CONFLICT OF INTEREST

1996 SUPPLEMENT

C.ofInt.-289

INFORMAL OPINION 940112

QUESTION: Attorney is a minority shareholder in a corporation but owns more than five percent (5%) of the stock. MayAttorney enter into a contract with the corporation prospectivelylimiting Attorney's liability for negligence if the corporation isrepresented by independent counsel?

ANSWER: No, this would be prohibited by Rule 4-1.8(h).

[Rule 4 -- 1.8(h)]

C.ofInt.-290

INFORMAL OPINION 940119

QUESTION: A legal aid office asks two questions regardingdomestic relations cases. (1) If one party seeks representation but isdenied for some reason and the second party subsequently seeksrepresentation, may the legal aid office provide representationthrough a staff attorney or contract attorney? (2) If both partiesapply for representation at approximately the same time, may thecommittee that reviews applications consider both and accept onebut reject the other?

ANSWER: In either situation, the office may offer representation to the qualifying party only if a contract attorney who has noaccess to the intake information of the other party is assigned.

[Rule 4 -- 1.6; 1.7; 1.10]

C.ofInt.-291

INFORMAL OPINION 940122

QUESTION: Attorney would like to co-sign a consumer loanfor a client in a personal injury case.

ANSWER: This would violate Rule 4-1.8(e).

[Rule 4 -- 1.8(e)]

C.ofInt.-292

INFORMAL OPINION 940127

QUESTION: Attorney has been requested to represent A in amotion to modify against B involving child support and custody.Previously, Attorney was a prosecuting attorney and filed a motionfor withholding related to child support at B's request. May Attorneynow represent A?

ANSWER: No, the representation would violate Rule 4-1.9.

[Rule 4 -- 1.9]

C.ofInt.-293

INFORMAL OPINION 940129

QUESTION: Attorney is city counselor. May members ofAttorney's firm handle the defense of municipal ordinance violations? Is screening a solution?

ANSWER: No, it would involve a conflict of interest under Rule1.7(a). Screening is not a solution because screening is only allowedunder the rules in a situation involving successive government andprivate employment.

[Rule 4 -- 1.7(a); 1.10]

C.ofInt.-294

INFORMAL OPINION 940130

QUESTION: Attorney would be paid a retainer by a titlecompany to provide real estate related legal services to membersof the public. No legal fees would be shared with the title companyand Attorney would be independent of the title company in thecourse of representation.

ANSWER: Attorney would have to follow the procedures inRule 4-1.8(f) in addition to remaining independent under Rule 4-5.4.Attorney must recognize that an attorney client relationship isformed with each member of the public for purposes of theconfidentiality and conflict of interest rules.

[Rule 4 -- 1.6; 1.7; 1.8(f); 5.4

C.ofInt.-295

INFORMAL OPINION 940131

QUESTION: Attorney is a prosecuting attorney. May Attorneyrepresent a claimant against a state agency in a workers compensation case?

ANSWER: No, it would be a conflict of interest.

[Rule 4 -- 1.7]

C.ofInt.-296

INFORMAL OPINION 940134

QUESTION: Attorney submits a form cover letter and entry ofappearance used in dissolution cases. Attorney represents spouseA. The cover letter and entry of appearance are sent to the spouseB when the spouse B is not represented. The cover letter givesinstructions for execution of the entry of appearance and requeststhat spouse B or spouse B's attorney contact Attorney. The entry ofappearance only acknowledges receipt of the petition and waivespersonal service.

ANSWER: Attorney should add language to the beginning ofthe cover letter clearly indicating that Attorney represents spouse Aand not spouse B. The letter should also tell spouse B that, if spouseB has any questions about the entry of appearance or otheraspects of the case, spouse B should consult an independentattorney. Other than these concerns, contacting spouse B in thismanner would not violate Rules 4-1.7 or 4-4.3.

[Rule 4 -- 1.7; 4.3]

C.ofInt.-297

INFORMAL OPINION 940138

QUESTION 1: A member of Attorney's firm was previouslyguardian ad litem for a disabled person. The guardian ad litem didnot inquire about the disabled person's financial condition. Aguardianship and conservatorship was established and theguardian ad litem is no longer involved. May Attorney represent abank against the estate of the disabled person on several notes?

QUESTION 2: Attorney represented spouse A in a dissolutioninvolving custody of children X and Y. Subsequently spouses A & Bhad child Z. Attorney was appointed guardian ad litem for Z in apaternity and custody action. That action was resolved andAttorney was discharged as the guardian ad litem. May Attorneynow represent spouse A in an action seeking modification of theorder entered in the case in which Attorney was guardian ad litem?

ANSWER 1: This is not a conflict under Rule 4-1.9(a). However,if the member of the firm obtained confidential information underRule 4-1.6 in the course of serving as guardian ad litem that couldbe used to the disadvantage of the disabled person in the currentcase, Attorney would have a conflict under Rules 4-1.9(b) and4-1.10. ANSWER 2: Attorney has a conflict of interest underRule 1.9.

[Rule 4 -- 1.9]

C.ofInt.-298

INFORMAL OPINION 940142

QUESTION: Attorney represents the juvenile officer from timeto time on isolated cases. May Attorney continue representation ofthe juvenile officer on this basis and continue to represent adultcriminal defendants?

ANSWER: Yes, since the representation of the juvenile officeris "from time to time on isolated cases." This opinion is consistent withprevious opinion regarding special city attorneys and specialassistant attorneys general.

[Rule 4 -- 1.7]

C.ofInt.-299

INFORMAL OPINION 940144

QUESTION: May Attorney function as a prosecuting attorneyfor a municipality and also function as a municipal judge foranother municipality within the same county?

ANSWER: Yes. Attorney should also ask for an opinion fromthe judicial commission regarding the application of the Code ofJudicial Conduct to the situation.

[Rule 4 -- 1.7]

C.ofInt.-300

INFORMAL OPINION 940147

QUESTION: ABC and XYZ are corporations. XYZ has completecontrol over ABC. Attorney regularly represents ABC. Attorney wantsto represent a client against XYZ. ABC was not involved in the factsresulting in the suit. The potential client and ABC have beeninformed of the situation and both have consented in writing toAttorney representing the potential client against XYZ.

ANSWER: A conflict does exist. In reviewing whether theconsents are sufficient, Attorney should make certain that fulldisclosure has been given to each client and that each client isaware of the option to consult independent counsel regarding thewaiver. All of these steps should be documented in writing inaddition to the waiver.

[Rule 4 -- 1.7]

C.ofInt.-301

INFORMAL OPINION 940148

QUESTION: Attorney is the attorney for the Juvenile Office.Attorney is in full time private practice in a firm. One member of thefirm handles criminal defense cases. Attorney is paid a set annualfee divided into monthly checks. Attorney works on an "as needed"basis for the Juvenile Office.

ANSWER: Attorney's representation of the Juvenile Office onan ongoing basis for an annual fee creates a conflict of interest ifAttorney or members of the firm represent defendants in criminalcases. By representing the juvenile officer, Attorney is representingthe interests of the state. Therefore, Attorney may not take casesadverse to the state. The nature of the case as civil or criminal is notthe determining factor. However, Attorney could represent thejuvenile officer on a case by case basis without a blanket disqualification. Historically, situations in which an attorney has beenspecially appointed for an individual case have been vieweddifferently.

[Rule 4 -- 1.7]

C.ofInt.-302

INFORMAL OPINION 940150

QUESTION: Attorney works for a state agency. May Attorney,in a separate private practice on Attorney's own time, represent anindividual against the state, another state agency or a stateofficial? ANSWER: No.

[Rule 4 -- 1.7]

C.ofInt.-303

INFORMAL OPINION 940152

QUESTION: Attorney is a prosecuting attorney. Attorney hasa social relationship with the victim in a case and has had anattorney/client relationship with the victim previously. The defendanthas several years previously made a criminal complaint against anemployee of the victim in the current case. Must Attorney request aspecial prosecutor?

ANSWER: No, unless these relationships would affect Attorney's independent exercise of discretion.

[Rule 4 -- 1.7]

C.ofInt.-304

INFORMAL OPINION 940158

QUESTION: Attorney is a prosecuting attorney. Beforebecoming prosecutor, Attorney represented a civil defendant. Thisclient is under investigation for possible criminal violations related tothe subject of Attorney's representation in the civil case. (1) MustAttorney withdraw from the civil case? (2) May Attorney have anassistant prosecutor handle the criminal issues with no involvementfrom Attorney?

ANSWER: (1) No, it would be too late in the representation tocure the conflict by withdrawing from the civil case. (2) NeitherAttorney nor any of Attorney's assistants may handle the criminalaspects of the case. The criminal aspects could only be handled bya special prosecutor.

[Rule 4 -- 1.7]

C.ofInt.-305

INFORMAL OPINION 940159

QUESTION: Attorney is employed as counsel to a governmentofficial. May Attorney sue another government official as a part ofAttorney's private practice?

ANSWER: No, this would be a conflict of interest under Rule4-1.7.

[Rule 4 -- 1.7]

C.ofInt.-306

INFORMAL OPINION 940161

QUESTION: May Attorney prepare an entry of appearanceand waiver of service for the opposing party in a dissolution casewhen that person is not represented by counsel? In many instances,the opposing party wishes to avoid the embarrassment of personalservice.

ANSWER: It would never be permissible to draft a responsivepleading for an unrepresented opposing party. However, thepropriety of drafting the entry and accompanying cover letter isdependent on the actual language used. It is permissible underRules 4-4.3 and 4-1.7 to draft a very simple entry of appearance andsubmit it to the other party. The cover letter should clearly indicateat the beginning that Attorney does not represent the opposingparty and that Attorney does represent the other spouse. The lettershould also indicate that the opposing party should consult anindependent attorney if he or she has any questions.

[Rule 4 -- 4.3; 1.7]

C.ofInt.-307

INFORMAL OPINION 940168

QUESTION: Attorney is general counsel for a city. Attorney isthe backup for the city prosecutor. May Attorney handle criminaldefense cases if they do not arise within the geographical boundaries of the city and city personnel take no part in the investigation,arrest or detention.

ANSWER: Yes.

[Rule 4 -- 1.7]

C.ofInt.-308

INFORMAL OPINION 940171

QUESTION: Attorney previously represented Client A in a DWIcase. Attorney now represents Client B in an estate case in whichclient A is not a party but is probably an adverse witness. Is this aconflict?

ANSWER: Rule 4-1.9(b) applies. It is not a conflict unlessAttorney obtained confidential information in the course ofrepresenting Client A in the DWI case which could be used to ClientA's disadvantage in the current case.

[Rule 4 -- 1.9(b)]

C.ofInt.-309

INFORMAL OPINION 940172

QUESTION: Attorney previously prepared the Articles ofIncorporation, Bylaws, stock certificates and minutes of meetings forcorporation X. Attorney subsequently prepared a Buy-Sell agreement at the direction of the corporate accountant. May Attorneynow represent shareholder A against shareholder B in a suit relatedto the corporation and its assets?

ANSWER: No, Attorney's representation of the corporationhas been to such an extent that he is also viewed as representingthe two shareholders. Therefore, Attorney may not represent eithershareholder in the lawsuit unless both consent.

[Rule 4 -- 1.9(b)]

C.ofInt.-310

INFORMAL OPINION 940173

QUESTION: Attorney has been hired to represent parents andchild in a suit involving an accident in which the child was injured.No issue of comparative negligence by the parents has been raisedbut it is conceivable that it might be. Does Attorney have a conflictof interest? If yes, can it be waived?

ANSWER: This situation creates a conflict of interest underRule 1.7. Attorney must first determine that joint representation wouldnot reasonably be expected to adversely affect the relationshipwith either client. If a genuine issue of comparative negligencedevelops, this step in the analysis would dictate that the conflictcould not be waived. Once step one is satisfied, the clients must bewilling to consent after full disclosure. The parents may not consenton behalf of the child. Only a next friend appointed by the courtmay consent for the child. If the next friend will not consent,Attorney may continue to represent the parents unless informationhas been obtained that could be used to the child's detriment.Attorney has obtained information from the parents such thatAttorney could not represent only the child unless the parentsconsent.

[Rule 4 -- 1.7]

C.ofInt.-311

INFORMAL OPINION 940174

QUESTION: Grandparents and mother contacted Attorneyabout filing a case to put guardianship of grandchild in grandparents. Subsequently, Grandparents and mother also contactedAttorney to represent mother in a personal injury suit mother wantedto file. Before the guardianship hearing, mother changed her mind.Must Attorney withdraw from both cases?

ANSWER: The mother's change of position creates a conflictunder Rule 4-1.7 in the guardianship case. Attorney must withdrawfrom the guardianship case because the circumstances indicatethat the entire family would consider Attorney to be their attorneyin that case. Attorney need not withdraw from the personal injurycase.

[Rule 4 -- 1.7]

C.ofInt.-312

INFORMAL OPINION 940178

QUESTION: Attorney is also licensed to sell life insurance. AfterAttorney completes an estate plan for a client, Attorney sends aletter to the client outlining reasons why they may want to considerpurchasing life insurance. Attorney indicates that Attorney, as aninsurance agent would be happy to discuss this with them. In thisletter, Attorney discloses the terms of the transaction, suggests thatthe client seek the advice of independent legal counsel andadvises the clients that Attorney will not be functioning as their legalcounsel in the insurance transaction.

ANSWER: Attorney appears to be complying with therequirements of Rule 4-1.8(a) regarding business transactions withclients except, Attorney must expressly disclose that Attorney will bemaking a commission or have some other financial interest in thesale. Regardless of these steps, Attorney would violate Rule 4-1.7(b)if Attorney recommended life insurance for reasons other thanAttorney's genuine judgment that life insurance is appropriate forthe particular client.

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

C.ofInt.-313

INFORMAL OPINION 940180

QUESTION: Attorney would like to use the certified mailmethod of service in dissolution cases. Attorney has learned thatunrepresented opposing parties do not understand this methodand, therefore, frequently do not respond. May Attorney include acover letter which explains what is enclosed, what the person isbeing asked to do and the effect of taking that action.

ANSWER: The part of the proposed letter which explains theresult of taking the action would involve giving legal advice andwould violate Rules 4-1.7 and 4-4.3. However the remainder of theletter would not violate the rules. Attorney may wish to considertailoring the prescribed notice to the particular situation since Rule54.16 does not require the notice to be exactly as it is set out in theforms. The appropriateness of any changes to the notice would bea legal question which this office would not address.

[Rule 4 -- 4.3; 1.7]

C.ofInt.-314

INFORMAL OPINION 940188

QUESTION: Attorney represents a client in several cases. Theclient is delinquent in paying attorney's fees in all of the cases. Oneof the cases is set for trial fairly soon. (1) May Attorney agree withclient that, in addition to Attorney's statutory lien, the proceeds ofthe case set for trial will be used to pay the outstanding bills in theother cases without violating Rule 4-1.8(j)? (2) May Attorney takeassignment of the client's claims in the case set for trial to satisfy theclient's outstanding bills in the other cases through the date ofassignment.

ANSWER: (1) No. (2) No.

[Rule 4 -- 1.8(j)]

C.ofInt.-315

INFORMAL OPINION 940189

QUESTION: Attorney is handling a case for W against H.Attorney represented H in a different matter several years previously.Does Attorney have a conflict?

ANSWER: Rule 4-1.9(b) provides that Attorney has a conflictif Attorney obtained any information in the course of representingH in the previous proceeding which could be used to H's detrimentin the current proceeding.

[Rule 4 -- 1.9(b)]

C.ofInt.-316

INFORMAL OPINION 940202

QUESTION: Attorney represents Client A on a traffic ticket andClient B on a personal injury matter. Attorney now learns that thetwo matters arise out of the same facts. If A and B consent after fulldisclosure, may Attorney continue to represent both? At this pointno suit has been filed and Attorney has been negotiating settlementwith the insurance company.

ANSWER: If A and B consent after full disclosure, Attorneymay continue to represent both. However, if it becomes necessaryto file a suit in which one client is the plaintiff and the other is thedefendant, Attorney must withdraw from representing both unlessboth consent to Attorney continuing to represent only one.

[Rule 4 -- 1.7; 1.10]

C.ofInt.-317

INFORMAL OPINION 940208

QUESTION: Attorney is a prosecuting attorney with responsibility for representation of county officials. The sheriff has sued thecounty commission. May attorney represent the county commission?

ANSWER: No. Attorney has a conflict of interest which cannotbe waived because the parties are governmental entities andofficials.

[Rule 4 -- 1.7]

C.ofInt.-318

INFORMAL OPINION 950002

QUESTION: Attorney would serve as a legal advisor to the cityon a contract basis. Attorney would attend city council meetings,draft contracts, resolutions, ordinances and other legal documents.May other members of Attorney's firm defend clients in the city'smunicipal court?

ANSWER: No. This would be a conflict of interest under Rule4-1.7(a) and, because a governmental entity is involved, it cannotbe waived. Attorney should also consult the state statutes regardingpossible conflicts of interest from that standpoint.

[Rule 4 -- 1.7(a)]

C.ofInt.-319

INFORMAL OPINION 950003

QUESTION 1: Attorney was a prosecuting attorney and asksseveral questions regarding current representation of criminaldefendants. (1) May attorney represent defendants whose chargespredate when Attorney became prosecutor if the prosecutor's officedid not take action in these cases while Attorney was prosecutor?(2) May Attorney represent defendants whose crimes allegedlyoccurred while Attorney was prosecutor if the crimes occurred in thecounty in which Attorney was prosecutor? (3) May Attorneyrepresent defendants whose crimes allegedly occurred whileAttorney was prosecutor if the crimes occurred in a county otherthan the county in which Attorney was prosecutor?

QUESTION 2: Attorney was contacted by H previouslyregarding possible representation in a dissolution. Some informationwas obtained from H but H did not follow through with seekingrepresentation. W has now come to attorney seeking representation. May Attorney represent H or W?

ANSWER 1: (1) No. (2) No. (3) Yes, as long as prosecutor andprosecutor's office had no involvement in the situation.

ANSWER 2: No, unless both consent to representation ofeither H or W.

[Rule 4 -- 1.9]

C.ofInt.-320

INFORMAL OPINION 950004

QUESTION: Attorney was an assistant public defender and isnow an assistant prosecuting attorney. (1) May Attorney prosecutein cases which were pending in the public defender's office whileAttorney was employed there? (2) May attorney prosecute formerclients who Attorney personally represented on unrelated matters?

ANSWER: (1) Under Rule 4-1.11, Attorney may not prosecutein these cases if Attorney personally and substantially participatedin the case while Attorney was in the public defender's office.Attorney would be considered to have personally and substantiallyparticipated if you were privy to confidential informationregarding the case. (2) This question is governed by Rule 4-1.9(b).Attorney may not prosecute if Attorney obtained information in thecourse of previous representation of the defendant that could beused to the defendant's disadvantage in the current matter.

[Rule 4 -- 1.11; 1.9]

C.ofInt.-321

INFORMAL OPINION 950008

QUESTION: Attorney wishes to participate in a not for profitprogram which coordinates support services for a specific segmentof the community. Attorney has concerns about some aspects ofthe program. The program calls for the provider of services to paya percentage fee of all fees received to the program. The programwould have a right to review the provider's books and records todetermine compliance with the program. The program would serveas the billing agent.

ANSWER: The percentage fee would violate Rule 4-5.4(a)which prohibits fee splitting. The lawyer could pay a flat fee for thebilling services but not a percentage fee. The provision of theprogram regarding access to the books and records createsproblems under Rule 4-1.6 unless the client consents in advanceafter being fully advised of the advantages and disadvantages.

[Rule 4 -- 1.6; 1.8(f); 5.4(a)]

C.ofInt.-322

INFORMAL OPINION 950011

QUESTION: Attorney proposes to enter into a settlementregarding a lawsuit over fees with a former client. Attorney asksabout specific language proposed for the settlement.

ANSWER: The language stating that this would settle "specifically any and all complaints to the Missouri [Office of Chief Disciplinary Counsel] arising from a dispute over fees charged by [Attorney]or incurred by [Client]" would not violate the rules. However theportion which includes a release of "any and all other claims thatcannot be ascertained at this time even if later discovered" is overlybroad and could be construed as including disciplinary complaintsunrelated to the amount of fees and would, therefore, be improper.

[Rule 4 -- 1.8(h)]

C.ofInt.-323

INFORMAL OPINION 950016

QUESTION: Attorney works as in house counsel for a corporation. Attorney sometimes defends both the corporation andindividual employees. Would it be permissible under Rule 4-1.8(h) ifthe corporation passes a resolution to indemnify Attorney if Attorneyis sued for malpractice related to representation arising out ofAttorney's employment by the corporation? The indemnificationwould include attorney fees and payment of any judgment.

ANSWER: Yes, under the specific facts and relationships in thissituation.

[Rule 4 -- 1.8(h)]

C.ofInt.-324

INFORMAL OPINION 950017

QUESTION: Attorney represents the county commission. (1)May Attorney's firm represent criminal defendants in circuit court inthe county? The county may be adversely affected by, for example,having to pay court costs in unsuccessful prosecutions. (2) MayAttorney's firm engage in criminal defense work in other counties?(3) May the firm represent municipalities within the county?

ANSWER: (1) No. (2) Yes. (3) Yes, as long as that representation does not conflict with the interests of the county.

[Rule 4 -- 1.7]

C.ofInt.-325

INFORMAL OPINION 950021

QUESTION: Attorney has previously represented CorporationA and Shareholder X. Attorney is presently representing CorporationA in a suit against Shareholder Y. Shareholder Y has counterclaimedagainst Shareholder X. Attorney has entered an appearance forShareholder X. Does Attorney have a conflict of interest?

ANSWER: Yes. Attorney is required to withdraw.

[Rule 4 -- 1.7; 1.9]

C.ofInt.-326

INFORMAL OPINION 950022

QUESTION: May Attorney form a general business corporation that will not practice law but which will practice in a relatedarea and which will solicit clients for Attorney?

ANSWER: The general business corporation would beengaging in "in person" solicitation prohibited by Rule 4-7.3(b) anytime it made a referral to Attorney. If a client of Attorney developeda need for services such as those provided by the general businesscorporation, Attorney could only refer the client to thewholly-owned corporation after making full disclosure of therelationship between the corporation and the firm and making itclear to the client that the client has the option to obtain theservices from any source of the client's choosing. Additionally, thissituation raises issues of confidentiality. If Attorney does form such acorporation, Attorney must realize that it is a completely separateentity and that confidentiality of information relating to the law firm'sclients must be strictly maintained.

[Rule 4 -- 7.3; 1.7; 1.6]

C.ofInt.-327

INFORMAL OPINION 950026

QUESTION: Attorney owns an interest in Corporation A.Attorney and Corporation A will share a suite of offices. CorporationA will be operated completely separately and with properdesignation. Attorney will only minimally be involved in the day today operation of the corporation. Attorney B who also owns aninterest will be involved in the day to day operation and will alsoshare the office space.

ANSWER: This arrangement would not violate Rule 4-5.4. Theattorneys would have to make full disclosure any time they wouldrefer a client to the corporation. Additionally, it would constituteprohibited "in person" solicitation for the corporation to makereferrals to either attorney. The attorneys must also make certainthat all information related to their clients is secure from access byanyone who shares space in the suite of offices who is not part ofthe attorney's firm.

[Rule 4 -- 5.4; 1.7; 7.3]

C.ofInt.-328

INFORMAL OPINION 950028

QUESTION: Attorney represents two companies. The twocompanies plan to form a third company for a joint venture. Thecompanies both want Attorney to serve as a member of the boardof the third company.

ANSWER: Attorney will not violate any provision of the rulesby serving on the board. Attorney does have a duty tocommunicate the possible ramifications of this role to bothcompanies, including the fact that attorney would not be able torepresent either company in any disputes which arise as a result ofthe joint venture.

[Rule 4 -- 1.7; 1.4]

C.ofInt.-329

INFORMAL OPINION 950029

QUESTION: Attorney represents a client in a personal injurycase arising out of an accident. One of Attorney's partners was awitness to the accident. Attorney does not plan to use the partneras a witness because there are other witnesses. May Attorneyrepresent this client?

ANSWER: Yes. Under Rule 4-3.7(b), it is possible that Attorneycould continue to represent the client at trial even if the partner isused as a witness. In any event, Attorney must make certain thatAttorney's own interests and the interests of Attorney's partner do notaffect Attorney's judgment in any aspect of the representationresulting in a conflict of interest under Rule 1.7(b).

[Rule 4 -- 3.7; 1.7(b)]

C.ofInt.-330

INFORMAL OPINION 950030

QUESTION: Attorney previously represented Company A invarious matters. Attorney's current client has a workerscompensation claim against Company A. May Attorney representthe current client against Company A?

ANSWER: Under Rule 1.9(b), Attorney must determine whetherAttorney, or any member of the firm, obtained confidentialinformation in the course of the previous representation that couldbe used to the company's detriment in the workers compensationcase. Confidentiality under Rule 4-1.6 is much broader than theattorney-client privilege which is a statutory evidentiary rule. Anyinformation which came into Attorney's possession as a result ofprevious representation would be included under the ambit ofconfidential information.

[Rule 4 -- 1.9; 1.6]

C.ofInt.-331

INFORMAL OPINION 950036

QUESTION: Attorney is now a prosecuting attorney but waspreviously a public defender. One of Attorney's assistants was alsopreviously a public defender. (1) May the prosecutor's office handleapplications to revoke probation if one of the attorneys wasinvolved in representing the defendant on the original offense? (2)May prosecutor's office handle applications to revoke probation ifanother attorney in the public defender's office handled the caseon the original offense? (3) May the prosecutor's office handlemotions for post-conviction relief in which other attorneys from thatpublic defenders office handled the original case? (4) May theprosecutor's office handle applications to revoke probation if oneof the secretaries work for the defense attorney who handled the original offense? (5) May the office handle child support cases if asecretary worked for an attorney who represented the defendantin the child support case on related matters?

ANSWER: (1) No. (2) Yes. (3) Yes, as long as no member of theprosecutor's office has confidential information pertaining torepresentation by the public defender's office or unless such aperson is screened from involvement. (4) and (5) Yes. In each case,the secretary should be screened from involvement.

[Rule 4 -- 1.9]

C.ofInt.-332

INFORMAL OPINION 950037

QUESTION: Two attorneys who are in separate firms will forma firm. They currently have cases against each other. Attorney A isa guardian ad litem in a case which the other attorney had todecline due to a conflict. Other members of Attorney A's firm havecases against Attorney B. What must the attorneys do regardingthese cases.

ANSWER: In all of the pending cases, both attorneys mustwithdraw unless both clients consent to one continuing as counselfor one party. The rules do not permit the attorneys to obtainconsent for both to remain in the case once they are both in thesame firm. Attorney A will have to withdraw as guardian ad litemonce the firm is formed. Under Rule 4-1.10, the conflict of one is theconflict of both. It will not be necessary for Attorney B to withdrawfrom cases in which another member of Attorney A's current firmrepresents the opposing party unless Attorney A gained confidentialinformation related to the representation while Attorney A was in thecurrent firm.

[Rule 4 -- 1.7; 1.10]

C.ofInt.-333

INFORMAL OPINION 950041

QUESTION: Attorney is mayor of a municipality. (1) Maymembers of Attorney's firm represent defendants in municipal court?(2) May members of Attorney's firm represent clients who are suingthe city? (3) May members of Attorney's firm represent the city?

ANSWER: (1) No. (2) No. (3) Yes, if Attorney takes no part inthe determination of whether and when to use the services ofanother member of the firm and Attorney does not share in feesgenerated from this representation.

[Rule 4 -- 1.7]

C.ofInt.-334

INFORMAL OPINION 950047

QUESTION: Attorney represented H in a dissolution case. MayAttorney now represent W in seeking modification of the childsupport awarded in that case?

ANSWER: Unless H consents after full disclosure, therepresentation would violate Rule 4-1.9(a).

[Rule 4 -- 1.9(a)]

C.ofInt.-335

INFORMAL OPINION 950049

QUESTION: Attorney's firm has been retained as specialcounsel for a county. May the firm represent criminal defendants incircuit court in that county? May the firm continue to represent aclient in a zoning matter against the county? Would the answerchange if the firm were retained as general counsel for all matters?

ANSWER: This opinion is based on the assumption that"special counsel" means that the firm was retained to represent thecounty on an individual case or cases and does not reflect anongoing relationship with the county otherwise. As "special counsel"the firm does not have a conflict of interest in representing criminaldefendants or the zoning client. If the firm were general counsel forall matters it would have to withdraw from the zoning case. Moreinformation would be needed to answer the question aboutcriminal defendants.

[Rule 4 -- 1.7]

C.ofInt.-336

INFORMAL OPINION 950054

QUESTION: Attorney represents a criminal defendant. Awitness has asked Attorney to be present any time when the witnessis questioned by representatives of the state. Attorney believes thewitness understands that Attorney would be present only torepresent the interests of the defendant, not to represent the witness.

ANSWER: Based upon the facts set forth, Attorney would notviolate any provision of the rules, by being present during policeand prosecution interviews of the witness. However, Attorney wouldviolate the conflict of interest rules if Attorney undertook to representthe witness as opposed to being present for the purpose ofrepresenting the defendant. In connection with this concern, it iscrucial, under Rule 4-4.3, that Attorney make it clear to the witnessthat Attorney does not represent the witness and that Attorney's onlypurpose for being present would be to represent the defendant'sinterests. As a result, Attorney would not be able to give the witnessadvice before, during or after the interview. Additionally, Attorneymust inform the witness that, if the witness feels a need for personallegal advice or representation, the witness should contact a privateattorney. If Attorney plans to be present at these interviews, Attorneyshould "make a record" to the extent appropriate under thecircumstances at the beginning of each interview.

[Rule 4 -- 1.7; 4.3]

C.ofInt.-337

INFORMAL OPINION 950055

QUESTION: Attorney was an assistant prosecuting attorney.Attorney now does criminal defense work in private practice. MayAttorney represent criminal defendants in cases in which Attorneyfiled the charges if Attorney was only minimally involved in thecase? Can the conflict be waived?

ANSWER: Rule 4-1.9 applies to this situation. Attorney isprohibited from representing a criminal defendant in a case inwhich Attorney filed the felony charge. The conflict cannot bewaived by the state.

[Rule 4 -- 1.9]

C.ofInt.-338

INFORMAL OPINION 950059

QUESTION: A member of Attorney's firm is now a prosecutingattorney. Attorney will be appointed as an assistant prosecutingattorney or as a special assistant prosecutor on specific cases. MayAttorney continue representing criminal defendants whom Attorneyhas represented from the onset and whose cases are coming to anend?

ANSWER: If Attorney is an assistant prosecuting attorney,under Rule 4-1.7(a) Attorney may not continue to represent anycriminal defendants in state court. Attorney is also prohibited fromsuch representation, under Rule 4-1.10, if the prosecuting attorneyis still a member of Attorney's firm. If Attorney is a special prosecutorappointed on individual cases in which there is a need for a specialprosecutor and the prosecuting attorney is not a member ofAttorney's firm, Attorney may represent criminal defendants in othercases, including cases in the same county.

[Rule 4 -- 1.7; 1.10]

C.ofInt.-339

INFORMAL OPINION 950060

QUESTION 1: Attorney was a prosecuting attorney. MayAttorney represent criminal defendants whose cases arose whileAttorney was prosecuting attorney but which had no relationship tothe county in which Attorney was prosecutor?

QUESTION 2: May Attorney represent a plaintiff against a lawenforcement officer of a municipality within the county for whichAttorney was prosecuting attorney. The incident occurred whileAttorney was prosecuting attorney but Attorney had noinvolvement. The suit would relate to the defendant's role as a lawenforcement officer.

ANSWER 1: Attorney does not have a conflict in representingthese defendants based on the facts Attorney has presented.

ANSWER 2: Attorney does have a conflict in this situation. Inlight of the fact that Attorney's former client is the state, this conflictcannot be waived.

[Rule 4 -- 1.9]

C.ofInt.-340

INFORMAL OPINION 950064

QUESTION: Attorney represents a criminal defendant A, whois a co-defendant with B. Initially, in order to determine whichdefendant to represent, Attorney interviewed both co-defendants.Attorney entered an appearance for defendant A. A and B nowhave conflicting interests. Co-defendant B now asserts thatAttorney's discussion with co-defendant B means that Attorney maynot represent defendant A against B's interests.

ANSWER: Under the circumstances described, once Attorneybegan discussing the case or facts related to the case withdefendant B, Attorney established an attorney client relationshipwith defendant B. This creates a conflict of interest under Rule4-1.9(a) which requires Attorney to withdraw from representation ofdefendant A.

[Rule 4 -- 1.6; 1.9]

C.ofInt.-341

INFORMAL OPINION 950067

QUESTION: Attorney is a city prosecutor for city A. Attorneyalso represents defendants in municipal court in city B. DoesAttorney have a conflict of interest if city A and city B have thesame municipal judge?

ANSWER: Attorney would not be involved in a conflict ofinterest because the municipal judge and the municipal prosecutorshould have no relationship beyond that of any other attorneyappearing before the judge. If a greater relationship exists, thatrelationship would create a conflict of interest regardless of thespecific factual circumstances described.

[Rule 4 -- 1.7]

C.ofInt.-342

INFORMAL OPINION 950073

QUESTION: Attorney represented client A in a minimalmanner in a proceeding in order to accomplish a pro forma filing.Subsequently client A was represented by other counsel in theproceeding. Client B is now requesting representation by Attorneyin a similar proceeding. If Attorney represents client B, Attorney willseek a ruling that will have an adverse impact on client A in thematter in which Attorney previously represented client A. Is this aconflict? Can it be waived?

ANSWER: Yes, it is a conflict under Rule 4-1.9(a). The conflictcan be waived by client A after full disclosure.

[Rule 4 -- 1.9(a)]

C.ofInt.-343

INFORMAL OPINION 950076

QUESTION: May Attorney serve as municipal prosecutor forcity A and as municipal judge for city B if both are within the samecounty?

ANSWER: This general situation does not create a conflict ofinterest under the rules. A conflict of interest could arise in specificsituations. This does not constitute an opinion regarding the Codeof Judicial Conduct. Attorney would have to contact theCommission on Retirement, Removal and Discipline of Judges torequest an opinion from that perspective.

[Rule 4 -- 1.7]

C.ofInt.-344

INFORMAL OPINION 950078

QUESTION: Attorney represented a client in estate planningwho was previously competent but now appears incompetent. MayAttorney represent client's child in proceedings to have the clientdeclared incompetent. This appears to be necessary for the client'sprotection. May Attorney represent the child in incompetencyproceedings and continue to represent the client in estate planning.If there is a conflict, can the client waive the conflict?

ANSWER: Under Rule 4-1.14(b), Attorney may represent thechild in a proceeding to have the former client declaredincompetent. Attorney will not be able to continue to providerepresentation of any sort to the client once Attorney is representinga party seeking to have the client declared incompetent. In light ofthe fact that Attorney believes the former client to be incompetent,it will not be possible for Attorney to seek a waiver of the conflictfrom the client. Attorney should also consider whether there is alikelihood that Attorney will be a necessary witness in theincompetency proceedings in determining whether to represent thechild in seeking to have the client declared incompetent. Attorneyshould consult Rule 3.7 regarding this issue.

[Rule 4 -- 1.14; 1.7; 3.7]

C.ofInt.-345

INFORMAL OPINION 950082

QUESTION: Attorney recently became a member of the citycouncil. Attorney's firm handles personal injury cases arising withinthe city, some of which require the testimony of city police. The firmis handling a case in which the city is a defendant. The firm alsorepresents defendants in the city's municipal court. May the firmcontinue in these cases? Could the fees from these cases besegregated? If the firm dissolves, can a former member, no longerassociated with Attorney, handle the cases?

ANSWER: As a general rule, Attorney's firm may handle casesin which city police officers will be witnesses. However, if some otheraspect of the police officer's role in the situation arises, the answercould change. Attorney's firm may not handle a case in which thecity is an adverse party. Attorney's firm may not representdefendants in municipal court. Screening or segregation of funds isnot a solution to these conflict situations. If Attorney's firm isdissolved, Attorney's former partner may handle these types of casesand may continue to handle the cases that are currently pendingas long as the partnership is dissolved reasonably quickly andAttorney receives no portion of the fee from these cases.

[Rule 4 -- 1.7]

C.ofInt.-346

INFORMAL OPINION 950094

QUESTION: May Attorney represent the Juvenile Officer in acase in which Attorney was previously the guardian ad litem?

ANSWER: As a general rule, there is a conflict of interestunder Rule 4-1.9(a) if Attorney appears on behalf of the juvenileofficer in cases in which Attorney previously appeared as guardianad litem. Although the interests may be similar, the fact that there isa need for both the juvenile officer and the guardian ad litemindicates that the interests are not the same. The conflict could bewaived by the current guardian ad litem.

[Rule 4 -- 1.9(a)]

C.ofInt.-347

INFORMAL OPINION 950096

QUESTION: Attorney is a prosecuting attorney. Attorneyrepresents the custodial parent in a child support case. The divisionof child support enforcement is also a party. Does Attorney have aconflict in light of the involvement of the division of child supportenforcement?

ANSWER: Based upon the facts described, it does notappear that Attorney's representation of the custodial parent is, inany way, adverse to the interests of the division of child supportenforcement. If the interests of the custodial parent are not adverseto those of child support enforcement, Attorney does not have aconflict of interest. If there are facts which indicate a disputebetween child support enforcement and the custodial parent, suchas a dispute over who is entitled to the funds recovered by childsupport enforcement, Attorney does have a conflict.

[Rule 4 -- 1.7]

C.ofInt.-348

INFORMAL OPINION 950097

QUESTION: The firm is contemplating setting up a subsidiarylaw firm that would practice exclusively in a particular area of thelaw. The subsidiary would be a separate entity with a differentname, address and management. All profits would flow through tothe parent firm. The lawyers working for the subsidiary would holdthemselves out as employees of the subsidiary, not the parent.

ANSWER: The arrangement would not violate any provisionof the Rules of Professional Conduct. However, all communicationsabout each firm, would have to disclose the relationship with theother firm. Additionally, all conflicts of interest of each firm would beconsidered conflicts of both firms.

[Rule 4 -- 1.7; 7.1]

C.ofInt.-349

INFORMAL OPINION 950107

QUESTION: Attorney is a former judge. Attorney presentsseveral situations. Situation 1: While a judge, Attorney signed lettersof administration. Subsequently, the estate became contested andAttorney has now been asked to represent a party. Situation 2: Whilea judge, Attorney entered a divorce decree. One of the parties tothe divorce has asked Attorney for representation in an action tomodify the decree. Does Attorney have a conflict of interest in thesesituations?

ANSWER: Yes, in each of the situations described, Attorney isprohibited by Rule 4-1.12 from undertaking the representation unlessall parties consent after disclosure.

[Rule 4 -- 1.12]

C.ofInt.-350

INFORMAL OPINION 950109

QUESTION: Attorney represents two clients, A and X, in twoseparate dissolutions cases. A's spouse is B and X's spouse is Y. ClientA believes that B is having an affair with Y. May Attorney representClient A and Client X in their respective dissolutions?

ANSWER: Although the situation described does not presentan actual conflict, it does create the potential for conflicts to arise.It seems possible that Attorney may obtain confidential informationin representing one client that would be helpful in representing theother client. Attorney should make full disclosure to each clientregarding all potential conflicts and obtain waivers from eachbefore beginning the representations.

[Rule 4 -- 1.7(b); 1.6]

C.ofInt.-351

INFORMAL OPINION 950116

QUESTION: Attorney represented Client A in litigation whichhas concluded. Attorney has a new client who would like Attorneyto provide representation against Client A. Does Attorney have aconflict?

ANSWER: Assuming that the two cases are not substantiallyrelated, the situation described involves a possible conflict ofinterest under Rule 4-1.9(b). To reach a conclusion whether there isa conflict, Attorney must determine whether Attorney came intopossession of any information in the course of representing Client Athat could be used to the Client A's detriment in the current action.

[Rule 4 -- 1.9]

C.ofInt.-352

INFORMAL OPINION 950117

QUESTION: Attorney is a former assistant prosecutor. Asassistant prosecutor, Attorney was involved in representing thecounty zoning director in a case. May Attorney now representanother party in the case if the representation is not adverse to theformer client?

ANSWER: The representation proposed would involve aconflict of interest under Rule 4-1.11(a). The former client wouldhave to consent after full disclosure.

[Rule 4 -- 1.11]

C.ofInt.-353

INFORMAL OPINION 950119

QUESTION: Attorney is a former judge. (1) Attorney served asa judge in an uncontested matter relating to child support. Nowone party wants to hire Attorney in a proceeding to enforce theorder. (2) Attorney served as a judge in a default dissolution. Nowone party wants to hire Attorney for a motion to modify. (3) Attorneyserved as a judge in a Consent Order of Protection under the AdultAbuse Act. The parties were subsequently divorced withoutAttorney's involvement. One party now wants to hire Attorney for amotion to modify.

ANSWER: Under Rule 4-1.12 Attorney may not represent eitherparty in any of the situations described unless both parties consentafter disclosure.

[Rule 4 -- 1.12]

C.ofInt.-354

INFORMAL OPINION 950123

QUESTION: Attorney's client is seeking representation in amotion to modify. One of Attorney's partners previously representedthe client's ex-husband in an incorporation matter. May Attorneyrepresent the current client in the motion to modify?

ANSWER: Under Rule 4-1.9(b), Attorney must determinewhether any member of the firm obtained confidential informationin the course of the previous representation that could be used tothe previous client's detriment in the current case. Confidentialityunder Rule 4-1.6 is much broader than the attorney-client privilegewhich is a statutory evidentiary rule. Any information which cameinto the possession of any member of the firm as a result of theprevious representation would be included under the ambit ofconfidential information.

[Rule 4 -- 1.9; 1.10]

C.ofInt.-355

INFORMAL OPINION 950129

QUESTION: Former prosecutor has formed a firm with aformer assistant prosecutor. A warrant was issued for X while theprosecutor and assistant were still in the prosecutor's office. Formerprosecutor and former assistant now wish to represent X. Neither hadany direct involvement in the case while they were in theprosecutor's office. Because of the fee arrangement, X will be at adisadvantage if X must obtain other counsel.

ANSWER: Former prosecutor is disqualified regardless ofpersonal knowledge because the authority of any assistantprosecuting attorney to act in the case flowed from the prosecutorand the prosecutor was a supervising attorney responsible for theassistant's actions. The former assistant is not disqualified, based onthe facts presented. The hardship for X is not a factor to beconsidered in the analysis. The former assistant may continuerepresentation in the case as long as the former prosecutor isscreened following the requirements set out in Rule 4-1.11.

[Rule 4 -- 1.9; 1.11]

C.ofInt.-356

INFORMAL OPINION 950130

QUESTION: Attorney is a member of a firm. Attorneyrepresents Company X in a workers compensation case. The workerin the workers compensation case claims to have called the firm totalk about a wrongful discharge case. The worker talked to anothermember of the firm who has never been involved in the workerscompensation case. The worker claims to have discussed theworkers compensation case with the other member of the firm. DoesAttorney now have a conflict of interest?

ANSWER: If the conversation which the worker described didoccur, the firm has a conflict of interest under Rule 1.9(a) and mustwithdraw unless the worker consents. Screening is not an option forcuring a conflict of interest in a private firm in Missouri. Therefore, thefact that the other member of the firm has had no directinvolvement in the workers compensation case does not affect theexistence of the conflict.

[Rule 4 -- 1.9(a); 1.10]

C.ofInt.-357

INFORMAL OPINION 950133

QUESTION: Attorney represents grandparents seeking toobtain guardianship over a minor grandchild. The mother of thechild agrees this is best. The father of the child has now sued themother in a paternity/child custody action. May Attorney representthe mother in this action while continuing to represent thegrandparents in the guardianship action?

ANSWER: Attorney may represent the mother and thegrandparents jointly in both actions only if there is no actual conflictin their interests or goals and if each potential client consents afterfull disclosure. Attorney should encourage the mother to obtainadvice from independent counsel regarding whether to consent. Ifan actual conflict develops between the mother and grandparentsas the actions progress, it is likely Attorney will have to withdraw fromrepresentation of everyone involved.

[Rule 4 -- 1.7]

C.ofInt.-358

INFORMAL OPINION 950150

QUESTION: Attorney would contract with a state agencywhich performs various types of functions including quasi-judicialfunctions. Attorney would be providing services that would notinvolve the hearing process. Attorney also has clients whose caseswould be heard by the agency through the quasi-judicial hearingduring the period of the contract. May Attorney represent theseclients in the proceedings before the agency?

ANSWER: This situation would involve a conflict of interestunder Rule 4-1.7. If Attorney is under contract to provide services tothe state agency, Attorney will not be able to represent anyoneother than the state agency in proceedings before the agency.Attorney will also be prohibited from engaging in litigation opposingany state agency in other forums.

[Rule 4 -- 1.7]

C.ofInt.-359

INFORMAL OPINION 950160

QUESTION: Attorney is a part time prosecutor for County A.Attorney asks whether, under the Rules, Attorney may engage in thefollowing types of activity: 1) criminal defense work in federal court;2) criminal defense work in Missouri courts in a different county; 3)municipal court work within County A or in different counties; 4)representation of other counties as a special prosecutor forcompensation; and 5) termination of parental rights cases in CountyA or in different counties. Do the answers also apply to othermembers of Attorney's private firm?

ANSWER: 1) Yes. However, Attorney may not represent acriminal defendant in federal court if the criminal conduct occurredin County A or if County A law enforcement personnel are involvedin the investigation or prosecution of the federal case. 2) No. 3)Attorney may not do defense work in municipal court in County A.Attorney may do defense work in municipal court in other Missouricounties as long as County A law enforcement personnel are notinvolved in the investigation or prosecution of the municipal case.4) Yes. 5) Yes, if Attorney is representing the Juvenile Officer. No, ifAttorney is not representing the Juvenile Officer and the basis for thetermination arises from conduct within County A or if County A lawenforcement personnel are involved in the investigation orprosecution of the case. The answers to these questions all applyequally to other members of Attorney's private firm. If Attorneyundertakes representation of a criminal defendant in the situationswhich this opinion identifies as permissible, Attorney has anobligation to fully inform the client of Attorney's status as an assistantprosecuting attorney.

[Rule 4 -- 1.7]

C.ofInt.-360

INFORMAL OPINION 950169

QUESTION: Attorney represented W on a motion to modify.Attorney A represented H. Attorney and Attorney A now share officespace and expenses but are not partners. W needs to file a motionfor contempt against H. Attorney A will not represent H.

ANSWER: If Attorney and Attorney A are truly only sharingoffice space and expenses, Attorney may represent W. In order forthe relationship to be solely office sharing, confidentiality must bemaintained so that employees of one attorney do not have accessto the files and client information of the other attorney. To the extentthat any employees are joint employees, they should be clearlyinstructed on the fact that the offices are separate and informationabout one attorney's clients should not be shared with the other.The two practices should appear separate through signage andadvertising. Although the space is shared, the overall arrangementshould make the separateness of the practices clear. If the twopractices are not kept separate as described, each should considerthe conflicts of one to be the conflicts of both. Therefore, Attorneywould not be able to represent W without the consent of H.

[Rule 4 -- 1.7; 1.10]

C.ofInt.-361

INFORMAL OPINION 950174

QUESTION: Client A has asked Attorney for representation ina divorce. A firm for which Attorney worked at the time preparedthe prenuptial agreement. May Attorney represent Client A? Canany conflicts be cured by waiver?

ANSWER: Attorney has not indicated which party to theprenuptial agreement the former firm represented. Therefore, this isbased on the assumption that it represented both parties. If Attorneyobtained confidential information regarding the prenuptialagreement while Attorney was a member of the firm that preparedthe agreement, Attorney has a conflict of interest under Rule 4-1.9.However, if Attorney did not obtain such information, Attorney doesnot have a conflict of interest. Attorney should be aware thatAttorney may have obtained confidential information by discussingthe matter with other members of the firm despite complete lack ofcontact with the file or the clients. If a conflict of interest does exist,it may be waived. The former client should only be asked to waivethe conflict after full disclosure and the opportunity andencouragement to obtain the advice of independent counsel.

[Rule 4 -- 1.9; 1.10]

C.ofInt.-362

INFORMAL OPINION 950175

QUESTION: A prosecutors office has hired a part timeprosecutor who previously represented individuals who are criminaldefendants. The prior representation was not in the criminal casebut was in related matters. Efforts have been taken to screen thepart time prosecutor from these cases by isolation from the file andnot discussing the case. Does this create a conflict for the entireoffice?

ANSWER: The prior involvement of the part time prosecutorin the two cases does not disqualify the entire office as long asadequate steps are taken to screen the part time prosecutor fromthese cases. In addition to isolating the file, other staff should bemade aware of the screening so that information is notinadvertently provided or the part time prosecutor is notinadvertently brought into discussions about the cases.

[Rule 4 -- 1.11; 1.9]

C.ofInt.-363

INFORMAL OPINION 950176

QUESTION: A member of the firm is the city attorney but notthe city prosecutor. May other members of the firm representdefendants in municipal court?

ANSWER: The members of the firm may not representdefendants in municipal court in the municipality in which a firmmember is the city attorney. If a member of the firm is the cityattorney, the city is a client of a member of the firm. By representingdefendants in the city's municipal court, members of the firm wouldbe representing clients (municipal defendants) directly adverse tothe interests of another client (the city) in violation of Rule 4-1.7(a).

[Rule 4 -- 1.7(a)]

C.ofInt.-364

INFORMAL OPINION 950186

QUESTION: Several attorneys have formed a firm but they donot share profits. One member of the firm is a municipal judge. Mayother members of the firm represent clients in municipal zoningmatters?

ANSWER: No. Once the attorneys have formed a firm, theprovisions of Rule 4-1.10 apply regardless of the internal financialarrangements. Therefore, the conflicts of each member of the firmare conflicts for all members of the firm.

[Rule 4 -- 1.10]

C.ofInt.-365

INFORMAL OPINION 950194

QUESTION: For tax purposes, Attorney would like to chargeonly a straight contingent fee without recouping expenses inpersonal injury cases. May Attorney do so?

ANSWER: Under Rule 1.8(e), Attorney may provide thatrepayment of costs and expenses is contingent on the outcome ofthe matter. In other words, Attorney may indicate that repaymentof costs and expenses would not be required if Attorney is notsuccessful in the litigation. If Attorney is successful in the litigation,Attorney must provide for repayment of costs and expenses. Theonly exception would be when Attorney is representing indigentclients.

[Rule 4 -- 1.8(e)]

C.ofInt.-366

INFORMAL OPINION 950199

QUESTION: Attorney is representing clients against formerclients whom Attorney represented when Attorney was in anotherfirm. The current matters are not related to the matters on whichAttorney represented the former clients. May Attorney continuerepresentation of the current clients?

ANSWER: Under Rule 4-1.9(b) Attorney must determine, foreach case, whether Attorney obtained confidential information inthe course of the previous representation that could be used to theprevious client's detriment in the current case. Confidentiality underRule 4-1.6 is much broader than the attorney-client privilege whichis a statutory evidentiary rule. Any information which came intoAttorney's possession as a result of the previous representation wouldbe included under the ambit of confidential information.

[Rule 4 -- 1.9(b)]

C.ofInt.-367

INFORMAL OPINION 950205

QUESTION: Attorney has been appointed as a specialprosecutor in an individual case. May other members of Attorney'sfirm handle unrelated cases against the state?

ANSWER: Because this is an individual appointment as aspecial prosecutor in an individual case, Attorney's appointmentdoes not create a conflict of interest although other members ofAttorney's firm engage in criminal defense work and other casesagainst the state.

[Rule 4 -- 1.7]

C.ofInt.-368

INFORMAL OPINION 950212

QUESTION: Attorney has an office sharing arrangement withanother firm. Attorney's description of the arrangement describes atrue office sharing arrangement. A member of the other firmpreviously represented Clients A and B to obtain a guardianship.Clients A and B have had a falling out and Client A now wantsAttorney's representation in seeking to be the sole guardian. MayAttorney do so?

ANSWER: Based upon the information Attorney has provided,attorney does not have a conflict of interest under the Rules ofProfessional Conduct that would prohibit Attorney from representingClient A.

[Rule 4 -- 1.10; 1.7]

C.ofInt.-369

INFORMAL OPINION 950217

QUESTION:

Question 1. May a part time municipal judge defend casesin that municipal court?

Question 2. May a part time municipal judge defend criminalcases in circuit court if the case arose within the municipality?

Question 3. May the partner of a part time municipal judgedefend cases in that municipal court before another judge?

ANSWER:

Answer 1. No.

Answer 2. No.

Answer 3. No.

[Rule 4 -- 1.7]

C.ofInt.-370

INFORMAL OPINION 950224

QUESTION: Attorney represents injured employees in workers'compensation cases. May Attorney pay the cost of medicaltreatment and transportation for medical treatment for theemployee while the case is pending if the employee cannot affordit otherwise?

ANSWER: Under Rule 4-1.8(e) an attorney may not providefinancial assistance to a client except to advance costs andexpenses or, if the client is indigent, to pay costs and expenses.Therefore, Attorney may not pay or advance the costs of the client'smedication, treatment or travel expenses related to treatment.However, if the visit to the health care provider is genuinely for thepurpose of evaluation for the litigation, even if it is also fortreatment, Attorney may advance the expenses of the visit and thetransportation. However, to the extent that the evaluation portionof the visit can be segregated from the treatment portion, Attorneymay only advance the expenses related to the evaluation.

[Rule 4 -- 1.8(E)]

C.ofInt.-371

INFORMAL OPINION 950229

QUESTION: A criminal defense attorney represents severalclients who are incarcerated in the same facility. Attorney formerlyrepresented Client A. Several of Attorney's other clients havecontacted Attorney about making a deal in exchange for testimonyagainst Client A based on Client A's statements while incarcerated.Must Attorney withdraw from representing the clients who want totestify against Client A?

ANSWER: Yes.

[Rule 4 -- 1.7]

C.ofInt.-372

INFORMAL OPINION 950238

QUESTION: Attorney's firm represented W who was appointedguardian and conservator of H. W & H later divorced and W is nolonger guardian and conservator. Attorney's firm does not representthe current guardian and conservator. Attorney's firm did notrepresent anyone in the divorce. Issues regarding child custody andsupport have now arisen. May Attorney's firm represent W against Hregarding the child custody and support matters?

ANSWER: Yes, Attorney may represent W against H, unless, Hwould reasonably have also considered himself to be a client of thefirm in the previous probate proceeding.

[Rule 4 -- 1.9]

C.ofInt.-373

INFORMAL OPINION 950246

QUESTION: Attorney represents H (driver) and W (passenger)as plaintiffs in a case arising from an auto accident. The defendanthas now cross-claimed H. May Attorney continue to represent H andW if they consent?

ANSWER: If, at this point, H and W take consistent positions onwhat occurred, Attorney may continue to represent both if bothwaive the conflict after full disclosure. However, if at any point, theirpositions diverge in any material way, Attorney will have to withdrawfrom representation of one or both.

[Rule 4 -- 1.7]

C.ofInt.-374

INFORMAL OPINION 950247

QUESTION: May Attorney serve as a municipal judge and asan assistant prosecutor in another county?

ANSWER: Yes, under the Rules of Professional Conduct.However, this office cannot provide Attorney with an opinionregarding Supreme Court Rule 2, the Code of Judicial Conduct.Attorney should contact the Judicial Commission for an opinionfrom that standpoint.

[Rule 4 -- 1.7]

C.ofInt.-375

INFORMAL OPINION 950251

QUESTION: Attorney is a part time assistant prosecutor in amulti-attorney prosecutor's office. The prosecutor's office has a childsupport enforcement office, which is not the area of theprosecutor's office where Attorney practices. Attorney also has aprivate practice. May the assistant prosecutor handle family lawcases in private practice? If a former client of the assistantprosecutor becomes delinquent in child support, will theprosecutor's office be disqualified from prosecuting the assistantprosecutor's former client?

ANSWER: As long as the assistant prosecutor is completelyscreened from participation in the child support or criminalnon-support case, the prosecutor's office may pursue these caseswithout having a special prosecutor appointed. However, thescreening must be formal and it must be effective. Additionally, thisanswer is based on the assumption that this would be a situationthat would occur only in isolated instances from time to time. If thisbecame an ongoing or regular occurrence, it is likely that theanswer would change.

[Rule 4 -- 1.9]

C.ofInt.-376

INFORMAL OPINION 950262

QUESTION: Attorney has been appointed as trustee for aninmate who is a defendant in a civil suit for damages. The role of thetrustee is similar to that of a guardian ad litem. Attorney is now anassistant prosecutor in the office that prosecuted the defendantresulting in the defendant's incarceration. May Attorney continue astrustee in the civil suit?

ANSWER: It appears that Attorney has a conflict of interestand that Attorney should immediately seek to withdraw as trustee.Additionally, Attorney should be completely screened from thecriminal case. If Attorney has already participated in the criminalcase in any way, the prosecutor's office will have to seekappointment of a special prosecutor, unless the criminal defendantconsents after full disclosure and advice from counsel. If suchconsent is obtained, Attorney should make it a part of the record inthe criminal proceeding.

[Rule 4 -- 1.7]

C.ofInt.-377

INFORMAL OPINION 950267

QUESTION: Attorney appeared for another attorney toobtain a default judgment for Client A. Attorney then left the firmand had no continuing relationship with Client A. Attorney nowrepresents Client B, the defendant in the case that defaulted. ClientA has assigned the rights under the default judgment to C who istrying to collect the judgment against B. May Attorney represent Bagainst C?

ANSWER: No, unless C waives the conflict under Rule 4-1.9(a).

[Rule 4 -- 1.9]