QUESTION: Attorney is a former prosecutor, now in private practice. Attorney has been contacted for representation in a probation violation hearing. Attorney originally prosecuted the individual who was placed on probation. Would it be a conflict of interest for Attorney to represent this individual? ANSWER: Under Rules 4-1.11(a) and 4-1.9(a) Attorney may not represent defendants on probation violation matters which arise in connection with cases which Attorney or Attorney´s assistants prosecuted, while Attorney was the prosecuting attorney. Under Rule 4-1.11(a), the conflict may be waived.

QUESTION: Attorney is a newly elected prosecuting attorney. It is part of the prosecutor´s duties to represent the Juvenile Officer in all juvenile matters. Attorney´s firm has received a large number of appointments from the court on juvenile court matters. Attorney has no knowledge of the facts of any of the cases on which the firm has been appointed, but there is no formal screening to isolate Attorney from those cases. Should Attorney be disqualified from representing the Juvenile Officer in those cases? ANSWER: Under Rule 4-1.11(c), Attorney may represent the Juvenile Officer in those cases, if Attorney will no longer be a member of the firm.

QUESTION: Attorney is a former county prosecutor now in private practice. Attorney has been approached by X seeking representation on a DWI charge. Attorney knows X because X was a witness in an assault case that the prosecutor´s office handled while Attorney worked at the prosecutor´s office. The assault case is still pending. X gave Attorney no special information, and previous contact with X was unrelated to the present charge. Does Attorney have a conflict? ANSWER: Based on the information Attorney has provided, Attorney does not have a conflict of interest which prohibits Attorney from representing the individual in the DWI case.

QUESTION: Attorney is a former assistant county prosecutor who has entered private practice. As a prosecutor, one of Attorney´s duties was to prosecute homicides. Attorney initiated proceedings against D for murder nearly a year before Attorney left the prosecutor´s office. The mother of the victim contacted Attorney and indicated that she wishes to sue D for the assault and murder of the victim. Question 1. Is there any prohibition against Attorney handling this case? Question 2. If a prohibition does apply against Attorney, may other members of Attorney´s firm handle the case? Question 3. If a prohibition does apply in both of the first two questions, can any member of the firm refer the case to another firm? ANSWER: Question 1. Yes, Attorney has a conflict under Rule 4-1.11, which prohibits Attorney from handling the matter. Questions 2. and 3. It is possible for another member of Attorney´s firm to handle the matter as long as Attorney and Attorney´s firm comply with the requirements of Rule 4-1.11.

QUESTION: Attorney is the county prosecuting attorney and is in private practice. Attorney is handling a civil matter for a client. Attorney´s client made a report of the incident, that later resulted in the civil suit, with the county sheriff´s office for information purposes only. The sheriff passed on the information on to the prosecutor, although no charges were ever filed. Does Attorney have a conflict of interest because the matter was investigated by the sheriff´s department? ANSWER: Although the report may only be intended for information, the prosecutor would have discretion to act on the information. If Attorney´s office received the report prior to Attorney´s acceptance of the civil case for the plaintiff, Attorney has a conflict of interest under Rule 4-1.11, which requires Attorney to withdraw. If the information was recieved after the Attorney accepted the civil case, the report should be reviewed by a Special Prosecutor.

QUESTION: Attorney is a former assistant prosecutor. Question 1. May Attorney represent a criminal defendant who is charged with crime which occurred while Attorney was an assistant prosecutor but for which the defendant was arrested and charged after Attorney was in private practice? Question 2. The criminal defendant is on probation for a crime to which the defendant pled guilty while Attorney was an assistant prosecutor. May Attorney represent the defendant in probation revocation proceedings? Question 3. May Attorney include the potential probation revocation in negotiations? Question 4. Is Attorney precluded from representing anyone on any matter that arises out of a criminal charge that was filed while Attorney was an assistant prosecutor? Question 5. Are other members of Attorney´s firm precluded from handling matters described in Question 4? Question 6. Must Attorney notify potential criminal clients about Attorney´s prior employment as an assistant prosecutor? ANSWER: Question 1. Yes. Question 2. No. Question 3. No. Question 4. Attorney is precluded from representing anyone on any matter that stems from or arises out of a criminal charge that was filed while Attorney was an assistant prosecutor if that charge is one with which Attorney, or anyone Attorney supervised, were involved, in any way. Question 5. Members of Attorney´s new firm are not precluded from handling these cases as long as Attorney follows the provisions of Rule 4-1.11(a) including effective screening and notice. Question 6. Attorney is not required to inform potential criminal clients about Attorney´s prior employment by the prosecutor´s office unless Attorney obtains information which indicates that Attorney may have a conflict.

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.

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.

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.

QUESTION: Attorney was an assistant public defender and is now an assistant prosecuting attorney. (1) May Attorney prosecute in cases which were pending in the public defender´s office while Attorney was employed there? (2) May attorney prosecute former clients who Attorney personally represented on unrelated matters? ANSWER: (1) Under Rule 4-1.11, Attorney may not prosecute in these cases if Attorney personally and substantially participated in the case while Attorney was in the public defender´s office. Attorney would be considered to have personally and substantially participated if you were privy to confidential information regarding the case. (2) This question is governed by Rule 4-1.9(b). Attorney may not prosecute if Attorney obtained information in the course of previous representation of the defendant that could be used to the defendant´s disadvantage in the current matter.

QUESTION: Attorney works in a private firm but works part time for the prosecutor handling child support enforcement. Attorney only works on cases establishing paternity and child support but not modifications or jury trials if paternity is contested. Is attorney´s firm disqualified from doing criminal work? ANSWER: Follow the procedures in Conflict of Interest Opinions 62 and 122 in the Missouri Advisory Committee Opinions deskbook. In addition, full disclosure must be given and written consent obtained from any client whom the firm will defend in a criminal case. This additional requirement is consistent with State v. Ross, 829 S.W.2d 948 (Mo. banc 1992).

QUESTION: Attorney is employed as an assistant prosecutor. Attorney plans to leave the prosecutor´s office and join a private firm which has one or more cases with that prosecutor´s office. Is this acceptable? ANSWER: Yes, Rule 1.11 allows for screening of the former government attorney. Be sure to carefully study and follow the requirements of that rule.