Could a former prosecutor and former assistant's firm represent a defendant whose warrant issued during their tenure?

Plain-English summary

A former prosecutor and former assistant formed a firm and sought to represent a defendant whose warrant issued while they were in the prosecutor's office. Neither had directly worked on the matter; a change of counsel would financially disadvantage the defendant.

The opinion disqualified the former prosecutor because assistants' authority in the case flowed from that supervising prosecutor, regardless of personal knowledge. It did not disqualify the former assistant on the facts given. It excluded the defendant's hardship from the analysis and allowed the assistant to proceed if the former prosecutor was screened under Rule 4-1.11.

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 lack of personal involvement remove the former prosecutor's disqualification?

A: No. The opinion based disqualification on the prosecutor's supervisory responsibility for assistants.

Q: Could the former assistant continue?

A: Yes, on the stated facts, if the former prosecutor was screened under Rule 4-1.11.

Q: Did the client's financial hardship change the answer?

A: No. The opinion said hardship was not a factor in its analysis.

Background and rules framework

The opinion applied Missouri Rule 4-1.11 to a former prosecutor and assistant in one private firm. It distinguished the supervisor's disqualification from the assistant's position on the stated facts.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.11

See also

• Missouri Informal Op. 950175: Screening a part-time prosecutor
• Missouri Informal Op. 20000161: Screening a former defender

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950129/

Original opinion text

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

QUESTION: Former prosecutor has formed a firm with a former assistant prosecutor. A warrant was issued for X while the prosecutor and assistant were still in the prosecutor´s office. Former prosecutor and former assistant now wish to represent X. Neither had any direct involvement in the case while they were in the prosecutor´s office. Because of the fee arrangement, X will be at a disadvantage if X must obtain other counsel. ANSWER: Former prosecutor is disqualified regardless of personal knowledge because the authority of any assistant prosecuting attorney to act in the case flowed from the prosecutor and the prosecutor was a supervising attorney responsible for the assistant´s actions. The former assistant is not disqualified, based on the facts presented. The hardship for X is not a factor to be considered in the analysis. The former assistant may continue representation in the case as long as the former prosecutor is screened following the requirements set out in Rule 4–1.11.