980126 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 980126

Rules: 4-1.7;

Client-Lawyer Relationship

Conflict of Interest: Current Clients

Reference Note: Rule 4-1.11, Special Conflicts of Interest for Former and Current Government Officers and Employees, was amended effective July 1, 2007, and amended again effective Jan. 1, 2013. This opinion pre-dates those amendments.

QUESTION: Attorney is a prosecuting attorney and is also the attorney for a personal representative of an estate. The Department of Social Services has filed a claim in the estate matter based upon Medicaid payments, which has not been contested. Does Attorney have a conflict of interest since Attorney is also the prosecutor?

ANSWER: Attorney has a conflict of interest if the interest of the estate, through the personal representative, is adverse to the Department of Social Services. If the personal representative is taking the position that the claim should not be contested, Attorney should obtain written documentation of these instructions from the personal representative. Attorney should disclose the potential conflict to the personal representative to allow the personal representative to seek independent counsel regarding the validity of the Social Services claim, if the personal representative wishes to do so. If, after full knowledge of the situation and the opportunity to consult independent counsel, the personal representative does not wish to contest the claim, Attorney may continue to represent the personal representative. However, if any adversity between the personal representative´s position and the position of the Department of Social Services arises, Attorney will have a conflict which will require Attorney to withdraw.

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/.