Informal Opinion Number: 20030005

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.

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.

To request an Informal Opinion, please visit: http://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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