Did a prosecutor’s office need a special prosecutor when an assistant had defended the probationer on the underlying charge?

Plain-English summary

An assistant prosecutor had formerly defended the same person on the offense underlying a probation revocation. The new allegations arose after the lawyer left the public defender’s office.

The opinion said the office did not have a conflict requiring a special prosecutor if the lawyer was completely and effectively screened from the revocation matter, apart from public-record charges. If that screen had not occurred, the office had to request a special prosecutor.

Currency note

This opinion was issued in 2000, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Did new facts alone remove the screening issue?

A: No. The answer turned on whether the former defender was completely and effectively screened.

Q: What if the screen was absent?

A: The office had to request appointment of a special prosecutor.

Background and rules framework

The answer discussed screening and office conflict without citing a numbered rule.

See also

• Missouri Informal Op. 20000168: Former Defender Prosecutes

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000161/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION: X was charged with possession of a controlled substance over a year ago. At the time, Attorney was with the public defender’s office and Attorney represented X. X pled and received probation. Attorney left the public defender´s office earlier this year and began employment with a prosecuting attorney. A motion to revoke probation was filed on X. Attorney possessed no information about the new charges that resulted in the motion to revoke being filed. Does a conflict of interest exist, where Attorney is a member of the staff of the prosecutor’s office that is trying to revoke probation based on facts that occurred after Attorney left the public defender’s office?

ANSWER: If Attorney has been completely and effectively screened from this matter, except knowledge of the charges that are public record, the entire office does not have a conflict which requires a request for appointment of a special prosecutor. However, if Attorney has not been screened in that way, the office must request appointment of a special prosecutor.