950054 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 950054

Rules: 1.7;4.3

Client-Lawyer Relationship

Conflict of Interest: General Rule

QUESTION: Attorney represents a criminal defendant. A witness has asked Attorney to be present any time when the witness is questioned by representatives of the state. Attorney believes the witness understands that Attorney would be present only to represent the interests of the defendant, not to represent the witness. ANSWER: Based upon the facts set forth, Attorney would not violate any provision of the rules, by being present during police and prosecution interviews of the witness. However, Attorney would violate the conflict of interest rules if Attorney undertook to represent the witness as opposed to being present for the purpose of representing the defendant. In connection with this concern, it is crucial, under Rule 4 dash–4.3, that Attorney make it clear to the witness that Attorney does not represent the witness and that Attorney´s only purpose for being present would be to represent the defendant´s interests. As a result, Attorney would not be able to give the witness advice before, during or after the interview. Additionally, Attorney must inform the witness that, if the witness feels a need for personal legal advice or representation, the witness should contact a private attorney. If Attorney plans to be present at these interviews, Attorney should “make a record” to the extent appropriate under the circumstances at the beginning of each interview.

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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