Must a public defender leave a second case after the client alleges ineffective assistance in the first?

Plain-English summary

An assistant public defender represented one client in two criminal cases. After conviction in the first, the client filed a 29.15 motion alleging that defender's ineffective assistance while the second case remained pending.

The opinion found a conflict and said the lawyer had to seek withdrawal unless the client consented after full disclosure and advice from an independent attorney. If the lawyer withdrew, another office in the public defender system could represent the client.

Currency note

This 1994 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Did the ineffective-assistance allegation create a conflict?

A: Yes, according to the opinion.

Q: Was continued representation possible?

A: The opinion said the lawyer had to seek withdrawal unless the client consented after full disclosure and advice from an independent lawyer.

Q: Could another public defender office handle the case?

A: Yes, if the original defender withdrew.

Background and rules framework

The opinion addressed continued representation in a second criminal case after the same client alleged ineffective assistance in the first. It identified the client's filing as a 29.15 motion but cited no numbered ethics rule.

See also

• Missouri Informal Op. 120: Public defender post-conviction conflicts
• NELAC Op. 90-1: Defender ineffective-assistance habeas conflict

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/940089/

Original opinion text

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

QUESTION: Attorney is an assistant public defender. Attorney represented a defendant on one criminal charge. Another charge was brought against the same defendant before the defendant went to trial on the first charge. Attorney represented the defendant in both cases. One case went to trial first and the defendant was convicted. The defendant has now filed a 29.15 Motion alleging ineffective assistance of counsel. Must Attorney withdraw from representation of the defendant in the second case? If Attorney must withdraw, may the defendant be represented out of another office of the public defender system? ANSWER: Yes, Attorney has a conflict. Attorney must seek to withdraw unless the client consents after full disclosure and advice from an independent attorney. If Attorney does withdraw, the defendant may be represented out of another office of the public defender system.