Could a former assistant prosecutor defend a case in which the lawyer filed the felony charge but had little further involvement?

Short answer No. The opinion applied Rule 4-1.9, barred representation in the filed-charge case, and said the state could not waive the conflict.

Bar

MOLEC

Issued

1995

Apply this to your situation

This page answers the general question as of 1995. Ask about yours and see what the current Missouri Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under Missouri Supreme Court Rule 5.30, formal opinions are binding; informal opinions are advisory. Source.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A former assistant prosecutor now in private defense practice asked about representing a defendant in a case where the lawyer had filed the felony charge but had otherwise been minimally involved.

The opinion applied Rule 4-1.9 and barred the representation. It said the state could not waive the conflict.

Currency note

This 1995 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 minimal involvement after filing the charge remove the conflict?

A: No. The opinion barred representation in that case.

Q: Could the state waive the conflict?

A: No, according to the opinion.

Background and rules framework

The opinion applied Missouri Rule 4-1.9 to a former prosecutor's proposed defense of a case in which that lawyer filed the felony charge.

Citations and references

Rules of Professional Conduct:

Missouri Rule 4-1.9

Source

Landing page: https://mo-legal-ethics.org/informal-opinion/950055/

Original opinion text

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

QUESTION: Attorney was an assistant prosecuting attorney. Attorney now does criminal defense work in private practice. May Attorney represent criminal defendants in cases in which Attorney filed the charges if Attorney was only minimally involved in the case? Can the conflict be waived? ANSWER: Rule 4–1.9 applies to this situation. Attorney is prohibited from representing a criminal defendant in a case in which Attorney filed the felony charge. The conflict cannot be waived by the state.

What do the rules say today, for your facts?

This opinion is from 1995. Ezel checks the current Missouri Rules of Professional Conduct against your situation and cites the rules it relies on.

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