Informal Opinion Number: 20010068

QUESTION: Attorney represents Client in a felony drug case. A witness was interviewed who provided information to Attorney that a person connected to the prosecutor purchased drugs through an intermediary who allegedly purchased them from Client. Client has asked Attorney to have this prosecutor disqualified from Client’s case. Attorney agrees with Client. If Attorney believes the evidence to be true, is Attorney ethically bound to raise this matter before the Court?
ANSWER: Under the circumstances described, Attorney must take action to remove the prosecutor from the case, if Attorney believes the facts support the basis for seeking to remove the prosecutor. It would be permissible to seek removal by first asking the prosecutor to voluntarily withdraw. If Attorney doesn’t want to ask the prosecutor to withdraw, Attorney should file the motion to disqualify. If Attorney does not want to take either action to remove the prosecutor, Attorney should discuss this with Client. If Client is steadfast in wanting the prosecutor disqualified and Attorney does not want to seek disqualification, Attorney should withdraw. Attorney should advise Client that Attorney will withdraw, under these circumstances, when discussing whether to seek disqualification

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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