Ezel / Ethics Opinions / MOLEC

May a lawyer continue defense work before joining the prosecutor’s office?

Short answer The opinion permits continued or new defense matters against that office with informed client consent, but requires withdrawal from pending state criminal matters before prosecutorial duties begin.
Bar
MOLEC
Issued
1996

Apply this to your situation

This page answers the general question as of 1996. 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 criminal defense lawyer planned to join the local prosecutor’s office several months later and asked about existing and new defense cases.

The opinion permits defense work against that office with client consent after full disclosure, documented in the file or record. Before beginning assistant prosecutor duties, the lawyer must withdraw from all pending state criminal cases and cannot prosecute a case in which the lawyer participated as defense counsel.

Currency note

This opinion was issued in 1996, before Missouri’s 2007 revisions to the Rules of Professional Conduct. 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: May the lawyer accept new defense matters before the move?

A: Yes, with client consent after full disclosure.

Q: Can the lawyer prosecute an earlier defense case?

A: No. The opinion bars prosecution of any case in which the lawyer participated as defense counsel.

Background and rules framework

The opinion permits defense work against that office with client consent after full disclosure, documented in the file or record. Before beginning assistant prosecutor duties, the lawyer must withdraw from all pending state criminal cases and cannot prosecute a case in which the lawyer participated as defense counsel.

See also

Source

Original opinion text

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

QUESTION: Attorney will be joining a prosecutor´s office in several months. Attorney´s current practice includes criminal defense. May Attorney take on new cases that are likely to be resolved before Attorney joins the prosecutor´s office? May Attorney continue and complete cases in which Attorney was involved prior to accepting the position in the prosecutor´s office? ANSWER: Attorney may handle criminal cases against the prosecutor´s office Attorney will be joining if Attorney´s client consents after full disclosure. Attorney should document the disclosure and consent in Attorney´s file or on the record. This includes criminal cases in which Attorney already represents the defendant as well as new cases Attorney accepts. Of course, Attorney must have withdrawn from all pending state criminal cases, prior to beginning Attorney´s duties as an assistant prosecutor. Attorney may not take part in the prosecution of any case in which Attorney participated as a defense counsel.

What do the rules say today, for your facts?

This opinion is from 1996. Ezel checks the current Missouri Rules of Professional Conduct against your situation and cites the rules it relies on.

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