QUESTION: After filing a paternity action for a client, Attorney realized that Attorney had previously represented the person against whom the paternity action was filed. At the time of filing, Attorney had no recollection of the prior representation of the former client. Attorney has been unable to locate the office file. Attorney has no independent recollection of the case or the facts. Attorney's present case involves different parties, with the exception of the former client, and different situations. Is Attorney's representation of current client in the present case a conflict of interest or ethical violation? If the allegations of the former client are true, current client may face criminal charges. In the event that the state files criminal charges, would it be an ethical violation for Attorney to represent the current client in the criminal proceeding? ANSWER: Based on the information provided, it does not appear that Attorney has a conflict of interest under Rule 4-1.9(a). However, it is possible that Attorney has a conflict under Rule 4-1.9(b). If Attorney obtained information in the course of representing the former client in the previous matter that could be used to the former client's detriment in the current matter or a related criminal matter, Attorney has a conflict of interest. Since Attorney has no independent recollection of the previous case and cannot locate the file, the information available at this time does not establish a conflict. However, if the former client can refresh Attorney's recollection or otherwise establish that Attorney obtained such information, Attorney has a conflict despite a personal lack of recollection and inability to locate the file. If former client asserts that there is such information and Attorney disagrees, that will become an issue of fact for the court.

QUESTION: Attorney's firm represents a client in a child custody dispute. Law firm hired a new associate who was employed by the law firm of the opposing party in the custody case. The associate had access to and performed a limited amount of work on the file while employed by the opposing firm. Attorney's firm erected an "ethical wall," screening the associate from the custody case. Does Attorney's firm have a conflict even with the "ethical wall" that has been erected?

ANSWER: As a result of hiring the new associate, Attorney's firm has a conflict. Although the erection of an ethical wall can help to persuade the former client to waive a conflict, it is not a means of eliminating a conflict under Missouri Rules 4-1.10. Therefore, Attorney's firm must withdraw from the case unless the opposing party, as the new associate's former client, consents.

QUESTION: Husband called Attorney regarding an uncontested dissolution. Husband wanted Attorney to represent Wife as petitioner. Wife came to Attorney's office, giving the necessary information to file the petition. Attorney discovered there were children involved and had the petition removed from the uncontested docket and dismissed it, with Wife's consent. Husband asked Attorney to proceed with the dissolution representing Husband as petitioner. May Attorney represent Husband in the dissolution?

ANSWER: Based upon the fact that Attorney represented Wife as petitioner in the previous dissolution case, under Rule 4-1.9(a), Attorney may not represent Husband in a new dissolution case, unless Wife consents.

QUESTION: Husband retained Attorney for a divorce action from Wife, who previously had children with a different father. The divorce decree mentioned the children but did not award custody. Husband has guardianship of the step-children. A man, who claims paternity and wants to establish visitation with the children, has contacted Attorney to represent him. Does Attorney have a conflict in representing the prospective client in a paternity action?

ANSWER: Attorney has a conflict of interest under Rule 4-1.9(a). Although the divorce decree did not resolve custody of the children, the facts are substantially related. Attorney cannot represent the prospective client unless Husband consents.

QUESTION: "Wife" consulted with Attorney concerning representation of her Husband in a Workers' Compensation claim. The claim was based on a severe head injury, which resulted in behavior changes and possibly causing Husband to be incompetent. Husband had been institutionalized since the accident. Wife did not sign a representation agreement and requested the return of file materials relating to the Husband's medical treatment. Later, Attorney was approached by a second attorney who has filed an Application for Guardianship and Conservatorship for Husband's Mother to be appointed Guardian/Conservator, for the purpose of pursing the Workers' Compensation claim and divorce proceedings against Wife.

Question 1. May Attorney represent Mother/Guardian/Conservator on behalf of Husband to pursue the Workers' Compensation claim for Husband or is it a conflict of interest?

Question 2. May Attorney represent Mother/Guardian/Conservator, on behalf of Husband in divorce proceedings or is it a conflict of interest?

ANSWER: Question 1. There is no conflict of interest in this situation, unless there is some adversity to Wife not recognized.

Question 2. Attorney has a conflict if any information was obtained in the course of the previous dealings with Wife that could be used to her detriment in the divorce action. The information obtained from Wife about the relationship between Wife and Husband would fall in that category. Attorney should not handle the divorce for Husband or his guardian, unless Wife consents.

QUESTION: Attorney has been retained to defend Father in a motion to modify for increased child support. Approximately seven years ago, Attorney represented Mother on two cases. One case was a landlord-tenant proceeding and the other was a personal injury case. Mother objects to Attorney representing Father. May Attorney represent Father?

ANSWER: Under Rule 4-1.9, Attorney is not required to voluntarily decline the representation or withdraw. Attorney must inform Father of the possibility that it will cost time and money to litigate, if the opposing party seeks disqualification of Attorney

QUESTION:} Law firm ABC represents Client P against several defendants represented by law firm XYZ. Attorney was employed by XYZ when P's lawsuit against defendants was filed and after XYZ's representation of defendants began. Attorney did no work on this case. Attorney no longer works for XYZ. Can ABC hire Attorney on a contract basis for certain projects? Attorney will not work on P's case.

ANSWER: Attorney can be hired as an independent contractor on a case by case basis. ABC should take steps that Attorney would have access to confidential information to only the cases on which Attorney is hired to work. Attorney should not have any contact with P's case.

QUESTION: Attorney represents Wife in a dissolution action. Attorney's firm has never represented Husband. Attorney's firm has represented Husband's father in a prior case that was unrelated to either Husband or Wife. Husband has a mental problem and Husband's father is his attorney-in-fact and has recently filed an action for guardianship over Husband. The father is now claiming that because Attorney's firm previously represented him in a prior action, the firm has a conflict of interest in representing Wife against Husband. ANSWER: This situation is governed by Rule 4-1.9(b). If Attorney obtained information in the course of Attorney's previous representation of father that could be used to father's detriment in the current proceeding, Attorney has a conflict of interest. However, since father is not actually a party to the dissolution proceeding, it is unlikely that Attorney has a conflict under Rule 4-1.9(b). A more definite answer is not possible based on the facts available. This opinion does not affect the authority of the court to rule on a motion to disqualify.

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 considering hiring Lawyer, who is working for another firm, Firm A. Lawyer, while working for Firm A, defended Y in a lawsuit that concluded approximately two years ago. Lawyer is considering leaving Firm A and joining Attorney's firm, which serves as local counsel for a plaintiff in a case against Y that raises issues almost identical to those in the previous lawsuit. Even though Firm A is defending Y in the new matter, Lawyer has neither appeared in nor worked on the new matter. Lawyer would not work on the new matter at Attorney's firm and intends to avoid all contact with the new matter. Attorney's firm would similarly avoid allowing Lawyer any involvement in the new matter by screening. May Lawyer join Attorney's firm, and if so, under what conditions? ANSWER: The rules do not prohibit Lawyer from joining Attorney's firm. However, it is possible that Attorney's firm will have a conflict that requires it to withdraw from the new matter, once Lawyer is a part of Attorney's firm. If the issues are "almost identical" there is a substantial likelihood that the new matter would be considered a "substantially related" matter, as that phrase is used in Rule 4-1.9(a). It is also possible that Lawyer obtained information in the course of Firm A's representation of Y in the previous lawsuit or the new matter that could be used to Y's detriment in the new matter. Under those circumstances, Lawyer would have a conflict under Rule 4-1.9(b). If Lawyer has a conflict under Rule 4-1.9(a) or (b), Attorney's firm has a conflict under Rule 4-1.10. Screening is not a method by which that conflict can be avoided. However, as a practical matter, giving an assurance of screening may help Attorney to obtain consent to Attorney's firm's continued representation from Y. Based upon the available information, this office cannot make a definite statement about whether Lawyer has a conflict. If we receive a complaint, we will investigate to determine the facts independently. This opinion does not affect the authority of a judge to rule on a motion to disqualify.

QUESTION: Attorney currently represents X in a pending domestic relations case involving a child support modification. Approximately a year ago, Attorney represented X's former spouse, Y, in a dissolution action from Y's subsequent spouse. There were no children born of Y's subsequent marriage and maintenance was not an issue. Therefore, Y's income and child support were not issues in that case. Y has refused to pay Attorney's fee in accordance with the fee agreement Y signed at the outset of the case. Attorney is still trying to get Y to pay the outstanding fees. Does the fact that Attorney previously represented Y in an unrelated case prevent Attorney from now representing X in the pending modification action? Does the fact that Y refuses to pay Attorney from the unrelated matter prevent Attorney from representing X against Y? ANSWER: Under Rule 4-1.9(b), Attorney has a conflict of interest if Attorney gained any information, in the course of representing Y, that could be used to Y's detriment in the current proceeding. Attorney will have to determine whether Attorney obtained such information from any source. If not, Attorney does not have a conflict of interest that prohibits Attorney from representing X in the matter Attorney described. This opinion does not affect, in any way, the authority of a judge to rule on a motion to disqualify.

QUESTION: Attorney X has joined Attorney Y's firm as a principal. Attorney X previously represented a plaintiff in a personal injury action. Attorney Y was counsel of record for the defendant in the same action. The case was voluntarily dismissed by the plaintiffs without prejudice. Attorney X then referred the case to a new attorney and that attorney refiled the action. Attorney Y is currently representing the defendant. Is Attorney Y precluded from continuing to represent the defendants in the refiled action? ANSWER: Attorney Y has a conflict under Rules 4-1.9 and 4-1.10, that prohibits Attorney Y from continuing to represent the defendant in this matter, unless the plaintiff consents.

QUESTION: Attorney is a member of Firm. One of the partners, X, joined Firm several months ago. X has not represented E since joining Firm. Attorney commenced representation of a claim involving breach of contract concerning the sale of real estate on behalf of B against defendant D. In the course of completing discovery in that matter, Attorney sought to take the deposition of the real estate broker who represented D. E was the broker. Prior to joining Firm, X represented E in a completely unrelated matter, which concluded a couple of years ago. At some point, Attorney may find it necessary to amend the petition to include E. Attorney has concluded that E's involvement as a witness presents no violation of the ethical rules. Attorney also believes that given the pending development in which E may be added as a defendant, likewise presents no violation based on the fact pattern. B has waived any conflict in writing. Is there a conflict? ANSWER: Regardless of whether E is added as a defendant or continues as a witness, Attorney must analyze this situation under Rule 4-1.9(b). If X obtained any information in the course of the previous representation of E that could be used to E's detriment in the current proceeding, Attorney's firm has a conflict. The information that could create a conflict could have come from any source, if it came to X in the course of representing E. If Attorney's firm has a conflict, E would be the one to waive the conflict, although it would be necessary to inform B of the situation.

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 is currently an assistant prosecuting attorney. A few years ago, Attorney worked as an assistant public defender. During that time, Attorney represented a client who entered pleas of guilty on felony charges. Recently, Attorney´s office has charged the same person with unrelated felony offenses and the matter was assigned to Attorney. The client´s current public defender called and informed Attorney that Attorney had represented this person years before and asked if Attorney thought that Attorney´s prosecuting the matter would present a conflict of interest. Attorney has no independent recollection of the client´s prior case. Is there a conflict? If Attorney is personally disqualified to prosecute the matter, may someone else in Attorney´s office prosecute the case with a Chinese Wall? ANSWER: If Attorney obtained information, that has not become generally known, in the course of Attorney´s previous representation of the defendant, which could be used to the client´s detriment in the current matter, Attorney has a conflict of interest. This conflict is under Rule 4-1.9(b). It does not depend on whether Attorney has a recollection of the prior representation, it depends on whether Attorney obtained information that could be used against the former client. Since the public defender´s office has the file on the prior matters, Attorney should ask them for access to the file or ask them to identify for Attorney the information they believe creates the conflict. If the fact of the prior offenses is not public information, Attorney clearly has a conflict. The defendant could waive that conflict, if he consented to Attorney´s use of the confidential information. If Attorney has a conflict, it will not be possible to screen Attorney and have someone else in the office handle the matter, because Attorney has not been screened from the outset. However, it would be possible for the defendant to consent to having the matter handled by someone else in Attorney´s office, if Attorney were screened from that point onward.

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 represents Plaintiff in a personal injury matter against a corporation. One of the stockholders and principal officers of the corporation was a client of Attorney´s firm over 20 years ago. Attorney did not personally represent the shareholder and principal officer. Attorney was not aware of the existence of the prior representation until it was recently brought to Attorney´s attention. None of the information relating to the personal injury action has any connection with the earlier representation. Does Attorney need to take any action regarding Attorney´s representation in this pending personal injury case or may Attorney proceed to represent Plaintiff? ANSWER: The circumstances Attorney has described do not require Attorney to voluntarily withdraw from representing Plaintiff in the action against the corporation. This opinion does not affect the ability of a judge to rule on a motion to disqualify. If a complaint is received, it will be investigated to determine the facts independently.

QUESTION: Wife recently retained Attorney for a dissolution. Husband has ownership interest in a business. Last year Attorney had a consultation with a potential client regarding a divorce. This person did not hire Attorney and is currently being represented by a different attorney. It has come to Attorney´s attention that this person is Husband´s business partner. Both Husband and the business partner are being represented by the same attorney. When Attorney met with the business partner, they did discuss some financial aspects of the business. Attorney may need to add the parties´ business as a third party Respondent. Does Attorney have a conflict of interest? ANSWER: If Attorney obtained information from Husband´s business partner that could be used to the detriment of the business partner, Attorney has a conflict of interest under Rule 4-1.9(b). If Attorney did not obtain information of that type, Attorney does not have a conflict of interest related to Attorney´s consultation with the business partner.

QUESTION: Attorney is representing the local Juvenile Officer in an action to terminate the parental rights of a natural mother. Attorney briefly acted as GAL for the child several years ago. Attorney never acted as attorney for the natural mother. Attorney did not learn anything of a confidential nature from the natural mother during the time Attorney acted as GAL in the matter. Is there a conflict of interest between serving as GAL and later representing the Juvenile Officer on a petition to terminate parental rights? ANSWER: Although the GAL may not have a traditional attorney client relationship with the child, the duty of loyalty applies in essentially the same manner as with a client. Therefore, if Attorney´s representation of the Juvenile Officer is adverse to the interests of the child, Attorney has a conflict of interest under Rule 4-1.9(a), which requires Attorney to seek leave to withdraw. If Attorney´s representation of the Juvenile Officer is not adverse to the interests of the child, Attorney does not have a conflict of interest.

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 represents A on a protective order on behalf of A´s child against a former client, B. Attorney represented B on a workers" compensation claim several years ago and the case was settled two years ago. Attorney never discussed personal matters with B. Attorney has informed A of Attorney´s prior relationship with B and A does not have any problem with Attorney representing A against B. Does Attorney have a conflict in this matter? ANSWER: Based solely on the information Attorney has provided, Attorney does not have a conflict of interest that requires Attorney to withdraw under Rule 4-1.9. Additional or different information could change this opinion. This opinion does not affect the ability of a judge to rule on a motion to disqualify.

QUESTION: A member of Attorney´s firm represented a client in a dissolution and custody matter. The client later used a different attorney to modify the custody order. Thereafter, the ex-spouse of the client contacted Attorney in a criminal case. The criminal case deals with interference with custody under the modified order. May Attorney defend the ex-spouse in the criminal prosecution? ANSWER: Because of the issues involved in the criminal case, this is a substantially related matter under Rule 4-1.9(a). Attorney may not represent the ex-spouse in the criminal prosecution, without Attorney´s former client´s consent.

QUESTION: Attorney is a county prosecutor. A motion to disqualify Attorney has been filed in a pending criminal case. Attorney represented the defendant on a criminal matter over fifteen years ago. Attorney no longer has a file concerning this defendant, and has no recollection of that representation. The motion to disqualify has not alleged any connection between the cases or that Attorney gained any confidential information in the previous representation that could be used to the defendant´s detriment in this matter. Does the previous representation of the defendant prohibit Attorney from prosecuting the current charges? ANSWER: Based upon the information Attorney has provided, it does not appear that Attorney has a conflict of interest under Rule 4-1.9, which would require Attorney to voluntarily withdraw. The question of disqualification is for the court to decide. Although the Rules of Professional Conduct do not mandate voluntary withdrawal, courts have sometimes used the "appearance of impropriety" as a standard in ruling on disqualification of counsel, particularly prosecutors.

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

QUESTION: Attorney represented Wife a few years ago in a dissolution action. At that time Husband was having an affair with Y. Wife fired Attorney and was then represented by another attorney. Husband subsequently married Y and they have a child. Attorney has now been contacted by Y for representation in a dissolution from Husband. Would Attorney have a conflict of interest in representing Y? ANSWER: Attorney does not have a conflict of interest under Rule 4-1.9(b), based on the information Attorney has provided. However, if any information Attorney obtained in the course of representing Wife could be used to Wife´s detriment in the course of representing Y, Attorney would have a conflict of interest under Rule 4- 1.9(b).

QUESTION: Attorney´s firm has taken on a new partner, who was formerly with another local firm. Attorney´s firm recently became aware that the new partner´s previous firm is on the opposing side in a modification case. The new partner was not the attorney of record and has no knowledge of the particular case in question. The opposing firm is now raising conflict of interest. Does Attorney´s firm have to remove themselves from the case? ANSWER: Based solely on the information Attorney has provided, it does not appear that this situation involves a conflict of interest under Rules 4-1.9 and 4-1.10. This opinion is based on the understanding that Attorney´s new partner did not obtain any confidential information related to this matter while the new partner was at the former firm. This would include information obtained at firm meetings and through informal conversation.

QUESTION: Attorney´s firm is a general defense firm, which represents defendant X in a medical negligence case. The firm recently hired an associate, who has not yet come to work. The associate is currently working with a plaintiff´s firm and is the primary associate representing the plaintiffs in the medical malpractice case against defendant X. Attorney´s firm intends to completely screen the case when the associate arrives at the firm. May Attorney´s firm continue to represent the defendant in the medical negligence case? ANSWER: Under Rules 4-1.10 and 4-1.9(a), Attorney´s firm has a conflict of interest in the case once the associate becomes associated with Attorney´s firm. Screening is not an option to avoid the conflict. The conflict would be waivable by the plaintiff and, perhaps, Attorney´s offer of screening will persuade the plaintiff to waive the conflict. Otherwise, it will be necessary for Attorney´s firm to withdraw from the case before the associate begins employment.

QUESTION: Attorney worked as an assistant county prosecutor until the end of last year. Attorney prosecuted X on two traffic matters. X has now been charged with a felony involving sexual conduct, and has hired an attorney. Attorney has been asked by X´s attorney to be second chair in the case. Attorney has been told that X does not have a problem with Attorney being involved with the case. Does Attorney have a conflict? ANSWER: Based upon the information Attorney has provided, it does not appear that Attorney has a conflict of interest which prohibits Attorney from representing X.

QUESTION: Attorney represents a client in a lawsuit against the Estate of X arising out of the non-payment of a promissory note. After Attorney filed the Petition, Attorney changed law firms. The new firm once represented X. The firm ceased representation of X over a year prior to Attorney´s employment there. Attorney does not believe that any information was learned in representing X that would involve the current suit. Attorney has informed the attorney representing the Public Administrator of the potential conflict. Is this a conflict? ANSWER: Under Rule 4-1.9(b) Attorney must determine whether the firm obtained confidential information in the course of the previous representation that could be used to X´s detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. Based on the information Attorney has provided, it does not appear that there is a conflict under Rule 1.9. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify.

QUESTION: Attorney is a public defender. Attorney´s office represented a client in a stealing case. The client pled guilty and was placed on probation. Attorney´s office withdrew from representation of the victim once the individual was placed on probation on the stealing charge. That client is now a victim in an assault case. Attorney is now representing the defendant charged with assaulting the former client. Attorney has no knowledge of the former client other than the charge and sentence. Is it a conflict for Attorney to represent a client charged with assaulting the former client of another attorney in the same office? ANSWER: Based on the information Attorney has provided, Attorney does not have a conflict of interest. This opinion does not, in any way, affect the ability of the court to rule on a motion to disqualify.

QUESTION: Client A has been a long standing client of Attorney. Attorney regularly files mechanic´s liens and suits for Client A. Attorney has periodically performed the same type of work for Client B but has not represented Client B in any matters for the last two years. Client A has asked Attorney to file a mechanic´s lien and possibly a suit. Client B is involved in this matter. May Attorney do this if it means naming Client B as a defendant? ANSWER: The situation Attorney has described is governed by Rule 4-1.9(b). Under Rule 4-1.9(b), Attorney must determine whether Attorney obtained confidential information in the course of the previous representation of Client B that could be used to Client B´s detriment in the current case. If so, Attorney could not undertake the representation without the consent of Client B.

QUESTION: Attorney has been asked to represent Wife in a dissolution matter. Husband was previously married and divorced and Attorney´s firm represented him in the dissolution matter over ten years ago. Attorney was not a member of the firm at that time and has no knowledge about the previous case. May Attorney represent Wife in the dissolution case with Husband? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation of Husband that could be used to Husband´s detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. If any detrimental confidential information was obtained, Attorney has a conflict of interest and Attorney may not represent Wife unless Husband consents.

QUESTION: Attorney represents Client Y, who was at one time engaged to X. Attorney represented X on a traffic matter at the request of Client Y. Client Y has now asked Attorney for representation in an unrelated dispute with X. Is Attorney precluded from filing suit against X? Is Attorney precluded from issuing a demand letter to X? Is Attorney precluded from referring this matter to another attorney in Attorney´s firm? Is Attorney precluded from referring Client Y´s case to another attorney outside of Attorney´s firm? ANSWER: Under Rule 4-1.9(b) Attorney may handle the suit against X as long as Attorney did not gain any confidential information in the course of representing X that could be used to X´s detriment in the current matter. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney´s possession as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: Attorney represents Wife in a dissolution proceeding. Attorney has represented Wife for approximately twenty years. Wife married Husband sixteen years ago and during the marriage Attorney represented Husband once on a municipal matter. No information was obtained from Husband or from Attorney´s representation of him that could be used against Husband in the dissolution. Does Attorney have a conflict of interest? ANSWER: Based upon the information Attorney has provided, it does not appear that Attorney has a conflict of interest under Rule 4-1.9. 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 represents Wife in a dissolution. Husband has been charged with a crime, but has never been tried. Husband discussed the latest charge with Attorney two years ago. Husband went into detail about the facts and circumstances and Attorney declined representation. Attorney has discussed the conflict with Wife and she is aware of the allegations. It is Wife´s belief that nothing associated with the criminal charge will help or hurt the dissolution proceeding and Attorney agrees. Wife has asked Attorney not to withdraw. Would it be proper for Attorney to proceed with the wife´s representation, assuming no inquiry as to the criminal charges is to be made? ANSWER: Based upon the information Attorney has provided, it does not appear that the consultation with Husband creates a situation in which Attorney has a conflict of interest under Rule 4-1.9(b). Attorney has an obligation to encourage Wife to seek independent advice regarding the relevance of Husband´s criminal charge to the dissolution proceedings.

QUESTION: Attorney has represented Husband, an acquaintance, on two small matters. Wife now wants Attorney to represent her in seeking a dissolution from Husband. The issues involved in the dissolution will not involve the prior matters in which Attorney provided representation. May Attorney represent Wife without consent of Husband? ANSWER: Under Rule 4-1.9(b) Attorney must determine whether Attorney obtained confidential information in the course of the previous representation that could be used to Husband´s detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney´s possession as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: Attorney was retained to represent X in a paternity action against Y. During the course of representation, X informed Attorney that several years before X referred Y to Attorney. Attorney represented Y on a municipal court matter, but has no record of the representation. The case was dismissed for lack of prosecution by the victim. Does prior representation of Y preclude Attorney from representing X? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether Attorney obtained confidential information in the course of the municipal court representation that could be used to the detriment of Y in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney´s possession or the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: A member of Attorney´s firm formerly represented D in a contract action. Attorney is now representing P against D in a negligence case. Does Attorney have a conflict? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation that could be used to D´s detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. Attorney should review the file. Attorney may also want to ask opposing counsel in the current matter whether D is asserting that Attorney has a conflict under Rule 4-1.9(b) and, if so, what confidential information from the previous representation D believes triggers the rule.

QUESTION: Attorney consulted with another attorney about a matter which the other attorney was handling. Attorney did not learn detailed information about the matter but did learn enough to discuss that area of the law. Attorney billed for the consultation. The other party to the matter has now asked Attorney´s Partner for representation. Attorney and Attorney´s Partner have agreed to screen Attorney. May Attorney´s Partner continue the representation? ANSWER: Attorney´s Partner´s representation of the other party will constitute a violation of Rule 4-1.9(a). Screening is not an option in this situation.

QUESTION: Attorney seeks to represent H in a domestic case. W has previously consulted another attorney with whom Attorney has an office sharing arrangement. Does this create a conflict for Attorney? ANSWER: Based upon the information Attorney has provided, which establishes that this is a true office sharing arrangement, Attorney does not have a conflict of interest which prevents Attorney from representing H.

QUESTION: Attorney met with H to discuss potential representation in a dissolution. Attorney discussed all aspects of the marriage with H. H did not hire Attorney. The dissolution has now been granted. W has asked Attorney for representation in post-dissolution matters, some of which involve collection matters and some of which do not. May Attorney represent W? ANSWER: Under Rule 4-1.9(a), Attorney may not represent W on any matter substantially related to the dissolution. It is not clear whether any of the non-collection, "post-dissolution" matters meet that criteria. Under Rule 4-1.9(b), Attorney may not represent W if Attorney obtained any information from the husband that could be used to the husband´s detriment in the current representation of W. Based upon the fact that H discussed assets with Attorney, it seems likely that Attorney is disqualified from representing W in collection of judgments resulting from the dissolution.

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

QUESTION: Attorney has been approached by Client B for representation. In the case, Client B will make allegations against Client A who is a former client of Attorney. Client A will not actually be a named defendant but will be an adverse witness. ANSWER: Under Rule 4-1.9(b), Attorney may represent Client B unless Attorney obtained information in the course of representing Client A that could be used to the detriment of Client A in the course of representing Client B. Attorney should disclose Attorney´s previous representation of Client A to Client B, without disclosing any information beyond the fact of the representation and information which has become generally known.

QUESTION: Attorney previously represented Husband in various matters and Wife only on speeding violations. Attorney has had very limited contact with Wife and did not learn any information about the marriage from those contacts. Husband has asked Attorney to represent him in a dissolution action. ANSWER: Based on the facts provided, Attorney will not violate Rule 4-1.9(b) if Attorney represents the husband in the dissolution.

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 A represents Wife in a dissolution case. Attorney B represents Husband. After trial, Husband consults Attorney C about an appeal. Attorney C discusses the evidence with Husband. Husband does not hire Attorney C and does not file an appeal. Attorneys A and C become law partners. Husband files a motion to modify through Attorney D. May Attorney A represent Wife in the motion to modify? ANSWER: Attorney A may not represent Wife unless Husband consents after consultation. Communication with Husband regarding consent by Husband should be through Attorney D.

QUESTION: A number of years ago, Attorney was in a firm that represented Client A in an alienation of affection case. Subsequently, Client A was divorced and Client A´s Ex Spouse has sought representation from Attorney regarding collection of amounts due under the decree. ANSWER: Attorney´s question is governed by Rule 4-1.9(b). If Attorney worked on the alienation case or if Attorney obtained information about the case through discussion or other means while Attorney was at Attorney´s former firm, and if Attorney´s former firm obtained information in the course of representing the Client A in the alienation case that could be used to Client A´s detriment in the current matter, Attorney has a conflict of interest. If Attorney determines that Attorney does not believe Attorney has a conflict under this rule and Attorney undertakes to represent Client A´s ex-spouse, Attorney may want to raise the issue with opposing counsel early on, if Attorney´s client consents. By raising the issue early in the proceedings, if Client A has a valid basis for believing that there is a conflict under this rule, Attorney´s client will be able to obtain other counsel before the case progresses too far.

QUESTION: Attorney is a prosecuting attorney who has hired a new assistant prosecutor. While the new assistant was in private practice the new assistant was involved in several matters which are still pending in the prosecutor´s office. Must Attorney withdraw or may Attorney stay in the case by screening the new assistant from these matters? If screening is used, must Attorney notify defense counsel of the measures taken? ANSWER: Attorney does not need to withdraw from any of the matters as long as Attorney effectively screens the new assistant from these matters. The rules do not require Attorney to disclose these measures to defense counsel unless the issue is raised, however it may be advisable to advise them before they raise the issue. This opinion does not, in any way, affect the ability of a court to rule on a motion to disqualify.

QUESTION: Several years ago, Mother consulted Attorney about recovering back child support from Father. Attorney referred Mother to another attorney. Father now seeks representation from Attorney in obtaining custody of the child. Is this a conflict? ANSWER: Attorney does have a conflict of interest under Rule 4-1.9(a) and Attorney should seek leave to withdraw.

QUESTION: Attorney was appointed guardian ad litem for the child in a custody dispute which concluded in 1994. Attorney has had no contact with the non-custodial mother since 1994. May Attorney represent the custodial father and wife in a step-parent adoption? The issues will be the non-custodial mother´s post custody decree conduct. ANSWER: Attorney has a conflict of interest under Rule 4-1.9 if Attorney´s representation of the father and potential stepmother will be adverse to the interests of the child who was Attorney´s previous client. That issue is part of what the proceeding will determine. Therefore, I believe that Attorney must assume that the conflict exists. Attorney may only represent the father and potential stepmother if a current guardian ad litem consents.

QUESTION: Attorney was corporate counsel to a closely held company with two shareholders. The shareholders sought to dissolve the company and sought guidance from Attorney. A dispute arose between the shareholders regarding the terms of the dissolution and each shareholder sought separate counsel in drafting a dissolution agreement. Attorney did not represent either party in drafting the dissolution agreement. Attorney does not believe Attorney received confidential information from either shareholder relative to the dissolution agreement. A dispute regarding the dissolution agreement has arisen and one shareholder has asked Attorney for representation against the other shareholder regarding alleged breaches of the agreement. Would this be a conflict? ANSWER: Attorney has a conflict under Rule 4-1.9(a). Attorney may only represent the shareholder who is requesting Attorney´s representation if the opposing shareholder consents after full disclosure.

QUESTION: Attorney previously represented Client in administering the estate of Client´s spouse. Attorney also did some estate planning for Client. Client may now need a guardian. A child of Client has asked Attorney to assist in getting a guardian appointed. May Attorney do this? ANSWER: Attorney has a conflict of interest under Rule 4-1.9, if Attorney obtained any information in the course of representing Client that could be used adversely to Client in the guardianship proceeding.

QUESTION: Attorney represented Mrs. Smith in a dissolution and in obtaining an ex parte order of protection. Mrs. Smith instructed Attorney to dismiss and Attorney did so. Subsequently, Attorney began representing Mrs. Jones. Mrs. Jones has now learned that her husband has been having an ongoing affair with Mrs. Smith. Mr. Smith has contacted Mrs. Jones and offered to give her evidence. Is there a conflict? ANSWER: Attorney may represent Mrs. Jones without Mrs. Smith´s consent unless Attorney obtained any confidential information in the course of representing Mrs. Smith that Attorney would use in representing Mrs. Jones. If Attorney did obtain confidential information of that sort in the course of representing Mrs. Smith, Attorney may only continue to represent Mrs. Jones if Mrs. Smith consents after full disclosure.

QUESTION: Attorney previously represented H and W in a chapter 7 bankruptcy. May Attorney now represent H in the divorce? ANSWER: Under Rule 4-1.9(b), Attorney may represent H in the divorce as long as Attorney did not obtain any confidential information in the course of the previous representation that could be used to W´s detriment in the divorce. Confidential information would include any information that came into Attorney´s possession as a result of Attorney´s previous representation. Even if Attorney did come into possession of such information, Attorney may represent H in the divorce if W waives the conflict. Attorney may not advise W on whether W should waive the conflict. If W is not represented and requests advice, Attorney must advise W to consult another attorney.

QUESTION: Attorney appeared for another attorney to obtain a default judgment for Client A. Attorney then left the firm and had no continuing relationship with Client A. Attorney now represents Client B, the defendant in the case that defaulted. Client A has assigned the rights under the default judgment to C who is trying to collect the judgment against B. May Attorney represent B against C? ANSWER: No, unless C waives the conflict under Rule 4-1.9(a).

QUESTION: Attorney is a part time assistant prosecutor in a multi-attorney prosecutor´s office. The prosecutor´s office has a child support enforcement office, which is not the area of the prosecutor´s office where Attorney practices. Attorney also has a private practice. May the assistant prosecutor handle family law cases in private practice? If a former client of the assistant prosecutor becomes delinquent in child support, will the prosecutor´s office be disqualified from prosecuting the assistant prosecutor´s former client? ANSWER: As long as the assistant prosecutor is completely screened from participation in the child support or criminal non-support case, the prosecutor´s office may pursue these cases without having a special prosecutor appointed. However, the screening must be formal and it must be effective. Additionally, this answer is based on the assumption that this would be a situation that would occur only in isolated instances from time to time. If this became an ongoing or regular occurrence, it is likely that the answer would change.

QUESTION: Attorney´s firm represented W who was appointed guardian and conservator of H. W & H later divorced and W is no longer guardian and conservator. Attorney´s firm does not represent the current guardian and conservator. Attorney´s firm did not represent anyone in the divorce. Issues regarding child custody and support have now arisen. May Attorney´s firm represent W against H regarding the child custody and support matters? ANSWER: Yes, Attorney may represent W against H, unless, H would reasonably have also considered himself to be a client of the firm in the previous probate proceeding.

QUESTION: Attorney is representing clients against former clients whom Attorney represented when Attorney was in another firm. The current matters are not related to the matters on which Attorney represented the former clients. May Attorney continue representation of the current clients? ANSWER: Under Rule 4-1.9(b) Attorney must determine, for each case, whether Attorney obtained confidential information in the course of the previous representation that could be used to the previous client´s detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into Attorney´s possession as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: A prosecutors office has hired a part time prosecutor who previously represented individuals who are criminal defendants. The prior representation was not in the criminal case but was in related matters. Efforts have been taken to screen the part time prosecutor from these cases by isolation from the file and not discussing the case. Does this create a conflict for the entire office? ANSWER: The prior involvement of the part time prosecutor in the two cases does not disqualify the entire office as long as adequate steps are taken to screen the part time prosecutor from these cases. In addition to isolating the file, other staff should be made aware of the screening so that information is not inadvertently provided or the part time prosecutor is not inadvertently brought into discussions about the cases.

QUESTION: Client A has asked Attorney for representation in a divorce. A firm for which Attorney worked at the time prepared the prenuptial agreement. May Attorney represent Client A? Can any conflicts be cured by waiver? ANSWER: Attorney has not indicated which party to the prenuptial agreement the former firm represented. Therefore, this is based on the assumption that it represented both parties. If Attorney obtained confidential information regarding the prenuptial agreement while Attorney was a member of the firm that prepared the agreement, Attorney has a conflict of interest under Rule 4-1.9 . However, if Attorney did not obtain such information, Attorney does not have a conflict of interest. Attorney should be aware that Attorney may have obtained confidential information by discussing the matter with other members of the firm despite complete lack of contact with the file or the clients. If a conflict of interest does exist, it may be waived. The former client should only be asked to waive the conflict after full disclosure and the opportunity and encouragement to obtain the advice of independent counsel.

QUESTION: Attorney is a member of a firm. Attorney represents Company X in a workers compensation case. The worker in the workers compensation case claims to have called the firm to talk about a wrongful discharge case. The worker talked to another member of the firm who has never been involved in the workers compensation case. The worker claims to have discussed the workers compensation case with the other member of the firm. Does Attorney now have a conflict of interest? ANSWER: If the conversation which the worker described did occur, the firm has a conflict of interest under Rule 1.9(a) and must withdraw unless the worker consents. Screening is not an option for curing a conflict of interest in a private firm in Missouri. Therefore, the fact that the other member of the firm has had no direct involvement in the workers compensation case does not affect the existence of the conflict.

QUESTION: Former prosecutor has formed a firm with a former assistant prosecutor. A warrant was issued for X while the prosecutor and assistant were still in the prosecutor´s office. Former prosecutor and former assistant now wish to represent X. Neither had any direct involvement in the case while they were in the prosecutor´s office. Because of the fee arrangement, X will be at a disadvantage if X must obtain other counsel. ANSWER: Former prosecutor is disqualified regardless of personal knowledge because the authority of any assistant prosecuting attorney to act in the case flowed from the prosecutor and the prosecutor was a supervising attorney responsible for the assistant´s actions. The former assistant is not disqualified, based on the facts presented. The hardship for X is not a factor to be considered in the analysis. The former assistant may continue representation in the case as long as the former prosecutor is screened following the requirements set out in Rule 4-1.11.

QUESTION: Attorney´s client is seeking representation in a motion to modify. One of Attorney´s partners previously represented the client´s ex-husband in an incorporation matter. May Attorney represent the current client in the motion to modify? ANSWER: Under Rule 4-1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation that could be used to the previous client´s detriment in the current case. Confidentiality under Rule 4-1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information.

QUESTION: Attorney represented Client A in litigation which has concluded. Attorney has a new client who would like Attorney to provide representation against Client A. Does Attorney have a conflict? ANSWER: Assuming that the two cases are not substantially related, the situation described involves a possible conflict of interest under Rule 4-1.9(b). To reach a conclusion whether there is a conflict, Attorney must determine whether Attorney came into possession of any information in the course of representing Client A that could be used to the Client A´s detriment in the current action.

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

QUESTION: Attorney represented client A in a minimal manner in a proceeding in order to accomplish a pro forma filing. Subsequently client A was represented by other counsel in the proceeding. Client B is now requesting representation by Attorney in a similar proceeding. If Attorney represents client B, Attorney will seek a ruling that will have an adverse impact on client A in the matter in which Attorney previously represented client A. Is this a conflict? Can it be waived? ANSWER: Yes, it is a conflict under Rule 4-1.9(a). The conflict can be waived by client A after full disclosure.

QUESTION: Attorney represents a criminal defendant A, who is a co-defendant with B. Initially, in order to determine which defendant to represent, Attorney interviewed both co-defendants. Attorney entered an appearance for defendant A. A and B now have conflicting interests. Co-defendant B now asserts that Attorney´s discussion with co-defendant B means that Attorney may not represent defendant A against B´s interests. ANSWER: Under the circumstances described, once Attorney began discussing the case or facts related to the case with defendant B, Attorney established an attorney client relationship with defendant B. This creates a conflict of interest under Rule 4-1.9(a) which requires Attorney to withdraw from representation of defendant A.

QUESTION 1: Attorney was a prosecuting attorney. May Attorney represent criminal defendants whose cases arose while Attorney was prosecuting attorney but which had no relationship to the county in which Attorney was prosecutor? ANSWER 1: Attorney does not have a conflict in representing these defendants based on the facts Attorney has presented. QUESTION 2: May Attorney represent a plaintiff against a law enforcement officer of a municipality within the county for which Attorney was prosecuting attorney. The incident occurred while Attorney was prosecuting attorney but Attorney had no involvement. The suit would relate to the defendant´s role as a law enforcement officer. ANSWER 2: Attorney does have a conflict in this situation. In light of the fact that Attorney´s former client is the state, this conflict cannot be waived.

QUESTION: Attorney was an assistant prosecuting attorney. Attorney now does criminal defense work in private practice. May Attorney represent criminal defendants in cases in which Attorney filed the charges if Attorney was only minimally involved in the case? Can the conflict be waived? ANSWER: Rule 4-1.9 applies to this situation. Attorney is prohibited from representing a criminal defendant in a case in which Attorney filed the felony charge. The conflict cannot be waived by the state.

QUESTION: Attorney represented H in a dissolution case. May Attorney now represent W in seeking modification of the child support awarded in that case? ANSWER: Unless H consents after full disclosure, the representation would violate Rule 4-1.9(a).

QUESTION: Attorney is now a prosecuting attorney but was previously a public defender. One of Attorney´s assistants was also previously a public defender. (1) May the prosecutor´s office handle applications to revoke probation if one of the attorneys was involved in representing the defendant on the original offense? (2) May prosecutor´s office handle applications to revoke probation if another attorney in the public defender´s office handled the case on the original offense? (3) May the prosecutor´s office handle motions for post-conviction relief in which other attorneys from that public defenders office handled the original case? (4) May the prosecutor´s office handle applications to revoke probation if one of the secretaries work for the defense attorney who handled the original offense? (5) May the office handle child support cases if a secretary worked for an attorney who represented the defendant in the child support case on related matters? ANSWER: (1) No. (2) Yes. (3) Yes, as long as no member of the prosecutor´s office has confidential information pertaining to representation by the public defender´s office or unless such a person is screened from involvement. (4) and (5) Yes. In each case, the secretary should be screened from involvement.

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

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

QUESTION 1: Attorney was a prosecuting attorney and asks several questions regarding current representation of criminal defendants. (1) May attorney represent defendants whose charges predate when Attorney became prosecutor if the prosecutor´s office did not take action in these cases while Attorney was prosecutor? (2) May Attorney represent defendants whose crimes allegedly occurred while Attorney was prosecutor if the crimes occurred in the county in which Attorney was prosecutor? (3) May Attorney represent defendants whose crimes allegedly occurred while Attorney was prosecutor if the crimes occurred in a county other than the county in which Attorney was prosecutor? ANSWER 1: (1) No. (2) No. (3) Yes, as long as prosecutor and prosecutor´s office had no involvement in the situation. QUESTION 2: Attorney was contacted by H previously regarding possible representation in a dissolution. Some information was obtained from H but H did not follow through with seeking representation. W has now come to attorney seeking representation. May Attorney represent H or W? ANSWER 2: No, unless both consent to representation of either H or W.

QUESTION: Attorney is handling a case for W against H. Attorney represented H in a different matter several years previously. Does Attorney have a conflict? ANSWER: Rule 4-1.9(b) provides that Attorney has a conflict if Attorney obtained any information in the course of representing H in the previous proceeding which could be used to H´s detriment in the current proceeding.

QUESTION: Attorney previously prepared the Articles of Incorporation, Bylaws, stock certificates and minutes of meetings for corporation X. Attorney subsequently prepared a Buy-Sell agreement at the direction of the corporate accountant. May Attorney now represent shareholder A against shareholder B in a suit related to the corporation and its assets? ANSWER: No, Attorney´s representation of the corporation has been to such an extent that he is also viewed as representing the two shareholders. Therefore, Attorney may not represent either shareholder in the lawsuit unless both consent.

QUESTION: Attorney previously represented Client A in a DWI case. Attorney now represents Client B in an estate case in which client A is not a party but is probably an adverse witness. Is this a conflict? ANSWER: Rule 4-1.9(b) applies. It is not a conflict unless Attorney obtained confidential information in the course of representing Client A in the DWI case which could be used to Client A´s disadvantage in the current case.

QUESTION 1: A member of Attorney´s firm was previously guardian ad litem for a disabled person. The guardian ad litem did not inquire about the disabled person´s financial condition. A guardianship and conservatorship was established and the guardian ad litem is no longer involved. May Attorney represent a bank against the estate of the disabled person on several notes? ANSWER: This is not a conflict under Rule 4-1.9(a). However, if the member of the firm obtained confidential information under Rule 4-1.6 in the course of serving as guardian ad litem that could be used to the disadvantage of the disabled person in the current case, Attorney would have a conflict under Rules 4-1.9(b) and 4-1.10. QUESTION 2: Attorney represented spouse A in a dissolution involving custody of children X and Y. Subsequently spouses A & B had child Z. Attorney was appointed guardian ad litem for Z in a paternity and custody action. That action was resolved and Attorney was discharged as the guardian ad litem. May Attorney now represent spouse A in an action seeking modification of the order entered in the case in which Attorney was guardian ad litem? ANSWER: Attorney has a conflict of interest under Rule 1.9.

QUESTION: Attorney has been requested to represent A in a motion to modify against B involving child support and custody. Previously, Attorney was a prosecuting attorney and filed a motion for withholding related to child support at B´s request. May Attorney now represent A? ANSWER: No, the representation would violate Rule 4-1.9.

QUESTION: Attorney represented H on charges of DWI and assault on his W. H and W are no longer married. Attorney represented neither party in the dissolution. Attorney is now representing W in a child custody dispute with H. Does Attorney´s knowledge of H´s drinking and driving and behavior toward W disqualify Attorney from representing W against H in this matter? ANSWER: The knowledge of H´s history which is a matter of public record does not disqualify Attorney. Attorney has an obligation to review the previous representation of H and the current representation of W to determine whether confidential information Attorney obtained in the course of representing H COULD be used to H´s disadvantage in the current representation of W. If so, he cannot undertake or continue the representation. Attorney has the duty to engage in this review regardless of whether the former client raises the issue.

QUESTION: Attorney firm had represented H in a stepparent adoption and a dissolution. Attorney currently represents a woman seeking a dissolution from H. This woman was not involved in the previous proceedings. H claims that the custody of the adopted child will be an issue in the current case and therefore Attorney has a conflict of interest. Attorney does not see how this could be an issue in the current case. Is there a conflict? Must Attorney withdraw? ANSWER: The analysis which would apply would be under Rule 4-1.9. However, this situation involves a factual dispute. This office cannot resolve factual disputes in the context of an informal opinion. This issue is best resolved in the court in which the case is pending.

QUESTION: Attorney was previously guardian ad litem for a person. The guardian and conservator of that person now wants Attorney´s representation regarding the guardianship and conservatorship. Is this a conflict? ANSWER: Yes, under Rule 4-1.9.

QUESTION: Fact Situation 1: Attorney represents a defendant who was the driver in an auto accident. The suit has been amended to include the driver´s employer as a defendant. The possibility exists that the driver and the employer´s interests will diverge. May Attorney represent both at this point? Fact Situation 2: Attorney´s firm represents an employer in a workers compensation case. Attorney´s firm also accepted the same employee as a client in an auto accident case totally unrelated to the workers compensation suit. May the firm continue representation in either or both cases? ANSWER: Fact Situation 1: Yes, if each defendant is given full disclosure and each independently consents to the joint representation. If an actual conflict develops, Attorney will have to withdraw from representing both. Fact Situation 2: Attorney´s firm may not continue in both cases unless both clients consent under Rule 1.7(a). If the firm does not represent both clients with their consent, the situation would be governed by Rule 1.9. The firm could represent either as long as members of the firm did not obtain confidential information from the other client which could be used to the other client´s disadvantage in the representation.

QUESTION: Attorney represented a client who entered a plea of stealing from an employer. The employer has now asked Attorney to represent it in an action against a person who should have detected the theft. The employer says it has no interest in bringing an action against Attorney´s former client. ANSWER: Attorney may only represent the employer if the former client consents after full disclosure. The situation will be further complicated if the former client is brought in as a defendant by the other defendant. In that situation, Attorney will have to withdraw.

QUESTION: Attorney was contacted by Wife regarding her intention to file for divorce. Attorney declined to discuss the matter with Wife because of Attorney´s personal relationship with Husband´s family. Husband has now contacted Attorney for representation in the divorce. May Attorney represent Husband? ANSWER: Yes, if Attorney did not obtain any information from Wife that would be confidential under Rule 1.6.

QUESTION: Attorney represented client A on municipal DWI charges. Client A failed to pay the attorney fees. Client A was married to B at the time. A and B are now divorced. Attorney was in no way involved in the dissolution. B has asked Attorney to represent B in a motion to modify filed by B. Is there a conflict? ANSWER: No, as long as Attorney does not have confidential information related to representation of A which could be used to A´s disadvantage in the modification action. This opinion does not affect the ability of a court to disqualify Attorney.

QUESTION: Attorney represents two cities within a road district. The road district and the county have a dispute regarding distribution of tax money. The dispute is the subject of a lawsuit. The cities would receive some of the tax money under at least one interpretation. May Attorney represent the cities and the road district in this case? Does the answer change if the cities consent? May Attorney represent either the cities or the road district? ANSWER: Under Rule 4-1.7, Attorney may not represent the cities and the road district. The conflict is one which the cities can´t waive. Insufficient information is provided to determine the applicability of Rule 4-1.9. Therefore, no opinion can be given regarding representing only the cities or only the road district.

QUESTION: Attorney represents Husband to change court records to show emancipation of child. Wife 1 signs acknowledgement. Husband is now married to Wife 2. Wife 2 now seeks to be represented by attorney regarding marital matters. May attorney represent Wife 2? ANSWER: Attorney may not represent Wife 2 under Rule 1.9 if any of the marital matters are substantially related to the emancipation of the child. Additionally, attorney may not represent Wife 2 if information about Husband or the marriage was obtained in the course of representing Husband which could be used to Husband´s disadvantage in representing Wife 2.

QUESTION: Four defendants were accused of a crime. Defendant 1 hired attorney and attorney represented him for a time. Defendant 1 then changed to another attorney. Defendant 2 now wants to hire attorney. Defendant 1 has now pled guilty. ANSWER: Rule 1.9(a) applies and Rule 1.9(b) may apply, depending on the circumstances. Attorney may not represent Defendant 2 unless Defendant 1 consents after full disclosure.

QUESTION: Four defendants were accused of a crime. Defendant 1 hired attorney and attorney represented him for a time. Defendant 1 then changed to another attorney. Defendant 2 now wants to hire attorney. ANSWER: Attorney may not represent Defendant 2 unless Defendant 1 consents after full disclosure.

QUESTION: Attorney represented Man in his business. Man has two children by previous wife. Man marries Wife 2. Man dies. Wife 2 and children consult with attorney regarding the estate. Wife 2 and children then begin disagreement and each get separate counsel. Children now want attorney to represent them. ANSWER: Attorney may not represent the children unless Wife 2 consents after full disclosure.

QUESTION: Does the answer to the previous opinion request (930109) change if the recent court decision is still subject to appeal? ANSWER: Yes. Under these circumstances, attorney may not represent Entity B in its litigation with Entity A.

QUESTION: Attorney represented Entity A in a previous case on this issue. Entity B now wants attorney to represent it on the same issue against Entity A. A recent court decision has ruled that a statutory change since the previous case has completely changed the legal issues. Attorney has no confidential information related to representation of Entity A which could be used to Entity A´s disadvantage in the case of B vs. A. ANSWER: Attorney may represent B in its litigation with A if the recent case which ruled that the issues are now completely changed is final.

QUESTION: Wife and Husband 1 had Child A. After divorce, Wife had custody of Child A. Wife remarried and Attorney´s firm represented Wife in case involving custody of Child B. May attorney now represent Husband 1 in custody case involving Child A? ANSWER: No, unless Wife gives a knowing and intelligent waiver of the conflict.

QUESTION: Child A held durable power of attorney for parents and was personal representative of father´s estate. Child B was concerned about Child A´s actions and sued for an accounting. Mother later joined in suit. Mother later changed attitude toward Child A. Mother has now sued Child B for an accounting. May a member of the firm which represented Mother and Child B against Child A now defend Child B in the suit by Mother? ANSWER: No.