Could a former public defender prosecute a prior client for unrelated charges?

Plain-English summary

A prosecutor had represented the same defendant years earlier as a public defender in unrelated cases. The prosecutor did not recall that representation.

The opinion said Rule 4-1.9(b) created a conflict if the prosecutor had acquired nonpublic information usable against the former client, regardless of present recollection. Because the prosecutor had not been screened from the outset, screening now would not automatically allow another office lawyer to proceed. The defendant could consent to another prosecutor continuing if the former defender was screened from then onward.

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 lack of memory eliminate the conflict?

A: No. The opinion focused on whether information was acquired in the prior representation.

Q: Could a new screen alone cure an existing conflict?

A: No. The opinion said the defendant's consent was needed for another office lawyer to proceed under a new screen.

Background and rules framework

The opinion applied Rule 4-1.9(b) to nonpublic information acquired in a former defense representation.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.9

See also

• Missouri Informal Op. 20010035: Joined Firm Conflict

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000168/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney is currently an assistant prosecuting attorney. A few years ago, Attorney worked as an assistant public defender. During that time, Attorney represented a client who entered pleas of guilty on felony charges. Recently, Attorney´s office has charged the same person with unrelated felony offenses and the matter was assigned to Attorney. The client´s current public defender called and informed Attorney that Attorney had represented this person years before and asked if Attorney thought that Attorney´s prosecuting the matter would present a conflict of interest. Attorney has no independent recollection of the client´s prior case. Is there a conflict? If Attorney is personally disqualified to prosecute the matter, may someone else in Attorney´s office prosecute the case with a Chinese Wall?

ANSWER: If Attorney obtained information, that has not become generally known, in the course of Attorney´s previous representation of the defendant, which could be used to the client´s detriment in the current matter, Attorney has a conflict of interest. This conflict is under Rule 4–1.9(b). It does not depend on whether Attorney has a recollection of the prior representation, it depends on whether Attorney obtained information that could be used against the former client. Since the public defender´s office has the file on the prior matters, Attorney should ask them for access to the file or ask them to identify for Attorney the information they believe creates the conflict. If the fact of the prior offenses is not public information, Attorney clearly has a conflict. The defendant could waive that conflict, if he consented to Attorney´s use of the confidential information. If Attorney has a conflict, it will not be possible to screen Attorney and have someone else in the office handle the matter, because Attorney has not been screened from the outset. However, it would be possible for the defendant to consent to having the matter handled by someone else in Attorney´s office, if Attorney were screened from that point onward.