What must defense counsel do when the client seeks a prosecutor’s disqualification based on alleged drug-purchase facts?

Plain-English summary

In a felony drug case, the defense lawyer learned of an alleged purchase linked to the prosecutor and agreed with the client’s request for disqualification.

If counsel believes the facts support removal, the opinion requires action: ask the prosecutor to withdraw voluntarily or move to disqualify. If the lawyer will do neither and the client remains firm, the opinion calls for discussion and withdrawal after advising the client.

Currency note

This opinion was issued in 2001, 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: Can counsel seek voluntary withdrawal first?

A: Yes. The opinion expressly permits that route.

Q: What if counsel refuses both removal routes while the client insists?

A: The opinion says counsel should discuss the disagreement and withdraw.

Background and rules framework

The published answer addresses action on a client’s disqualification request without citing a numbered rule.

See also

• Missouri Informal Op. 20010074: County and City Prosecutor

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20010068/

• 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 represents Client in a felony drug case. A witness was interviewed who provided information to Attorney that a person connected to the prosecutor purchased drugs through an intermediary who allegedly purchased them from Client. Client has asked Attorney to have this prosecutor disqualified from Client’s case. Attorney agrees with Client. If Attorney believes the evidence to be true, is Attorney ethically bound to raise this matter before the Court?

ANSWER: Under the circumstances described, Attorney must take action to remove the prosecutor from the case, if Attorney believes the facts support the basis for seeking to remove the prosecutor. It would be permissible to seek removal by first asking the prosecutor to voluntarily withdraw. If Attorney doesn’t want to ask the prosecutor to withdraw, Attorney should file the motion to disqualify. If Attorney does not want to take either action to remove the prosecutor, Attorney should discuss this with Client. If Client is steadfast in wanting the prosecutor disqualified and Attorney does not want to seek disqualification, Attorney should withdraw. Attorney should advise Client that Attorney will withdraw, under these circumstances, when discussing whether to seek disqualification