May a Missouri firm defend County B criminal cases when one member is a part-time prosecutor in County A?

Plain-English summary

The opinion does not decide whether law permits the part-time prosecutor's firm association or legally imputes a statutory disqualification. If the arrangement is unlawful, firm lawyers may not participate.

Under the ethics rules, Rule 4-1.11(e)(2) governs imputation and requires a Rule 4-1.11(b) screen before any firm lawyer defends County B criminal charges. The representations also create Rule 4-1.7(a)(2) material-limitation conflicts, requiring every Rule 4-1.7(b) condition case by case. Additional facts can create further, possibly nonconsentable conflicts.

In practice

Under this opinion, county separation does not eliminate screening and consentability analysis, and ethics permission cannot cure an unlawful arrangement.

Common questions

Q: Does the opinion decide legality? A: No.

Q: Is screening required? A: Yes.

Q: Is every case automatically consentable? A: No.

Background and rules framework

Rules 4-1.11 and 4-1.10 govern prosecutor imputation and screening; Rule 4-1.7 governs material limitation and consent.

Citations and references

• Missouri Rules 4-1.0(k), 4-1.7(a)(2), 4-1.7(b), 4-1.10(d), 4-1.11(b), and 4-1.11(e)(2); Rule 4-1.7 Comment [14]

See also

• Ohio Opinion 2014-002: Part-Time Prosecutor Imputation
• Nebraska Ethics Op. 72-14: Prosecutor and Appointed Defense

Source

• Landing page: Missouri Informal Opinion 2017-06

Original opinion text

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

Question: Would lawyers in Attorney’s private firm in County B have a conflict of interest in criminal defense representations if Attorney is employed as a part-time prosecuting attorney in County A; the firm defends clients against criminal charges in County B; the firm defends no clients against criminal charges in County A; and Attorney will engage only in the civil practice of law for the firm?

Answer: This office gives no opinion as to whether Attorney’s association with the firm while Attorney is a part-time prosecuting attorney comports with applicable law, including any statute(s) prohibiting employment in criminal cases by prosecuting attorneys, nor is any opinion issued as to whether any disqualification at law for Attorney would be imputed by applicable law to other lawyers in the firm. If the proposed arrangement is unlawful, lawyers in the firm may not ethically participate. From the standpoint of the Rules of Professional Conduct, the disqualification of lawyers associated in the firm with Attorney under these circumstances is governed by Rule 4–1.11(e)(2). See also Rule 4–1.10(d). No lawyer in the firm can defend clients against criminal charges in County B unless Attorney is screened in the manner set forth in Rule 4–1.11(b). See also Rule 4–1.0(k). In addition, representation by firm lawyers of criminal defendants against charges in County B will constitute a material limitation conflict of interest for firm lawyers under Rule 4–1.7(a)(2). Firm lawyers may represent those clients notwithstanding the conflict only if the subparagraphs of Rule 4–1.7(b)(1–4) are met in each representation. Finally, specific facts in a particular representation could give rise to an additional conflict of interest that may or may not be consentable under Rule 4–1.7. See Rule 4–1.7, Comment [14].