 in the Missouri Advisory Committee Opinions deskbook. Inaddition, full disclosure must be given and written consent obtained fromany client whom the firm will defend in a criminal case. This additionalrequirement is consistent with State v. Ross, 829 S.W.2d 948 (Mo. banc1992).

[C.of.Int 62 and 122; State v. Ross]

[Rule 4 1.7; 1.11]



QUESTION: Prosecutor's office had a conflict on grand juryproceeding and a special prosecutor was appointed. Subject of proceedinghas now filed a motion to expunge the grand jury report. May the prosecutor or the special prosecutor handle the motion to expunge?

ANSWER: The prosecutor may not. The special prosecutor may.

[Rule 4 1.7]



QUESTION: Attorney represented Man in his business. Man hastwo children by previous wife. Man marries Wife 2. Man dies. Wife 2 andchildren consult with attorney regarding the estate. Wife 2 and childrenthen begin disagreement and each get separate counsel. Children now wantattorney to represent them.

ANSWER: Attorney may not represent the children unless Wife 2consents after full disclosure.

[Rule 4 1.9]



QUESTION: Attorney represents step-parent in step-parentadoption. This case is pending. The parent and step-parent are nowdivorcing. May attorney represent either party in the dissolution action?


[Rule 4 1.7]



QUESTION: Four defendants were accused of a crime. Defendant1 hired attorney and attorney represented him for a time. Defendant 1 thenchanged to another attorney. Defendant 2 now wants to hire attorney.

ANSWER: Attorney may not represent Defendant 2 unlessDefendant 1 consents after full disclosure.

[Rule 4 1.9]



QUESTION: Four defendants were accused of a crime. Defendant1 hired attorney and attorney represented him for a time. Defendant 1 thenchanged to another attorney. Defendant 2 now wants to hire attorney. Defendant 1 has now pled guilty.

ANSWER: Rule 1.9(a) applies and Rule 1.9(b) may apply, depending on the circumstances. Attorney may not represent Defendant 2 unlessDefendant 1 consents after full disclosure.

[Rule 4 1.9]



QUESTION: Attorney represents Husband to change court recordsto show emancipation of child. Wife 1 signs acknowledgement. Husband isnow married to Wife 2. Wife 2 now seeks to be represented by attorneyregarding marital matters. May attorney represent Wife 2?

ANSWER: Attorney may not represent Wife 2 under Rule 1.9 if anyof the marital matters are substantially related to the emancipation of thechild. Additionally, attorney may not represent Wife 2 if information aboutHusband or the marriage was obtained in the course of representingHusband which could be used to Husband's disadvantage in representingWife 2.

[Rule 4 1.9]



QUESTION: Attorney is on the Board of Trustees of a town. Thetown sometimes asks Attorney to represent it, in some instances withcompensation and in some instances without compensation. Is this aconflict of interest?

ANSWER: If no compensation is received, it is not a conflict. Ifcompensation is received, it is not a conflict if Attorney takes no part in, anduses no influence to affect,the selection or compensation.

[Rule 4 1.7; 1.8(a)]



QUESTION: Attorney represents two cities within a road district.The road district and the county have a dispute regarding distribution oftax money. The dispute is the subject of a lawsuit. The cities would receivesome of the tax money under at least one interpretation. May Attorneyrepresent the cities and the road district in this case? Does the answerchange if the cities consent? May Attorney represent either the cities or theroad district?

ANSWER: Under Rule 4-1.7, Attorney may not represent the citiesand the road district. The conflict is one which the cities can't waive. Insufficient information is provided to determine the applicability of Rule4-1.9. Therefore, no opinion can be given regarding representing only thecities or only the road district.

[Rule 4 1.7; 1.9]



QUESTION: Attorney is contract attorney for a city. A currentcity council member who will be running for office has requested Attorney'ssupport. Would this be a conflict?

ANSWER: Involvement in the political campaign of one councilmember would create a conflict of interest which would require Attorneyto withdraw from representation of the city.

[Rule 4 1.7]



QUESTION: Attorney represented client A on municipal DWIcharges. Client A failed to pay the attorney fees. Client A was married toB at the time. A and B are now divorced. Attorney was in no way involvedin the dissolution. B has asked Attorney to represent B in a motion tomodify filed by B. Is there a conflict?

ANSWER: No, as long as Attorney does not have confidentialinformation related to representation of A which could be used to A'sdisadvantage in the modification action. This opinion does not affect theability of a court to disqualify Attorney.

[Rule 4 1.7; 1.9]



QUESTION: Attorney is president of a small corporation (not a lawfirm). Attorney does not provide legal representation to the corporation. Allof the records and business transactions of the corporation are keptseparate from Attorney's law practice. May Attorney have the executiveoffices of the corporation housed within Attorney's law offices? This wouldinclude notation on the door and the building directory as well as the officeaddress being listed on the corporation's letterhead.

ANSWER: Sharing space with another business is permitted butthe two businesses must be maintained separately. The corporation musthave a separate phone number answered for the business and not the lawoffice. The files and other information must be separately maintained toensure confidentiality of information related to the law practice. Thephysical arrangement should be one which enables clients of both businesses to understand that the businesses are separate. Also, aside from theexecutive office question, Attorney should be very careful to take Attorney'srelationship to the corporation into account in Attorney's conflicts checkingsystem.

[Rule 4 1.6; 1.7; 7.1]



QUESTION: Attorney proposes to send prospective clients a letterwhich states that Attorney "specializes" in automobile law. The letter wouldalso convey that people who have been injured in an automobile collisionshould consider hiring an experienced attorney. The letter would offer afree office conference and would indicate that the recipient may be eligiblefor healthcare without out of pocket expense.

ANSWER: The word "specializes" would require inclusion of theRule 4-7.4 disclaimer. Although healthcare without out of pocket expensemay be available from some sources, Attorney should be aware that Rule4-1.8(e) prohibits Attorney from advancing money to clients for expensesother than litigation expenses.

[Rule 4 1.8(e); 7.1; 7.3; 7.4]



QUESTION: FACTUAL SITUATION 1: Attorney will purchaseinformation from a separate business obtained from police reports of trafficaccidents. Attorney will solicit prospective clients from this information, bymail only.

FACTUAL SITUATION 2: Attorney will be retained to representdrivers employed by a business in traffic ticket cases. Either the companyor the drivers will retain Attorney. Attorney would charge a flat monthlyfee per driver. Would this violate the rule on fees for months when a driverreceived

ANSWER: FACTUAL SITUATION 1: This would not, as a generalrule be a violation. However, special attention must be paid to Rule4-7.3(c). It seems particularly likely that Rule 4-7.3(c)(1) would apply tosome accident victims.

FACTUAL SITUATION 2: This arrangement would not violateRule 4-1.5. However, if the employer pays the retainer fee, specialattention should be paid to Rule 4-1.8(f).

[Rule 4 1.5; 1.8(f); 7.3]



QUESTION: Attorney represents P in a suit against D andobtained a verdict for plaintiff. C, who is also Attorney's client, haspurchased D. The case has been remanded. (1) Can Attorney represent Pin discovery against C? (2) Can Attorney give full disclosure to obtainconsent? (3) Can an independent attorney handle just discovery? (4) Can asettlement idea adverse to C be discussed with P? (5) Could an independentattorney discuss this idea? (6) Can Attorney withhold the idea and stillrepresent P? (7) There may be a binding injunction against D binding on C.Is this a conflict? (8) Is it waivable? (9) Can the conflict be cured?

ANSWER: (1) No. (2) No. (3) No. (4) No. (5) No. (6) No. (7) Yes. (8)No. (9) No, and Attorney may not assist P's new attorney in preparing fortrial.

[Rule 4 1.7]



QUESTION: Attorney A and Attorney B share office space.Attorney A represents clients in an adoption. Attorney B was appointedGAL when A and B did not share offices. Attorney A and B ran a jointadvertisement with a general heading "law offices" and their joint address.Their individual names and phone numbers also appeared. Is it a conflict forB to be the GAL?

ANSWER: Yes, the advertisement implies a relationship betweenthe attorneys. Therefore, A and B will be treated as a firm for conflict ofinterest purposes, including imputed disqualification.

[Rule 4 1.7; 1.10; 7.5(f)]



QUESTION: Attorney is a prosecuting attorney. Attorney has acivil practice and represents a small estate. The Department of SocialServices has a claim against the estate for reimbursement of Medicaidexpenses. Is this a conflict?

ANSWER: Yes, Attorney must withdraw from the probate case.

[Rule 4 1.7]



QUESTION: Attorney is a part time assistant city attorney. Mayattorney defend clients in criminal cases in circuit court in that county?

ANSWER: Yes, except, Attorney may not defend clients in criminalcases arising out of the city or in cases in which the city police are involved.

[Rule 4 1.7]



QUESTION: Attorney represents a client who was a driver in aboating accident with another boat. Passengers in the client's boat wantAttorney to represent them also. Attorney knows that the client wasdrinking at the time of the accident. Is there a conflict of interest and canthe conflict be waived?

ANSWER: Yes there is a conflict of interest under 1.7(a) and under1.7(a)(1) it cannot be waived.

[Rule 4 1.7]



QUESTION: Would it solve the confidentiality problem in OpinionNo. 930172 if the client were asked to sign a waiver of confidentialitystatement before the information is gathered by the agent and sent toAttorney?

ANSWER: No. An attorney should not be encouraging clients towaive confidentiality without first advising them of the ramifications of thataction. Since the attorney will not be present at that time, this wouldconstitute further unauthorized practice of law by the agent.

[Rule 4 1.6; 1.7]



QUESTION: Attorney represents a criminal client in a caseinvolving offenses which arose in the city. Attorney became City Attorney.Is this a conflict? Can it be cured by resigning as City Attorney? Can it bewaived by the city?

ANSWER: It is a conflict if any of the City Attorney's duties involveprosecution or advice to the police department. It can be cured by resigningas City Attorney if no confidential information was obtained related to thematter in Attorney's role as City Attorney and if the criminal client givesconsent. The conflict cannot be waived by the city.

[Rule 4 1.7]



QUESTION: Attorney was contacted by Wife regarding herintention to file for divorce. Attorney declined to discuss the matter withWife because of Attorney's personal relationship with Husband's family.Husband has now contacted Attorney for representation in the divorce.May Attorney represent Husband?

ANSWER: Yes, if Attorney did not obtain any information fromWife that would be confidential under Rule 1.6.

[Rule 4 1.6; 1.9]



QUESTION: Attorney has been asked to represent plaintiff againsttwo defendants. One defendant is a distant relative of Attorney. MayAttorney represent the plaintiff?

ANSWER: Attorney may represent the plaintiff against bothdefendants if Attorney makes full disclosure to her client in writing andobtains her client's consent in writing.

[Rule 4 1.7(b)]



QUESTION: Attorney represents the driver and passengersinvolved in an automobile accident. Attorney has learned that there may befacts which would indicate possible fault on the part of the driver and createa conflict between the driver and the passengers. One passenger is an adult,the others are minors.

ANSWER: Attorney has two options. First, Attorney couldwithdraw from the representation completely. Second, Attorney couldwithdraw from representing the passengers but continue representing thedriver, if the passengers waive the conflict. The next friend could waive theconflict on behalf of the minors.

[Rule 4 1.7]



QUESTION: Attorney would be a partner in two firms. Attorneywould not do the same type of work in both firms.

ANSWER: This would be a violation of the rules because Attorneywould have conflicts from both firms. Attorney's clients would not be awareof all of the conflict situations which could involve the other firm.

[Rule 4 1.7]



QUESTION: Attorney represents insureds on behalf of aninsurance company. To whom does Attorney owe the duty of candidcommunication and confidentiality?

ANSWER: Attorney has an attorney client relationship with theinsured. Attorney owes a duty of candor and confidentiality to the insured.Those duties can only be limited with the express consent of the insuredafter full disclosure. Attorney also owes a duty of candor and confidentialityto the insurance company unless that duty has been limited with theexpress consent of the insurance company. This dual representation canresult in irreconcilable conflicts of interest requiring withdrawal fromrepresentation of both.

[Rule 4 1.4; 1.6; 1.7]



QUESTION: Attorney represented a client who entered a plea ofstealing from an employer. The employer has now asked Attorney torepresent it in an action against a person who should have detected thetheft. The employer says it has no interest in bringing an action againstAttorney's former client.

ANSWER: Attorney may only represent the employer if the formerclient consents after full disclosure. The situation will be further complicated if the former client is brought in as a defendant by the otherdefendant. In that situation, Attorney will have to withdraw.

[Rule 4 1.6; 1.9]



QUESTION: Fact Situation 1: Attorney represents a defendantwho was the driver in an auto accident. The suit has been amended toinclude the driver's employer as a defendant. The possibility exists that thedriver and the employer's interests will diverge. May Attorney representboth at this point? Fact Situation 2: Attorney's firm represents an employerin a workers compensation case. Attorney's firm also accepted the sameemployee as a client in an auto accident case totally unrelated to theworkers compensation suit. May the firm continue representation in eitheror both cases?

ANSWER: Fact Situation 1: Yes, if each defendant is given fulldisclosure and each independently consents to the joint representation. Ifan actual conflict develops, Attorney will have to withdraw from representing both. Fact Situation 2: Attorney's firm may not continue in both casesunless both clients consent under Rule 1.7(a). If the firm does not representboth clients with their consent, the situation would be governed by Rule 1.9.The firm could represent either as long as members of the firm did notobtain confidential information from the other client which could be usedto the other client's disadvantage in the representation.

[Rule 4 1.7; 1.9]



QUESTION: Attorney is a prosecuting attorney. As prosecutor,Attorney successfully prosecuted Defendant for DWI related to an autoaccident. Attorney also has a private practice and has been asked torepresent Plaintiff in a civil action against Defendant related to the sameauto accident.

ANSWER: This would be a conflict of interest under Rule 1.7(b).Because the state is one of Attorney's client's, consent to the conflict is notan option.

[Rule 4 1.7(b)]



QUESTION: Attorney is the corporate attorney for a corporation.The corporation would like Attorney to serve on its Board of Directors. MayAttorney do this and remain the corporate attorney?

ANSWER: This would be a conflict of interest but Rule 4-1.8(a) setsout the steps an attorney must follow to enter into such a businessrelationship. This situation creates numerous opportunities for conflictsunder Rule 4-1.7(b). Attorney should study the last paragraph under theheading "Other Conflict Situations" in the comments to this rule.

[Rule 4 1.7(b); 1.8(a)]



QUESTION: Attorney's client is receiving Medicaid. Attorney hasobtained agreement from an insurance company to settle a personal injurycase. Statutes require both Attorney and client to notify Social Services ofthe settlement. Client has withdrawn authority to settle and dischargedAttorney after Attorney informed client of this obligation. May Attorneyreport to Social Services?

ANSWER: If Attorney reports without client's consent, Attorneywill violate the confidentiality obligation under Rule 4-1.6. Attorney shouldcounsel client regarding the obligations under the statutes prior towithdrawing. If client will not consent to reporting, Attorney must remainsilent and withdraw under Rule 4-1.16(a)(1).

[Rule 4 1.6; 1.16(a)(1)]



QUESTION: Attorney conducts administrative hearings. A closelyrelated "in-law" is a party who regularly appears before Attorney. Do theconflict of interest provisions of the Code of Judicial Conduct or the Rulesof Professional Conduct apply?

ANSWER: The Chief Disciplinary Counsel does not interpret theCode of Judicial Conduct, including its applicability. However, we understand that the Judicial Commission has taken the position that that Codedoes not apply to quasi-judicial administrative officials. Attorney maypreside over cases in which this relative is a party if Attorney gives fulldisclosure of the relationship to the parties and if all parties consent.Although the government cannot normally consent to a conflict, thissituation is an exception. Canon 3(C)(4) of the Code of Judicial Conduct ishelpful in determining how the conflict under Rule 4-1.7(b) can be handled.Although Rule 1.8(i) does not strictly apply in this situation, it is instructivein this regard because it indicates that conflicts of this sort can be waived.

[Rule 4 1.7(b); 1.8(i)]



QUESTION: May Attorney participate in a credit card programthat is marketed through law firms and is used exclusively for payment oflegal fees? Attorney or staff of the firm will be the one informing the clientof the program and signing the client into the program.

ANSWER: Participation in this program would raise conflict ofinterest questions under Rule 4-1.7(b). This conflict could be handledthrough full disclosure and written consent of the client. Full disclosurewould involve making certain that the client understands the terms andobligations of the financing, including the interest rate, as well as the extentto which Attorney benefits by sharing in the interest paid by the client andby reducing concerns regarding collectability of fees. This opinion does notaddress other laws, such as Truth in Lending.

[Rule 4 1.7(b)]



QUESTION: A legal services program asks about two situations. In both situations, two people who are married may each qualify forservices and may seek a dissolution of their marriage. When each potentialclient comes in, they will elicit information from the person regarding thecircumstances. Situation 1: May the legal services program pay for anattorney for both parties? The legal services program would have aninterest in keeping litigation costs to a minimum. Situation 2: In the samegeneral situation, but one of the staff attorneys began representing one ofthe parties and then transferred the case to an outside attorney. May thelegal services program pay for an attorney for both parties?

ANSWER: Both situations would involve conflicts under Rules 4-1.7and 4-1.8(f). They would also create problems involving confidentiality.Although these problems are not necessarily insurmountable, we must bepresented with a specific plan before we can give an opinion. Also, it is clearthat the legal services program will not be able to retain financial controleven if the other conflict issues can be handled.

[Rule 4 1.6; 1.7; 1.8(f)]



QUESTION: Attorney will become prosecuting attorney. Whatimpact will that have on pending civil cases? What impact on future civilcases involving automobile accidents? Attorney is currently working withanother attorney in a firm. After Attorney becomes prosecutor, mayAttorney work with the other attorney on civil cases on a case by case basiswithout disqualifying the other attorney from defending criminal cases inMissouri?

ANSWER: Attorney may continue in pending civil cases unlesssome aspect of the factual situations from which those cases arise wasconsidered by that prosecuting attorney's office. After becoming prosecutingattorney, Attorney may represent parties in auto accident cases which occurin other counties and other states as long as nothing related to those casesis considered by Attorney's prosecutor's office. If Attorney maintains aseparate office from the other Attorney and is occasionally co-counsel onindividual cases, it will not affect Attorney's ability to represent criminaldefendants. However, if there is an ongoing relationship or the appearanceof an ongoing relationship, the other attorney would be disqualified fromhandling any criminal defendants in Missouri as well as any other case fromwhich prosecuting attorney would be disqualified.

[Rule 4 1.7; 1.10]



QUESTION: Situation 1. Attorney would prepare a Petition for adissolution of marriage for Attorney's client. Attorney would prepare anEntry of Appearance, Waiver of Service and pro forma Answer for the otherpart, who is not represented. This would be accompanied by a cover letterwhich would explain what the documents are.

Situation 2. In a situation similar to Situation 1, the parties to themarriage want a separation agreement. In order to do this, Attorney'sclient must file the Petition and the other party must file an Answerdenying that the marriage is irretrievably broken. Attorney would draft theAnswer for the other party. Attorney's client actually wants a dissolution.

ANSWER: Both situations would violate Rules 4-4.3 and 4-1.7Situation 1. Attorney would inherently be providing legal advice to theunrepresented spouse. Although the unrepresented spouse is told thatAttorney is not representing him or her, he or she is trusting Attorney tolook after his or her interests. Situation 2. In addition to the problemscited above, Attorney would be violating Rule 4-4.3. Attorney would also beviolating Rule 4-1.7 by assisting the unrepresented spouse to obtain aseparation when the client actually wants a dissolution.

[Rule 4 1.7; 4.3]



QUESTION: Attorney is a city prosecutor. Attorney has beenasked to represent a defendant on two felony charges. The criminal offenseoccurred outside the boundaries of the city for which Attorney is cityprosecutor. No law enforcement officers for that municipality wereinvolved in the case. May Attorney represent the criminal defendant?


[Rule 4 1.7]



QUESTION: Attorney is a member of one firm and will be "ofcounsel" to another firm. The two firms share office space and someequipment, otherwise they are separate. Does this violate the Rules ofProfessional Conduct?

ANSWER: In order to avoid violating Rule 4-7.1 attorney wouldneed to identify both firms with which the attorney is connected on eachfirm's letterhead and other forms of communication to the public and otherlaw firms. The two firms will be considered as one for conflicts purposes.

[Rule 4 1.10; 7.1]



QUESTION: Attorney represents the driver and passenger whoare plaintiffs in a case arising out of an automobile accident. Attorney hasfiled suit on behalf of the driver but not on behalf of the passenger. Attorney is hoping to resolve the driver's case before the statute oflimitations runs on the passenger's case. Both clients have been informedof this action. Must Attorney withdraw from the passenger's case now? IfAttorney must withdraw, may Attorney assert a lien? How will the legalfees be calculated?

ANSWER: To represent both the driver and passenger, Attorneymust make a determination that the dual representation will not adverselyaffect representation of either party. Each client must be given fulldisclosure of the conflicts and potential conflicts involved in the situation. Each client must affirmatively act to consent. If a problem arises afterrepresentation is begun, this procedure must be repeated. If either clientwill not consent, Attorney must withdraw from representing both, unlessboth clients consent to Attorney continuing to represent one. Attorney mayassert a lien for fees. The question of how fees will be calculated is a legalissue.

[Rule 4 1.5; 1.7]



QUESTION: Attorney is a prosecuting attorney. Attorney has fileda civil action to attempt to collect back child support. Attorney has also fileda criminal nonsupport charge against the same person. May Attorneydismiss the criminal charge in exchange for payment of the back childsupport?

ANSWER: Section 454.513, RSMo 1994, provides that, in civil casesfor child support enforcement brought by a state official, the client shallexclusively be the "state of Missouri, department of Social Services, divisionof child support enforcement." Representation of a specific agency is notthe same as representing the state of Missouri in a criminal case. Thissituation involves a conflict between the interests of the State and theinterests of the Division. Therefore, Attorney may not dispose of thecriminal case in the manner described.

[Rule 4 1.7; § 454.513]



QUESTION: Attorney would participate in a living trust programrun by a separate company. Non-attorneys who are not under thesupervision of an attorney would contact the clients and gather informationto prepare the living trust and would obtain a check for the company anda check for the attorney. Attorney would be a review attorney for documents sent by the company and advising the company of any changesneeded to comply with Missouri law. Attorney will be compensated by theclients at a rate set by the company. Attorney is encouraged to make directcontact with the clients. Attorney will send the approved trust document orrecommendations to the company. The company will send the finaldocument to the client.

ANSWER: This program would violate the following rules withinRule 4: 1.6, 1.7(b), 5.3, 5.4, 5.5, 7.3(b) and 8.4(a).

[Rule 4 1.6; 1.7(b); 5.3; 5.4; 5.5; 7.3(b); 8.4(a)]



QUESTION: Attorney is a prosecuting attorney. Attorney isrepresenting a plaintiff in a personal injury case arising out of Attorney'scounty. Attorney has recently learned that the defendant was ticketed andpaid the fine without an appearance. The ticket arose out of the sameautomobile accident that resulted in the personal injury case. (1) MayAttorney stay in the case? (2) Can the conflict be waived? (3) May Attorneystay in the case if Attorney resigns as prosecuting attorney at this point?

ANSWER: (1) No. (2) No, the state of Missouri cannot waive aconflict. (3) No.

[Rule 4 1.7]



QUESTION: Attorney is representing the County Juvenile Officein a salaried position. May Attorney represent adult criminal defendantsin any municipal or circuit court in Missouri?


[Rule 4 1.7]



QUESTION: One member of the firm is a part time municipaljudge. Another member has a case in which the city is a defendant. Is thisa conflict? Can it be waived?

ANSWER: Yes, it is a conflict and the member must withdraw fromthe case. As a governmental entity, the city cannot waive the conflict.

[Rule 4 1.7; 1.10]



QUESTION: Attorney is a criminal defense attorney. (1) What isAttorney's duty to a state's witness who asks Attorney whether he isrequired to honor a subpoena served on behalf of the prosecutor? (2) Whatif the state's witness tells Attorney the witness no longer wishes toprosecute? (3) What if a witness for either side who has not been interviewed wishes to speak with the witness' own attorney before speaking withAttorney? (4) What if defense counsel knows that a potential state's witnessis likely to incriminate himself if he is interviewed? Would it be appropriatefor Attorney to arrange for counsel for this witness? (5) If Attorney knowsthat a witness will incriminate himself or herself when testifying, mustAttorney take steps to alert the court in advance? May Attorney call thewitness?

ANSWER: (1) Under Rule 4-4.3, it would be improper for counselto give the witness any advice. Attorney may only suggest that the witnessget advice from his or her own attorney. (2) Same answer as (1) butAttorney may advise the witness to communicate the information to theprosecutor. (3) Attorney may not speak to the witness unless the witnessvoluntarily agrees to do so or the appropriate legal process is used. (4) Sameanswer as to (1). It would be improper for Attorney to arrange counsel forthe witness. (5) Attorney has a duty of undivided loyalty to the client. IfAttorney's concerns about the witness will interfere with Attorney's dutiesto the client, under Rule 4-1.7(b), Attorney must seek to withdraw.

[Rule 4 1.7(b); 4.3; 4.4]



QUESTION: Attorney represents a client on a real estate contract.A person (X) who is not an attorney or a real estate professional comes toAttorney's office with client and informs Attorney that X has negotiated thecontract for client. X has been advising client on possibly conveying the realestate to a charitable trust which client has established and of which X istrustee. (1) Should Attorney advise X that X is violating the law? (2) ShouldAttorney report X to the proper authorities? (3) Should Attorney informclient that X is engaging in the unauthorized practice of law? (4) ShouldAttorney refuse to represent client further in this situation?

ANSWER: (1) Attorney should not advise X of anything because Xwould become a client and this would create a conflict with Attorney'scurrent client under Rule 4-1.7(a). (2) Yes. (3) Attorney should advise clientof the concerns using Attorney's legal judgment. (4) Attorney may continueto represent client as long as X has no further involvement in the transaction. Attorney must advise client of the ramifications of having a thirdparty present during attorney-client conferences.

[Rule 4 1.7(a); 4.3; 5.5]



QUESTION: Attorney is a part time city attorney. May Attorneyrepresent a defendant on a felony criminal charge arising within theboundaries of the city?


[Rule 4 1.7]



QUESTION: Husband (H) and Wife (W) are attorneys in separatefirms. H asks whether the hiring of one precludes or impacts the hiring ofthe other.

ANSWER: Under Rule 4-1.8(i), H will not be able to take a case inwhich W represents an adverse party unless H's potential client consentsafter full disclosure. As indicated in the comment, this conflict will notdisqualify other members of H's firm under Rule 4-1.10. However, anothermember of the firm who takes a case in which W is representing an adverseparty should disclose this fact to the client.

[Rule 4 1.8(i); 1.10]



QUESTION: Attorney was previously guardian ad litem for aperson. The guardian and conservator of that person now wants Attorney'srepresentation regarding the guardianship and conservatorship. Is this aconflict?

ANSWER: Yes, under Rule 4-1.9.

[Rule 4 1.9]



QUESTION: Attorney represents an individual as nominal plaintiffin a lawsuit in which another individual is the real party in interest. Onbehalf of another client, Attorney wants to sue the nominal plaintiff in theother case. Is this a conflict of interest?

ANSWER: Yes, under Rule 4-1.7(a), Attorney would have a conflictof interest by filing a lawsuit against the individual who is Attorney'scurrent client even though that individual is only nominally a client.

[Rule 4 1.7(a)]



QUESTION: A case has arisen involving an automobile accident inwhich the child was a passenger and the mother was one of the drivers. There is no reason to believe that the mother is liable. May the clientswaive the potential conflict of interest? May Attorney represent the driverand passengers in the accidents?

ANSWER: Yes, the passengers may waive the potential conflict ofinterest. Concerns are raised if the mother acts on the child's behalf towaive the conflict. The father, or other independent person, should act onthe child's behalf regarding the waiver. If an actual conflict develops,Attorney must withdraw from representing all clients. Attorney should becertain that Attorney has made sufficient disclosures and has thoroughlydocumented the disclosures as well as any consent given.

[Rule 4 1.7]



QUESTION: Attorney firm had represented H in a stepparentadoption and a dissolution. Attorney currently represents a woman seekinga dissolution from H. This woman was not involved in the previousproceedings. H claims that the custody of the adopted child will be an issuein the current case and therefore Attorney has a conflict of interest. Attorney does not see how this could be an issue in the current case. Isthere a conflict? Must Attorney withdraw?

ANSWER: The analysis which would apply would be under Rule4-1.9. However, this situation involves a factual dispute. This office cannotresolve factual disputes in the context of an informal opinion. This issue isbest resolved in the court in which the case is pending.

[Rule 4 1.9]



QUESTION: Attorney has been asked to represent a person in awrongful death action. The action may be filed against the county as one ofthe defendants. Attorney's partner represents the County IndustrialCommission on certain matters. The county commission appoints the Boardof Directors of the County Industrial Commission. Does Attorney have aconflict which prevents him from representing the person? Would theconflict be eliminated if the partner withdrew from representing theCounty Industrial Commission?

ANSWER: Yes, there is a conflict. Yes, withdrawing from representation of the County Industrial Commission would eliminate the conflict.

[Rule 4 1.7]



QUESTION: Attorney is an assistant public defender. Attorneyrepresented a defendant on one criminal charge. Another charge wasbrought against the same defendant before the defendant went to trial onthe first charge. Attorney represented the defendant in both cases. Onecase went to trial first and the defendant was convicted. The defendant hasnow filed a 29.15 Motion alleging ineffective assistance of counsel. MustAttorney withdraw from representation of the defendant in the secondcase? If Attorney must withdraw, may the defendant be represented outof another office of the public defender system?

ANSWER: Yes, Attorney has a conflict. Attorney must seek towithdraw unless the client consents after full disclosure and advice from anindependent attorney. If Attorney does withdraw, the defendant may berepresented out of another office of the public defender system.

[Rule 4 1.7(b)]



QUESTION: A governmental agency employs staff attorneys. Maythe agency have staff attorneys represent other employees who have beeninvolved in accidents and ticketed for traffic violations? There are benefitsto the government agency if the employee defends the ticket in a certainmanner. Is this a conflict of interest?

ANSWER: Yes, and waiver is not a possibility because conflictscannot be waived by a government agency.

[Rule 4 1.7(b)]



QUESTION: Attorney represented H on charges of DWI andassault on his W. H and W are no longer married. Attorney representedneither party in the dissolution. Attorney is now representing W in a childcustody dispute with H. Does Attorney's knowledge of H's drinking anddriving and behavior toward W disqualify Attorney from representing Wagainst H in this matter?

ANSWER: The knowledge of H's history which is a matter of publicrecord does not disqualify Attorney. Attorney has an obligation to reviewthe previous representation of H and the current representation of W todetermine whether confidential information Attorney obtained in thecourse of representing H COULD be used to H's disadvantage in thecurrent representation of W. If so, he cannot undertake or continue therepresentation. Attorney has the duty to engage in this review regardlessof whether the former client raises the issue.

[Rule 4 1.9]



QUESTION: A legal services program asks about the situation injuvenile matters in which both parents need representation. In somesituations there is no apparent conflict between the interests of theparents. In other situations, a conflict is apparent from the outset. May theprogram assign attorneys to represent both parents in each of these typesof situations? May the program exercise financial control by approving ordisapproving expenditures for expenses of representation?

ANSWER: If there is a potential conflict of interest and theprogram wants to assign the same attorney to both parents for representation, each of the parents must first be given full disclosure about thepossible conflicts. If they consent, that attorney may represent both ofthem until an actual conflict arises. If an actual conflict arises, thatattorney will have to withdraw from representing both parents and theparents will need new, separate attorneys. Where a conflict is apparentfrom the outset or develops during representation, the legal servicesprogram may not exercise independent financial control of the representation of each parents beyond setting a cap or limit on the total amount theprogram will expend.

[Rule 4 1.7]