20000168 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20000168

Rules: 4–1.9; 4–1.11

Client-Lawyer Relationship

Duties to Former Clients

Subject: Confidentiality; Conflict of Interest - Former Client; Government Lawyers

Summary: prosecutor prosecuting defendant previously represented defendant as a public defender in unrelated criminal case

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 dash–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.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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