Informal Opinion Number: 960170

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.

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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