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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. May Attorney enter into a contract with the corporation prospectively limiting Attorney's liability for negligence if the corporation is represented 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 regarding domestic relations cases. (1) If one party seeks representation but is denied for some reason and the second party subsequently seeks representation, may the legal aid office provide representation through a staff attorney or contract attorney? (2) If both parties apply for representation at approximately the same time, may the committee that reviews applications consider both and accept one but reject the other?

ANSWER: In either situation, the office may offer representation to the qualifying party only if a contract attorney who has no access 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 loan for 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 a motion to modify against B involving child support and custody.Previously, Attorney was a prosecuting attorney and filed a motion for withholding related to child support at B's request. May Attorney now 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 of Attorney's firm handle the defense of municipal ordinance violations? Is screening a solution?

ANSWER: No, it would involve a conflict of interest under Rule 1.7(a). Screening is not a solution because screening is only allowed under the rules in a situation involving successive government and private employment.

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

C.ofInt.-294

INFORMAL OPINION 940130

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

ANSWER: Attorney would have to follow the procedures in Rule 4-1.8(f) in addition to remaining independent under Rule 4-5.4.Attorney must recognize that an attorney client relationship is formed with each member of the public for purposes of the confidentiality 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 Attorney represent 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 of appearance used in dissolution cases. Attorney represents spouse A. The cover letter and entry of appearance are sent to the spouse B when the spouse B is not represented. The cover letter gives instructions for execution of the entry of appearance and requests that spouse B or spouse B's attorney contact Attorney. The entry of appearance only acknowledges receipt of the petition and waives personal service.

ANSWER: Attorney should add language to the beginning of the cover letter clearly indicating that Attorney represents spouse A and not spouse B. The letter should also tell spouse B that, if spouse B has any questions about the entry of appearance or other aspects of the case, spouse B should consult an independent attorney. Other than these concerns, contacting spouse B in this manner 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 previously guardian ad litem for a disabled person. The guardian ad litem did not inquire about the disabled person's financial condition. A guardianship and conservator ship was established and the guardian ad litem is no longer involved. May Attorney represent a bank against the estate of the disabled person on several notes?

QUESTION 2: Attorney represented spouse A in a dissolution involving custody of children X and Y. Subsequently spouses A & Bhad child Z. Attorney was appointed guardian ad litem for Z in a paternity and custody action. That action was resolved and Attorney was discharged as the guardian ad litem. May Attorney now represent spouse A in an action seeking modification of the order 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 under Rule 4-1.6 in the course of serving as guardian ad litem that could be used to the disadvantage of the disabled person in the current case, Attorney would have a conflict under Rules 4-1.9(b) and 4-1.10. ANSWER 2: Attorney has a conflict of interest under Rule 1.9.

[Rule 4 -- 1.9]

C.ofInt.-298

INFORMAL OPINION 940142

QUESTION: Attorney represents the juvenile officer from time to time on isolated cases. May Attorney continue representation of the juvenile officer on this basis and continue to represent adult criminal defendants?

ANSWER: Yes, since the representation of the juvenile officer is "from time to time on isolated cases." This opinion is consistent with previous opinion regarding special city attorneys and special assistant attorneys general.

[Rule 4 -- 1.7]

C.ofInt.-299

INFORMAL OPINION 940144

QUESTION: May Attorney function as a prosecuting attorney for a municipality and also function as a municipal judge for another municipality within the same county?

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

[Rule 4 -- 1.7]

C.ofInt.-300

INFORMAL OPINION 940147

QUESTION: ABC and XYZ are corporations. XYZ has complete control over ABC. Attorney regularly represents ABC. Attorney wants to represent a client against XYZ. ABC was not involved in the facts resulting in the suit. The potential client and ABC have been informed of the situation and both have consented in writing to Attorney representing the potential client against XYZ.

ANSWER: A conflict does exist. In reviewing whether the consents are sufficient, Attorney should make certain that full disclosure has been given to each client and that each client is aware of the option to consult independent counsel regarding the waiver. All of these steps should be documented in writing in addition 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 the firm handles criminal defense cases. Attorney is paid a set annual fee divided into monthly checks. Attorney works on an "as needed"basis for the Juvenile Office.

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

[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 an individual against the state, another state agency or a state official? ANSWER: No.

[Rule 4 -- 1.7]

C.ofInt.-303

INFORMAL OPINION 940152

QUESTION: Attorney is a prosecuting attorney. Attorney has a social relationship with the victim in a case and has had an attorney/client relationship with the victim previously. The defendant has several years previously made a criminal complaint against an employee of the victim in the current case. Must Attorney request a special 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. Before becoming prosecutor, Attorney represented a civil defendant. This client is under investigation for possible criminal violations related to the subject of Attorney's representation in the civil case. (1) Must Attorney withdraw from the civil case? (2) May Attorney have an assistant prosecutor handle the criminal issues with no involvement from Attorney?

ANSWER: (1) No, it would be too late in the representation to cure the conflict by withdrawing from the civil case. (2) Neither Attorney nor any of Attorney's assistants may handle the criminal aspects of the case. The criminal aspects could only be handled by a special prosecutor.

[Rule 4 -- 1.7]

C.ofInt.-305

INFORMAL OPINION 940159

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

ANSWER: No, this would be a conflict of interest under Rule 4-1.7.

[Rule 4 -- 1.7]

C.ofInt.-306

INFORMAL OPINION 940161

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

ANSWER: It would never be permissible to draft a responsive pleading for an unrepresented opposing party. However, the propriety of drafting the entry and accompanying cover letter is dependent on the actual language used. It is permissible under Rules 4-4.3 and 4-1.7 to draft a very simple entry of appearance and submit it to the other party. The cover letter should clearly indicate at the beginning that Attorney does not represent the opposing party and that Attorney does represent the other spouse. The letter should also indicate that the opposing party should consult an independent 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 is the backup for the city prosecutor. May Attorney handle criminal defense 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 DWI case. Attorney now represents Client B in an estate case in which client A is not a party but is probably an adverse witness. Is this a conflict?

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

[Rule 4 -- 1.9(b)]

C.ofInt.-309

INFORMAL OPINION 940172

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

ANSWER: No, Attorney's representation of the corporation has been to such an extent that he is also viewed as representing the two shareholders. Therefore, Attorney may not represent either shareholder 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 and child in a suit involving an accident in which the child was injured.No issue of comparative negligence by the parents has been raised but it is conceivable that it might be. Does Attorney have a conflict of interest? If yes, can it be waived?

ANSWER: This situation creates a conflict of interest under Rule 1.7. Attorney must first determine that joint representation would not reasonably be expected to adversely affect the relationship with either client. If a genuine issue of comparative negligence develops, this step in the analysis would dictate that the conflict could not be waived. Once step one is satisfied, the clients must be willing to consent after full disclosure. The parents may not consent on behalf of the child. Only a next friend appointed by the court may consent for the child. If the next friend will not consent,Attorney may continue to represent the parents unless information has been obtained that could be used to the child's detriment.Attorney has obtained information from the parents such that Attorney could not represent only the child unless the parents consent.

[Rule 4 -- 1.7]

C.ofInt.-311

INFORMAL OPINION 940174

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

ANSWER: The mother's change of position creates a conflict under Rule 4-1.7 in the guardianship case. Attorney must withdraw from the guardianship case because the circumstances indicate that the entire family would consider Attorney to be their attorney in that case. Attorney need not withdraw from the personal injury case.

[Rule 4 -- 1.7]

C.ofInt.-312

INFORMAL OPINION 940178

QUESTION: Attorney is also licensed to sell life insurance. After Attorney completes an estate plan for a client, Attorney sends a letter to the client outlining reasons why they may want to consider purchasing life insurance. Attorney indicates that Attorney, as an insurance agent would be happy to discuss this with them. In this letter, Attorney discloses the terms of the transaction, suggests that the client seek the advice of independent legal counsel and advises the clients that Attorney will not be functioning as their legal counsel in the insurance transaction.

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

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

C.ofInt.-313

INFORMAL OPINION 940180

QUESTION: Attorney would like to use the certified mail method of service in dissolution cases. Attorney has learned that unrepresented opposing parties do not understand this method and, therefore, frequently do not respond. May Attorney include a cover letter which explains what is enclosed, what the person is being asked to do and the effect of taking that action.

ANSWER: The part of the proposed letter which explains the result of taking the action would involve giving legal advice and would violate Rules 4-1.7 and 4-4.3. However the remainder of the letter would not violate the rules. Attorney may wish to consider tailoring the prescribed notice to the particular situation since Rule 54.16 does not require the notice to be exactly as it is set out in the forms. The appropriateness of any changes to the notice would be a 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. The client is delinquent in paying attorney's fees in all of the cases. One of 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 for Shareholder 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 be engaging in "in person" solicitation prohibited by Rule 4-7.3(b) anytime it made a referral to Attorney. If a client of Attorney developed a need for services such as those provided by the general business corporation, Attorney could only refer the client to the wholly-owned corporation after making full disclosure of the relationship between the corporation and the firm and making it clear to the client that the client has the option to obtain the services from any source of the client's choosing. Additionally, this situation raises issues of confidentiality. If Attorney does form such a corporation, Attorney must realize that it is a completely separate entity and that confidentiality of information relating to the law firm's clients 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. Corporation A will be operated completely separately and with proper designation. Attorney will only minimally be involved in the day today operation of the corporation. Attorney B who also owns an interest will be involved in the day to day operation and will also share the office space.

ANSWER: This arrangement would not violate Rule 4-5.4. The attorneys would have to make full disclosure any time they would refer a client to the corporation. Additionally, it would constitute prohibited "in person" solicitation for the corporation to make referrals to either attorney. The attorneys must also make certain that all information related to their clients is secure from access by anyone who shares space in the suite of offices who is not part of the attorney's firm.

[Rule 4 -- 5.4; 1.7; 7.3]

C.ofInt.-328

INFORMAL OPINION 950028

QUESTION: Attorney represents two companies. The two companies 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 to communicate the possible ramifications of this role to both companies, including the fact that attorney would not be able to represent either company in any disputes which arise as a result of the joint venture.

[Rule 4 -- 1.7; 1.4]

C.ofInt.-329

INFORMAL OPINION 950029

QUESTION: Attorney represents a client in a personal injury case arising out of an accident. One of Attorney's partners was a witness to the accident. Attorney does not plan to use the partner as a witness because there are other witnesses. May Attorney represent this client?

ANSWER: Yes. Under Rule 4-3.7(b), it is possible that Attorney could continue to represent the client at trial even if the partner is used as a witness. In any event, Attorney must make certain that Attorney's own interests and the interests of Attorney's partner do not affect Attorney's judgment in any aspect of the representation resulting 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 in various matters. Attorney's current client has a workers compensation claim against Company A. May Attorney represent the current client against Company A?

ANSWER: Under Rule 1.9(b), Attorney must determine whether Attorney, or any member of the firm, obtained confidential information in the course of the previous representation that could be used to the company's detriment in the workers compensation case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney's possession as a result of previous representation would be included under the ambit of confidential information.

[Rule 4 -- 1.9; 1.6]

C.ofInt.-331

INFORMAL OPINION 950036

QUESTION: Attorney is now a prosecuting attorney but was previously a public defender. One of Attorney's assistants was also previously a public defender. (1) May the prosecutor's office handle applications to revoke probation if one of the attorneys was involved in representing the defendant on the original offense? (2)May prosecutor's office handle applications to revoke probation if another attorney in the public defender's office handled the case on the original offense? (3) May the prosecutor's office handle motions for post-conviction relief in which other attorneys from that public defenders office handled the original case? (4) May the prosecutor's office handle applications to revoke probation if one of the secretaries work for the defense attorney who handled the original offense? (5) May the office handle child support cases if a secretary worked for an attorney who represented the defendant in the child support case on related matters?

ANSWER: (1) No. (2) Yes. (3) Yes, as long as no member of the prosecutor's office has confidential information pertaining to representation by the public defender's office or unless such a person 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 is a guardian ad litem in a case which the other attorney had to decline due to a conflict. Other members of Attorney A's firm have cases against Attorney B. What must the attorneys do regarding these cases.

ANSWER: In all of the pending cases, both attorneys must withdraw unless both clients consent to one continuing as counsel for one party. The rules do not permit the attorneys to obtain consent for both to remain in the case once they are both in the same firm. Attorney A will have to withdraw as guardian ad litem once the firm is formed. Under Rule 4-1.10, the conflict of one is the conflict of both. It will not be necessary for Attorney B to withdraw from cases in which another member of Attorney A's current firm represents the opposing party unless Attorney A gained confidential information related to the representation while Attorney A was in the current firm.

[Rule 4 -- 1.7; 1.10]

C.ofInt.-333

INFORMAL OPINION 950041

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

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

[Rule 4 -- 1.7]

C.ofInt.-334

INFORMAL OPINION 950047

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

ANSWER: Unless H consents after full disclosure, the representation 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 special counsel for a county. May the firm represent criminal defendants in circuit court in that county? May the firm continue to represent a client in a zoning matter against the county? Would the answer change 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 the county on an individual case or cases and does not reflect an ongoing relationship with the county otherwise. As "special counsel"the firm does not have a conflict of interest in representing criminal defendants or the zoning client. If the firm were general counsel for all matters it would have to withdraw from the zoning case. More information would be needed to answer the question about criminal defendants.

[Rule 4 -- 1.7]

C.ofInt.-336

INFORMAL OPINION 950054

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

ANSWER: Based upon the facts set forth, Attorney would not violate any provision of the rules, by being present during police and prosecution interviews of the witness. However, Attorney would violate the conflict of interest rules if Attorney undertook to represent the witness as opposed to being present for the purpose of representing the defendant. In connection with this concern, it is crucial, under Rule 4-4.3, that Attorney make it clear to the witness that Attorney does not represent the witness and that Attorney's only purpose for being present would be to represent the defendant's interests. As a result, Attorney would not be able to give the witness advice before, during or after the interview. Additionally, Attorney must inform the witness that, if the witness feels a need for personal legal advice or representation, the witness should contact a private attorney. If Attorney plans to be present at these interviews, Attorney should "make a record" to the extent appropriate under the circumstances 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. May Attorney represent criminal defendants in cases in which Attorney filed the charges if Attorney was only minimally involved in the case? Can the conflict be waived?

ANSWER: Rule 4-1.9 applies to this situation. Attorney is prohibited from representing a criminal defendant in a case in which Attorney filed the felony charge. The conflict cannot be waived by the state.

[Rule 4 -- 1.9]

C.ofInt.-338

INFORMAL OPINION 950059

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

ANSWER: If Attorney is an assistant prosecuting attorney,under Rule 4-1.7(a) Attorney may not continue to represent any criminal defendants in state court. Attorney is also prohibited from such representation, under Rule 4-1.10, if the prosecuting attorney is still a member of Attorney's firm. If Attorney is a special prosecutor appointed on individual cases in which there is a need for a special prosecutor and the prosecuting attorney is not a member of  Attorney's firm, Attorney may represent criminal defendants in other cases, 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. May Attorney represent criminal defendants whose cases arose while Attorney was prosecuting attorney but which had no relationship to the county in which Attorney was prosecutor?

QUESTION 2: May Attorney represent a plaintiff against a law enforcement officer of a municipality within the county for which Attorney was prosecuting attorney. The incident occurred while Attorney was prosecuting attorney but Attorney had no involvement. The suit would relate to the defendant's role as a law enforcement officer.

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

ANSWER 2: Attorney does have a conflict in this situation. In light of the fact that Attorney's former client is the state, this conflict cannot be waived.

[Rule 4 -- 1.9]

C.ofInt.-340

INFORMAL OPINION 950064

QUESTION: Attorney represents a criminal defendant A, who is a co-defendant with B. Initially, in order to determine which defendant to represent, Attorney interviewed both co-defendants.Attorney entered an appearance for defendant A. A and B now have conflicting interests. Co-defendant B now asserts that Attorney's discussion with co-defendant B means that Attorney may not represent defendant A against B's interests.

ANSWER: Under the circumstances described, once Attorney began discussing the case or facts related to the case with defendant B, Attorney established an attorney client relationship with defendant B. This creates a conflict of interest under Rule 4 -1.9(a) which requires Attorney to withdraw from representation of defendant A.

[Rule 4 -- 1.6; 1.9]

C.ofInt.-341

INFORMAL OPINION 950067

QUESTION: Attorney is a city prosecutor for city A. Attorney also represents defendants in municipal court in city B. Does Attorney have a conflict of interest if city A and city B have the same municipal judge?

ANSWER: Attorney would not be involved in a conflict of interest because the municipal judge and the municipal prosecutor should have no relationship beyond that of any other attorney appearing before the judge. If a greater relationship exists, that relationship would create a conflict of interest regardless of the specific factual circumstances described.

[Rule 4 -- 1.7]

C.ofInt.-342

INFORMAL OPINION 950073

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

ANSWER: Yes, it is a conflict under Rule 4-1.9(a). The conflict can 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 for city A and as municipal judge for city B if both are within the same county?

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

[Rule 4 -- 1.7]

C.ofInt.-344

INFORMAL OPINION 950078

QUESTION: Attorney represented a client in estate planning who was previously competent but now appears incompetent. May Attorney represent client's child in proceedings to have the client declared incompetent. This appears to be necessary for the client's protection. May Attorney represent the child in incompetency proceedings 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 the child in a proceeding to have the former client declared incompetent. Attorney will not be able to continue to provide representation of any sort to the client once Attorney is representing a party seeking to have the client declared incompetent. In light of the fact that Attorney believes the former client to be incompetent,it will not be possible for Attorney to seek a waiver of the conflict from the client. Attorney should also consider whether there is a likelihood that Attorney will be a necessary witness in the incompetency proceedings in determining whether to represent the child in seeking to have the client declared incompetent. Attorney should 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 city council. Attorney's firm handles personal injury cases arising within the city, some of which require the testimony of city police. The firm is handling a case in which the city is a defendant. The firm also represents defendants in the city's municipal court. May the firm continue in these cases? Could the fees from these cases be segregated? If the firm dissolves, can a former member, no longer associated with Attorney, handle the cases?

ANSWER: As a general rule, Attorney's firm may handle cases in which city police officers will be witnesses. However, if some other aspect of the police officer's role in the situation arises, the answer could change. Attorney's firm may not handle a case in which the city is an adverse party. Attorney's firm may not represent defendants in municipal court. Screening or segregation of funds is not a solution to these conflict situations. If Attorney's firm is dissolved, Attorney's former partner may handle these types of cases and may continue to handle the cases that are currently pending as long as the partnership is dissolved reasonably quickly and Attorney 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 a case in which Attorney was previously the guardian ad litem?

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

[Rule 4 -- 1.9(a)]

C.ofInt.-347

INFORMAL OPINION 950096

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

ANSWER: Based upon the facts described, it does not appear that Attorney's representation of the custodial parent is, in any way, adverse to the interests of the division of child support enforcement. If the interests of the custodial parent are not adverse to those of child support enforcement, Attorney does not have a conflict of interest. If there are facts which indicate a dispute between child support enforcement and the custodial parent, such as a dispute over who is entitled to the funds recovered by child support enforcement, Attorney does have a conflict.

[Rule 4 -- 1.7]

C.ofInt.-348

INFORMAL OPINION 950097

QUESTION: The firm is contemplating setting up a subsidiary law firm that would practice exclusively in a particular area of the law. The subsidiary would be a separate entity with a different name, address and management. All profits would flow through to the parent firm. The lawyers working for the subsidiary would hold themselves out as employees of the subsidiary, not the parent.

ANSWER: The arrangement would not violate any provision of the Rules of Professional Conduct. However, all communications about each firm, would have to disclose the relationship with the other firm. Additionally, all conflicts of interest of each firm would be considered conflicts of both firms.

[Rule 4 -- 1.7; 7.1]

C.ofInt.-349

INFORMAL OPINION 950107

QUESTION: Attorney is a former judge. Attorney presents several situations. Situation 1: While a judge, Attorney signed letters of administration. Subsequently, the estate became contested and Attorney has now been asked to represent a party. Situation 2: While a judge, Attorney entered a divorce decree. One of the parties to the divorce has asked Attorney for representation in an action to modify the decree. Does Attorney have a conflict of interest in these situations?

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

[Rule 4 -- 1.12]

C.ofInt.-350

INFORMAL OPINION 950109

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

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

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

C.ofInt.-351

INFORMAL OPINION 950116

QUESTION: Attorney represented Client A in litigation which has concluded. Attorney has a new client who would like Attorney to provide representation against Client A. Does Attorney have a conflict?

ANSWER: Assuming that the two cases are not substantially related, the situation described involves a possible conflict of interest under Rule 4-1.9(b). To reach a conclusion whether there is a conflict, Attorney must determine whether Attorney came into possession of any information in the course of representing Client A that 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. As assistant prosecutor, Attorney was involved in representing the county zoning director in a case. May Attorney now represent another party in the case if the representation is not adverse to the former client?

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

[Rule 4 -- 1.11]

C.ofInt.-353

INFORMAL OPINION 950119

QUESTION: Attorney is a former judge. (1) Attorney served as a judge in an uncontested matter relating to child support. Now one party wants to hire Attorney in a proceeding to enforce the order. (2) Attorney served as a judge in a default dissolution. Now one party wants to hire Attorney for a motion to modify. (3) Attorney served as a judge in a Consent Order of Protection under the Adult Abuse Act. The parties were subsequently divorced without Attorney's involvement. One party now wants to hire Attorney for a motion to modify.

ANSWER: Under Rule 4-1.12 Attorney may not represent either party in any of the situations described unless both parties consent after disclosure.

[Rule 4 -- 1.12]

C.ofInt.-354

INFORMAL OPINION 950123

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

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

[Rule 4 -- 1.9; 1.10]

C.ofInt.-355

INFORMAL OPINION 950129

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

ANSWER: Former prosecutor is disqualified regardless of personal knowledge because the authority of any assistant prosecuting attorney to act in the case flowed from the prosecutor and the prosecutor was a supervising attorney responsible for the assistant's actions. The former assistant is not disqualified, based on the facts presented. The hardship for X is not a factor to be considered in the analysis. The former assistant may continue representation in the case as long as the former prosecutor is screened 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. Attorney represents Company X in a workers compensation case. The worker in the workers compensation case claims to have called the firm to talk about a wrongful discharge case. The worker talked to another member of the firm who has never been involved in the workers compensation case. The worker claims to have discussed the workers compensation case with the other member of the firm. Does Attorney now have a conflict of interest?

ANSWER: If the conversation which the worker described did occur, the firm has a conflict of interest under Rule 1.9(a) and must withdraw unless the worker consents. Screening is not an option for curing a conflict of interest in a private firm in Missouri. Therefore, the fact that the other member of the firm has had no direct involvement in the workers compensation case does not affect the existence of the conflict.

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

C.ofInt.-357

INFORMAL OPINION 950133

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

ANSWER: Attorney may represent the mother and the grandparents jointly in both actions only if there is no actual conflict in their interests or goals and if each potential client consents after full disclosure. Attorney should encourage the mother to obtain advice from independent counsel regarding whether to consent. If an actual conflict develops between the mother and grandparents as the actions progress, it is likely Attorney will have to withdraw from representation of everyone involved.

[Rule 4 -- 1.7]

C.ofInt.-358

INFORMAL OPINION 950150

QUESTION: Attorney would contract with a state agency which performs various types of functions including quasi-judicial functions. Attorney would be providing services that would not involve the hearing process. Attorney also has clients whose cases would be heard by the agency through the quasi-judicial hearing during the period of the contract. May Attorney represent these clients in the proceedings before the agency?

ANSWER: This situation would involve a conflict of interest under Rule 4-1.7. If Attorney is under contract to provide services to the state agency, Attorney will not be able to represent any one other than the state agency in proceedings before the agency.Attorney will also be prohibited from engaging in litigation opposing any 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 the following 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 for compensation; and 5) termination of parental rights cases in County A or in different counties. Do the answers also apply to other members of Attorney's private firm?

ANSWER: 1) Yes. However, Attorney may not represent a criminal defendant in federal court if the criminal conduct occurred in County A or if County A law enforcement personnel are involved in 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 Missouri counties as long as County A law enforcement personnel are not involved in the investigation or prosecution of the municipal case.4) Yes. 5) Yes, if Attorney is representing the Juvenile Officer. No, if Attorney is not representing the Juvenile Officer and the basis for the termination arises from conduct within County A or if County A law enforcement personnel are involved in the investigation or prosecution of the case. The answers to these questions all apply equally to other members of Attorney's private firm. If Attorney undertakes representation of a criminal defendant in the situations which this opinion identifies as permissible, Attorney has an obligation to fully inform the client of Attorney's status as an assistant prosecuting 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 office space and expenses but are not partners. W needs to file a motion for contempt against H. Attorney A will not represent H.

ANSWER: If Attorney and Attorney A are truly only sharing office space and expenses, Attorney may represent W. In order for the relationship to be solely office sharing, confidentiality must be maintained so that employees of one attorney do not have access to the files and client information of the other attorney. To the extent that any employees are joint employees, they should be clearly instructed on the fact that the offices are separate and information about one attorney's clients should not be shared with the other.The two practices should appear separate through signage and advertising. Although the space is shared, the overall arrangement should make the separateness of the practices clear. If the two practices are not kept separate as described, each should consider the conflicts of one to be the conflicts of both. Therefore, Attorney would 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 in a divorce. A firm for which Attorney worked at the time prepared the prenuptial agreement. May Attorney represent Client A? Can any conflicts be cured by waiver?

ANSWER: Attorney has not indicated which party to the prenuptial agreement the former firm represented. Therefore, this is based on the assumption that it represented both parties. If Attorney obtained confidential information regarding the prenuptial agreement while Attorney was a member of the firm that prepared the agreement, Attorney has a conflict of interest under Rule 4-1.9.However, if Attorney did not obtain such information, Attorney does not have a conflict of interest. Attorney should be aware that Attorney may have obtained confidential information by discussing the matter with other members of the firm despite complete lack of contact 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 waive the conflict after full disclosure and the opportunity and encouragement 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 time prosecutor who previously represented individuals who are criminal defendants. The prior representation was not in the criminal case but was in related matters. Efforts have been taken to screen the part time prosecutor from these cases by isolation from the file and not discussing the case. Does this create a conflict for the entire office?

ANSWER: The prior involvement of the part time prosecutor in the two cases does not disqualify the entire office as long as adequate steps are taken to screen the part time prosecutor from these cases. In addition to isolating the file, other staff should be made aware of the screening so that information is not inadvertently provided or the part time prosecutor is not inadvertently 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 not the city prosecutor. May other members of the firm represent defendants in municipal court?

ANSWER: The members of the firm may not represent defendants in municipal court in the municipality in which a firm member is the city attorney. If a member of the firm is the city attorney, the city is a client of a member of the firm. By representing defendants in the city's municipal court, members of the firm would be representing clients (municipal defendants) directly adverse to the 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 do not share profits. One member of the firm is a municipal judge. May other members of the firm represent clients in municipal zoning matters?

ANSWER: No. Once the attorneys have formed a firm, the provisions of Rule 4-1.10 apply regardless of the internal financial arrangements. Therefore, the conflicts of each member of the firm are 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 charge only a straight contingent fee without recouping expenses in personal injury cases. May Attorney do so?

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

[Rule 4 -- 1.8(e)]

C.ofInt.-366

INFORMAL OPINION 950199

QUESTION: Attorney is representing clients against former clients whom Attorney represented when Attorney was in another firm. The current matters are not related to the matters on which Attorney represented the former clients. May Attorney continue representation of the current clients?

ANSWER: Under Rule 4-1.9(b) Attorney must determine, for each case, whether Attorney obtained confidential information in the course of the previous representation that could be used to the previous client's detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney's possession as a result of the previous representation would be 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 special prosecutor in an individual case. May other members of Attorney's firm handle unrelated cases against the state?

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

[Rule 4 -- 1.7]

C.ofInt.-368

INFORMAL OPINION 950212

QUESTION: Attorney has an office sharing arrangement with another firm. Attorney's description of the arrangement describes a true office sharing arrangement. A member of the other firm previously represented Clients A and B to obtain a guardianship.Clients A and B have had a falling out and Client A now wants Attorney's representation in seeking to be the sole guardian. May Attorney do so?

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

[Rule 4 -- 1.10; 1.7]

C.ofInt.-369

INFORMAL OPINION 950217

QUESTION:

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

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

Question 3. May the partner of a part time municipal judge defend 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 medical treatment and transportation for medical treatment for the employee while the case is pending if the employee cannot afford it otherwise?

ANSWER: Under Rule 4-1.8(e) an attorney may not provide financial assistance to a client except to advance costs and expenses or, if the client is indigent, to pay costs and expenses.Therefore, Attorney may not pay or advance the costs of the client's medication, treatment or travel expenses related to treatment.However, if the visit to the health care provider is genuinely for the purpose of evaluation for the litigation, even if it is also for treatment, Attorney may advance the expenses of the visit and the transportation. However, to the extent that the evaluation portion of the visit can be segregated from the treatment portion, Attorney may 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 several clients who are incarcerated in the same facility. Attorney formerly represented Client A. Several of Attorney's other clients have contacted Attorney about making a deal in exchange for testimony against Client A based on Client A's statements while incarcerated.Must Attorney withdraw from representing the clients who want to testify against Client A?

ANSWER: Yes.

[Rule 4 -- 1.7]

C.ofInt.-372

INFORMAL OPINION 950238

QUESTION: Attorney's firm represented W who was appointed guardian and conservator of H. W & H later divorced and W is no longer guardian and conservator. Attorney's firm does not represent the current guardian and conservator. Attorney's firm did not represent anyone in the divorce. Issues regarding child custody and support have now arisen. May Attorney's firm represent W against H regarding the child custody and support matters?

ANSWER: Yes, Attorney may represent W against H, unless, H would reasonably have also considered himself to be a client of the firm 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 defendant has now cross-claimed H. May Attorney continue to represent H and W if they consent?

ANSWER: If, at this point, H and W take consistent positions on what occurred, Attorney may continue to represent both if both waive the conflict after full disclosure. However, if at any point, their positions diverge in any material way, Attorney will have to with draw from representation of one or both.

[Rule 4 -- 1.7]

C.ofInt.-374

INFORMAL OPINION 950247

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

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

[Rule 4 -- 1.7]

C.ofInt.-375

INFORMAL OPINION 950251

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

ANSWER: As long as the assistant prosecutor is completely screened from participation in the child support or criminal non-support case, the prosecutor's office may pursue these cases without having a special prosecutor appointed. However, the screening must be formal and it must be effective. Additionally, this answer is based on the assumption that this would be a situation that would occur only in isolated instances from time to time. If this became an ongoing or regular occurrence, it is likely that the answer would change.

[Rule 4 -- 1.9]

C.ofInt.-376

INFORMAL OPINION 950262

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

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

[Rule 4 -- 1.7]

C.ofInt.-377

INFORMAL OPINION 950267

QUESTION: Attorney appeared for another attorney to obtain a default judgment for Client A. Attorney then left the firm and had no continuing relationship with Client A. Attorney now represents Client B, the defendant in the case that defaulted. Client A has assigned the rights under the default judgment to C who is trying to collect the judgment against B. May Attorney represent B against C?

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

[Rule 4 -- 1.9]