QUESTION: Can Attorney tell a client that Attorney will provide free or reduced cost estate planning services to a client who leaves a portion of their estate to a not-for-profit organization? ANSWER: It is permissible for Attorney to offer a discount on estate planning to clients who leave a portion of their estates to a not-for-profit organization. Attorney must clearly and fully disclose Attorney's relationship with the organization. Attorney must provide objective advice and consultation to the clients regarding their options and the effects of their choices

QUESTION: Client is a grandparent and retained Attorney for representation regarding grandparent visitation rights. In order for Client to have standing, there must be a pending action for Dissolution or Paternity or a Judgment for Dissolution or Paternity. There was no such action pending. May Attorney represent the father in a paternity action and Client in a grandparent visitation rights action? Attorney received consent from both parties to represent them and to discuss each case with both parties.

ANSWER: As long as the interests of the father and Client are not adverse, Attorney may represent Client in seeking grandparent rights while simultaneously representing the father in a petition for paternity. If their interests become materially adverse, Attorney may have to withdraw from representing both parties.

QUESTION: The governmental entity is seeking to retain private attorneys on a contract basis for court proceedings. The attorneys would not be considered employees of the governmental entity. May attorneys hired on a contract basis represent other clients whose interests are adverse to any part of the governmental entity? May a governmental entity waive a conflict of interest?

ANSWER: The Supreme Court of Missouri has recognized the ability of state government to waive conflicts in State ex rel. Nixon v. American Tobacco Company, Inc., 34 S.W.3d 122, 135-136 (Mo. banc 2001). In ABA Formal Op. 97-405, the American Bar Association clearly contemplates that governmental entities may waive conflicts.

This informal advisory opinion represents a departure from the previous position on waiver of conflicts of interest by governmental entities. It is now the position that governmental entities may waive conflicts. However, the issue of who has the authority to waive the conflict on behalf of the governmental entity is a legal question beyond the purview of an informal advisory opinion. An attorney who seeks a waiver from a governmental entity would be well advised to be certain that the person who purports to waive a conflict has the legal authority to do so.

This informal advisory opinion maintains the position that an attorney who represents any part of a government has a conflict that prevents representation adverse to any part of the same government, except that now waiver of the conflict is recognized as a possibility. By recognizing the ability of the government to waive conflicts, the government has the ability to determine at what levels government should be divided for conflict purposes and this determination can be tailored to the legal and factual issues involved in a given matter.

QUESTION: Attorney was witness to an incident on a train, which resulted in a lawsuit. Plaintiff wants Attorney to serve as his counsel. The testimony offered by Attorney would be identical to the eyewitness account of his client. May Attorney serve as Plaintiff's counsel?

ANSWER: Under Rule 4-3.7, Attorney shall not act as an advocate at trial, if he is likely to be a necessary witness. If Attorney does not plan or anticipate being a witness, he could act as an advocate at trial. If, during the course of the trial, Attorney becomes a necessary witness, it would be up to the judge whether the hardship provision of 3.7(a)(3) would apply. The possible conflict under Rule 4-1.7 is understood to be a potential conflict rather than an actual one. If Attorney and client anticipate any testimony each gives will be consistent, the client can waive the potential conflict that their testimony will unexpectedly diverge at trial. If, however, Attorney believes his testimony will be inconsistent with his client's testimony, Attorney has a conflict that is not waivable.

QUESTION: Question 1. The judicial circuit operates a drug court on a county-by-county basis. Prosecuting Attorney has appointed an attorney in his county as "drug court prosecuting attorney." The attorney as not been sworn in as a county official and has specific and limited duties: (1) attends drug court meetings and votes on drug court matters as part of a six-person team; (2) duties are mainly administrative with no authority to file cases; (3) has no authority to dismiss cases; (4) has no authority to plea bargain or appear in court, other than as drug court prosecutor; (5) receives a small monthly salary; (6) has no authority to refer anyone to drug court; and (7) has no authority to terminate any participants from drug court. After reviewing informal advisory opinion C. of Int.-122 [this cite refers to the location of the opinion in The Missouri Bar's Advisory Committee Opinions deskbook, last revised 1996] and section 56.360, RSMo, there appears to be a conflict between the advisory opinion and the statute. Is there a conflict?

Question 2. Prosecuting Attorney wants to hire an attorney to handle child support cases. The attorney would handle collection for child support issues, including filing of criminal misdemeanor and felony non-support cases. May attorney continue his criminal defense practice if appointed child support prosecuting attorney?

ANSWER: Answer 1. C. of Int.-122 and section 56.360, RSMo, may conflict. If section 56.360 applies to the drug court prosecutor, nothing in the Rules of Professional Conduct or C. of Int.-122 permit the drug court prosecutor to do something prohibited by the statute. Rule 4-1.7 prohibits a drug court prosecutor from opposing the state in litigation, including criminal defense. C. of Int.-122 is limited to assistant prosecutors who only handle child support enforcement and who follow all the steps set forth in that opinion and the prior opinion to which it refers.

Answer 2. Assuming the arrangements with the individual to handle child support matters meet the requirements of C. of Int.-122 and the prior opinion to which it refers, the assistant prosecutor will not be subject to disciplinary action. Statutory provisions are completely separate from the Rules of Professional Conduct. If section 56.360 applies to this assistant prosecutor and the assistant engages in criminal defense work, it is possible the assistant could be convicted of a misdemeanor and consequently subjected to disciplinary action. As the assistant prosecutor's supervisor, the Prosecuting Attorney would be subject to disciplinary action, if the assistant is subject to disciplinary action.

QUESTION: Attorney entered an appearance for defendant, Doctor A, in a medical malpractice case. When plaintiffs disclosed their expert, Attorney learned that Attorney had an ongoing professional and personal relationship with plaintiffs' expert. Can Attorney continue to represent doctor A?

ANSWER: If there is a conflict of interest, it would be under Rule 4-1.7(b). If Attorney's relationship with the expert will materially limit Attorney's representation of Doctor A, a conflict exists. Even if Attorney does not believe the relationship would result in material limitation of Attorney's representation, the relationship must be disclosed and discussed with Doctor A. If there is a conflict, but Attorney has a reasonable belief that it would not adversely affect representation, Doctor A could waive the conflict.

QUESTION: Attorney is asked by City to serve as a "special prosecutor" for municipal cases when the regular municipal prosecutor has to be conflicted out. If Attorney does this on an occasional basis, does this preclude Attorney from representing other defendants on municipal charges? ANSWER: If Attorney is appointed as "special prosecutor" on a case by case basis and does not have an ongoing relationship with the city, other than possible future appointments, Attorney would not be precluded from representing other defendants on municipal charges. However, Attorney must only be appointed as "special prosecutor" in proper situations. Attorney cannot be on contract nor have an ongoing relationship with the city.

QUESTION: Attorney wants to establish a separate investment advisory and/or life insurance business. There would be a referral relationship between Attorney and the new business. May attorney do this? If so, what information must be disclosed to clients when referred to the side business?

ANSWER: Attorney is permitted to establish the side business. All communications should clearly state that it is a completely separate business from the law firm. All referrals will need to make full disclosure regarding Attorney's interest in the side business and that the client has the option of going to any other similar business for that type of service. Attorney must follow the steps outlined in Rule 4-1.8(a), which requires written disclosure and consent, among other things.

QUESTION: Attorney filed a personal injury lawsuit for Husband and Wife. Husband was severely injured. Attorney filed a lawsuit on behalf of Husband for his injuries and included a count for loss of consortium for Wife. Husband and Wife are now getting a divorce. Husband wants Attorney to withdraw as counsel for Wife. Is it ethical for Attorney to withdraw from representing Wife, but continue to represent Husband? Attorney is not representing either party in the dissolution action. No trial date has been scheduled in the personal injury lawsuit. Attorney has asked Wife to consent to Attorney's withdrawal or a dismissal without prejudice of her case, but has not received any response. ANSWER: This presents three questions. QUESTION 1: Must Attorney withdraw from representing Wife simply because Husband wants Attorney to do so? ANSWER 1: Probably not. Rule 4-1.16 provides that an attorney may withdraw if it can be accomplished without material adverse effect on the interests of the client (i.e., Wife). In this case, Attorney will have to consider whether that can be accomplished. Relevant factors to consider may include: if Wife's interests in this case are directly contingent on pursuit of Husband's claim; the need for her to get substitute counsel and possibly the likelihood of whether she will be able to do so. In other words, Attorney also has duties to Wife as client, which Attorney must consider before withdrawing from her representation. QUESTION 2: Is there a conflict that requires Attorney to withdraw from representation of Wife? ANSWER 2: Rule 4-1.7(a) cautions that a lawyer shall not represent a client if the representation will be directly adverse to another client, and provides certain caveats. Attorney needs to evaluate: Is the representation of Wife directly adverse to Husband? Attorney should assess how Attorney's individual clients would perceive this issue. If it is directly adverse, Attorney can't represent them both (unless they consent.) The Rule goes on to say that even if representation is directly adverse, the lawyer can proceed, if Attorney reasonably believes the representation will not adversely affect the relationship with the other client. Again, this is something for Attorney to evaluate under the circumstances of Attorney's relationship to both these clients; the strategies and legal theories Attorney will have to employ; the involvement that will be required between the clients and Attorney; perhaps even the level of animosity between the clients and how that will affect Attorney's representation of both. If both clients consent, Attorney can represent them both, but obviously Husband is requesting that Attorney withdraw at this point. Perhaps Attorney wants to consider whether exploring the reasons for his objection to Attorney's continued representation can be addressed through some other means, short of withdrawing. What is his real concern? Is there a genuine conflict here or does he simply not want to face encounters with Wife? Rule 4-1.7(b) prohibits representation of a client where the representation would be materially limited by the lawyer's responsibilities to another client or by the lawyer's own interests, unless the client consents. Again, this is a similar analysis as above. It may be appropriate to consider: Is Attorney's sense of loyalty to one of the clients affected by the circumstances; is there confidential information that Attorney has gained from one of the clients that the client does not wish Attorney to disclose to the other or to disclose within the lawsuit? If representing either of them will materially limit Attorney's responsibility to the other, Attorney cannot represent them both. QUESTION 3: If Attorney does withdraw from representing Wife, can Attorney continue to represent Husband? ANSWER 3: Yes, unless Husband's interests in this case are materially adverse to Wife's interests in the case and she won't consent. Rule 4-1.9 relates to former clients and may apply to Wife if Attorney continues to represent Husband after withdrawing from her representation. The primary concern here is for the appearance of disloyalty to the former client, as well as the misuse of confidential information of the former client to their disadvantage. It may be that there is confidential information that she would consider embarrassing and she would not want disclosed, or that could affect her position in the divorce action and would then be in the public record in the personal injury case. These are certainly areas of potential conflict, which Attorney will have to assess and discuss with the client. Attorney would need to request her consent to disclosure pursuant to Rule 4-1.6 (Confidentiality).

QUESTION: Attorney's firm is bidding to enter into a contract with a liability insurer to defend claims brought against its insureds on a flat fee basis. This fee would be the same regardless of the complexity of the case, venue and personal exposure over the limits. Question 1. Does this arrangement violate Rule 4-1.8(f)(2) in that the insurer could potentially interfere or compromise Attorney's judgment? Question 2. Does this arrangement violate Rule 4-1.7(b) in that the insurer limits Attorney's responsibilities to the insured clients? Question 3. Does this arrangement violate Rule 5.4(c) in that the insurer could direct or regulate Attorney's professional judgment in rendering legal services to the client-insured? Question 4. Could a situation arise where the insured and Attorney determine that the matter should be settled and the third party insurer wants the matter to go to trial, create a conflict of interest under the rules? Question 5. Does a flat fee arrangement automatically put Attorney and client in a financial conflict of interest, like a medical doctor in an HMO who is encouraged to provide the absolute minimum in medical care to the patient? ANSWER: Attorney should act consistent with the over-riding principle that "a lawyer shall not accept compensation for representing a client from one other than the client unless: 1) the client consents after consultation, 2) there is no interference with the lawyer's independence of professional judgment or with the attorney-client relationship, and 3) information relating to the representation of the client is protected under 1.6" - the confidentiality rule. (Rule 4-1.8(f)). Questions 1 & 3. Attorney needs to make it clear to the insurance company that Attorney is bound by Rule 4-1.8 and that Attorney's representation of the client must be governed by Attorney's professional judgment. Attorney should consult with the client about the possibility of any limitations by the insurance company, at the outset of the representation. Attorney should explain to the insured that Attorney is employed by the insurance company. Attorney should also inform the insured that the insured may hire his or her own attorney, if he chooses, subject to any restrictions provided in their insurance contract or as provided by law. However, the insurance company, as Attorney's employer, cannot dictate how Attorney handles the matter for an individual client in conflict with Attorney's professional judgment. The fact that a flat fee is to be paid for Attorney's legal services, regardless of complexity of the case, will not in itself constitute a violation of 4-1.8(f). Likewise, Attorney's responsibilities to the client are not limited, as Attorney suggests, simply because Attorney's compensation may be less than Attorney would customarily receive for a similar case. Question 2. Attorney indicates that the insurer "limits the attorney's responsibilities to the insured client" but Attorney does not present any facts in that regard. It is difficult to respond under the circumstances. However, Attorney's responsibility to the client is the same whether the insurance company is paying Attorney a flat fee or the client is paying Attorney directly. The insurance company cannot limit Attorney's responsibilities. Attorney should make the client aware of the limitations that they may be subject to under the contract of insurance that they have with the insurance company. Question 4. The circumstance Attorney has described is possible. The reverse circumstance is also possible. Rule 4-1.8(f) governs Attorney's responsibility in that accepting a fee from another should not inhibit Attorney's professional judgment to act in the insured's best interest. If a conflict of interest does arise, Attorney will have to look to Rule 4-1.7(b) and inform the client of the situation and then determine if Attorney would need to withdraw. Question 5. If a flat fee arrangement will affect Attorney's representation such that Attorney will not provide an appropriate level of representation, Attorney should not accept the representation on that basis. Attorney must provide the same level of representation to all clients, regardless of the compensation Attorney receives, unless Attorney's representation is limited by express agreement with the client(s).

QUESTION: Attorney represents Child, who is a minor, in a personal injury matter. Mother signed Child's personal injury contract as guardian and guarantor. The personal injury matter has not been settled. Attorney's firm has now been approached by Husband of Mother, who is not the father of Child, regarding representation for a divorce from Mother. Attorney's firm would use different attorneys for the two different matters. May Attorney's firm represent Husband in his divorce without conflict? ANSWER: The situation Attorney has described creates a conflict of interest under Rules 4-1.7 and 4-1.10. Child's interests will be adversely affected if representation of Husband damages the firm's working relationship with Mother. This conflict could be waived if consent is obtained from Mother and Husband, after full disclosure. It will be necessary to obtain consent from Husband to disclose the situation to Mother before Attorney can make the disclosure necessary to obtain consent.

QUESTION: Attorney is a prosecutor for County A and is also the part time prosecutor for a municipality. It is Attorney's understanding that it is not a conflict for Attorney to defend clients on municipal matters as a county prosecutor, but it is a conflict as a part time municipal prosecutor to defend clients in other municipalities. Is that correct? ANSWER: In relation to Attorney's role as a county prosecutor, Attorney would not have a conflict of interest defending municipal cases in other counties, as long as law enforcement officers from County A were not involved. Attorney would have a conflict of interest that would prohibit Attorney from defending any municipal case in County A. In relation to Attorney's role as a part-time municipal prosecutor, Attorney may defend municipal cases in other municipalities, as long as law enforcement officers from the municipality, in which Attorney is a prosecutor, were not involved. Additional facts related to a specific situation could change the conclusion on these matters. This opinion relates only to the Rules of Professional Conduct and does not address any statutory restrictions on a prosecutor's practice.

QUESTION: Attorney is the elected prosecutor in a third class county. Attorney´s office has been presented with a police report regarding an accident in which a county employee was severely injured, through the alleged fault and criminal responsibility of another person. The injury occurred during the employee´s employment and is being handled as a workers compensation injury. The county/insurance carrier might have a subrogation right against the suspect to recover the workers compensation benefits paid. May Attorney´s office properly proceed with the prosecution of the alleged suspect in view of the potential subrogation claim? ANSWER: Attorney does not have a conflict of interest that prohibits Attorney, or someone in Attorney´s office, from handling the prosecution of this matter. However, if Attorney´s office handles the prosecution, Attorney´s office may not handle the civil matter.

QUESTION: Attorney´s law firm has a website with general information about the firm and its members. There is also a link to the firm´s electronic e-mail address. Some people have been writing to that e-mail address with lengthy messages about their legal problems. Attorney´s concern is that some individual would send them an e-mail and believe that an attorney-client relationship existed. Attorney is concerned about the possibility that some individual might expect Attorney´s firm to take action on his or her behalf. Attorney is also concerned that someone might provide information to the firm about a matter in which they already have an existing client. Has OCDC taken an informal position about any disclaimer language? May Attorney´s firm validly assert that communications to their firm, via e-mail only, do not create an attorney-client relationship, and that such information sent to them, via e-mail only, cannot be considered confidential by the sender? ANSWER: By providing the opportunity to contact Attorney´s firm by e-mail through Attorney´s website, Attorney´s firm exposes itself to certain risks. Attorney can reduce these risks with a disclaimer, but Attorney cannot avoid them. One of the primary risks is that an attorney-client relationship will be established. The creation of that relationship may cause Attorney´s firm to have obligations to that client. Even if Attorney clearly informs the potential client that Attorney is declining representation, depending on the extent and nature of the communication, it may create a conflict that would prevent Attorney´s firm from representing another party in the matter. There is no blanket answer to Attorney´s question. The nature of Attorney´s obligation would depend on the nature of the communication. Attorney should also contact Attorney´s malpractice carrier for advice on this issue.

QUESTION: Attorney´s firm maintains a website which provides information about the attorneys in the firm and the nature of their practice. An e-mail hyperlink is provided for comments and questions from individuals who visit the site. Attorney´s firm has received unsolicited e-mails on a variety of subjects. They range from comments about the site to general questions for information to very detailed requests for legal representation. Often, it appears from the form of the e-mail that it has been sent to a number of attorneys and firms, not just Attorney´s firm. Does Attorney´s firm have an affirmative duty to respond to each and every request for information and representation? Based on whether or not a response is made, and the tone of the response, the individual sending the e-mail could possibly conclude that any attorney-client relationship has been created. Conversely, the lack of response may be interpreted by the sender as the acceptance of representation. ANSWER: By providing the opportunity to contact Attorney by e-mail through Attorney´s website, Attorney exposes Attorney´s firm to certain risks. One of the primary risks is that an attorney-client relationship will be established. The creation of that relationship may cause Attorney to have obligations to that client. Even if Attorney clearly inform the potential client that Attorney is declining representation, depending on the extent and nature of the communication, it may create a conflict that would prevent Attorney from representing another party in the matter. There is no blanket answer to Attorney´s question. The nature of Attorney´s obligation would depend on the nature of the communication. Attorney should also contact Attorney´s malpractice carrier for advice on this issue.

QUESTION: Attorney assisted in forming a LLC, at the request of A. In addition to A, the members of the LLC are B & C. Attorney drafted the Articles of Incorporation and filed them with the Secretary of State and also drafted the Operating Agreement, which sets forth the specifics of the business relationship between A, B & C. Attorney represented the LLC in negotiating an agreement with another company wherein the LLC agreed to act as a representative in Missouri and other surrounding states. Attorney has also represented the LLC in other miscellaneous matters. A & B have decided that they wish to dissolve the LLC and restructure their arrangement with the other company. A & B do not intend to include C in any new business ventures. The Operating Agreement provides that a majority of the members can dissolve the LLC. Attorney would like to be able to represent A in dissolving the LLC and establishing a new business venture with B. It is anticipated that C opposes dissolution and may assert claims against A & B and may assert claims in the nature of the oppression of a minority interest holder. Does Attorney have a conflict of interest in representing A since Attorney previously represented the LLC? Can Attorney continue to prepare legal documentation related to the LLC? Can Attorney defend A and possibly B against claims C might make against them in connection with dissolution of the LLC and the start up of a new business? ANSWER: Attorney´s past representation of the LLC creates a conflict of interest under Rule 4-1.9. That conflict prohibits Attorney from representing A in dissolving the LLC and from defending A or B against claims C might make related to the dissolution. Attorney may continue to represent the LLC, as an entity. If it is possible to represent A and B in starting the new business without being involved in advising or representing them regarding the dissolution of the LLC, Attorney may represent them in starting the new business.

QUESTION: Attorney serves as an assistant prosecuting attorney. Attorney´s duties are limited to those concerning either civil or criminal child support issues. There is another assistant prosecutor, but that attorney does not handle any of the office´s child support cases. The other assistant prosecutor served as GAL in a paternity case several years ago and the judgment also includes an order pertaining to custody and support of the child. Attorney has now received a referral requesting enforcement of that order with regards to child support. Attorney has not taken any action in the matter. Does a conflict exist for Attorney´s office because the other assistant prosecutor once served as GAL for the child? ANSWER: As long as the other assistant prosecuting attorney is screened from contact with or participation in this matter, the prosecutor´s office, as a whole, does not have a conflict.

QUESTION: Attorney is the city attorney. There was an automobile accident several years ago and the city police investigated that accident. No ticket was issued in either city court or state court. Attorney was unaware of the incident until Attorney received a request from the attorney representing the defendant asking for assistance in jury selection. Attorney would not be involved in questioning any of the witnesses during the trial. Does Attorney have a conflict? ANSWER: Based on the location of the accident and the involvement of the city police, Attorney has a conflict of interest such that Attorney should not participate in the civil trial on behalf of either party.

QUESTION: Attorney represented a client in litigation. A settlement was reached. Subsequently, Attorney´s client filed a motion to set aside, based on fraudulent acts by the other party relating to the settlement. Opposing counsel has indicated that Attorney will be called as a witness. Attorney is a necessary witness. May Attorney take depositions in the case? ANSWER: Under Rule 4-3.7, Attorney is prohibited from acting as an "advocate at trial´, since Attorney is a necessary witness. "At trial" does not include depositions. However, Rule 4-1.7(b) prohibits Attorney from acting in a representative capacity at any deposition or other pretrial matter in which Attorney´s own testimony or credibility is involved. Another attorney in Attorney´s firm may act as an advocate at trial, although Attorney will be a witness.

QUESTION: Attorney is renting office space from a law firm and there is a landlord tenant relationship. They share a common reception area. The firm´s receptionist answers Attorney´s telephone calls only when Attorney´s number is forwarded to do so. One of the members of the law firm is a municipal judge and another is a city prosecutor. May Attorney represent individuals charged with violations in the areas where the firm members act as the prosecutor and municipal judge? ANSWER: The arrangement Attorney has described does not, on its face, prohibit Attorney from representing individuals charged with ordinance violations in either of those municipalities. In an office sharing arrangement, it is important to be certain that people who come into contact with the offices understand that they are separate offices. This should be addressed in signs and possibly in the set up of the reception area. It should also be addressed in the manner in which the telephone is answered, even when Attorney has forwarded Attorney´s calls to the firm´s telephone number. Attorney also has an obligation to maintain confidentiality as to Attorney´s files and other information. In order to accomplish such confidentiality Attorney´s files must be secure. If Attorney has taken these steps, the firms will be treated as separate. Therefore, Attorney will not have a conflict.

QUESTION: Attorney would like to put a binding arbitration provision in Attorney´s fee agreement providing that all disputes between Attorney and Attorney´s client would be arbitrated. Is this prohibited? ANSWER: Attorney may include a binding arbitration agreement in Attorney´s fee agreements without violating Supreme Court Rule 4. However, under Rules 4-1.4(b) and 4-1.7(b), Attorney has an obligation to orally point out this provision and to explain it, to the extent necessary for the individual client.

QUESTION: May Attorney attend a trade show and occupy a booth which displays the name of Attorney and the name of Attorney´s firm? May Attorney display brochures and other literature ordinarily displayed in the lobby of the Attorney´s office? May Attorney discuss and answer legal questions and give legal advice to members of the public who solicit such advice from Attorney while in Attorney´s booth? May Attorney make an appointment for such a person to meet the following weekday at Attorney´s law office to possibly sign an engagement agreement or attorney/client contract? ANSWER: Based solely on the information Attorney has provided, the activities Attorney has proposed would not violate Supreme Court Rule 4. If Attorney will be consulting with individuals at a trade show, Attorney has an obligation to ensure confidentiality or be certain that the individual is not concerned about confidentiality. If Attorney will be giving specific advice or addressing specific situations, Attorney must perform a conflicts check before giving the advice. Attorney must also be certain that Attorney is only responding to contact, which has been initiated by individuals. If Attorney initiates the contact, Attorney would be engaging in "in person" solicitation in violation of Rule 4-7.3 (b).

QUESTION: Attorney represents a local law enforcement association. The purpose of the association is to act for the benefit of its members in dealing with employment issues for its officers. Attorney has been approached by one member of the association who has asked Attorney to sue another member of the association. The suit would involve issues which are association matters. May Attorney handle this case? ANSWER: Under the circumstances Attorney has described, it would be a conflict of interest for Attorney to represent one member on behalf of another member, if it deals with issues regarding the association, itself.

QUESTION: Attorney´s firm has been asked to represent a client in a legal matter involving litigation against an agency of the state of Missouri. Attorney´s firm has represented another agency of the state of Missouri for a number of years. Would it be a conflict of interest for Attorney´s firm to represent the client in its claim when Attorney´s firm has represented and continues to represent a separate agency in state government? ANSWER: If the state of Missouri, or one of its agencies, is a current client of Attorney´s firm, Attorney has a conflict of interest which prohibits Attorney from representing another client against the state or one of its agencies

QUESTION: Attorney has been hired as a full time county counselor. Attorney renders legal advice to the county commission and several boards. Attorney does not assist the county prosecutor and has no access to the prosecutor´s office or files. The commission agreed to let Attorney finish all pending criminal matters at the time Attorney was hired. The prosecutor´s office has now raised the question of whether Attorney is disqualified. Does Attorney have a conflict? ANSWER: Attorney may represent criminal defendants in Missouri state court cases where there is no possibility of the county being adversely affected, or there is a possibility of some adverse effect, if the county commissioners have waived the specific conflict, under Rule 4-1.11(a), after full disclosure. One example of an adverse effect would be if the county might have to pay court costs in an unsuccessful prosecution.

QUESTION: Attorney´s firm is defending Client A in a lawsuit filed by Plaintiff. Plaintiff is represented by Law Firm C. Attorney´s firm has been contacted by Law Firm C about a possible merger. Both firms recognize that a merger between the two firms cannot take place during the pendency of the lawsuit. Is it unethical for Attorney´s firm to discuss a merger with Law Firm C while the lawsuit is pending against Client A? If it is not ethical for these discussions to continue, is it necessary for Attorney´s firm to disclose to Client A the fact that Attorney´s firm was contacted and met with representatives of Law Firm C? ANSWER: Discussions regarding merger with Law Firm C create a conflict of interest under Rule 4-1.7(b). Attorney may continue those discussions only if Attorney makes full disclosure to Client A and Client A consents. Even if the discussions do not proceed, if a future merger is still under consideration, the fact should be disclosed to Client A.

QUESTION: Attorney has been appointed assistant prosecuting attorney for child support matters only. Attorney does not share offices with the Prosecutor and Attorney does not have access to criminal files. The Prosecutor has also stated that if there is a conflict of interest, the Prosecutor will ask an attorney or prosecutor from a neighboring county to handle that case rather than Attorney. May Attorney do criminal defense work? ANSWER: Under the circumstances Attorney has described, Attorney´s position as an assistant prosecuting attorney will not cause a conflict which prohibits Attorney from representing any criminal defendants. Attorney should examine each case for actual conflicts before accepting representation.

QUESTION: May Attorney represent juveniles as a guardian ad litem while Attorney´s firm represents adult criminal defendants? ANSWER: As a general rule, it will not create a conflict of interest for Attorney to represent juveniles as guardian ad litem, on a contract basis, while Attorney or other members of Attorney´s firm are representing criminal defendants. Particular circumstances could lead to a different result.

QUESTION: Attorney has a private practice and also serves as a part-time assistant prosecuting attorney in the area of child support enforcement. As a private attorney, may Attorney serve as GAL in juvenile cases? ANSWER: As an assistant prosecuting attorney, Attorney has a conflict in serving as a GAL in any cases in which the Juvenile Officer is an interested party.

QUESTION: Attorney is the County Counselor, representing the county and all departments, officers, institutions and agencies. Attorney is also required to prosecute or defend all civil suits or actions in which the county or any county officer, commission or agency is a party. Attorney advised the county commission on a matter involving a county officer. The county officer has now filed suit against the county. Would it be a conflict of interest for Attorney to defend the county in the lawsuit since Attorney has represented the county officer in the officer´s official capacity in various actions and rendered legal opinions to the officer from time to time? ANSWER: Based solely on the information Attorney has provided, it would not be a conflict of interest for Attorney to defend the commission in this case. However, if Attorney provided the county official advice or counsel related to this issue, the answer could change.

QUESTION: Attorney was appointed by the Court as the GAL for three juveniles. Attorney believes that one child is under pressure to engage in criminal activity by the other siblings and the child has reported this to the therapist and DFS case worker. Does Attorney have a conflict of interest since Attorney does not feel it is in the best interest of this child to continue to see the other siblings? Should Attorney withdraw as GAL for all three children? ANSWER: Under the circumstances Attorney has described, Attorney has an obligation to seek to withdraw from being the GAL for all three children. Attorney should ask the court to appoint a separate GAL for each child.

QUESTION: Attorney´s firm has interviewed a legal assistant for a position at the firm. The legal assistant is currently working for an attorney who represents a co-defendant in a case Attorney´s firm is handling. If hired, the legal assistant would not be assigned to the case and Attorney would inform all attorneys and staff members associated with the case not to discuss any aspect with the new legal assistant. Would there be any potential conflicts or ethical violations? ANSWER: The legal assistant must be completely screened from all contact with or access to the case involving the co-defendant. If the legal assistant is effectively screened, it will not be necessary for Attorney´s firm to withdraw. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify. Additionally, if a complaint is received, it would be investigated to determine the facts independently.

QUESTION: Attorney represents several individuals in a pending probate matter. The personal representative has offered an aggregate settlement to all of the clients. It is Attorney´s opinion that the clients should settle the matter. Approximately one half of the clients want to settle, while the others do not. Attorney has told the clients that it is Attorney´s belief that if they go to trial, they may not get anything. Does Attorney have a conflict of interest? ANSWER: Based on the information Attorney has provided, Attorney does have a conflict of interest. Attorney must withdraw from representing all of the plaintiffs, unless the individuals in one group of plaintiffs will consent to Attorney´s continued representation of the individuals in the other group of plaintiffs. Unless these individuals have formally formed some type of entity to make decisions in the case, Attorney represents individuals. Each individual decides for himself or herself whether he or she will settle.

QUESTION: Attorney is a prosecuting attorney and is also the attorney for a personal representative of an estate. The Department of Social Services has filed a claim in the estate matter based upon Medicaid payments, which has not been contested. Does Attorney have a conflict of interest since Attorney is also the prosecutor? ANSWER: Attorney has a conflict of interest if the interest of the estate, through the personal representative, is adverse to the Department of Social Services. If the personal representative is taking the position that the claim should not be contested, Attorney should obtain written documentation of these instructions from the personal representative. Attorney should disclose the potential conflict to the personal representative to allow the personal representative to seek independent counsel regarding the validity of the Social Services claim, if the personal representative wishes to do so. If, after full knowledge of the situation and the opportunity to consult independent counsel, the personal representative does not wish to contest the claim, Attorney may continue to represent the personal representative. However, if any adversity between the personal representative´s position and the position of the Department of Social Services arises, Attorney will have a conflict which will require Attorney to withdraw.

QUESTION: Attorney A is appointed as GAL for a child. The child is currently in foster care and the grandparent and step-grandparent are seeking to become successor foster parents for the child. Attorney A has some reservations as to whether this is in the child´s best interest. During the pendency of this, the step-grandparent comes to Attorney A´s firm and requests representation by Attorney B in a lawsuit against an unrelated defendant. None of the facts giving rise to the suit bear upon the step-grandparents ability to serve as a foster parent. Is there a conflict of interest present? ANSWER: Based on the information Attorney has provided, as GAL for the child, Attorney A´s position will likely be adverse to that of the step-grandparent. Therefore, it would be a conflict of interest under Rule 4-1.7(a) for Attorney B to represent the step-grandparent in an unrelated matter.

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 interested in setting up an Internet web site that would provide generalized legal information. The site would set up access to three attorneys who are non-affiliated, private practitioners. Would a plain and unambiguous disclaimer stating that this is not a law firm and that the attorneys are not affiliated be sufficient to insulate the attorneys involved from being considered to be a firm? ANSWER: Although a plain and unambiguous disclaimer may be sufficient to alert someone to the actual nature of the relationship, it may not be sufficient to insulate the attorneys from being treated as a firm from an ethical standpoint. In addition to the concerns Attorney has raised about creating the appearance of a firm, Attorney should also be aware that there are concerns about soliciting e-mail from prospective clients through a web site. If Attorney engages in the practice of communicating with current or prospective clients by e-mail, Attorney bears the responsibility of providing them timely advice regarding the relative security of communication by e-mail, in general, and in the particular computer setting through which they would be communicating. Attorney also creates the potential for conflicts of interest to be created through the receipt of substantive information by e-mail which may involve a person whose interests are adverse to a current client.

QUESTION: Attorney has been approached by a chiropractor with a business proposition that involves Attorney providing legal services for patients solicited by the chiropractor by an on-going direct mail solicitation program operated by the chiropractor. The letter sent does not suggest that the patient must retain Attorney as a condition of receiving treatment by the chiropractor, nor does it suggest that the patient must retain the chiropractor as a condition of retaining Attorney. No fee or kick-back would be paid to the chiropractor by Attorney, but the chiropractor does use a voluntary lien that also serves as an assignment of benefits form. Is this arrangement ethical? ANSWER: The arrangement, including the lien, Attorney has described appears to involve a conflict of interest in violation of Rule 4-1.7(b). This arrangement would also be a problem because Attorney would not independently determine whether each solicitation letter is appropriate in light of Rule 4-7.3(c).

QUESTION: Attorney represents two plaintiffs in the same matter. Opposing counsel has suggested that one of the plaintiffs may be brought in as a third party defendant, and that Attorney would then have a conflict of interest. Attorney fully explained the advantages and disadvantages of being represented by the same attorney, prior to employment. Both plaintiffs have waived any conflict. Attorney insisted that the waiver be in writing and advised the plaintiffs to seek the advice of counsel. Both plaintiffs declined to obtain independent counsel and provided the waivers to Attorney. ANSWER: Based upon the information Attorney has provided, it appears that the present conflict is waivable under Rule 1.7(a)(1), and that Attorney's clients have effectively done so. Therefore, Attorney does not have an obligation to withdraw at this time. Under the circumstances of this situation, a direct adversity could develop, which would be unwaivable, and Attorney would have an obligation to withdraw. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify.

QUESTION: Attorney represents a city through its insurance carrier in a tort claim. Attorney´s firm represents several businesses which are occasionally involved in condemnation cases against the city. Other members of Attorney´s firm represent criminal defendants in municipal violations. Is there a conflict of interest for Attorney if he represents the city on tort claims and other attorneys in the firm are in opposition to the city in non-tort matters such as criminal defense and condemnation? ANSWER: In the situation Attorney has described, Attorney has a conflict of interest under Rules 4-1.7(a) and 4-1.10.

QUESTION: Attorney is forming a firm to provide legal services to financial institutions. A CPA firm would refer financial institution clients to Attorney and Attorney would bill the institution directly for legal services. Attorney would then contract with the CPA firm on a case by case basis for the CPA firm´s personnel to handle Attorney´s administrative and paralegal work. Attorney would supervise all of the work and the CPA firm personnel would not be providing legal services for the client. Is this permissible? ANSWER: It appears from Attorney´s description that Attorney´s hiring of the CPA firm will be a quid pro quo for the referral of clients. If that is the case, the arrangement would violate Rule 4-7.2(c), which prohibits giving anything of value in exchange for a referral. Attorney may hire the CPA firm to perform Attorney´s administrative and secretarial service. However, this situation will require Attorney to make special arrangements regarding confidentiality, conflicts and the manner in which Attorney holds herself out to the public. Attorney would need to ensure that the public understands that Attorney´s law practice is independent of the CPA firm, but Attorney would also need to ensure that Attorney´s clients are aware of Attorney´s relationship with the CPA firm. Because the CPA firm will have access to confidential client information, Attorney will be responsible for the actions of the CPA firm´s staff in maintaining confidentiality. Attorney will also be responsible for making arrangements with the CPA firm to ensure that it does not undertake a representation adverse to one of Attorney´s current or former clients, if a similar representation would be prohibited under the Rules of Professional Conduct. If the CPA firm is not a completely independent business entity, the referral of clients to Attorney´s law firm may violate Rule 4-7.3(b) relating to in-person solicitation.

QUESTION: The county juvenile office would like to contract with Attorney´s law firm to represent indigent parents in pending juvenile matters. The level of payment will be established on a monthly basis. If Attorney´s firm enters into such an agreement with the county juvenile office, will this prohibit the firm from representation of unrelated criminal defendants? ANSWER: Based upon Attorney´s indication that Attorney will be representing indigent parents and Attorney will not be representing the Juvenile Officer or any other government official in these proceedings, the proposed arrangement will not create a situation in which Attorney or Attorney´s firm would be prohibited from representing criminal defendants in unrelated matters under Rule 4-1.7.

MODIFIED QUESTION: Attorney is a part time prosecutor for a third class county. Is it a conflict for Attorney to represent individuals in municipal traffic matters outside of the home county? Would it be a conflict for Attorney to represent individuals before the County Planning and Zoning Board since they have a private attorney? ANSWER: In the first situation, Attorney would not have a conflict of interest, as long as law enforcement officers from the county where Attorney is prosecutor were not involved. Additional facts related to a specific situation could change this conclusion. This opinion relates only to the Rules of Professional Conduct and does not address any statutory restrictions on a prosecutor´s practice. In light of the fact that Attorney is the attorney for the County Commission, it would be a conflict of interest for Attorney to represent a client before the County Planning and Zoning Board.

QUESTION: Attorney works for a corporation. Attorney´s spouse is an attorney working for a law firm. Attorney would like to hire spouse and spouse´s law firm to do legal work for the corporation. Is this a conflict of interest? ANSWER: The situation described does create a conflict of interest under Rule 4-1.7(b). However, the conflict can be waived by the corporation after full disclosure.

QUESTION: Attorney A and Attorney B are shareholders and directors of a Professional Corporation. Attorney B is the Prosecuting Attorney, which is a part-time position. Attorney A is the Assistant Prosecuting Attorney. Attorney B considers possible criminal charges stemming from a collision. Attorney A is contacted by a client concerning the collision and they discuss a wrongful death action. Attorney B instructs the patrolman to issue a ticket on the collision. Attorney A agrees to represent the client in the wrongful death action. Later, Attorney A and Attorney B realize that they are both working on the case from different angles. What is the proper course of action at this time? ANSWER: In the circumstances described, it is necessary for Attorney A to withdraw from representation of the client. It is also necessary to seek the appointment of a special prosecutor regarding the potential criminal charges.

QUESTION: Attorney is the city prosecutor of a large city. The city employs hundreds of police officers and thousands of other city employees. Attorney has read informal opinion number 970074 and interprets it to say that Attorney´s office cannot prosecute police officers, requiring appointment of special prosecutors. Attorney´s office frequently prosecutes firemen, court personnel and family members of the law department. Would it be possible for Attorney´s office to prosecute the group listed as long as the parties are personally unknown to the prosecutor. ANSWER: As long as there are no factors related to an officer or employee´s relationship with Attorney´s office that would affect Attorney´s objectivity or the objectivity of the assigned prosecutor, these individuals may be prosecuted by regular staff of Attorney´s office. This opinion should not be viewed as approving or disapproving representation by Attorney´s office in any specific fact situation.

QUESTION: Attorney is the city counselor for a small municipality. A former city employee has threatened litigation, through the employee´s attorney, against the city, the mayor and individual aldermen. Attorney believes that some of the individuals will claim that others involved are responsible. Attorney also believes that Attorney could represent the municipality, if the insurance carrier does not provide a defense. However, Attorney does not believe that Attorney could represent any or all of the individuals in this litigation. Is this correct? ANSWER: Based solely on the information Attorney has provided, Attorney is correct in Attorney´s understanding that Attorney may represent the municipality, but may not represent any of the individuals. However, if any of the individuals believe that they provided confidential information to Attorney, as individuals, or that Attorney offered them advice, as individuals, then Attorney may also be disqualified from representing the municipality.

QUESTION: Husband comes to Attorney with Wife and Child asking for representation in a personal injury accident suit. Husband was the driver, Wife and Child were passengers. Attorney has represented Husband on other matters. The facts of the accident appear to present liability on the other driver, but it is possible that the other driver may attempt to assert some negligence on Husband´s part. Attorney advised Husband and Wife that there may be a possible conflict of interest because Wife and Child may have potential claims against Husband should he be found partially negligent. Can Wife and Wife on behalf of Child sign appropriate conflict waivers so Attorney can represent all three members of the family? ANSWER: Based upon the facts presented, it is possible that the conflict may be waived after full disclosure. The Attorney must first make a reasonable determination, based on the facts of the case, that it will be possible to represent all parties without adversely effecting the representation of any of them. The Husband then must waive the conflict on behalf of himself and Wife must waive it, on behalf of herself and Child. If it appears, at any point, that there should be a claim made by Wife or Child against Husband or if the other driver files against Husband, Attorney may have to withdraw from representation of all three.

QUESTION: Attorney was on the board of directors of a not for profit corporation as a citizen, not as counsel. Attorney resigned from the board. A year later Attorney was approached by a client seeking to file suit for an intentional tort, against the corporation´s employees and chairman. The client also served as a volunteer board member, but not at the same time as Attorney. Is there a conflict of interest in representing the client in the intentional tort suit? ANSWER: Based solely on the facts Attorney has provided, Attorney does not have a conflict. The actions which give rise to the intentional tort claim did not occur while Attorney was on the board of directors or as a result of actions taken by the board while Attorney was on the board. However, if the actions had occurred while Attorney was on the board of directors or as a result of the board´s actions while Attorney was a member, Attorney would have a conflict of interest under Rule 4-1.7(b), which would prohibit Attorney from representing this client in the tort action.

QUESTION: Attorney is handling a personal injury matter for X. The next day Attorney is hired by Y for a personal injury matter. Attorney has since learned that X and Y were injured in the same accident. Is there a conflict? ANSWER: Under the facts of this case, Attorney does have a conflict of interest under Rule 4-1.7 in representing both X and Y. X is entitled to objective advice regarding whether Y should be joined as a defendant. Attorney will not be able to provide this advice or perform an objective investigation on which to base this advice if Attorney also represents Y.

QUESTION: Attorney is a County Prosecutor. A police investigation has been submitted to Attorney´s office listing a municipal police officer as a suspect. Attorney and assistant prosecuting attorneys know the officer and have worked with the officer in the past on cases. Attorney currently has a case where the officer is a witness for the state. May Attorney make the determination as to whether or not criminal charges should be filed against the officer? If Attorney may not make such a determination, may Attorney make a presentation to a grand jury for it to determine whether or not an indictment will be issued? ANSWER: Based upon the information Attorney has provided, there is no per se conflict under Rule 4-1.7(b). Whether there is such a conflict depends on whether the relationship between Attorney´s office and the police officer will adversely affect Attorney´s ability to perform Attorney´s duties. OCDC recommends that Attorney seek a special prosecutor in this matter.

QUESTION: Attorney is City Attorney and is currently employing a law student as an intern on a part-time basis. The intern also works for a private attorney who appears in municipal court. In the City Attorney´s office, the intern is not allowed to deal with any cases involving the private attorney. May the intern be employed in such a manner without there being a conflict? ANSWER: It would be a conflict of interest for a law student intern to be employed in the City Attorney´s office while at the same time working for a firm in which some members are representing defendants in municipal court or otherwise opposing the city in pending litigation. Screening is not an option. If Attorney employed an intern in these circumstances, Attorney would violate Rule 4-5.3.

QUESTION: Attorney is a contract attorney for the county prosecutor´s office. By contract, Attorney´s sole purpose is to establish and enforce child support enforcement orders. Attorney is not an employee of the county, but does have identification that states that Attorney is an assistant prosecutor. Attorney also is involved in private practice, limited to civil matters only. A personal injury client of Attorney´s was recently charged with a felony. Attorney has no plans to discuss the matter with the prosecutor. Attorney referred the client to a criminal attorney. Does Attorney have a conflict which would require Attorney to withdraw from the client´s personal injury case? ANSWER: Consistent with previous opinions, the situation Attorney has described does not create a conflict of interest under Rule 4-1.7(a) in light of the specific nature of Attorney´s arrangement with the prosecutor´s office. Attorney does have an obligation to inform Attorney´s client of Attorney´s relationship with the prosecutor´s office.

QUESTION: Question 1. Attorney serves as part-time municipal judge. May a member of Attorney´s firm represent a criminal defendant in a state prosecution filed in circuit or associate circuit court where the events giving rise to the prosecution take place within the city limits. Nothing related to the case has been filed in municipal court. Question 2. Attorney serves as a part-time municipal judge. May Attorney represent a defendant in a state prosecution filed in circuit court arising from events which occurred within the city limits. Nothing related to the case has been filed in municipal court. Question 3. The circumstances are exactly the same as in question 1 except, there are other persons charged in a matter arising from the same events who are currently being prosecuted by the city in municipal court. Will recusal of Attorney as judge on the related municipal cases allow Attorney´s associate to accept the representation? ANSWER: Answer 1. Yes. Answer 2. Yes. Answer 3. No. The associate would violate Rule 4-1.7. For an opinion related to Supreme Court Rule 2, the Code of Judicial Conduct, the part-time municipal judge should contact the Commission on Retirement, Removal and Discipline of Judges.

[No longer valid. See changes to Rule 4-1.11(d)(1) and section 105.458, RSMo.] QUESTION: Attorney is a member of the City Council. May Attorney represent defendants charged with violations of city crimes? ANSWER: As a member of the City Council, Attorney has a conflict of interest under Rule 4-1.7(b), which prohibits Attorney from representing anyone against the city, including defendants in municipal court.

QUESTION: Attorney is on inactive status and proposes to open a temporary paralegal service. Would this violate the rules? ANSWER: An inactive attorney may function as a temporary paralegal in the same manner as any non-lawyer. Because Attorney may be working for more than one attorney or firm, it will be necessary for Attorney and the attorneys for whom Attorney works to make sure that the rules regarding confidentiality and conflict of interest are followed in addition to making sure that Attorney´s activities do not involve the unauthorized practice of law.

QUESTION: Attorney is the municipal prosecutor. May Attorney prosecute municipal cases against municipal employees, including police officers? ANSWER: Attorney has a conflict of interest under Rule 4-1.7(b), when the defendant is a police officer. The conflict derives from the necessity that Attorney, as municipal prosecutor, be able to rely on, and work with, the members of the police department in Attorney´s role as municipal prosecutor. Attorney may not have a conflict regarding non-police municipal employees if the particular employee is not one with whom Attorney must work regularly in Attorney´s role as municipal prosecutor. Therefore, those situations will be dependent on the particular situation.

QUESTION: Attorney is a part time municipal judge. May members of Attorney´s firm represent defendants in municipal court if Attorney recuses on those cases? ANSWER: It would be a conflict for any member of Attorney´s firm to oppose the city in municipal court matters while Attorney is Municipal Judge for the city. This opinion only relates to the Rules of Professional Conduct for attorneys. Attorney would need to contact the judicial commission for an opinion related to the Code of Judicial Conduct.

QUESTION: Attorney represents Client. Client has asserted that Attorney has been negligent in the course of the representation and has threatened to sue Attorney for malpractice. Attorney has filed a motion to withdraw. Client is contesting it. Does Attorney have a conflict which requires withdrawal? ANSWER: Attorney has a conflict under Rule 4-1.7(b), and has taken the appropriate action by seeking to withdraw. However, this opinion does not affect the ability of the court to determine whether to permit the withdrawal.

QUESTION: May Attorney serve as general counsel for a corporation and sit on the Board of Directors and have an ownership interest? What precautions must Attorney take to avoid conflict of interest? ANSWER: This situation would involve a conflict of interest. Rule 4-1.8(a) sets out the steps Attorney must follow to enter into such a business relationship. This situation creates numerous opportunities for conflicts under Rule 4-1.7(b). Attorney should study the last paragraph under the heading "Other Conflict Situations" in the comments to this rule.

QUESTION: Attorney is representing a plaintiff against a defendant who is insured by XYZ. Another member of Attorney´s firm is representing a defendant who is insured by XYZ in unrelated litigation. Is this a conflict? ANSWER: Attorney´s firm has a conflict of interest under Rules 4-1.7 and 4-1.10 which prevents it from handling matters on behalf of XYZ while Attorney is representing Attorney´s personal injury client against XYZ, or its interests. This conflict could be waived. It would be necessary to make full disclosure to Attorney´s personal injury client and XYZ. Each would have to expressly waive the conflict after full disclosure.

QUESTION: Attorney represents a client in litigation. The opposing party is a representative of a governmental client Attorney represents. Another attorney will be providing representation to that part of the governmental body while the litigation is pending. Does Attorney have a conflict? ANSWER: Based solely on the facts Attorney has provided, Attorney does not have an obligation to withdraw under Rule 4-1.7. However, this opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify. Additionally, if a complaint is received, it would be investigated to determine the facts independently.

QUESTION: Attorney previously represented H in an unrelated misdemeanor case. Attorney previously represented W in a DWI charge. H and W seek to retain Attorney to represent H in criminal charge in which W is the victim. W states that she told the prosecutor she did not want to prosecute H. W states she is fully aware of the facts, will not testify against H and requests that Attorney represent H. May Attorney represent H? ANSWER: Attorney may represent H if W consents after full disclosure. It is not sufficient for Attorney to simply accept W´s statement that she is fully aware. Once Attorney has made full disclosure to her, if she consents, Attorney may represent H. However, this opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify. Additionally, if a complaint is received, it would be investigated to determine the facts independently. Attorney may not, even with a waiver, represent or advise W on this or any related matter.

QUESTION: Attorney is representing a client in a negligence claim against a person who is insured by Insurer. Insurer has now asked Attorney to represent it in unrelated litigation. Would this be a conflict? ANSWER: Attorney does have a conflict of interest under Rule 4-1.7(a) if Attorney simultaneously represents Insurer and the client in the negligence case. Attorney could represent both if Attorney obtains consent from both clients after full disclosure.

QUESTION: Attorney represents a company (Client A) in various types of legal matters. Attorney also represents client B in litigation. Several representatives of the company have been named as potential witnesses for the opposing party. Attorney possesses information from the representation of Client A which could be used to impeach these witnesses. ANSWER: Attorney has a conflict of interest which prohibits Attorney from continuing to represent Client B, unless Client A consents after full disclosure.

QUESTION: Attorney represents the Juvenile Officer in one county. May Attorney assist another attorney in a case against the Juvenile Officer in another county? ANSWER: No, it would involve a conflict of interest under Rule 4-1.7.

QUESTION: Legal services programs receive funding from the state of Missouri. Those funds will not be used to represent interests adverse to the state; other funds will be used for those matters. May attorneys employed by legal services represent clients against the state? ANSWER: The legal services programs may provide representation to clients against the state and its agencies despite the fact that it will be receiving financial support from the state. In representing any client who may have a claim against the state, Attorney should disclose that legal services receives funds from the state and obtain a waiver.

QUESTION: Attorney´s spouse is involved in a motion to modify the decree of dissolution of a previous marriage. Attorney´s interests are not adverse to those of Attorney´s spouse and Attorney will not be a witness. May Attorney represent Attorney´s spouse in the motion to modify? ANSWER: Yes, Attorney may represent Attorney´s spouse, under the circumstances described.

QUESTION: Attorney is a public defender. Attorney previously represented Client 1 on charges unrelated to the charges on which Attorney is now representing Client 2. Client 1 has been endorsed as a witness for the state. (1) Does Attorney have a conflict and, if so, can it be waived by Client 1? (2) If Attorney has a conflict, must Attorney´s office withdraw from representation of Client 2? (3) Does Attorney have a duty to disclose the prior representation of Client 1? ANSWER: (1) If Attorney obtained information in the course of representing Client 1 that has not become generally known and that could be used to Client 1´s detriment in the representation of Client 2, Attorney has a conflict under Rule 4-1.9(b). If proper representation of Client 2 would not involve using confidential information to Client 1´s detriment, but it would involve disclosure of such information, Attorney has a conflict under Rule 4-1.7(b). Client 1 could waive the conflict under either situation. (2) Under either type of conflict, Attorney´s office should withdraw, unless Client 1 waives the conflict. (3) Attorney has a duty to disclose the prior representation of Client 1 to Client 2.

QUESTION: Attorney represents businesses in a particular field that compete with each other. The businesses are aware of Attorney´s representation of the competitors. Attorney is considering investing in a business in that field that will compete with some of Attorney´s clients. Must Attorney disclose this investment to Attorney´s clients who are competitors? ANSWER: Attorney´s status as an investor in a competitor of Attorney´s clients would create a conflict of interest under Rule 4-1.7(b). Therefore, Attorney should disclose this information to the clients and obtain their consent for continued representation if Attorney makes the investment.

QUESTION: Attorney will be leaving the firm in a couple of months. Attorney will be taking a plaintiff´s case. Before Attorney leaves the firm, an attorney who is representing the defendant in that case is scheduled to join the firm. Does Attorney need to change the departure date to avoid a conflict? ANSWER: Under Rules 4-1.7(a) and 1.10, Attorney and the other attorney may not continue on opposite sides of the same case while they are in the same firm. The only way that Attorney can avoid this problem is by Attorney´s departure from the firm before the other attorney joins the firm.

QUESTION: Attorney asks about a program involving referrals to a investment advisor and securities broker-dealer. The program would involve Attorney identifying clients who need financial management assistance and referring those clients to investment advisors associated with a particular company. Attorney is not involved in the financial management services. Attorney is paid an ongoing fee for the referral if the account is opened and thereafter monitors the client´s account as Attorney deems appropriate. The referral fee is a split of the investment management fee in an amount agreed upon by the attorney and the investment advisor. ANSWER: If Attorney participates in the program Attorney has described, Attorney will violate Rule 4-1.7(b), unless Attorney fully discloses Attorney´s relationship and the potential for Attorney to receive a financial benefit as a result of the referral to Attorney´s client at the time of the referral. Attorney must also make the referral based on objective criteria without regard to Attorney´s potential for financial benefit. The risk that Attorney will be viewed to have engaged in a conflict of interest is quite high in this type of situation.

QUESTION: Attorney will be joining a prosecutor´s office in several months. Attorney´s current practice includes criminal defense. May Attorney take on new cases that are likely to be resolved before Attorney joins the prosecutor´s office? May Attorney continue and complete cases in which Attorney was involved prior to accepting the position in the prosecutor´s office? ANSWER: Attorney may handle criminal cases against the prosecutor´s office Attorney will be joining if Attorney´s client consents after full disclosure. Attorney should document the disclosure and consent in Attorney´s file or on the record. This includes criminal cases in which Attorney already represents the defendant as well as new cases Attorney accepts. Of course, Attorney must have withdrawn from all pending state criminal cases, prior to beginning Attorney´s duties as an assistant prosecutor. Attorney may not take part in the prosecution of any case in which Attorney participated as a defense counsel.

QUESTION: Attorney´s office is part of an office sharing arrangement. Attorney wants to become an assistant municipal judge. Some of the other attorneys in the office sharing arrangement appear in municipal court. The office sharing arrangement is such that Attorney rents space from the other attorneys. Attorney shares the library, copier and fax machine. Attorney has separate secretarial support, file storage and telephone. Would this be a conflict? ANSWER: Based on Attorney´s description of the office arrangement, it sounds as though it is a true office sharing arrangement. However, there are always more factors that can affect that conclusion. If, for example, Attorney does not have adequate controls to maintain confidentiality, if the office and signs are not clearly marked so that the public will understand the separation of the firms or if Attorney engages in joint advertising, the conclusion in that regard might change. Assuming that Attorney´s arrangement is an office sharing arrangement, it will not involve a conflict of interest for Attorney as an attorney to continue in this arrangement while also serving as an assistant municipal judge. As an assistant municipal judge, Attorney´s conduct will also be governed by Supreme Court Rule 2, the Code of Judicial Conduct. Attorney should contact the Commission on Retirement, Removal and Discipline of Judges for an opinion under that rule.

QUESTION: Attorney is a part time city prosecutor. May Attorney represent a client in a matter involving the juvenile office in that county? ANSWER: Attorney may not represent the client in the juvenile matter if the conduct occurred within the boundaries of the city or the city police were involved in investigating or responding to the underlying situation.

QUESTION: Attorney is an alderman for a city. Attorney does not serve as an attorney for the city. May Attorney represent defendants in municipal court of that city? May Attorney represent defendants in municipal court after Attorney´s term as alderman ends? ANSWER: As an alderman, it would be a conflict of interest for Attorney to represent defendants in the municipal court of the city for which Attorney is alderman. Once Attorney´s term ends and Attorney is no longer serving as alderman, Attorney will no longer have a conflict as a general matter. Of course it is possible that the unique facts of an individual situation may lead to a conflict in that situation.

QUESTION: Attorney has represented H & W in various matters for years. H & W were in an auto accident. W was driving. H received serious injuries. Attorney initially represented H and W jointly against the other driver. It now appears the case will have to be tried. Attorney now proposes to dismiss W as a plaintiff, withdraw from representing W and file against W and the other driver on behalf of H. H and W both agree with this proposal. May Attorney proceed under these circumstances? ANSWER: As long as H and W have each consented to the course of action Attorney has outlined after each has been fully informed of all relevant considerations, Attorney may proceed as Attorney has proposed. Although it is not required by the rules, it is recommended that Attorney make the disclosures and get the consents in writing.

QUESTION: Attorney represents defendants in municipal court. Attorney would like to serve on the city´s planning and zoning commission. Would this be a conflict? ANSWER: Attorney will not have a conflict of interest that will disqualify Attorney or other members of Attorney´s firm from representing defendants in municipal court as a result of Attorney´s membership on the Planning and Zoning Commission. Of course, individual situations may arise in which a conflict would exist.

QUESTION: Is there an ethical or legal conflict for an attorney representing the juvenile office or its agents to also be a commissioned deputy juvenile officer? ANSWER: It would not generally be a conflict under Supreme Court Rule 4, the Rules of Professional Conduct, for an attorney representing the juvenile office to also be a commissioned deputy juvenile officer. Of course, it is possible that a conflict could arise under a specific set of facts. I cannot address Attorney´s question regarding the possibility of legal conflicts. My authority to provide informal advisory opinions on conflicts only extends to the Rules of Professional Conduct. An opinion may be available regarding the legal issues from the Attorney General´s Office, the State Ethics Commission, or both.

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.

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.

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 withdraw from representation of one or both.

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.

QUESTION: Question 1. May an 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.

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.

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.

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).

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.

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.

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 anyone 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

QUESTION: Two attorneys who are in separate firms will form a 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.

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).

QUESTION: Attorney represents two companies. The two companies plan to form a third company for a joint venture. The companies both want Attorney to serve as a member of the board of the third company. ANSWER: Attorney will not violate any provision of the rules by 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.

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 to day 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.

QUESTION: May Attorney form a general business corporation that will not practice law but which will practice in a related area 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) any time 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.

QUESTION: Attorney has previously represented Corporation A and Shareholder X. Attorney is presently representing Corporation A in a suit against Shareholder Y. Shareholder Y has counterclaimed against Shareholder X. Attorney has entered an appearance for Shareholder X. Does Attorney have a conflict of interest? ANSWER: Yes. Attorney is required to withdraw.

QUESTION: Attorney represents the county commission. (1) May Attorney´s firm represent criminal defendants in circuit court in the county? The county may be adversely affected by, for example, having to pay court costs in unsuccessful prosecutions. (2) May Attorney´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.

QUESTION: Attorney would serve as a legal advisor to the city on 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´s municipal court? ANSWER: No. This would be a conflict of interest under Rule 4-1.7(a) and, because a governmental entity is involved, it cannot be waived. Attorney should also consult the state statutes regarding possible conflicts of interest from that standpoint.

QUESTION: Attorney is a prosecuting attorney with responsibility for representation of county officials. The sheriff has sued the county commission. May attorney represent the county commission? ANSWER: No. Attorney has a conflict of interest which cannot be waived because the parties are governmental entities and officials.

QUESTION: Attorney represents Client A on a traffic ticket and Client B on a personal injury matter. Attorney now learns that the two matters arise out of the same facts. If A and B consent after full disclosure, may Attorney continue to represent both? At this point no suit has been filed and Attorney has been negotiating settlement with the insurance company. ANSWER: If A and B consent after full disclosure, Attorney may continue to represent both. However, if it becomes necessary to file a suit in which one client is the plaintiff and the other is the defendant, Attorney must withdraw from representing both unless both consent to Attorney continuing to represent only one.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

QUESTION: A legal services program asks about the situation in juvenile matters in which both parents need representation. In some situations there is no apparent conflict between the interests of the parents. In other situations, a conflict is apparent from the outset. May the program assign attorneys to represent both parents in each of these types of situations? May the program exercise financial control by approving or disapproving expenditures for expenses of representation? ANSWER: If there is a potential conflict of interest and the program wants to assign the same attorney to both parents for representation, each of the parents must first be given full disclosure about the possible conflicts. If they consent, that attorney may represent both of them until an actual conflict arises. If an actual conflict arises, that attorney will have to withdraw from representing both parents and the parents will need new, separate attorneys. Where a conflict is apparent from the outset or develops during representation, the legal services program may not exercise independent financial control of the representation of each parents beyond setting a cap or limit on the total amount the program will expend.

QUESTION: A governmental agency employs staff attorneys. May the agency have staff attorneys represent other employees who have been involved in accidents and ticketed for traffic violations? There are benefits to the government agency if the employee defends the ticket in a certain manner. Is this a conflict of interest? ANSWER: Yes, and waiver is not a possibility because conflicts cannot be waived by a government agency.

QUESTION: Attorney is an assistant public defender. Attorney represented a defendant on one criminal charge. Another charge was brought against the same defendant before the defendant went to trial on the first charge. Attorney represented the defendant in both cases. One case went to trial first and the defendant was convicted. The defendant has now filed a 29.15 Motion alleging ineffective assistance of counsel. Must Attorney withdraw from representation of the defendant in the second case? If Attorney must withdraw, may the defendant be represented out of another office of the public defender system? ANSWER: Yes, Attorney has a conflict. Attorney must seek to withdraw unless the client consents after full disclosure and advice from an independent attorney. If Attorney does withdraw, the defendant may be represented out of another office of the public defender system.