Ezel / Ethics Opinions / MOLEC

Could a former prosecutor defend a probationer in a violation proceeding tied to a case the lawyer’s office prosecuted?

Short answer The opinion barred the representation under Rules 4-1.11(a) and 4-1.9(a), including cases handled by the lawyer’s assistants. It said the Rule 4-1.11(a) conflict could be waived.
Bar
MOLEC
Issued
1999

Apply this to your situation

This page answers the general question as of 1999. 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 prosecutor in private practice was asked to represent a probationer whom the lawyer had originally prosecuted.

The opinion said Rules 4-1.11(a) and 4-1.9(a) barred representation in probation violation proceedings arising from matters prosecuted by the lawyer or the lawyer’s assistants. It said the Rule 4-1.11(a) conflict could be waived.

Currency note

This opinion was issued in 1999, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Did the conflict extend to assistants’ former cases?

A: Yes. The answer expressly included them.

Q: Did the answer recognize a waiver route?

A: Yes, under Rule 4-1.11(a).

Background and rules framework

The answer cited Rules 4-1.11(a) and 4-1.9(a).

Citations and references

Missouri Rules of Professional Conduct:

  • Rule 4-1.11
  • Rule 4-1.9

See also

Source

Original opinion text

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

QUESTION: Attorney is a former prosecutor, now in private practice. Attorney has been contacted for representation in a probation violation hearing. Attorney originally prosecuted the individual who was placed on probation. Would it be a conflict of interest for Attorney to represent this individual?

ANSWER: Under Rules 4–1.11(a) and 4–1.9(a) Attorney may not represent defendants on probation violation matters which arise in connection with cases which Attorney or Attorney´s assistants prosecuted, while Attorney was the prosecuting attorney. Under Rule 4–1.11(a), the conflict may be waived.

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