text:
QUESTION. A Prosecuting Attorney in this state submits the following question and asks the opinion of the Committee:
A man and wife disagreed, and the wife was either forced to or voluntarily left their home with her new-born baby. She filed a criminal charge against her husband, alleging non-support of herself and child. The criminal case is now pending. Her husband then sued for a divorce. The wife, as the defendant in the divorce action, seeks to retain the prosecuting attorney to defend her in the civil action. The prosecuting attorney asks the Committee for its opinion as to whether it would be unethical for him to accept a retainer and represent the wife in the divorce suit.
ANSWER: The Advisory Committee is of the opinion that it would be unethical for the prosecuting attorney to accept civil employment to represent the wife in this case, since undoubtedly the facts that come to the prosecuting attorney's knowledge by reason of his official position will betaken advantage of by him in representing the wife in this private employment.
Furthermore, a prosecuting attorney is vested by law with a discretion to bring or to dismiss prosecution. He is bound to refuse to bring prosecutions which he knows are legally unfounded. He is bound to dismiss prosecutions which have been brought, and which he later finds to be legally unfounded. Throughout the course of investigation, institution of criminal actions and maintenance thereof the prosecuting attorney must refuse to accept civil employment which is likely to cause him to be unable to justly and fairly exercise his discretion to bring or dismiss unfounded prosecutions. By becoming an advocate in a civil action involving the very issue which would influence the exercise of his discretion as a public official he places himself in a position where he cannot fairly exercise that discretion.
In addition the injury which results to a person rightfully or wrongfully prosecuted and the fear of punishment are of such importance to the individual that coercion may be easily practiced upon him by one who has the power to prosecute. Therefore, a prosecuting attorney should refrain from accepting employment in a civil case under circumstances where investigation or prosecution of the opposite party gives him a position of undue influence in the civil action.
Public policy forbids a prosecutor from profiting by information gained in the course of the performance of his duties as a public official. It is improper for a lawyer who has held public employment to accept employment after his retirement in any matter which he investigated or passed upon in such public employment or office. If he cannot accept such employment after retirement, it would be improper for him to accept employment before retirement.
Canon 7 DR7-105(A); [Rule 4 1.7(b); 1.11; 8.4(e)]
QUESTION: May a lawyer who was formerly Prosecuting Attorney of a County and prosecuted one of three persons charged generally with murder, after retirement from office, defend one of the alleged murderers?
ANSWER: The Advisory Committee is of the opinion that this is prohibited by Section 558.310, RS Mo of the Revised Statutes of Missouri and Rule 4 of the Supreme Court of Missouri.
[Rule 4 1.7(b); 1.9; 1.11]
QUESTION: Is it ethical, legal and lawful for a Circuit, Court Presiding Judge to accept a felony case wherein the two attorneys involved are of blood relationship, being "Father" and "Son"?
ANSWER: Yes.
[See Code of Judicial Conduct; Rule 2]
(Withdrawn 12/31/94).
QUESTION: May a member of the force of the Attorney General be appointed appraiser in inheritance tax cases?
ANSWER: The Revised Statutes of 1939 of Missouri make the Attorney General the Attorney for the Department of Revenue in inheritance tax proceedings; it would therefore be improper to appoint an Assistant Attorney General in such cases.
[Rule 4 1.7]
QUESTION: Is it proper for a judge of record in this state to act as campaign manager for (a) another political candidate (b) another Judge?
ANSWER: The answer to both (a) and (b) is No. The American Bar Association adopted Canons of Judicial Ethics, paragraph 28 of which provides:
"Partisan Politics While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another. He should avoid making political speeches making or soliciting payment of assessments or contributions to party funds, the public endorsement of candidates for political offices and participation in party conventions. He should neither accept nor retain a place on any party committee nor act as party leader nor engage generally in partisan activities." (Vol. 62 A.B.A. Reports, page 1132, 1937).
The 1945 Constitution of the State of Missouri (Section 29,f)provides:
"Prohibition of Political Activity by Judges. No judge of any court of record in this state appointed to or retained in office in the manner prescribed in Section 29 (a) - (g), shall directly or indirectly make any contribution to or hold any office in a political party or organization, or take part in any political campaign."
See Supreme Court Rule 12.
QUESTION: Some thirteen or fourteen years ago, at the request of the Governor, a Missouri lawyer was appointed Special Assistant Attorney General to prosecute a band of bank robbers. All were prosecuted to the ultimate conclusion. One was convicted and given a term of ten years in the Missouri Penitentiary. While out on a bond pending appeal which was never perfected, this party was arrested on a Federal charge, convicted and has served a term in Leavenworth. He will be released next year and his family desires to employ the Missouri lawyer who prosecuted him in the first instance, to investigate and possibly make application for a parole from the Missouri Penitentiary sentence above mentioned. Is acceptance of such employment proper?
ANSWER: No.
[Rule 4 1.9]
QUESTION: A Missouri lawyer is elected Circuit Judge. At the time of his election he is a member of a law firm which has cases pending in other circuits than the one to which the lawyer is elected judge and the Appellate Courts. Under these circumstances is it proper for this lawyer to sit in the trial of these cases after his taking the Bench?
QUESTION: Lawyer A. tried a suit for personal injuries representing plaintiff against X Corporation, the jury returning $5,000.00 verdict for plaintiff. X Corporation filed motion for new trial alleging usual grounds. Then X Corporation filed supplemental motion for a new trial alleging that Juror W was disqualified because Juror W was an alien, had a previous felony conviction and served penitentiary sentence. No questions asked on voir dire on such disqualifications, and such statements were therefore probably not privileged and became immaterial having been waived. Lawyer A contacted Juror W to investigate allegations of disqualification of Juror W denied all allegations and produced proof of birth in U.S., and service in Armed Forces at time of alleged confinement in penitentiary. Juror W requested Lawyer A to represent him in suit against X Corporation for libel. Further investigation by Lawyer A proved allegations against Juror W untrue. After two months investigation following filing of supplemental motion, X Corporation withdrew supplemental motion stating in court that allegations about Juror W were not true. An employee of X Corporation,conducting an investigation of Juror W, stated orally that Juror W was an alien and an ex-convict. Motion for new trial granted on other grounds, and personal injury ease presently awaiting re-trial. Would it be unethical for Lawyer A to represent Juror W in suit against X Corporation for libel and slander?
ANSWER: The Advisory Committee is of the opinion that it would not be unethical for Lawyer A to represent Juror W in suit against X Corporation for libel and slander.
QUESTION: May a lawyer, under Supreme Court Rule 4, who is a testamentary trustee, legally become the attorney and counsel of the Executor of the trust estate, without the previous "expressed consent of all concerned given after a full disclosure of the facts?"
ANSWER: Yes, unless or until there arises a conflict of interests as contemplated under said Rule 4.
QUESTION: Applicants at a municipally maintained Free Legal Aid Bureau lacking qualification entitling them to legal assistance by the Bureau, are told to employ an outside lawyer. When they ask to be referred to a lawyer, in some cases are told to consult a lawyer who is connected with the bureau on a part time voluntary basis, without compensation. This lawyer is sometimes the one to whom the applicants first apply for assistance at the Bureau. Such reference frequently results in the applicant employing the lawyer, who then represents him in his private capacity from his own office. Is it proper for the lawyer to accept employment under these circumstances?
[Rule 4 1.7(b); 7.3(b)]
QUESTION: (a) Is it proper and ethical for a lawyer representing a plaintiff in a divorce case to prepare waiver of issuance of summons and entry of appearance and forward same with a copy of the petition to defendant with request that he sign it before a Notary Public of his choosing and return to plaintiff's attorney for filing in Court?
(b) Is it proper for plaintiffs lawyer to prepare an answer for the defendant, incorporate it in the above mentioned waiver and entry of appearance and forward it to defendant with a copy of the petition for signing before a Notary Public with the request to return it to plaintiff's attorney for filing in Court?
ANSWER: (a) Yes. (b) No. (Note: Modified by Formal Opinion 109 below.)
[Rule 4 1.7; 4.3]
QUESTION: Would it be proper and ethical for the duly elected Prosecuting Attorney of a Missouri County, to represent a landowner of another County in a condemnation suit brought to condemn the owner's land for highway purposes, such suit being brought by the State Highway Commission of Missouri?
QUESTION: (1) Opinion 48 of the Missouri Advisory Committee states that an Assistant Attorney General cannot ethically serve as an appraiser in Missouri Inheritance Tax proceedings. In view of this opinion,could any of the following properly be appointed?
(a) A partner of an Assistant Attorney General?
(b) The employer (who is a lawyer) of an Assistant Attorney General?
(c) The employee (who is a lawyer) of an Assistant Attorney General?
(2) The Revised Statutes of 1949 of Missouri make the Attorney General the attorney for the Industrial Commission. In view of this statute,Section 287.620, could any of the following ethically accept employment in Workmen's Compensation cases or prevailing wages on public work cases:
(a) An Assistant Attorney General;
(b) A partner of an Assistant Attorney General;
(c) The employer (who is a lawyer) of an Assistant Attorney General;
(d) The employee (who is a lawyer) of an Assistant Attorney General.
(3) Would it be ethical and proper for an Assistant Attorney General, his partner, employer (who is a lawyer), or employee (who is a lawyer) to accept employment on behalf of a defendant in any of the following cases:
(a) Condemnation suit brought by the Missouri Highway Department;
(b) Any matter involving violation of the liquor control law;
(c) State criminal prosecution;
(d) Federal criminal prosecution;
(e) Municipal prosecution for ordinance violation.
ANSWER: Under the Constitution and Statutes, The Attorney General is the Chief Legal Officer for the State of Missouri and all State Departments and Bureaus. While in actual practice some State Departments and Bureaus have their own legal counsel, the Attorney General is still their Chief Legal Counsel. Under such circumstances, for obvious reasons the Attorney General may not with propriety represent parties other than the State before State Departments and Bureaus of State Government.
An Assistant Attorney General acts for the Attorney General and in his name. While the Statutes provide for Assistant Attorneys General,in practice Special Assistant Attorneys General are also appointed in Missouri. Assistant Attorneys General are by law of only one class, except a person appointed a Special Assistant Attorney General for one case only,and they act under and by appointment and authority of the Attorney General. It follows that Assistant Attorneys General and Special Assistant Attorneys General cannot ethically represent parties other than the State before State Agencies.
The Attorney General holds a public office by election and he and his appointed assistants must avoid all conduct which might lead the public to infer that an attorney is utilizing an official position to further the attorney's professional or personal interests or representing interests respecting which there is a possibility of a conflict of interest, either public or private. A law firm may not render professional services with regard to any matter which any partner, associate or employee could not properly perform. Whether a Special Assistant appointed for one case only is subject to the foregoing would depend upon the facts and circumstances involved.
For the foregoing reasons, the Advisory Committee answers your various questions as follows:
(1) (a) No.
(b) No.
(c) No.
(2) (a) No.
(d) No.
(3) (a) No.
(e) No.
QUESTION: Is it ethically proper for a Missouri lawyer to act as "Attorney-in-Fact" and sign bonds as agent for a surety or bonding company?
ANSWER: The Advisory Committee agrees with American Bar Association Informal Opinion 45, which holds a lawyer may be the agent of a bonding company and write formal bonds in cases he is in, but should not write large bonds where the clients' adverse interest might lead him to take a chance at the expense of the bonding company. The Committee holds that the lawyer so acting must fully disclose to his client his connection with such bonding company and the fact he gets a fee for signing as such "Attorney-in-Fact."
The Committee holds it not improper to write bonds in cases in which the lawyer is not of counsel.
Under no circumstances should the writing of bonds be engaged in by a lawyer to directly or indirectly induce professional employment.
QUESTION: Is it ethical for a Missouri lawyer to suggest to a client for whom he is drafting a will to provide that the lawyer-draftsman be named as attorney for the executor?
ANSWER: The Advisory Committee is of the opinion that it is unprofessional for a lawyer drafting a will to suggest that he be named in the will as attorney for the executor.
Canon 2 DR2-103; [Rule 4 1.7]
QUESTION: (1) Is it proper for a licensed Missouri attorney who is also serving on a part time basis as Deputy Juvenile Officer to represent persons who are not juveniles accused of misdemeanors or felonies in the Magistrate and Circuit Courts of the county where he serves? (2) Is the opinion the same as to the Courts in other counties of the State of Missouri?
ANSWER: The Advisory Committee is of the opinion that it is improper for a licensed Missouri attorney serving as a Juvenile Officer,whether for a circuit or as a deputy, to represent any person charged with a misdemeanor or a felony in any of the courts of the State of Missouri Adopted October 11, 1973.
QUESTION: (1) Is there a conflict of interest which prohibits a City Attorney from representing a defendant in a criminal case growing out of a situation which arises within the boundaries of the city? (2) Is there a conflict if the situation arises outside the boundaries of the city?
ANSWER: The Advisory Committee is of the opinion that a conflict of interest does exist in both situations set out in Questions 1 and 2 if one of the duties of the City Attorney is to prosecute violations of the city ordinances of the city. If this were not the ruling, the City Attorney could refuse to prosecute under the ordinance and then accept representation in the defense of a criminal case if one were filed.
ABA Formal Opinion #34 holds there is an inherent conflict between a City Attorney's public duty where he prosecutes violations of city ordinances and the representation of criminal defendants. It is a conflict which cannot be resolved by consent of the parties because the public cannot consent. The opinion makes no distinction between cases arising within the confines of the city and cases arising outside its boundaries.
Canon 9, Rule 4, states, "A lawyer should avoid even the appearance of professional impropriety." The Committee is of the opinion that the prosecution of ordinance violations and simultaneous representation of defendants in criminal cases gives the public an impression of lawyers detrimental to the legal profession and it should not be allowed.
Adopted November 2, 1973
SEE MODIFICATlON FOLLOWING:
The Advisory Committee, Missouri Bar Administration, at a meeting on January 11, 1974, concluded that part of Formal Opinion #107 as it pertains to Question #2 set out in the opinion should be withdrawn for reconsideration by the Committee. The answer to Question #1 stands as adopted on November 2, 1973, and reaffirmed on January 11, 1974.
QUESTION: May a Prosecuting Attorney in the course of his private law practice, represent clients who are parties to an action brought under Chapter 452 effective January 1, 1974? Is there a conflict of interest with the duties of the Prosecuting Attorney set out in paragraphs 4, 5 and 6 of Section 10 of said chapter?
ANSWER: It is the opinion of the Advisory Committee that there is no inherent conflict between the duties of the Prosecuting Attorney under the bill and the representation of a party to an action brought under the bill in the first instance. In other words, the Prosecuting Attorney can ethically represent a party in an original divorce action under the provisions of said bill. If, however, after the termination of the original divorce action,the Prosecuting Attorney is called upon to fulfill his duties under Section 10 and if at that time a conflict of interest exists, then, of course, the conflict must be resolved. It might be accomplished by withdrawal as attorney for the private client, the request for appointment of a special Prosecutor in that particular case, or both, depending upon the circumstances.
Adopted December 6, 1973.
QUESTION: Under Missouri's Dissolution of Marriage law, which went into effect January 1, 1974, is it ethically proper for an attorney to draw a joint petition for signature by both parties to a marriage?
ANSWER: The Advisory Committee is of the opinion that it is ethical for an attorney to draw a joint petition for Dissolution of Marriage provided the parties are in agreement on all things and the attorney makes it clear that he represents only one of the petitioners. If disagreements arise, then he must advise the unrepresented petitioner to consult other counsel.
The Advisory Committee has reached this conclusion because of the change in the law of Missouri and to the extent the opinion expressed herein conflicts with Formal Opinion #82, said Formal Opinion #82 is hereby modified.
Adopted March 28, 1974.
QUESTION: (1) Is it proper for a prosecuting attorney in the state of Missouri to engage in the defense of prosecutions of violations of municipal ordinances, either in the county for which he is elected or any other county? (2) In the event the answer to Question 1 is "No", would it be proper for a law partner of the prosecuting attorney to engage in such defense work?
ANSWER: The Committee is of the opinion that it is improper fora prosecuting attorney to defend prosecutions of violations of municipal ordinances. While it is true that such actions are historically classed as quasi-criminal, and thus civil in nature, the general public does not know or understand this fine line of distinction drawn by judicial opinions. Thus, to the public a person charged in Municipal Court is no less a defendant than one charged in Magistrate Court. To be a prosecuting attorney on one hand and defending a municipal charge on the other gives the appearance of impropriety in contravention of Canon 9, Rule 4, Supreme Court of Missouri.
There are additional ethical prohibitions if the municipality is within the county for which the prosecuting attorney is elected. Many acts which violate municipal ordinances also violate the laws of Missouri which the prosecuting attorney is sworn to uphold. Thus, there might be a duty to prosecute the very charge under state law which he was defending under municipal ordinances. Clearly, this violates the basic principles of legal ethics. In addition, such conduct puts in jeopardy the close working relationship of the prosecuting attorney and municipal police officers necessary for effective law enforcement.
It has been consistently held that a lawyer's partner is prohibited from representation which is prohibited to the lawyer himself. The Advisory Committee reiterates that ruling here.
Thus, since, in the opinion of the Advisory Committee, Question #1 must be answered in the negative, so, too, must Question #2 be answered in the negative.
Adopted June 14, 1974.
[Rule 4 1.7; 1.10]
(Opinion omitted. See Notes on Use.)
QUESTION: Can a director (who is an attorney) sell land to the corporation, if he makes a full disclosure to the board of directors and does not vote and his presence is not needed for a quorum?
ANSWER: Yes. The committee has the view that the director is acting in his capacity as a member or the board of directors and he is not acting as the attorney for the corporation. The committee assumes there has been no usurpation of the corporate opportunity by the director in the acquisition of the land by the director in the first instance. Rendered January 24, 1977.
QUESTION: Can partners of a present Missouri prosecuting attorney undertake the defense of criminal cases outside the State of Missouri?
ANSWER: Yes, rendered January 24, 1977.
QUESTION: Can a member of the firm assist in a motion to modify a decree on behalf of the respondent if another member of the firm was of counsel for the petitioner at the time when the original decree was entered?
ANSWER: No. The fact that no evidence of any activity that took place prior to the original decree is not admissible on the motion to modify is not controlling. Rendered March 7, 1977. Modified March 31, 1995.
[Rule 4 1.9(a); 1.10]
QUESTION: Can a prosecuting attorney, whose term expires December 31, 1976 and who does not seek reelection, represent the defendant after January 1, 1977, on charges arising from an alleged offense which occurred on December 3, 1976?
ANSWER: No. The committee unanimously is of the opinion that such representation would give a clear appearance of impropriety since this alleged offense occurred during the prosecuting attorney's term of office. This is true even though the prosecuting attorney did not participate in any official investigation of the alleged crime nor request any reports thereon. Rendered March 27, 1977.
[Rule 4 1.7; 1.9]
QUESTION: What steps should be taken by Attorney "A" who has shared office space with Attorney "B" for a number of years and Attorney "A" is about to become the City Attorney of a small city? Can Attorney "A" continue to represent a client before the City's Board of Aldermen on a zoning question?
ANSWER: No. Attorney "A" is not permitted to represent said former client before the Board of Aldermen on the zoning question or any related matter in the City Municipal Court for alleged violation of operating a commercial establishment in violation of zoning ordinance. Attorney "B" can not represent said client, because it appeared to the public that Attorneys "A" and "R" were partners by use of their joint letterhead and office signs.
In the future, if steps are taken to indicate to the general public that Attorneys "A" and "B" are sole practitioners and are not in fact partners, then it would nut be improper for Attorney "B" to represent clients before a city board or in the municipal court while Attorney "A" is City Attorney. Rendered May 31, 1977.
[Rule 4 1.7; 7.5(e)]
QUESTION: Can a Prosecuting Attorney of one county ethically represent a client in another county where the Prosecuting Attorney of that county is pursuing a motion for contempt against the client pursuant to the dissolution law?
ANSWER: No. The committee feels that since it is an official action by the Prosecuting Attorney pursuant to law, it would give a clear appearance of impropriety for one Prosecutor to be defending a motion for contempt brought by another Prosecutor as a part of his official duties. Rendered June 30, 1977.
QUESTION: A driver and his passenger are represented by the same law firm in separate suits arising from a rear-end collision which occurred in September 1974. In December of 1974, these same individuals are involved in a similar rear-end collision and as a result their prior injuries were aggravated. In November 1976, P (passenger) was riding with D(driver) and involved in a wrong side of road collision receiving an additional injury to the cervical area of her body. The driver's cases resulting from the 1974 collisions have been settled and P's cases from the two 1974 rear-enders remain pending. Can the law firm represent P in a combined law suit against all drivers for injuries received by her in all three collisions?
ANSWER: Yes, provided P and D, after a full disclosure, consent to this representation by the law firm. Rendered July 29, 1977.
QUESTION: What should the Prosecuting Attorney do when possible conflicts occur between his official duties and his duties as a private attorney engaged in civil litigation under the following fact situations:
1. Prosecuting Attorney representing plaintiff. Plaintiff vs. Defendant in a civil action.
a. P raises a criminal charge vs. D What should P.A. do?
b. D raises a criminal charge vs. P What should P.A. do?
c. 3rd party raises a criminal charge vs. P What should P.A. do?
d. 3rd party raises a criminal charge vs. P What should P.A. do?
2. Prosecuting Attorney representing Defendant. Plaintiff vs. Defendant in a Civil Action.
c. 3rd party raises a criminal charge vs. D What should P.A. do?
ANSWER 1. a.: The Prosecuting Attorney should disqualify him self and request the appointment of a Special Prosecuting Attorney by the Court. The Prosecutor can continue with the civil case and let the Special Prosecutor investigate and decide whether or not to file the criminal case.
ANSWER 1. b.: The Prosecutor should disqualify himself and request the appointment of Special Prosecuting Attorney by the Court. The Special Prosecutor should investigate and file the criminal case if justified. The Prosecutor can continue in the civil case but, of course, cannot defend the criminal case.
ANSWER 1. c.: If there is any connection with the civil case, the same procedure as 1. a. and 1. b. If no connection, the Prosecutor can stay in the civil case if in his judgment his decision is not influenced by the fact of civil representation. The Prosecutor should understand that this course might make him vulnerable to public criticism as "giving the appearance of impropriety."
ANSWER 1. d.: Same as 1. b. above.
ANSWER 2. a.: Same as 1. b. above.
ANSWER 2. b.: Same as 1. a. above.
ANSWER 2. c.: Same as 1. b. above.
ANSWER 2. d.: Same as 1. c. above.
Rendered August 2, 1977.
QUESTION: Can a former member of quasi-judicial governmental commission, after resigning said position, thereafter appear as counsel on any matters which were on file with said commission prior to his resignation?
ANSWER: The former commission member is disqualified from accepting employment in any matters upon which the commission had acted upon the merits during this term of office and any other matter which the commissioner had primary responsibility of seeing that it went forward to a proper conclusion.
In any other case, the mere fact that the matter was on file during his term of service without more, doesn't disqualify the former member in every instance. The former lawyer-commissioner should consider in every such case before accepting employment whether or not his prior personal participation might raise some question of propriety. In every case involving more than mere procedural matters by the former member personally, he should seriously consider refusing said employment. Rendered August 2,1977.
[Rule 4 1.7(b)]
(Withdrawn 1/26/90).
QUESTION: A. Is it proper for a Municipal Judge, or his partner or associate, to represent a defendant in a state criminal charge where the alleged facts leading to the criminal charge occurred within the municipality where the attorney is the Municipal Judge?
QUESTION: B. Is it proper for a Municipal Judge, or his partner or associate, to represent a defendant in a state criminal charge where the alleged facts pertaining to the criminal charge occurred outside of the municipality where the lawyer serves as Municipal Judge?
ANSWER A: It is the opinion of the Advisory Committee that the Municipal Judge and his partners and associates cannot ethically defend a state criminal case which arises within the boundaries of the city for which he is the Municipal Judge.
ANSWER B: If the matter arises outside the jurisdiction for which he is the Municipal Judge, then the Municipal Judge, his partners or associates, can represent the defendant in the state criminal case. Rendered October 28, 1976. Reaffirmed on October 4, 1977.
QUESTION: Can Attorney B represent clients in the Municipal Court under the following facts? Attorney B is by city ordinance a full City Judge, who can serve in the absence or in the case of incapacity of Attorney A.
ANSWER: It is the opinion of the Committee, that since Attorney B is designated as associate City Judge by ordinance to serve in the absence or in the case of incapacity of Attorney A, that Attorney B would be precluded from representing clients in the Municipal Court. Rendered October 21, 1977.
QUESTION: Is the practice of a lawyer-member of the County Court of a 1st class county limited before the Magistrate, Probate or Circuit Courts of said county?
ANSWER: No. It is the opinion of the Advisory Committee that such a position would not limit the right of the attorney to practice before the Magistrate Court, Probate Court or the Circuit Court of the county. Of course, if the lawyer-member attempted to use his position as a County Court Judge to influence the Judges of any other court, that would be unethical conduct. Rendered October 24, 1977.
QUESTION: A. Can a prosecutor or assistant prosecuting attorney of a 2nd or 3rd class county accept employment in civil litigation, either for the plaintiff or the defendant, arising out of a set of facts in which a patrolman issued a summons in that county?
B. Can these attorneys accept such employment after there has been a final disposition of the case?
C. Would the answers to above questions A and B be different or affected by any of the following facts:
(1) if the defendant enters a routine guilty plea which is accepted by the prosecutor and the court?
(2) if the case is dismissed by the prosecutor for lack of sufficient evidence?
(3) if the prosecutor tries the defendant and the court finds the defendant innocent?
ANSWERS: A. No; B. No; C.(1) No. (2) No. (3) No. Rendered January 13, 1978.
QUESTION: An associate of law firm became an assistant prosecuting attorney in January, 1978. At that time the firm had pending two cases involving condemnation proceedings with the State Highway Department in which the firm represented the condemnee. The firm, at that time, had a church client involved in a tax dispute with the county assessor. (1) Does the first have a conflict in these cases based upon the associate's position as an assistant prosecuting attorney? (2) Can the firm continue to represent the foregoing clients if the associate promptly resigns that position?
ANSWER: (1) The firm does have a conflict in each of the above cases and if the associate retains his position as assistant prosecuting attorney, the firm will have to withdraw from each case.
(2) If the associate promptly resigns from his position as assistant prosecuting attorney and has served only 30 days in that position, the conflicts problem for the firm is eliminated and the firm may continue to represent those clients. This assumes no information has passed either way concerning these cases. Rendered January 30, 1978.
QUESTION: A present part-time municipal judge of a city presents the following questions:
1. Is it proper for an attorney who is presently Municipal Judge in one city within the county to accept the position of City Counselor in another city within the same county where all prosecutions for violations of city ordinances are made by a separate City Attorney and not by the City Counselor?
2. Is it proper for an attorney who is presently Municipal Judge on a part-time basis in one city within the county
(a) to accept indigent appointments in criminal cases in the Magistrate and Circuit Courts within same county?
(b) to accept employment in criminal cases in the Magistrate and Circuit Courts within the same county?
1. Yes. It is the conclusion of the Committee that if the City Counselor of a city within the county where the attorney is presently Municipal Judge does not prosecute any violations of city ordinances and does not have the duty of handling any appeal taken from convictions for such prosecutions, there would be no objections to the same attorney holding the position of Municipal Judge of one city in the county and City Counselor in another city in the same county.
2. (a & b) No, if the matter arises within the boundaries of the city for which he is Municipal Judge; Yes, if the matter arises outside of the boundaries of the city. It is immaterial whether the defendants are indigent or employ the attorney. Rendered February 23, 1978.
QUESTION: Is it proper for an attorney who is presently Municipal Judge on a part-time basis in one city within the county?
ANSWER: (a & b) No, if the matter arises within the boundaries of the city for which he is Municipal Judge; Yes, if the matter arises outside of the boundaries of the city. It is immaterial whether the defendants are indigent or employ the attorney. Rendered February 23, 1978.
QUESTION: An attorney is appointed as a member of the Board of Police Commissioners and his appointment was confirmed by the county council.
Is the attorney prevented from appearing before the county council in an unrelated private civil matter?
ANSWER: No. There is no conflict of interest in the representation of private clients in matters which must be passed upon by the county council, even though the attorney's appointment had to be confirmed by the council. Rendered April 6, 1978.
C.ofInt. -59
QUESTION: Can a City Attorney undertake to defend a criminal case which arose within the corporate limits of said city under the following circumstances?
The attorney before agreeing to accept the position, had a written resolution passed by the city council "that his duties did not include the duty of prosecuting cases in municipal court." The City Judge every month files a report containing this language, "The Court feels that it is not essential for the City Attorney to appear in Court each Court day." and the Judge stated upon the record "that he only required the presence of the City Attorney in Court on those occasions that he (the Judge) would request. "The City Attorney would undertake to advise the police officers in performance of their duties.
ANSWER: No. See Formal Opinion 107. The Committee is of the opinion that before the city attorney could ethically undertake to represent criminal defendants for offenses occurring within the city limits it must be made perfectly clear by resolution that such city attorney had no authority to prosecute violations of city ordinances, as distinguished from no duty to prosecute such violations.
To avoid any appearance of impropriety, the city attorney's duties must be confined to advising the mayor, council and other department heads and his duties should not include the duty to advise the city police department concerning violations of city ordinances. Rendered May 22,1978.
QUESTION: The attorney involved has previously represented the sole shareholder of a corporation and the corporation. He served upon its board of directors until after the shareholder's death. The shareholder died intestate. After his death, the shareholder's former wife issued checks upon the corporate account to pay medical and burial expenses of the sole share holder.
The administrator of the shareholder's estate intends to file suit to recover on behalf of the corporation for the amounts paid out of corporate funds. Does the fact that the attorney formerly represented the corporation prohibit him from defending suit on behalf of the former wife?
ANSWER: Yes. The attorney's prior representation of the corporation and its sole shareholder and his service upon the board of directors of the corporation does prevent him from defending the suit on behalf of the former wife brought by said corporation.
The Committee does not attempt to answer the legal question of the attorney's possible personal liability to the corporation, if he had knowledge while serving as a member of the board of directors and advised that such payment of corporate funds was permissible. Rendered May 22,1978.
[Rule 4 1.9(b)]
QUESTION: Can a prosecuting attorney, who prosecuted the alleged uninsured driver for leaving the scene of an accident, ethically undertake to represent the injured other driver in an action seeking to recover under that driver's uninsured motorist coverage?
ANSWER: No. The Committee is of the opinion that it is improper for the attorney who has prosecuted the uninsured driver to undertake to represent the injured other driver in a claim against his own insurance carrier.
In addition to the general principle that a prosecuting attorney should not engage in any civil litigation for any party growing out of a set of facts which resulted in a criminal action of any person, it is the opinion of the Committee that the uninsured criminal defendant would have to be a named party in the litigation to collect on the uninsured motorist coverage. Rendered May 22, 1978.
QUESTION: The Committee has received requests from several sources for an informal opinion under the following basic facts.
An associate of a law firm is employed by the county prosecuting attorney in a 3rd class county for the purposes of handling non-support cases under the provision of Chapter 208, RSMo, as amended by laws 1977, H.B. No. 601 and the related federal statutes. The associate's only contact with the prosecuting attorney's office is in connection with the collection of non-support and the associate has no relationship or involvement in any other cases in that office.
1. Can the other members of the firm represent clients in civil or administrative proceedings in front of or involving state agencies such as the State Highway Commission, Division of Employment Security, etc.
2. Can the members of the firm accept employment in civil litigation either for the plaintiff or defendant arising out of a set of facts in which a patrolman issued summons as set forth in informal opinion rendered January 13, 1978?
3. Does employment as an attorney, but not as a prosecuting attorney for the circuit juvenile officer, produce the same results?
ANSWER: If the contract of employment for the associate of a law firm with the county clearly sets out the scope of his duties and clearly delineates that the attorney has no other connection with the functions of the office of prosecuting attorney and he has no opportunity to gain information about any other function of the prosecuting attorney's office,then it is our conclusion that said attorney and other members of the firm can represent clients in civil or administrative proceedings in front of or involving other state agencies (with the exception of the Division of Family Services). The attorney involved and other members of the firm can properly accept employment in civil litigation arising out of facts which give rise to a criminal prosecution by the prosecutor.
We stress that the contract of employment should be in writing and it must be very specific to delineate the specific duties of his employment and to screen that attorney from any other information available in the office of the prosecuting attorney.
The Committee has previously ruled that an attorney employed to advise the circuit juvenile officer is not precluded from criminal defense work. The same rules would apply to civil litigation, assuming the same parties and same set of facts are not involved as are involved in his representation of the juvenile officer. Rendered June 16, 1978.
QUESTION: An attorney submits the following ethical problem for guidance from the Committee. He has previously been employed as the public defender in a rural out state circuit. He now has filed and is the sole candidate for the office of prosecuting attorney of one of the counties in that circuit.
1. Assuming his election as prosecuting attorney, may an assistant prosecuting attorney prosecute a case which was assigned to the public defender's office during his prior tenure as public defender, if he completely divorces himself from the prosecution of such case and in no way participates in or discusses such case?
2. Would the Advisory Committee's opinion be affected by whether or not the attorney had been actively involved in the handling of a given case when he served as public defender?
ANSWER: See 7a and 7b above. This fact situation differs from the situation present in that question. Here the attorney is not a member of the staff of the prosecuting attorney's office or on the staff of the Attorney General's Office, but the attorney will himself be the elected prosecuting attorney. It is the opinion of the Advisory Committee that in both instances set out above, the prosecuting attorney should get a special prosecuting attorney appointed to prosecute any case which was pending and assigned to the public defender's office while he served as the public defender. To do otherwise, would engage in acts disapproved of in State v. Boyd, 560 S.W.2d296. Rendered June 16, 1978.
[Rule 4 1.7(b); 1.9]
QUESTION: "A" law firm files an action on behalf of an insurer against the name insured and a "potential insured" for a declaratory judgment. The "potential insured" is represented by his private attorney. The trial court has ruled adversely to the insurer and that case remain spending on appeal.
A second lawsuit is then filed against the "potential insured", by one of the injured parties. An attorney with "A" law firm as attorney for insurer,writes to the private attorney for the "potential insured" entering his appearance as attorney for that "potential insured" under a reservation of rights. The private attorney responds to the "A" law firm that such defense under a reservation of rights is not acceptable to the "potential insured" defendant.
Can "A" law firm continue to represent the "potential insured" defendant in the latter case in view of its position of apparent conflict of interest?
ANSWER: No. It is the Committee's conclusion that "A" law firm cannot ethically continue to represent the "potential insured" defendant in the second case without that defendant's permission. The other considerations involved present legal or economical questions and the Committee voices no opinion on those considerations. Rendered June 16, 1978.
[Rule 4 1.7(a)]
QUESTION: The law firm was consulted by the sole stockholder and officers of a small corporation to represent them in a sale of the entire corporate stock and physical assets of the corporation to two individuals and their respective wives. The firm prepared the necessary documents on behalf of the sellers and the transaction was completed and the corporation paid the law firm for its services.
A year later the corporation, through its attorney, demands restitution from the sellers to the corporation of the sum of $12,000.00 for allegedly wrongful payments by them from corporate assets.
If such a suit is filed by the corporation against the individual former sole stockholder and officers, is there a conflict of interest which would prevent the law firm from representing such individual defendants?
ANSWER: No. The Committee feels that the law firm under the facts herein at all times represented the individual sole shareholder, former officers and board of directors of said corporation and did not represent said corporation except incidentally. Hence, no conflict to represent these same interests, in a suit brought by the corporation. Rendered June 16, 1978.
[Rule 4 1.11]
QUESTION: An attorney has entered into a contract with a large city to represent the city prosecutor in Municipal Court in cases involving ordinance violations.
A. Can this part-time city prosecutor ethically represent criminal defendants in the local circuit court?
B. Does the answer to the above question vary where the defendant has been at one time charged and dismissed on the same offense by the city prosecutor's office?
C. Can the attorney above described receive appointments from the juvenile division of the local circuit court for parents charged under the juvenile code with either abuse or neglect of their children?
D. Can the attorney above described represent juveniles charged under the juvenile code with acts that would be crimes if the juveniles were adults?
E. Can a city attorney "employed full time" to represent the city in civil matters represent parents who are charged under the juvenile code with abuse or neglect of their children in proceedings before the juvenile division of the local circuit court?
A. A private attorney who contracts as city prosecutor cannot defend any criminal action which arises within the boundaries of the city. If the criminal action arose outside the city, then he could represent the criminal defendant.
B. It makes no difference whether the defendant has been charged and dismissed on the same offense by the city prosecutor's office.
C. The committee does not believe that the attorney could receive appointments to represent parents, who reside within the city limits, on charges under the juvenile code of either abuse or neglect of their children.
D. The committee believes the attorney could not represent juveniles charged under the juvenile code with acts that would be crimes if matters arose within the city limits of the city.
E. The answer of this question depends upon the definition of "employed full time". This actually presents a legal question and not one of ethics. If the city ordinances under which the city attorney is employed state he shall devote all of his time to representation of the city in civil matters, such language would prevent his representation.. Absent such an ordinance, the committee sees no conflict in representation of the parents or juveniles in the juvenile division, subject to the limitation contained in answers C & D. Rendered July 28, 1978.
Q QUESTION: The attorney has previously represented A and B,husband and wife, both jointly and individually in unrelated legal matters. The attorney and his wife have been social guests in the home of A and B.A files a dissolution of marriage action against B. The attorney at that point declines offered employment to represent A. At that time, the attorney had several conferences with A regarding the case before declining the employment by A. During the same time period, he had some conversations with B during which the pending action was mentioned and discussed in a limited manner.
The attorney recommended several other local attorneys to represent A, one of which instituted the present dissolution action and subsequently withdrew. The attorney is then requested by A to represent him.
Under these circumstances, can the attorney undertake to represent the husband A as against B?
ANSWER: No. The committee is of the opinion that the attorney's representation of husband A would give the appearance of impropriety because of the close relationship to the wife B and the attorney's previous conversations with her. Therefore, the committee is of the opinion that the attorney should not undertake this representation. Rendered July 28, 1978.
QUESTION: A constitutional charter city maintains a full-time legal department and occasionally the city retains outside special counsel to assist in certain designated cases.
Such outside special counsel are employed upon a written contract basis with the city manager on behalf of the city with the approval of the city council and the contract limits the work of the special counsel to one particular lawsuit.
The firm is employed under such a contract with the city in a lawsuit involving project "X". The lawyer for the firm has completed presentation on behalf of the city in the trial court and the case is under advisement.
Both sides have indicated they intend to appeal that case, if the trial court's decision is adverse.
Another member of the firm of said outside special counsel is offered employment by several long-standing clients of the firm in a condemnation proceeding instituted by the city involving project "Y", a totally different matter from project "X".
The city, by its authorized representatives, has given its written consent for the firm to represent defendants-clients in the proposed condemnation case involving project "Y".
Can the firm, under these circumstances, represent defend ants in the proposed condemnation proceedings?
ANSWER: Yes. It is the opinion of the committee that representation of the defendants in the condemnation suit and matters directly related to project "Y" would not in any way present a conflict of interest because of the employment of the firm as special counsel for the city in litigation involving project "X". This is particularly true since the firm has notified the city of the firm's projected employment on behalf of defendants in the condemnation matter and the city has agreed in writing that this is permissible and does not represent a conflict of interest. (Caveat: If a conflict of interest actually existed the city could not waive the conflict,being a public body.) Rendered July 28, 1978.
QUESTION: Attorney A is the city attorney of a fourth-class city and his partner is the prosecuting attorney for the county in which the city is located. A vehicle belonging to the city and driven by a city employee in the course of his employment is involved in a collision with another vehicle driven by a third party. That third party was given a summons for failure to yield the right-of-way and posted bond which was forfeited when that party failed to appear in Magistrate Court. Can Attorney A represent the city in civil litigation for damages to its vehicle under these facts?
ANSWER: No. Since Attorney A's law partner prosecuted the civil defendant in his official duties as the prosecuting attorney of the county, no member of his firm can ethically take part in any civil litigation arising out of the same set of facts. Rendered July 28, 1978.
[Rule 4 1.7(b); 1.10]
QUESTION: Can an attorney, who is employed as a part-time legal advisor to the juvenile officer, ethically appear before the circuit judge in other matters not connected with his official duties?
ANSWER: Yes. Rendered September 15, 1978.
QUESTION: Can a municipal judge of a city of the fourth class who holds court several evenings a month, but who is otherwise a full-time practicing attorney engaged in general practice, represent an officer of the police department of the municipality in which he sits as a municipal judge in a civil matter in circuit court, which matter is in no way related to or connected with or has arisen out of the duties or employment of such police officer for such municipality or as an officer of the law in general?
ANSWER: The Advisory Committee is of the opinion that it would be ethically proper for an attorney to represent an officer of a police department of a municipality in which the attorney sits as municipal judge in a civil matter in circuit court since the matter is not related to or connected with and has not arisen out of his duties or employment as such police officer. Rendered September 15, 1978.
QUESTION: A legal aid corporation furnishes defender services by contract in the municipal court of a large city.
On several occasions, an individual who, as a defendant in a prior prosecution was represented by a legal aid attorney, has appeared as a prosecuting witness in a municipal prosecution in which a legal aid attorney has entered an appearance on behalf of the defendant. Knowledge obtained while representing the prosecuting witness at the time he was a defendant may be relevant for purposes of impeaching his credibility in the latter case.
The legal aid corporation submits the following specific questions:
(1) May the attorney, who represented the prosecuting witness at the time he was a defendant, properly represent the defendant in the subsequent action?
(2) May an attorney employed by legal aid who did not participate in the first action and who has no personal knowledge of any of the circumstances and therefore could not use any information obtained in the course of an attorney-client relationship, consistent with the Code of Professional Responsibility, represent the defendant in the second prosecution?
(1) No. In answer to the first question, the committee is of the opinion that the attorney who represented the prosecuting witness at the time the witness was a defendant cannot properly represent the defendant in the subsequent action?
(2) In answer to question two, another attorney employed by legal aid, but who did not participate in the first action and who has no personal knowledge of any of the circumstances pertaining thereto, can represent the defendant in the subsequent action, but he must make a full disclosure of the previous representation of the prosecuting witness by another attorney on the staff of the legal aid corporation. This gives the defendant in the subsequent action all the pertinent information so if he desires to object to the representation by the legal aid staff attorney, he can do so. Rendered September 15, 1978.
[Rule 4 1.9(b); 1.10]
QUESTION: A county prosecuting attorney submits a question concerning his duties as legal advisor to various county officers and a possible conflict with his duties as prosecuting attorney, if the county officers act improperly and engage in misconduct in their official duties.
ANSWER: It is the opinion of the Committee that there is no attorney-client relationship established as a matter of law between a prosecuting attorney of a county and other county officials. That relationship depends upon confidential consultation between the officials.
The prosecuting attorney would be free to make such investigations of improper conduct of a public official which he deemed advisable, in his official capacity as prosecuting attorney of the county. Rendered October 20, 1978.
C.ofInt. -80
QUESTION: Attorney A was "of counsel" to the firm of X, Y and Z. The firm dissolved and A, X, Y, and Z have an office sharing agreement. All attorneys use their own letterhead. If A becomes a part-time city prosecutor, can X, Y, and Z continue to represent their clients in municipal court?
ANSWER: Yes. It is the Committee's conclusion that in the situation outlined above, if one of the attorneys becomes a part-time city prosecutor, the other attorneys can continue to represent their clients in municipal court. Rendered October 20, 1978.
C.ofInt. -82
QUESTION: Attorney A is also a notary public in this state. Can he ethically notarize signatures and acknowledgements of clients to various affidavits and petitions filed in both the circuit and probate courts by him in which he or a partner are attorney of record"
ANSWER: Yes. There is no conflict of interest for an attorney to notarize signatures and acknowledgements of clients to various affidavits and petitions filed in court provided he follows the law for notaries public. We are sure that the law provides that a notary public should only take acknowledgements on signatures which are made in his presence. Rendered October 20, 1978.
C.ofInt. -83
QUESTION: The law firm of A, B and C has existed for several years. It presently owns a building, fixtures and law library.
Partner A will become a judge and partner B and C will become sole practitioners, with each carrying out his separate practice with his own separate secretary. B and C will purchase A's interest in the building and other assets and will modify the building to make two separate law office suites (except they will share a common waiting room for clients).
Partner B is the elected prosecuting attorney for the county and all duties relating to that office are carried on in the courthouse office of B.
Under these physical arrangements,
a. Can B & C represent new opposing clients after dissolution of the partnership?
b. Can C represent criminal defendants in cases in which B is the prosecuting attorney, which arise after dissolution of partnership?
c. What steps should B and C take regarding clients of A, B and C partnership?
a Yes. It is the opinion of the Committee that if the law office building is modified as outlined above, it would be ethically proper for B and C to represent opposing clients after the partnership is dissolved.
b. Yes. Assuming the modification of the office and that B will exclusively operate his prosecutorial duties from his courthouse office, the Committee believes that C can ethically represent criminal defendants in cases which B is prosecuting which arose after dissolution.
C.ofInt. -85
C.ofInt. -86
QUESTION: Assume that Attorney A represents a plaintiff in litigation challenging the validity of a certain ordinance and of a redevelopment project proposed to be constructed under the ordinance. The case is then settled in a manner so as to confirm the validity of the ordinance and the legality of the project.
As a part of the settlement, the plaintiff is to become a part of the project.
Assume farther that any subsequent attack on the ordinance or the project by another complainant would not be in the best interest of the original plaintiff and that, therefore, representation of a subsequent complainant by Attorney A would create a conflict with the interest of his original client.
Under the above stated circumstances, does DR2-108(B) create any barrier to an agreement by Attorney A that neither he nor any member of his firm will represent any subsequent complainant in litigation attacking the ordinance or the project?
ANSWER: No. Based upon the fact situation set out, the Committee does not believe that DR2-108(B) would create any barrier to an agreement by Attorney A that he nor any member of his firm will represent any subsequent complainant in litigation attacking the ordinance or the project. The agreement should recite that any such representation would constitute a conflict of interest with Attorney A's original client and therefore such a contract would not be in violation of DR2-108(B). In this particular case, it would not be the contract which would be restricting the practice of law of Attorney A. It would be the conflict of interest which would exist between the interests of his present client and the subsequent complainant, which prevents the acceptance of the subsequent complainant as a client. Rendered December 8, 1978.
[Rule 4 1.9(a)]
QUESTION: A is insured by XYZ Insurance Company for liability and uninsured motorist coverage. A is involved in a collision with B(uninsured) and C (also uninsured). A files suit against B, XYZ Insurance Company, and C.
Attorney M is retained to represent XYZ Insurance Company. Before time of trial defendant XYZ Insurance Company is dismissed without prejudice by plaintiff A. Attorney N represents B, and they both request Attorney M to join N as co-counsel for defendant B at trial. After explaining his possible conflicts with B and N, Attorney M acts as co-counsel at trial which results in a verdict in favor of Plaintiff A and against defendants B and C. An appeal is taken by defendant B.
After the brief has been filed by defendant B, attorney for A advised B that if he would dismiss the appeal, no attempt will be made to collect judgment from defendant B.
Attorney M, who still represents XYZ Insurance Company, believes plaintiff A intends to collect the judgment from that company.
Attorney M receives a letter from B instructing him to dismiss the appeal.
Attorney M submits these facts and requests an informal opinion on what steps he should take to resolve the conflicts of interest herein.
ANSWER: It is the opinion of the Committee that defendant B needs independent legal advice. The Committee believes that Attorney M should withdraw from any representation in the case whatsoever and that XYZ Insurance Company should be instructed to obtain new counsel. Since Attorney M acted as co-counsel for defendant B, he is now in a position of conflict so that he cannot advise either the insurance company or defendant B under the fact situation which has developed. Rendered December 8,1978.
QUESTION: Can a city attorney draw the necessary ordinance and deed to complete execution of a lease-purchase agreement previously entered into between the city and a corporation which also is represented by said attorney?
ANSWER: Yes. The Advisory Committee believes the attorney can ethically proceed to draw the ordinance and deed to complete the contract which the city has with the corporation since there is no discretionary decision to be made with regard to that matter. This is really a ministerial duty in connection with the complete execution of the existing contract previously negotiated. The attorney will be acting for the city in this instance and any charges should be made to the city under the regular charge schedule therefore. Rendered December 8, 1978.
QUESTION: If the original crime took place within the city limits of the city for which the attorney is employed as a part-time assistant city prosecutor, is it proper for the attorney to accept appointment as counsel for the movant in a 27.26 motion filed in the circuit court?
ANSWER: No. Since he could not represent the defendant in the original criminal prosecution, the Committee believes it would be improper for him to represent the movant in the 27.26 action. Rendered December 8, 1978.
QUESTION: A law firm's client invested certain funds in a new corporation formed in 1973 receiving a 49 percent interest. The law firm advised on the structuring of the new corporation, including advising it of Sub-chapter S status. Since then, the law firm has prepared the minutes of the annual meeting, prepared the franchise tax reports and prepared the annual registration reports. A member of the firm acted as registered agent.
A dispute arose between the 51 percent stockholder and the minority stockholder client of the law firm. Both shareholders are the officers and directors of the corporation.
The minority shareholder now wishes to institute a stockholder's derivative suit against the majority shareholder, to sue the majority shareholder individually, and to sue for an accounting of the corporate funds.
a. May the law firm file such a suit?
b. If not, may the law firm give a draft of its petition to another law firm to file, provided that it gave no other assistance except as it may be required by discovery.
a. No. It is our conclusion that the law firm should not file the derivative suit on behalf of the minority shareholder, because under all the circumstances set out therein, the firm would be in a position of conflict in doing so.
For instance, since one member of the firm is the registered agent of the corporation and the corporation would have to be named as a party defendant, service would have to be had upon a member of the firm. In addition, while the things the firm has done for the corporation might be construed to be more or less ministerial in nature, nevertheless, the firm has acted as the corporate counsel for those purposes.
While we are reluctant to say that there could never be a set of circumstances under which a law firm could bring an action on behalf of the minority shareholder in a corporation when they had acted as corporate counsel, we do think there would have to be a highly unusual set of circumstances justifying such an action on the part of a law firm.
b. No. Since the law firm cannot represent the minority shareholder, we think it would be equally improper for the firm to provide a draft of its petition to another law firm to file.
Rendered January 25 1979.
C.ofInt. -92
QUESTION: Seller sells a motel to buyer. Buyer gives a first Deed of Trust to bank and a second Deed of Trust to Seller. A & B are law partners. A is Trustee on both Deeds of Trust. Buyer sues Seller alleging fraudulent misrepresentation as to the construction of the motel prior to sale. B represents Seller. Both Deeds of Trust are in default and the bank and Seller initiate foreclosure proceedings. Can A act as Trustee in the foreclosure sale?
ANSWER: Yes. It is the Committee's conclusion that Attorney A,acting as trustee under both deeds of trust in question, can proceed with the foreclosure sale, unless some judicial order preventing the sale is obtained by the buyer. This is conditioned, however, upon the Committee's conclusion that only the trustee's fee will be charged against the proceeds in the event of foreclosure and there is no attempt by the law firm to collect an attorney's fee, in addition to the trustee's fee, from the proceeds of the foreclosure sale.
The Committee sees no difference in this partnership situation and the situation where a sole practitioner represents the holder of a note and he is also named as the trustee on a deed of trust to secure the note.
The fact that the buyer has sued the seller alleging fraudulent misrepresentation does not affect the validity of the deeds of trust, unless a judicial order enjoining the foreclosure is obtained by the buyer. Rendered January 25, 1979.
QUESTION: Is it proper for an elected Prosecuting Attorney to hold the position of City Attorney for a city within the same county?
ANSWER: Yes. The Advisory Committee has again considered the above question and again rules that there is no inherent conflict between the positions of Prosecuting Attorney of a county and City Attorney for a city within the county. (The Committee is aware that an opinion of the Attorney General's office holds contra.) Should circumstances bring about a conflict between the two positions with regard to a particular set of facts,then, like any other conflict question, it must be resolved.
In that case, it would not be proper for the attorney to represent either the county or the city. He should advise both political subdivisions that they should obtain other counsel to represent their interests in the existing circumstances. Rendered January 25, 1979.
C.ofInt. -94
QUESTION: Is it proper for a City Attorney to represent, as a private attorney, individuals who hold offices, such as mayor or a member of the board of aldermen of said city, in matters which are completely outside the scope of the city's operation and which is not in conflict with the city's interests?
ANSWER: Yes The fact that the attorney is the City Attorney of a city for which the prospective private clients are city officers, does not preclude the attorney's representation of any individual officer or member of the board of aldermen in matters which have no connection with the city and which arise out of the private business interests of said officers. This assumes that there is no conflicting city interest involved in the same matter. Rendered January 25, 1979.
QUESTION: "A" law firm has previously been asked and has undertaken to represent a hospital and/or its insurer in the defense of a medical malpractice case. Now that same firm is asked by a co-defendant physician on the staff of that hospital and/or his insurer, to defend the co-defendant physician. There is no effort made by either the hospital or the doctor to blame the other.
In other words, there is no controversy between those defendants and both are taking the position that neither did anything wrong, and the files were sent to "A" law firm by two different insurers.
"A" law firm has or will receive clearance from both of the defendants personally and from their respective insurers.
Under these circumstances may "A" law firm handle the defense of the hospital defendant and the doctor defendant in the same lawsuit by two different lawyers of the same firm?
ANSWER: Yes. It is the Advisory Committee's conclusion that if there is a solid agreement between the doctor and the hospital who are co-defendants in the malpractice action that no conflict exists between them and if they both agree that the same firm should represent them both, then it is permissible for one lawyer to represent both defendants in that case.
However, if in the course of the litigation, a conflict does develop between the co-defendants, then the "A" law firm would have to withdraw from representation of both defendants and could not elect to stay with one and withdraw from the other one. Rendered January 25, 1979.
QUESTION: The following possible conflict of interest factual situation is submitted to the Committee for its comments and suggestions.
Attorney A is a partner with Attorney B. Attorney B is a part time assistant prosecuting attorney in Cole County, Missouri. Attorney A is requested by the United States District Court to accept an appointment to represent an inmate of the Missouri Department of Corrections to represent said inmate in a proposed civil rights lawsuit to be filed in District Court alleging violation of the civil and constitutional rights of said inmate and naming as defendants therein the warden, guards and other employees of the Missouri State Penitentiary.
Those named defendants would be represented by the Office of the Attorney General of the State of Missouri.
a. Should Attorney A undertake to represent this inmate under these circumstances?
b. Would the opinion of the Advisory Committee be changed if the State of Missouri and/or the Department of Corrections were included as named defendants in this proposed lawsuit?
a. No. The Advisory Committee is of the opinion that Attorney A should not represent the inmate in his civil rights action against the warden and guards employed at the penitentiary since his partner, Attorney B, is an assistant prosecuting attorney in Cole County, Missouri.
While there would not be an actual conflict of interest in such representation, since the defendants are to be represented by the Attorney General's office, the situation would give the appearance of impropriety which the Committee feels the public would not understand.
b. If the State of Missouri or the Department of Corrections were to be named as a party defendant in the proposed lawsuit, then it is the opinion of the Committee that a clear conflict of interest would exist and Attorney A could not represent the proposed plaintiff.
Rendered March 2, 1979.
QUESTION: The following ethical question is submitted to the Committee.
Attorney A is employed by the city council of a fourth class city as special counsel to handle a civil suit regarding annexation in the circuit court of that county.
This city has a separate city attorney who handles all prosecutions for violations of city ordinances in the municipal court of said city.
Does the employment of Attorney A as special counsel disqualify him from appearance in municipal court representing defendants therein.
ANSWER: No. The Committee is of the opinion that the limited employment of Attorney A as special counsel in the annexation matter does not prohibit him from representing defendants in the municipal court of that city. Rendered March 2, 1979.
QUESTION: An attorney submits the following factual situation for the Committee's examination for possible conflict of interest.
Attorney A represents Mr. S in a criminal case in 1975. The result of that case was that Mr. S pleaded guilty to a charge of assault and was put on probation by the court for a period of two years.
Attorney A also represented Mr. S when Mr. S had his driver's license revoked in 1975 and again in 1977 when Mr. S's marriage was dissolved.
In an unrelated case, Mr. and Mrs. C's marriage is dissolved in 1978, with Mrs. C being granted custody of the sole child and reasonable visitation rights are granted to Mr. C.
Thereafter, in 1978, Mrs. C marries Mr. S and words are had between Mr. C and Mr. S.
In 1979 Attorney A undertakes to represent Mr. C in a motion to modify the decree between Mr. C. and Mrs. C (now Mrs. S), in which Mr.C is seeking custody of the child born to Mr. C and Mrs. C.
Mr. C states to Mrs. C (now Mrs. S) that a major part of his reason for a change of custody motion is that he doesn't like Mr. S's "past".
Should Attorney A continue to represent Mr. C under these circumstances?
ANSWER: No. It is the opinion of the Committee that since Attorney A will have to cross-examine his former client (Mr. S) and might be restricted in such by confidential information he obtained from his former client, the attorney should not represent Mr. C without the consent of Mr. S, and then only after a full disclosure is made to Mr. C of his previous representation of Mr. S. If these conditions are complied with,Attorney A can continue to represent Mr. C. Rendered March 3, 1979.
QUESTION: Would an attorney who is employed by a county,under contract for the sole purpose of enforcement of child support under Title IV-D, be permitted to serve a municipality located within the same county as an associate circuit judge -- municipal division?
ANSWER: Yes. It is the opinion of the Committee that there would be no ethical violation for an attorney employed by a county, under contract for the sole purpose of enforcement of child support under Title IV-D, to serve a municipality located within the same county as an associate circuit judge -- municipal division.
The same emphasis is placed on the contract of employment as was included in our informal opinion rendered on June 16, 1978, see Summary 4/1/1978 to 6/30/1978, Question No. 22. (Editor's Note: See C. of Int.-62)
That opinion stated in part: "We stress that the contract of employment should be in writing and it must be very specific to delineate the specific duties of his employment and to screen that attorney from any other information available in the office of the prosecuting attorney."
Rendered March 23, 1979.
QUESTION: An attorney employed by a legal services program is appointed to serve as guardian ad litem for a juvenile in an abuse and neglect proceeding in Juvenile Court wherein it is alleged that the juvenile has been abused by his parents. Subsequently a municipal charge of assault of the juvenile is lodged in Municipal Court against the parents. The parents, who are indigent, request appointment of counsel.
May an attorney employed by the same legal aid program be appointed by a municipal judge to represent the parents.
ANSWER: No. It is the opinion of the Committee that an attorney employed by the same legal aid program cannot be appointed by the municipal judge to represent the parents in a charge of abuse of a juvenile when an attorney from the same legal aid office has been previously appointed to serve as guardian ad litem for the same juvenile in an abuse and neglect proceeding in the Juvenile Court.
We think this is a very apparent conflict. The same attorney clearly could not be appointed and the same restriction applies to any other staff attorney in the office. Rendered March 23, 1979.
QUESTION: An attorney represents two co-administrators of an estate.
Decedent had deeded one-half interest in certain real property to a son, who is one of the co administrators, and said grantee agreed to "make it right" with the other heirs.
Can the attorney undertake to represent the heirs in a suit against the son-grantee to enforce a constructive trust on the real property?
ANSWER: No. A majority of the Committee holds that the attorney already represents the son-grantee as a co-administrator of the estate, who is one of the potential defendants in the lawsuit. Thus, the majority feel that there is a conflict of interest in this case.
The entire Committee share the opinion that whether or not an actual conflict exists, there is such an appearance of impropriety in the matter that the attorney should not undertake to represent the other heirs. Rendered March 23, 1979.
C.ofInt.- 108
QUESTION: Attorneys A and B represent a number of amusement and vending machine companies regarding an investigation conducted by the Anti-Trust Division of the State Office of the Attorney General. The Attorney General's Office commenced discovery proceedings and certain civil investigative demands were served upon a number of A and B's clients. Some of said clients were subpoenaed to appear before the county grand jury.
Discussion was had between Attorneys A and B and the Assistant AG handling the investigation whereby the question arose whether A and B could continue to represent a number of the clients involved in the investigation or whether A and B should withdraw from representing said numerous clients.
It is the position of A and B that since no formal charges, either civil or criminal, have been filed against any of their clients involved in the investigation and until such charges were filed, they could continue to represent all of their numerous clients.
At the time of submission, no conflict of interest had developed regarding the numerous clients of A and B.
Can A and B continue to represent their numerous clients involved in the investigation?
ANSWER: Yes. It is the opinion of the Committee that A and B have no present obligation to withdraw from the representation of their multiple clients; but if a conflict of interest does appear in the future, then it may be necessary for A and B to withdraw from representation of all clients, depending upon the nature of the conflict of interest. There is no obligation to withdraw from representation of multiple clients until a conflict of interest does appear. The mere possibility of a conflict is not sufficient reason to state that an attorney must forego representation, so long as the client fully understands the situation and desires the representation to continue. Rendered April 19, 1979.
QUESTION: Is there any conflict of interest when an attorney is a member of the Landmarks Commission of the city and at the same time continues to represent defendants in municipal court charged with violation of city ordinances?
ANSWER: No. Rendered April 19, 1979.
C.ofInt.- 110
QUESTION: A Criminal defense attorney submits the following factual situation for advice:
1. May a lawyer represent a defendant in a criminal charge in the county where his spouse is employed as an assistant prosecuting attorney in the prosecutor's office bringing the charge?
2. If the Committee's opinion in the above question is in the affirmative, what disclosure to the defendant is necessary, and secondly,should there be a formal record made by the defendant and his counsel?
1. Yes. It is the Committee's conclusion that a lawyer, whose spouse is employed as an assistant prosecuting attorney, may represent a defendant on a criminal charge. This is true, even though the spouse, as assistant prosecuting attorney, was responsible for the screening of police files, filing of complaints, information, and presentment to the grand jury.
2. Yes. A record should be made to protect the defense attorney and the record from a possible attack by a 27.26 motion. The attorney should disclose to the defendant on the record the fact that his spouse is an assistant prosecuting attorney and obtain the consent of the defendant, on the record, to his continued representation. From the prosecutor's standpoint, if he knows that the defense attorney is married to the assistant prosecuting attorney, he should insist on the above mentioned disclosure on the record to protect against a potential post-conviction motion.
Rendered May 18, 1979.
[Rule 4 1.7(b); 1.8(i)]
QUESTION: A first class prosecuting attorney's office submits the following inquiry. It concerns all IV-D cases, statutory trusteeships, and criminal non-support cases referred to the office by the Division of Family Services.
Problem 1. The Prosecutor's Office is also required to prosecute welfare fraud cases, which are referred to them after investigation by the Division of Investigation of the Department of Social Services. In those cases where fraud was used to obtain an AFDC grant, the prosecutor is asked to prosecute a client on whose behalf he is trying to collect child support. Is there a conflict of interest?
Problem 2. Occasionally one of the AFDC recipients, represented by the support enforcement attorney, is charged with an unrelated crime. Is there a conflict of interest? Should special procedures be used in handling these cases?
Problem 1. No. It is the conclusion of the Advisory Committee that no conflict of interest exists in the prosecution of welfare fraud cases, even though the office is engaged in the collection of monies to be paid to the Division of Family Services in reimbursement of AFDC grants. The monies collected from the non-paying parent are returned to the state and the state is prosecuting the grant recipient for fraud in obtaining the grant in the first place. The Committee does not see a conflict of interest in that situation.
Problem 2. No. The Committee sees no conflict of interest when one of the AFDC recipients is charged with an unrelated crime and we see no special procedures being necessary in handling those cases.
Rendered June 28, 1979.
QUESTION: A, represented by firm X, files suit against B and C.A and B had entered into a contract whereby B agreed to construct a residence for A. Count I of the lawsuit claims breach of contract by B. C is the real estate agent and is named as defendant in Count II of A's petition because C agreed at the closing to hold certain funds in escrow until resolution of a dispute as to whether certain work performed by B was within the scope or outside the scope of the contract. C has been represented in the past by a partner of firm X.
Assuming firm X obtains the consent of A and C to the following,can law firm X enter its appearance or on behalf of C and file an inter pleader for the purpose of turning over the escrow fund to the court and then have C discharged from the lawsuit?
ANSWER: No. It is the opinion of the Advisory Committee that the action proposed on behalf of the real estate agent C could only be undertaken with the consent of all parties to the lawsuit. It would require the consent of A, B and C as outlined in the above fact situation and not just A and C. If B objects, then C will need to obtain separate representation. Rendered August 3, 1979.
QUESTION: Attorney A originally consulted with individual plaintiffs and the school district plaintiff and participated in the drafting of original petition involving class action litigation. In a ruling of the court on preliminary matters, the parties are realigned by order of court and the original party plaintiff school district represented by Lawyer A was realigned as a party defendant.
Lawyer B is then retained by individual plaintiffs to draft and file the first amended petition. Lawyer A has conferred with Lawyer B in the drafting of the amended petition and Lawyer A now seeks to enter his appearance as additional counsel for the individual plaintiffs.
A. Is Lawyer A in a position of conflict of interest if he undertakes to represent the individual party plaintiffs in the above action?
B. Is Lawyer B in a position of conflict because of his conferring with Lawyer A?
A. It is the opinion of the Advisory Committee that Lawyer A would be in a position of conflict if he undertakes representation of the individual plaintiffs in the action.
B. It is the further opinion of the Committee that Lawyer B is also in a position of conflict because of his association and consultation with Lawyer A.
Rendered August 3, 1979.
QUESTION: The prosecuting attorney prosecuted a driver for failure to yield the right of way to another vehicle and secured a conviction in circuit court. Thereafter, the husband of the deceased passenger in the other vehicle filed suit for wrongful death against the convicted driver and an amended petition is filed joining the county as a party defendant, for the reason that the negligent driver was alleged to have been an employee oft he county at the time the accident occurred.
Can the prosecuting attorney represent the interest of the county solely in the civil litigation after previously prosecuting the driver?
ANSWER: No. It is the view of the Advisory Committee that the prosecutor, having prosecuted the defendant on the charge of failure to yield the right of way, was disqualified from representing the county in the civil litigation which has arisen out of the same accident. The Committee has consistently held that when a party to an accident is prosecuted for a criminal violation, then the prosecuting attorney is disqualified from participating on either side of any civil litigation arising out of the same incident and the same set of facts. Rendered August 29, 1979.
QUESTION: What ethical problems are presented when the same lawyer represents both driver and passenger of a motorcycle who were killed in a collision with another vehicle that was driving on the wrong side of the road. There is no evidence of negligence on the part of the driver of the motorcycle and both the driver and the passenger of the motorcycle were minors.
A full and frank discussion has been had with the parents of both deceased boys. It is agreed by all parties, including counsel, that a separate action should be brought for each and that the driver's action should be brought first to avoid consolidation. The attorney submits the following questions;
1. Is it ethical for the law firm to represent the parents of both the driver and the passenger of the motorcycle with respect to their claims, if the lawsuits are directed solely against the owner and operator of the other vehicle as the sole defendant?
2. If, in the passenger's lawsuit, a third party petition is filed by the other driver against the motorcycle driver's estate, which would be defended by the motorcycle driver's insurer and a guardian ad litem appointed for that defendant, is it still ethically proper for the law firm to represent the survivors of the motorcycle passenger on their death claim?
3. Assuming the law firm in the passenger's death case, for technical reasons, includes as defendant a guardian ad litem for the deceased motorcycle driver, can the law firm ethically pursue the passenger's lawsuit while at the same time representing the mother of the motorcycle driver?
ANSWER: The Committee views the factual situation submitted as one wherein a possible conflict can arise in the representation of the parents of the driver and the parents of the passenger on the motorcycle. This conflict can be waived, however, and if the waiver is obtained, it is permissible for the attorney to take all the actions set out in Questions 1,2, and 3.
The Committee suggests that all waivers of conflict be obtained in writing and the parents of the passenger be given an opportunity to consult outside counsel on the question of whether or not the driver of the motorcycle should be named as a party defendant in their lawsuits. Rendered August 29, 1979.
QUESTION: The ABC law firm represents X and Y, who are officers and sole stockholders of Z Corporation. Z Corporation got into financial difficulties and the ABC law firm filed a voluntary petition for bankruptcy for the Z Corporation. A trustee was appointed and he filed suit against the bonding companies of Z Corporation alleging that the officers had loaned funds of the corporation without corporate authority. ABC law firm appeared representing the stockholder X at his request on the third party petition filed against him therein.
The trustee felt that an anti-trust suit for the corporation against certain eastern financial interests was necessary and X and Y urged the ABC firm to institute the anti-trust action and consented to ABC firm's institution of same. The bankruptcy judge authorized the ABC firm to proceed and the cause is still pending.
Now X seeks to withdraw his consent to the ABC firm's representation of the trustee in the anti-trust case.
ABC firm has advised X that they will withdraw from representing him in the bonding company case, but that they felt it unfair and not proper to withdraw from the anti-trust case at this time.
What action should ABC firm take?
ANSWER: The Committee concludes that by giving his initial approval to ABC firm's representation of the trustee in the anti-trust action, X cannot, at a later time, interrupt that attorney-client relationship with the trustee by withdrawing his approval to ABC's continued representation. This ruling assumes that there is no substantive conflict of interest between ABC firm's representation of the stockholder in the bond case and ABC firm's representation of the trustee in the anti-trust case.
If X desires that ABC firm withdraw from representing him in the bonding case, then ABC firm should do that. But in absence of a substantive conflict, the Committee believes the initial waiver of the conflict of the parties is continuing and not subject to the whims of the client. If a substantive conflict does develop in the future, it would be necessary for ABC firm to withdraw from representation of both parties. Rendered August 29, 1979.
QUESTION: Plaintiff was an employee of X Transportation Company, who received substantial personal injuries while working in the railroad company yard. X Transportation Company is a wholly owned subsidiary of the Railroad Company. X Transportation Company is qualified as self-insurer for state workmen's compensation act. X Transportation Company hires an attorney in ABC law firm to represent its interest and to process plaintiff's workmen's compensation claim.
Thereafter, plaintiff files his lawsuit against the Railroad Company under the Federal Employer's Liability Act and the Railroad Company hires an attorney in the ABC law firm to defend the railroad's interests. The entire workmen's compensation file of X Transportation Company is turned over to that attorney for use.
Is it ethical for attorneys of the ABC firm to represent the interest of the railroad company in defense of this action?
ANSWER: Yes. Under the above facts, there is a conflict of interest between the Railroad Company and the X Transportation Company. But those two entities can waive any conflict of interest which exists between their separate interests so that the continued representation of the Railroad Company by the ABC firm would not be unethical. Since the X Transportation Company is a wholly owned subsidiary of the Railroad Company, we assume that this has been done. Rendered August 29, 1979.
QUESTION: Attorney A was appointed to represent a criminal defendant. Attorney A talked with the criminal defendant on numerous occasions concerning the facts of the case. Attorney A attempted to negotiate plea bargaining; criminal defendant refused to accept prosecutor's offer. Attorney A filed numerous motions regarding the particular charge and after client obtained money, client retained Attorney B, Attorney A withdrawing from the case. Subsequently, two years later Attorney A is employed by a city to defend a policemen charged with violation of the former client's constitutional rights with regards to an unrelated incident which occurred after Attorney A had withdrawn from representation of the former client.
Can Attorney A represent the policeman, when Attorney A's former client becomes the government's prosecuting witness against the policeman?
ANSWER: It is the opinion of the Committee that it is permissible for Attorney A to defend the policeman charged with the violation of former client's constitutional rights, unless information obtained in the course of the attorney-client relationship with the former client could be used against him on cross-examination.
If that were true, then the representation would be improper. Rendered August 29, 1979.
QUESTION: The Committee en banc reconsidered its informal opinion rendered on June 16, 1978 on the question of Assistant Prosecuting Attorneys who were hired for the exclusive purpose of collecting child support judgments on cases referred to the Prosecuting Attorney's office by the Division of Family Services.
ANSWER: Informal opinion of June 16, 1978 reaffirmed. The Committee concludes that such specially hired Assistant Prosecuting Attorneys or any members of their firms (so long as the restrictions imposed in the informal opinion are met) can properly represent criminal defendants as court appointed or retained attorneys; they and their firms can also represent clients in civil or administrative proceedings in front of or involving other state agencies (with the exception of the Division of Family Services). Such an Assistant Prosecuting Attorney can oppose another Assistant Prosecuting Attorney or the Prosecuting Attorney of the same county in civil litigation, if they both disclose to their respective clients their relationship as Prosecuting Attorneys and both clients consent to such representation. Rendered September 7, 1979.
C.ofInt.- 124
QUESTION: A and B are father and son, who are adults whose side in the same residence. The son B, has retained Law Firm D to represent him individually in a replevin suit to regain custody of personal property owned by B.
A third party X desires to retain Law Firm D to represent her for personal injuries and damages sustained by X as a result of an automobile collision between vehicles owned by X and A.
Can Law Firm D represent X and her personal injury claim against A?
ANSWER: Yes. It is our opinion that Law Firm D may accept employment offered by X to represent her in her personal injury claim against A, who is the father of another client of said firm. This is true even though the father, A, and the firm's present client B reside in the same residence. There is no conflict of interest in this factual situation.
The Committee points out that if Law Firm D undertakes there presentation against the client B's father, then client B may take a "dim view" of the action by Law Firm D and may seek other counsel. Rendered October 18, 1979.
QUESTION: Attorney X is consulted by the wife about representing her in a dissolution matter. Attorney X is not employed by the wife and she later obtained a different attorney who filed and later dismissed a dissolution action for her.
Several years later another dissolution action was filed and tried by attorneys other than Attorney X, and the case proceeded to judgment.
The former husband then consulted Attorney X to complete the after-trial matters and Attorney X contacts the present attorney for the wife. That attorney, after consulting the wife, advised Attorney X that they had no objection if he undertook to represent the former husband.
Later, the wife, through her attorney, sought to withdraw her consent to the representation of the husband by Attorney X.
Can Attorney X continue to represent the husband under these facts?
ANSWER: Yes. It is the conclusion of the Committee that if Attorney X had obtained the consent of the opposing party and her attorney before he undertook to represent the husband, Attorney X can ethically continue in the representation unless there is a substantive conflict. If Attorney X doesn't see a substantive conflict but the opposing party and her attorney do, then they are free to file a motion to disqualify Attorney X on the basis of such conflict. The trial court clearly has jurisdiction to rule on the question. Rendered October 18, 1979.
C.ofInt.- 126
QUESTION: Can a Prosecuting Attorney, who is permitted to engage in outside civil practice, represent the former wife in an action to modify the decree of divorce or dissolution? He has previously filed a criminal case against the respondent husband and then dropped the charge when the complaining witness wouldn't testify.
Does the fact that he formerly filed criminal charges against the proposed respondent prevent him from undertaking to represent the petitioner-movant-wife in this case?
ANSWER: No. The Committee's opinion is, since the criminal action against the former husband has been dropped and the Prosecuting Attorney has no pending charge against him, the fact that the Prosecuting Attorney once filed a charge against the husband does not disqualify the Prosecutor from representing the wife on the civil motion to modify. The prohibition is against prosecuting an individual and undertaking at the same time to represent an adverse party against that same individual in a civil matter. Rendered October 18, 1979.
QUESTION: Attorney A is a member of the Board of Directors of a Savings and Loan Association. Attorney A is also engaged in the private practice of law. Borrower B desires to secure a loan on residential property from the Savings and Loan Association.
The Savings and Loan Association advises Borrower B, in writing,that certain legal work will be required in order for Borrower B to obtain his loan and further advises Borrower B that he may choose any attorney he desires to do such legal work.
The legal work includes preparation of a note, deed of trust, a title opinion to the Savings and Loan Association and, possibly, the drafting of a deed and other necessary documents. Borrower B, for the reason that he has always used Attorney A or now desires to use Attorney A does, in fact,request that Attorney A do the required legal work.
The Savings and Loan Association then advises Borrower B that due to Missouri law (Revised Statutes of Missouri Chapter 408.052) that the attorney fees and charges will be billed separately to Borrower B and Burrower B will need to make payment for said services directly to Attorney A.
Is it unethical or improper for Attorney A to do the required legal work for Borrower B and to bill Borrower B directly and collect from him?
ANSWER: No. It is our opinion that so long as the borrower is advised that Attorney A, whom he intends to retain, also represents the Savings and Loan Association from whom the borrower is obtaining the loan, then it is proper for the attorney to render the legal service and for him to bill the borrower direct for said service. Rendered October 18, 1979.
QUESTION: Can an attorney properly act as counsel for a fraternal insurance association to which he has previously provided legal counsel and advice, after he has filed a lawsuit against said association for alleged breach of contract of employment?
ANSWER: Clearly, the attorney cannot give advice to the association with regard to the lawsuit he filed as plaintiff against the association. As to any other matters, if the association desires that the attorney continue to advise it, he may do so. That lies within the province of the client (association) to decide. Rendered November 2, 1979.
C.ofInt.- 129
QUESTION: A is the city attorney for M. He is appointed to represent, on a felony charge, a certain defendant. The offense occurred just out of the city limits of M, but the offense was investigated jointly by M city police and the county officers.
Can he serve as the court appointed counsel for the defendant in the above case?
ANSWER: Since the attorney is the city attorney for the city of M and because it appears that M city officers will be called as witness for the State, it is the opinion of the Advisory Committee that the attorney should withdraw from representing the defendant. The events occurred outside the city limits of M in this case (See Formal Opinion No. 107 as modified,which does use the city limits as a line of demarcation) but because of the involvement in the investigation of M city officers, the reasoning which prohibits such representation if the offense occurred within the city is equally applicable here. Rendered November 2, 1979.
QUESTION: "A" law firm is general counsel for XYZ Hospital. XYZ Hospital carries liability insurance.
A patient claims he fell off an operating room table during surgery and files suit against the hospital, the operating room surgeon and the anesthesiologist. The anesthesiologist has malpractice insurance; the operating surgeon has none.
The hospital and anesthesiologist are represented in this litigation by attorneys employed by their respective insurance carriers.
The surgeon seeks to employ "A" law firm to represent him in the litigation. The hospital has no objection if "A" law firm undertakes to represent the surgeon.
Can "A" law firm ethically represent the surgeon?
ANSWER: Yes. The surgeon has promised that the hospital and the surgeon will not try to push the blame upon the other and both liability carrier and hospital will give their written consent. The Committee believes that "A" law firm can represent the surgeon, upon the condition that a full disclosure to him of the law firm's employment by the hospital is made and a complete exploration of the possible lines of defense is given to him. The law firm will also need a written waiver of the conflict of interest by the surgeon which comes about due to the on-going attorney-client relationship with the hospital, which is a party defendant in the same case. See also precious opinion rendered by the Committee on January 25, 1979.Rendered November 29 1979.
QUESTION: John Doe is an attorney member of a country club and also a member of its Board of Governors. He represents A who is a fellow member of the club who sustained personal injuries on the club's grounds. The club is fully insured.
A. Can John Doe attorney represent A in his claim for personal injuries against the country club?
B. Will the answer change if John Doe resigns from the Board of Governors?
A. No. It is the opinion of the Committee that the lawyer cannot accept representation of A against the country club since the cause of action arose while the lawyer was on the Board of Governors of the country club.
B. No. Resignation from the Board of Governors would not cure the conflict which arose at the time that the cause of action did. Therefore, if John Doe has undertaken representation of A, it is the Committee's opinion he should withdraw from the case and advise A to seek other counsel.
Rendered December 14, 1979.
QUESTION: The attorney represents the natural mother and guardian of the person and of the estate or three minor children whose father was killed in an industrial accident. The attorney filed a wrongful death action against the alleged tort-feasors in a different county.
The attorney also represents the administratrix of the estate of the decedent, and said administration is currently pending in L County,Missouri. The administratrix of this estate is the decedent's sister.
A claim against the decedent's estate is filed by the stepfather and natural mother of the decedent and administratrix. The claim is for back rent allegedly owed by the decedent to the step-father and natural mother for the last four years in the total sum of $4,080.
The only beneficiaries of the decedent's estate are the three minor children of the decedent (the natural mother of said children having divorced decedent prior to his death).
Administratrix desires to consent to the claim in full. The attorney,under belief that there are several defenses to the claim, advises the administratrix not to consent to the claim but does allow her to waive services of same.
What should the attorney do?
ANSWER: In the opinion of the Committee, the attorney can continue to represent the administratrix, but should request the court to appoint an administrator ad litem for the purposes of representing the estate on this claim, just as if the administratrix herself had a claim against the estate. This is necessary because the administratrix has stated her intention to testify on behalf of the claimants. Rendered December 14,1979.
C.ofInt.- 135
QUESTION: A law firm is employed in a personal injury case by a patient riding in a public ambulance to the hospital. The ambulance is owned by the County Ambulance Board and leased to a city within the county for operation by the city's drivers. After accepting the employment,one of the partners of the firm is appointed as City Municipal Judge.
A. Can the firm continue to represent the client on the personal injury case, if the city is a defendant?
B. Does the answer change if the city is not a defendant?
A. In the Committee's opinion, in view of the fact that the partner has become the Municipal Judge for the city, there would be a conflict of interest and the firm could not continue to represent the client in the claim against the city.
B. If the city is not a defendant (and the propriety of that course of action has been cleared with the client) then the firm can continue to represent the client against the County Ambulance Board. Rendered January 21, 1980.
C.ofInt.- 136
QUESTION: Attorney "A" represents a utility company in collection matters for a period of time. All matters have, in fact, either been taken to judgment or the collection accounts have been closed by Attorney "A". Approximately six months later, Attorney "A" makes a demand upon the same utility for damages to a third party client of Attorney "A". The utility company raises the question of whether or not Attorney "A" is involved in a conflict of interest problem in that he has, in the past, represented the utility company in collection matters.
Can Attorney "A" represent a third party claimant against a utility company when, in fact, Attorney "A" has no outstanding cases pending on behalf of the utility company?
ANSWER Yes. So long as Attorney "A" has completed the cases prior to undertaking the other, there is no conflict in the absence of confidential information being used or disclosed. The prohibition is against representing a client and suing the client at the same time. The fact that an attorney has once represented a client does not mean that he cannot later undertake representation against the client. In this situation, Attorney "A" can represent a third party claimant against the utility company when there are no outstanding cases pending on behalf of the utility company so long as the attorney did not obtain any confidential information which could be used or disclosed during the representation of the utility company. Rendered January 24, 1980.
C.ofInt.- 140
QUESTION: In a proceeding for a dissolution of marriage, the father of a minor child alleges unfitness on the part of the mother and requests that custody be awarded to the paternal grandparents. The paternal grandparents enter as intervenors, also alleging unfitness on the part of the mother and requesting that custody be awarded to them.
Can Attorney "A" ethically represent both the father and the grandparents, in the absence of an actual conflict; or, does the mere potential for conflict or for collusion require that both the father and the grandparents seek independent legal counsel? Must Attorney "A" withdraw as counsel for both the father and the grandparents, or may he continue as representative of one but not the other?
ANSWER: In our opinion, so long as the father of the minor child and the paternal grandparents are requesting the same results, then there is no conflict of interest. The attorney can continue to represent all parties. Rendered January 24, 1980.
QUESTION: A Public Defender submits the following questions:
1. A and B are co-actors in a crime. Upon arraignment, both are indigent. The Public Defender is appointed to represent A. Attorney Smith is appointed to represent B. Prior to conclusion of either case, the Public Defender appoints Attorney Smith as a Special Assistant Public Defender for a two-week period during the Public Defender's absence.
If no action is taken on the case of either A or B during the period of time that Smith is a Special Assistant Public Defender, is there a conflict created that would require the appointment of new counsel for A and/or B?
2. A commits multiple stealing offenses. He disposes of the property to B, C, D, E and F. B, C, D, E and F do not receive the property with any knowledge of the others' participation. All defendants (A, B, C, D, E and F)are indigent. It is obvious that the Public Defender could not simultaneously represent A and any of the other defendants based on Holloway v. Arkansas.
If a member of the private bar were appointed to represent A,could the Public Defender represent B, C, D, E and F where the only connection between them is that they received stolen property from the same individual (A)?
1. No. It is the Committee's opinion that no conflict is created by the appointment of a private attorney to act as Special Assistant Public Defender for a two-week period during the Public Defender's absence which would necessitate withdrawal of that individual from other litigation where he represents criminal defendants. On matters where the Public Defender and private attorney are appointed to represent co-defendants there would be no requirement for the appointment of new counsel for either defendant if no action was taken on either case during the period when the private attorney is acting as the Special Assistant Public Defender.
2. Yes. If a member of the private bar is appointed to represent the defendant who commits multiple stealing offenses, the Public Defender could represent the other defendants charged with receiving the stolen property if there is no connection between any of the defendants except the fact that they received stolen property from the same individual. Rendered February 29, 1980.
C.ofInt.- 142
QUESTION: A law firm is retained as attorneys for a pre-paid legal plan. A participant of the plan consults the firm seeking advice on a different plan which the client was intending to sell which would assist persons in the evasion or nonpayment of federal income taxes. The law firm advised the client that such scheme was illegal and that he should not attempt to go through with it.
Thereafter, the client formed a corporation and sold his plan which included a pre-paid legal plan for that plan's members.
Can the law firm represent persons who have claims against its former client or are they prevented from the possible conflict of interest,they must decline such employment?
ANSWER: It is the opinion of the Advisory Committee that the law firm may not represent persons in civil actions against an individual where the firm has previously advised that individual, even though the firm's advice to him was that the scheme was illegal and he should not attempt to go through with it. Rendered February 29, 1980.
C.ofInt.- 143
QUESTION: A lawyer has been appointed as guardian ad litem in a juvenile court matter affecting "X", daughter of "A" and "B". At that point in time, the juvenile office had assumed jurisdiction over "X" and "A" and "B"are fighting in a dissolution case additionally over her custody. The attorney's representation of "X", however, is limited to the juvenile court matter which has been set for a hearing in front of the juvenile judge. The attorney is consulted by "Z" and is requested to represent "Z" and his wife in a matter wherein they are sued as third party defendants in the dissolution action brought by "B" against "A", and in the third party petition against "Z", "B" requests that "Z's" deed be set aside as a deed that was given in fraud on "A" marital rights and is actually marital property and that "Z" obtained the property in fraud of her marital rights.
Does the attorney have a conflict of interest by reason of representing the juvenile "X" and "Z" in the third party petition'~
ANSWER: No. It is the opinion of the Advisory Committee that there is no conflict of interest in the above fact situation in which the attorney represents the juvenile and "Z", the defendant in the third party action which seeks to set aside the deed previously given to that individual. The fact that the lawyer represents the daughter of the parties to the dissolution action in a separate juvenile court proceeding creates no conflict of interest preventing such representation. Rendered February 29,1980.
QUESTION: Can the holder of a special power of attorney from a client institute incompetency proceedings against that former client?
ANSWER: No. It is the opinion of the Committee that the holder of a special power of attorney cannot properly initiate an in competency proceeding and thus become in an adversary position to his client. If an incompetency proceeding should be started, it is a matter for the court to decide whether or not the public administrator should he informed of the situation. Whether the checking account of the client could properly be used to pay for any expenses or fees in such a proceeding is a legal question and outside the jurisdiction of this Committee. Rendered February 29, 1980.
[Rule 4 1.7; 1.14]
C.ofInt.- 146
C.ofInt.- 148
QUESTION: "A" law firm has become counsel for a Cooperative. Approximately six months later a strike of employees of the Cooperative commenced and all striking employees of the Cooperative have been replaced. The union, the striking employees and friends seek to have the Board of Directors dismiss the Cooperative manager. Another circulating petition charges malfeasance and negligence against the Board of Directors.
The same law firm is also representing several school boards in lawsuits filed by teachers who allegedly have been terminated for alleged union activities. One S and one L were members of the School Board of one community and they are at the same time highly active in the union committee seeking to oust the Board or Directors of the Cooperative.
Can "A" law firm act as counsel for the Cooperative in a lawsuit brought by L and others and, at the same time, act as counsel for the School Board in which L and the School Board are named parties? Is there a conflict involved?
ANSWER: In view of the attorney's proposed "full disclosure "before undertaking such representation to both the School Board and the Cooperative and procuring from each client an agreement that they understood the situation and agreed to the respective representation of both parties, we believe such disclosure by the law firm to each client would cure any possible conflict if one does exist. Rendered March 7, 1980.
C.ofInt.- 149
QUESTION: In October of 1978 firm "AB" split into two firms, one being headed by "A" and the other being headed by "B". Since that time, the new firms "A" and "B" continue to share the same building and act entirely separate from one another.
In 1977 firm "AB" represented a client in a real estate transaction and auto accident. After the firm split, a new client contacted "A" firm to pursue a claim against a former client of "AB". The defendant sought services of the new firm headed by "B". The firm now headed by "B" has withdrawn from representing the defendant. "A" has knowledge from prior representation which is potentially damaging to former client. The new firm headed by "A" submits the following questions, as representing plaintiff:
1. Is "A" in conflict in any way by representing the potential plaintiff?
2. Is "A" in conflict in any way with the potential defendant and former client of "AB"?
3. If "A" is in conflict with the potential defendant as a result of information that has come to light, since their representation of plaintiff, is "A" ethically bound not to disclose any information in "AB" file in referring the individual to another attorney, even if withholding the information might seriously jeopardize a potential recovery for the plaintiff?
1. Yes.
2. Yes.
3. Yes.
It is the opinion of the Advisory Committee that the firm headed by "A" cannot represent the potential plaintiff in the matter about which advice is requested. Having represented the potential defendant in a real estate transfer in question while the firm of "AB" was in existence, the firm now headed by "A" cannot fully represent the plaintiff as against that defendant. Neither can the firm headed by "A" reveal to the plaintiff or any other attorney representing him any information which he has which might prove to be a detriment to the defendant growing out of the real estate transfer in which "A" and "B" represented him. In short, the Committee believes all the answers to the three questions propounded is "Yes". Rendered March 7, 1980.
C.ofInt.- 150
QUESTION: Attorney A has been requested to enter his appearance as co-counsel for plaintiff in a civil rights action presently pending in County X. The petition seeks damages for personal injuries allegedly sustained by plaintiff as a result of a being allegedly delivered by a city policeman employed in a city within County X.
Attorney A is the elected prosecuting attorney of County Y whose term expires in 1980. Attorney A has a private practice in County Y.
Is Attorney A disqualified from undertaking private employment in the above case?
ANSWER: No. It is the opinion of the Committee that there is no prohibition against Attorney A acting as co-counsel and representing plaintiff in the above case. Rendered April 4, 1980.
C.ofInt.- 151
QUESTION: "A" Law Firm has hired as a law clerk a first year law student, whose father is a Judge.
a. Is it unethical for any practicing attorney in the "A" Law Firm to appear before that particular Judge?
b. What duty rests upon "A" Law Firm to advise opposing counsel of the relationship between its law clerk and the Judge?
a. In the Committee's view the initial responsibility for disclosing the relationship between the Judge and the law clerk rests with the Judge under Rule 2 of the Supreme Court, the Code of Judicial Conduct. It is not unethical for any attorney in "A" Law Firm to appear before the Judge in question.
b. If the Judge does not reveal the relationship, the Committee believes that the member of the firm handling the case should reveal it to opposing counsel. Rendered April 11, 1980.
C.ofInt.- 152
QUESTION: (Unrelated Situation 1 is not included).
Situation 2. Unrelated to Situation 1 except that A is the same attorney.
A is a stockholder, director, officer and general counsel of a corporation whose business is diversified into insurance sales, real estate sales, mortgage banking, and other activities which are permitted under certain licensing statutes of Missouri and for which the corporation is properly licensed. The corporation will as a matter of policy, pursuant to board resolution, disclose to its clients the entire interest of A in the corporation.
1. May A draw documents for the corporation to facilitate its providing to its clients those services for which it is licensed?
ANSWER: Situation 2.
The answer to this question depends on the kind of documents which are being drawn. The corporation may not provide documents for clients in such a fashion that it is engaged in the unauthorized practice of law. Neither may the corporation make an additional charge for the drawing of documents even if the drawing of the documents is proper in connection with the business transaction being carried on.
Situation 3.
May A engage in the private practice of law, providing ordinary legal services to persons who are or have been clients of:
a. The lobbying sole proprietorship.
b. The corporation of which he is counsel in matters not connected with the corporation.
ANSWER: Situation 3.
The answer to both questions a and b is yes. The lawyer may engage in private practice of law provided that such private practice does not place him in a conflict of interest with one of his other clients and his law office is not carried on in conjunction with other activities from the same office. Rendered May 23, 1980.
C.ofInt.- 154
QUESTION: Is it ethical for a Prosecuting Attorney in a third-class county to accept appointment by the Court as guardian ad litem in an incompetency proceeding?
ANSWER: In the Committee's view, if the subject of the proceeding is not to be a state supported patient, then we see no conflict in there presentation. If the ward would be a state supported patient, then we believe a conflict would exist. Rendered May 23, 1980.
C.ofInt.- 155
C.ofInt. -156
QUESTION: Plaintiff Corporation has retained AB Law Firm as its counsel on a contingent fee basis to represent it against Defendant Insurance Company for breach of contract. Ten years ago, Plaintiff Corporation, represented by Attorney M (who is not involved here)initiated suit against this same Defendant Insurance Company for the same claim for breach of contract. The prior suit was subsequently withdrawn by Plaintiff Corporation; Plaintiff Corporation now wishes to renew the suit because of the continuing nature of the breach.
Attorney A is now a partner in AB Law Firm. However, at the time of the original suit ten years ago, A was an associate of XYZ Law Firm,which was retained to represent Defendant Insurance Company in defense of Plaintiff Corporation's claim for breach of contract. Attorney A presently has no recollection of the specific facts and legal theories advocated by Plaintiff or Defendant ten years ago, but he apparently actively participated in the legal representation of Defendant Insurance Company at that time. Defendant Insurance Company has not yet retained XYZ Law Firm or any law firm to represent it in the defense of Plaintiff Corporation's claim.
If Attorney A agrees not to participate in any manner in the suit,should AB Law Firm continue to represent Plaintiff Corporation?
ANSWER: It is the Committee's opinion that AB Law Firm can continue to represent Plaintiff Corporation only if Defendant Insurance Company is apprised of Attorney A's present affiliation with AB Law Firm and consents to AB Law Firm's continued representation of Plaintiff. Rendered May 23, 1980.
C.ofInt.- 157
QUESTION: A number of years ago a grocery store owner in X County was a victim of a burglary in which several thousand dollars were taken from him. The defendant was apprehended, charges were brought by the P.A., defendant pled guilty to the charge, and was placed on probation and ordered to make restitution. For several years restitution was paid through the office of the Prosecuting Attorney and the payments were then forwarded by the Prosecutor to the owner of the grocery store.
Several years later a petition was forwarded to the P.A.'s office by the Missouri Department of Revenue in which the owner of the grocery store was sued for money damages for nonpayment of the Missouri Sales Tax, The P.A. obtained a judgment by default.
The Prosecuting Attorney never connected the grocery owner victim with the defendant in the Sales Tax case until after the judgment was obtained for the State against the grocery store owner.
The Prosecuting Attorney continues to be paid restitution by the defendant and the Department of Revenue of the State of Missouri wants the money as does the grocery store owner who now lives out of state.
What should the Prosecuting Attorney do under these circumstances?
ANSWER: It is the opinion of the Committee that the Prosecutor has no conflict of interest in proceeding as he has to date. He has been representing the State in both cases. As to the disposition of the money collected, the Committee believes the Prosecutor should file an inter pleader suit or possibly file a motion in the pending probation case seeking direction from the Court. Rendered May 23, 1980.
[Rule 4 1.7; 1.15(c)]
C.ofInt.- 159
QUESTION: A Prosecuting Attorney is considering hiring an Assistant Prosecuting Attorney who, at the present time, is representing a defendant charged with first degree assault.
Can the new Assistant Prosecuting Attorney join the staff of the Prosecutor's office or will it require the withdrawal of the principal Prosecutor and appointment of a Special Prosecutor?
ANSWER: It is the opinion of the Committee that there is no conflict of interest if the new Assistant does not participate in the prosecution of the criminal case and he is completely screened from any discussion of the case with the Prosecutor or the members of his staff. It would be good practice and protection against a future 27.26 motion if, after new counsel has been appointed for the defendant, the defendant should be apprised of the situation on the record and waive any objection to the Chief Prosecutor continuing to prosecute the case after his former lawyer has joined the prosecution staff. The Committee feels that unless this is done,the Prosecutor is setting up a certain 27.26 proceeding (and there may be one even if the defendant waives any objection on the record). Rendered June 23, 1980.
[Rule 4 1.9(a); 1.11]
C.ofInt.- 160
QUESTION: An attorney, with others, joins to form a corporation to acquire an existing business through purchase of stock and financing in a new corporation to acquire the existing corporation. The attorney and another majority stockholder jointly guarantee some indebtedness.
Many disagreements follow after the acquisition is consummated. The attorney is General Counsel and an officer-director and he is terminated except as a director and claims unpaid compensation which is denied by the corporation.
The following questions are submitted for the opinion of this committee.
1. Does the attorney have any right to retain or direct other attorneys under threat of suit, to retain the minute books, stock ledgers,by-laws and other records of the corporation?
2. Does the attorney have any right to obtain a check payable to the corporation and retain it and threaten the issuer or their local agent to not deliver a reissued check payable to the corporation under threat of lawsuit for delivery to the named payee? (The check is a refund of unearned insurance premium paid by the corporation.)
3. Does the attorney have a right to represent that he is still an officer and authorized to act for the corporation after being terminated?
4. Does the attorney have a right to deliver corporation papers to opposing counsel in a pending case between the majority shareholders of the corporation and others in matters where the corporation and the attorney were neither parties nor directly affected by the pending case?
5. Does the attorney have a duty to refrain from repeated letter writing to accountants, directors, counsel, and others threatening suits and other actions that are designed to intimidate the addressees, instead of just filing the suit against. those who he alleges are liable for whatever he alleges?
ANSWER: It is the conclusion of the Committee that Questions 2,4 and 5 present legal questions which this committee is not authorized to answer. The corporation should consult its own attorney with regard to those matters. With regard to Question 1, No. See Formal Opinion No. 115 previously adopted by the Advisory Committee. In answer to Question 3,an attorney would not have the right to represent that he is still an officer and authorized to act for the corporation after he has been terminated,unless he questions the manner of termination and the effectiveness there of. Rendered June 23, 1980.
[Rule 4 1.16(d)]
QUESTION: Can a Municipal Attorney and a Municipal Judge in a given municipality share a telephone number in their respective law office practice without resulting in a conflict of interest or an appearance of impropriety?
ANSWER: If the two attorneys holding the offices of Municipal Attorney and Municipal Judge are not in partnership or associated in the private practice of law, it is the Committee's opinion that they may share a telephone number in their respective private law practices without a conflict of interest or an appearance of impropriety. Rendered June 23,1980.
QUESTION: For several years A Law Firm has represented a corporation on a contingent-fee basis filing collection suits. The law firm advanced costs in connection with the collection suits. It billed the corporation for the costs advanced. Cases were handled on a contingent-fee basis whereby, if no money was collected or personal property repossessed,there was no fee. If money was recovered or personal property was repossessed, the attorney's fee was a percentage of the money recovered or percentage of the balance due on the account at the time the property was repossessed.
The corporation stopped sending collection matters to the law firm and it is clear that the law firm will not receive any further cases. The law firm is still actively pursuing collection efforts in several dozen of the collection suits which had been previously sent to the law firm for suit.
The law firm is offered employment by another attorney to file a sex-discrimination suit against the corporation. The wife of one of the partners in the law firm is an employee of the corporation, and it is possible that the wife will either be a party plaintiff in the sex-discrimination case against the corporation, or that the wife will be called as a non-party witness on behalf of the plaintiff in the sex-discrimination case, and her testimony as a witness would be favorable to the plaintiff and damaging to the corporation employer.
The law firm has not had access to any facts pertaining to the sex-discrimination claim by reason of its previous collection efforts for the corporation.
The question is whether the law firm can act as a co-counsel or local counsel for the plaintiff in the sex-discrimination case assuming the above facts.
ANSWER: No. It is the opinion of the Committee that the firm cannot accept representation against the corporation while it is still actively pursuing collection efforts in several dozen collection suits which have previously been sent to the firm. In short, while the firm is receiving no new collection suits, the firm still represents the corporation in those previously sent to the firm. The firm cannot ethically represent the corporation and sue the corporation at the same time without the consent of the corporation. If the corporation has no objection to the firm acting as local counsel in the sex-discrimination suit and would waive any conflict, then the firm can proceed. The firm should advise the proposed plaintiffs of the firm's previous association with the corporation and the firm's continuing collection efforts on behalf of the corporation. In this manner, the plaintiffs would have an opportunity to object to the firm representing them and make a proper waiver of any possible conflict of interest. Rendered June 23,1980.
QUESTION: "May Law Firm "A" hire a former "Assistant Attorney General" and contract with the Attorney General's office to permit that associate to continue to handle certain litigation on appeal which he handled while on the staff of the Attorney General? Would this require Law Firm "A" to cease to represent other clients against other agencies of the State Government?
ANSWER: No. It is the conclusion of the Committee that the hiring of an associate by Law Firm "A" who had formerly been an "Assistant Attorney General" and contracting for the purpose of completing the appeal on litigation in which he was involved while an Assistant Attorney General would not disqualify Law Firm "A" in other cases in which the State or a State agency or officer is a party. Rendered September 12, 1980.
C.ofInt.- 165
QUESTION: An assistant prosecuting attorney for County X has applied for the position of circuit public defender. The circuit is a rural circuit composed of Counties X, Y and Z.
The circuit public defender's office is composed of the public defender and several assistants.
What should be done with the pending cases in the various counties if the former assistant prosecuting attorney is selected as the circuit public defender?
ANSWER: It is the conclusion of the Committee that the former assistant prosecuting attorney of County X could not take part in any case which had been filed in that county while he was an assistant prosecuting attorney. His assistants could handle any case in which the new public defender was not active in the prosecution in County X. Neither the new public defender nor his assistants can properly handle any case which was formerly personally handled by him.
In counties Y and Z of the circuit the new public defender or any of his assistants can properly defend all cases. Rendered October 2, 1980.
QUESTION: Can a part-time assistant county prosecuting attorney who handles the traffic violation docket engage in private practice in the Probate Division of the Circuit Court in civil cases serving as court-appointed attorney as follows:
a. Alleged incompetency proceedings as attorney for the alleged incompetent.
b. Involuntary detention in mental health center.
c. Guardian ad-litem in cases where the county counselor represents the county and state.
ANSWER Yes. It is the opinion of the Advisory Committee that there is no conflict where an assistant prosecuting attorney who handles the traffic violation docket for the state on a part-time basis is appointed as an attorney in his private practice in the Probate Division of the Circuit Court for any of the three categories of hearings stated above. Rendered November 7, 1980.
C.ofInt.- 169
QUESTION: The attorney is the prosecuting attorney of a third class county and also represents a fourth class city in said county as city attorney. An employee of the city admits to embezzlement from the city, is charged by attorney as prosecutor and pleads guilty to the charge. The city requests the attorney to institute civil proceedings for recovery of the embezzled funds.
May the attorney represent the city in a civil action for recovery of the embezzled funds?
ANSWER: No. It is the opinion of the Advisory Committee that it would be improper for an attorney representing a fourth class city to bring a civil action for recovery of embezzled funds when he has previously prosecuted the proposed defendant in a criminal action as prosecuting attorney of that county. The Committee has consistently held that a prosecuting attorney cannot take part in any civil litigation growing out of the same facts in which there has been a criminal prosecution unless it is apart of the prosecuting attorney's statutory duty to take part in such civil litigation. The Committee reaffirms that position. Rendered November 7,1980.
QUESTION: An attorney submits the following facts for an informal opinion:
Lawyer L is called on the telephone by N, niece of Decedent D, in May, 1978 for an appointment to prepare a Will for D. Neither N nor D are known to L prior to the telephone request for an appointment. At the appointed time, N brings D to L's office and D informs L what she desires to put in the Will, N being present or in the near vicinity during the conversation. L tells D that the Will will be typed in accordance with her wishes but he tells D to come back alone after it is typed and he will then discuss the Will with her. No discussion is had with D except D telling L who she desires as legatees and who should be executor. N pays L with her N's, check and tells L that she, N is going to return to her home in Florida and that another friend of D (who is a former client of L) will bring D in to sign the Will. After the Will is typed, L attempts to contact D, but is unable to do so, so he contacts the friend of D, who informs him that D will not come in to see L. He informs N of this fact, and no further contact is made with D or N. D then has another Will written by another lawyer which N and L discover only after D's death.
N retains L to represent her in a Will contest. Can L or L's law firm represent N in the Will contest in view of DR5-102?
ANSWER: Based upon the statement of facts, it is the opinion of the Advisory Committee that the lawyer should not undertake representation of the proposed litigant, the niece, in the Will contest because in our view, the lawyer ought to be a witness in the Will contest and, therefore,could not undertake to represent the litigant. Rendered November 7, 1980.
[Rule 4 3.7]
QUESTION: A is charged with the violation of state law where in V is the victim. A retains C to represent him in the matter. V is not represented.
1. May C contact V concerning the subject matter of the suit?ANSWER: Yes.
2. May C request V consider signing an affidavit of non prosecution wherein V would formally state that V does not desire the criminal action to proceed further? Answer: Yes, if no consideration is proposed for signing such affidavit.
3. Must C obtain permission from the prosecuting attorney's office prior to contacting V or any other witness in the criminal action? Answer:No.
4. Does the prosecuting attorney's office have an attorney-client relationship with V? Answer: No.
(a) If so, is there a conflict with the interests of the State of Missouri? Answer: See above.
(b) May the prosecuting attorney claim to represent V without V's consent? Answer: No.
(c) May the prosecuting attorney claim to represent V over V's objections? Answer: No.
(d) May the prosecutor's office prohibit C from contacting V or any other potential witness at trial, and if so, under what circumstances?Answer: Not unless a court order prohibiting such contact is obtained.
(e) May the prosecutor properly instruct V or any other witness in the criminal action not to communicate with C concerning the subject matter of the suit? Answer: The prosecutor can advise V he does not have to communicate with C, but V doesn't have to abide by the prosecutor's advice.
V approaches C and requests C represent V as well as A. V is not charged with any offense against the laws of the State of Missouri, but feels that he is in need of representation in his dealings with the prosecutor's office.
5. May C agree to represent V, and if so, under what circumstance?Answer: No.
V obtains counsel, either retained or appointed. During pre-trial proceedings, and after V informs the prosecutor of a desire not to testify Cover hears the prosecutor attempting to change V's mind. During the course of that conversation C overhears the prosecutor intentionally not represent facts and the law in his effort to change V's mind.
6. May the prosecutor communicate with V without first complying with the provisions of DR7-104(1)? Answer: Yes, if the interests of the state and V are not adverse.
7. May C advise V to contact V's own lawyer for advice prior to acceding to the prosecutor's desires? Answer: Yes.
8. May the prosecutor advise V as to the law concerning the subject matter of the action where the prosecutor is aware that V has retained private counsel (DR7-104)? Answer: If the advice concerns only the criminal law, this is permissible.
9. What, if any, is C's duty concerning reporting the prosecutor's apparent intentional misrepresentation of law and facts to V. Answer: Same as 7 advise V to contact V's own lawyer advice prior to acceding to the prosecutor's desires.
10. Is there a "Prosecutorial Exception" to the Canons of Ethics, if so, what does it encompass? Answer No.
Rendered November 7, 1980.
[Rule 4 1.7; 4.2; 4.3]
QUESTION: A prosecuting attorney submits the following questions:
1. May a part-time assistant prosecuting attorney also serve as counsel to the Juvenile Court? Said role of Juvenile Court counsel would involve the filing of complaints, representation of the juvenile officers in presentation of evidence at juvenile hearings and the advising of the juvenile officers as to matters of law. This request is made in light of the language found in Section 211.411, RSMo 1979.
2. The elected prosecuting attorney for said county, Mr. A, resigned and entered private practice of law as a partner with Mr. B.
(a) What participation, if any, may A have in the representation of defendants against whom complaints were filed during his pendency in office?
(b) Do both A and his law partner B have conflicts of interest arising out of the firm's representation of said individuals? There are a number of cases pending at the present time filed by A wherein B is the attorney of the defendant?
1. A part-time assistant prosecuting attorney may also serve as counsel to the Juvenile Court.
2. The former prosecuting attorney A may not participate in there presentation of any defendants against whom complaints were filed during his pendency in office. In addition, it is our opinion that both A and his present law partner, B, have conflicts of interest arising out of the firm's representation of said individuals. Since A was the prosecuting attorney and had the responsibility for all cases filed during that time, his joining B as a law partner serves to disqualify B from representation of any of said individuals as well. Rendered December 12, 1980.
C.ofInt.- 174
QUESTION: The attorney has acted for several years as general counsel for ABC Bank. He is paid an annual retainer for rendering legal opinions to the Bank and additional fees for representing the Bank in litigation.
The attorney also represents Mr. C. D. on a speeding charge and has been paid $150.00 by him.
Mr. C. D. is also a loan customer and depositor of the ABC Bank. Mr. C. D. is represented on his financial affairs by another attorney. C. D. is considering filing bankruptcy.
At no time while representing Mr. C. D. did the ABC Bank attorney ever discuss that individual's financial situation and there was no information of a privileged nature revealed by Mr. C.D. that would in any way affect the bankruptcy proceedings.
The attorney has refunded to Mr. C. D. the entire retainer fee paid to him and he has withdrawn from the speeding case.
Under these circumstances, may the attorney represent ABC Bank with regard to any actions it might take against Mr. C. D.? If a bankruptcy action should be filed, may that attorney represent the ABC Bank in opposing a discharge in bankruptcy?
ANSWER: Yes. The Advisory Committee sees no conflict of interest in the fact situation outlined. It believes the attorney is free to represent the ABC Bank in any bankruptcy matters or any other action which might be necessary against his former client. Rendered December 12, 1980.
C.ofInt.- 175
QUESTION: X and Y are partners in the practice of law. X be came an Assistant Prosecuting Attorney in a county of the third class on January 1, 1981. In October of 1980, a police officer of the city of the fourth class within the same county arrested plaintiff and her husband. Plaintiff and her husband were charged with state misdemeanor charges. Y has been asked to act as co-counsel in a suit against the city employing the police officer and the police officer alleging violation of civil rights.
May Y act as co-counsel in the suit?
ANSWER: It is the opinion of the Advisory Committee that Y can act as co-counsel in the civil rights suit if the criminal actions were dismissed prior to the date X became an Assistant Prosecuting Attorney. If the charges were dismissed after X became an Assistant Prosecuting Attorney, the Committee thinks it would be improper for Y to act as co-counsel in the civil suit.
Rendered January 15, 1981.
QUESTION: On January 1, 1981, A became the Prosecuting Attorney of a third class county. In such a county, it is classified as a part-time job. A is also a partner in private practice with three other attorneys. A has appointed B, one of his partners, as Assistant Prosecuting Attorney. Prior to January 1, 1981, B was appointed to represent Defendant X in a criminal matter. After A became Prosecuting Attorney, new counsel was appointed Defendant X and a Special Prosecutor was appointed to prosecute him. However, Defendant X is to be used as a state witness in a case against Defendant Y. Defendant X is alleged to have participated in a burglary involving Defendant Y and there was a plea bargain before January 1, 1981 regarding disposition of Defendant X's case, on the basis that he would testified against Defendant Y. The plea bargain was not completed, but it is A's understanding from the Special Prosecutor that the plea bargain recommendation made before the first of the year will be carried out.
Can A prosecute Defendant Y under these circumstances'?
ANSWER: It is the opinion of the Committee that there is no conflict in the situation given above. The Committee believes A can prosecute Defendant Y even though the testimony of Defendant X, who was formerly represented by Attorney B, may be necessary.
Rendered March 5, 1981.
[Rule 4 1.9; 1.10]
QUESTION: May an attorney serve as attorney of the school district if he serves as secretary of the school board and also serves as apart-time attorney for the county counselor's office for the same county as the school district?
ANSWER: It is the Committee's opinion that an attorney may represent a school district if he also serves as an appointed secretary to the school board of that school district. The Committee sees no conflict either if he is a part-time county counselor, unless there is a dispute between the district and the county or the state. If a dispute arose, then he could not represent the school district or the county in litigation.
QUESTION: A Public Defender supervises defense of indigents in four counties. She and the Prosecuting Attorney of one of the counties plan to be married. The Prosecutor's cases constitute 6% of the Public Defender's caseload. All Public Defender cases in the Prosecutor's county are handled by an Assistant Public Defender who is supervised by the Public Defender.
A. After they are married, does one of the two lawyers have to resign?
B. May the Public Defender be employed as an Assistant Public Defender if she does not handle cases in the Prosecutor's county?
A. It is the opinion of the Committee that if she remains the Public Defender for the circuit and marries the Prosecuting Attorney of one of the four counties in the circuit, then the entire staff of the Public Defender's office would be disqualified from defending any criminal case in the county where the husband is the Prosecuting Attorney. The reason for such disqualification is that she, as the supervising office holder, would have a conflict of interest and therefore, the entire staff of the office would be disqualified.
B. If someone other than the present Public Defender is appointed as Public Defender for the circuit and she becomes an Assistant Public Defender, there would be no disqualification of the office so long as she did not personally undertake defense of any cases in the county where the husband is the Prosecuting Attorney and so long as the office procedures used screened her from any information on the cases in his county.
QUESTION: ABC law firm has represented "Z" School District fora long time. Partner "B" of that firm currently serves as a board member for "Z" School District. No charge has ever been made to the School District and other firms in the past have represented the "Z" School District in litigated matters. ABC submits the following specific questions:
1. May ABC firm ethically represent the district in litigation while "B" is a member of the Board. (No fee to be charged for such services.)
ANSWER: A Board member cannot vote to hire himself or his firm with or without a fee. If the vote to have the firm represent the district is decided by other members of the Board, then there is no impropriety insuch representation.
2. May the firm provide informal legal services, such as real estate contracts, advice to the administration, as authorized by the Board? (Again,no fee to be charged.)
ANSWER: The Committee can see no ethical difference between Questions No. 1 and No. 2. The Committee has no knowledge of any applicable statutes which might affect the decision of either No. 1 or No. 2.
3. Would the situation be altered if during the trial, Attorney "B" was called as a witness by the opposing counsel?
ANSWER: If Attorney "B" were called as a witness by opposing counsel and his testimony would be adverse to the client Board, then the ABC law firm must withdraw from the representation.
4. Are the answers the same as to whether Attorney "B" or another member of the ABC law firm handled this litigation?
ANSWER: This is a matter of trial tactics. From an ethical standpoint it makes no difference whether Attorney "B" or another member of the firm acts as counsel.
5. ABC law firm represents School District "Z" and all other School Districts in the County. May the firm appear in litigation against County officials for payment of interest on Collectors Funds, etc.? The fee would be allocated among districts based upon budget or enrollment on a pro rata basis. No fee is then paid by School District "Z" for its pro rata part of the total fee. Can the fee arrangements be handled in this manner?
ANSWER: This would be permissible if we assume that there is no conflict between the various districts the firm undertakes to represent. The Committee points out that a conflict question might arise in allocating the fees to be charged the various districts particularly if the firm waives its fee from "Z" School District.
All of the above answers are based upon the assumption that the School District is the entity that the firm is representing and not the individual members of the Board of Education. The Committee also assumes that there are no conflicts between the firm, the School District or any other individuals on the Board of Education. Rendered July 16, 1981.
[Rule 4 1.7; 3.7]
QUESTION: May a legal service corporation lease space from a federally funded community action program agency? The program will share the services of a receptionist, who will only give out forms to potential clients. She will give out no legal information. An attorney will be present one or two days a week and the office is used solely as a place to interview clients.
ANSWER: Yes. The rental of space seems proper. The Committee does stress that the legal service corporation must scrupulously protect the clients' confidences. Rendered July 16, 1981.
[Rule 4 1.6; 1.7]
QUESTION: Attorney "B" initially agrees with client to file an action against "C", a state conservation agent, and "D", a federal conservation agent. The attorney then becomes the Prosecuting Attorney for the County. Assuming the client will consent, is there any conflict if "B" were to file the action against "D"?
ANSWER It is the opinion of the Committee that Attorney "B" would have no conflict in bringing the action against "D", the federal conservation agent. The Committee suggests that the attorney consider whether or not such representation could result in a poor working relationship with "C" and "D" in the future Rendered July 16, 1981.
QUESTION: The ABC law firm has represented the "wife" individually on unrelated matters and also jointly with the "husband". They have represented the "husband" individually regarding his business interests.
The "wife" and "husband" intend to dissolve their marriage and have agreed upon division of their property. The "wife" has executed a written consent for the firm to represent her in the dissolution action. The "husband" has executed a similar written consent for the firm to represent his wife in the action.
Under these circumstances can the firm represent the "wife" in the dissolution action?
ANSWER: Yes. The Committee is of the opinion that ABC firm's representation of the wife in the dissolution proceedings is permissible. Since both parties have executed the consents, any possible conflict was thereby waived. Rendered July 16, 1981.
QUESTION: Attorney "A" is the attorney charged with collection of child support for "X" County. He obtains a support order against Defendant Jones. Jones at that time is represented by Attorney "B".
Attorney "B" joins the staff of "X" County Prosecuting Attorney's office. Attorney "A" is seeking a Citation Order against Jones for failure to pay the ordered child support. Attorneys "A" and "B" have agreed not to discuss the Jones case.
Does the fact that Jones' former Attorney "B" is on the Prosecutor's staff prevent Attorney "A" from proceeding against Jones?
ANSWER: No. It is the conclusion of the Committee that Attorney "B" is not in a position of conflict in his present employment as a member of the Prosecuting Attorney's staff. Since no information or discussion of the Jones case has occurred or will occur between Attorney "A" and Attorney "B", the Committee can see no conflict in "A" proceeding in the above case. Should Jones believe that a conflict does exist, then Jones has a right to file a motion to disqualify Attorney "A" and have the motion ruled by the Court having jurisdiction of the matter. Rendered September 3, 1981.
[Rule 4 1.9; 1.11]
QUESTION: Lawyer A is the City Attorney for the City of X. He is paid a salary plus hourly fee for certain extraordinary legal matters handled by the City.
He is requested to file a condemnation suit for the City against lot owners in a subdivision for a water well and associated buildings.
Lawyer A is owner of a lot in that subdivision. He and his wife will be named as party defendants in the action. He intends to accept whatever compensation that is awarded him by the commissioners. A full disclosure of his ownership has been made to the city council.
Can Lawyer A represent the City in this proposed litigation?
ANSWER: No. It is the Committee's conclusion that for Lawyer A to represent the City as City Attorney in litigation where the attorney is personally named as a party defendant is improper. The attorney is advised to request the city council to secure other counsel for this case. Rendered October 1, 1981. Modified March 31, 1995.
QUESTION: Attorney C is the former county prosecuting attorney. While in office he prosecuted defendant X.
Now X and Y (her husband) are charged in a new unrelated offense. Attorney C has been requested to represent X and Y.
Can he ethically represent defendant X?
ANSWER: Yes. It is the opinion of the Committee that Attorney C can properly represent defendant X in the present felony case who he had previously prosecuted for a different crime, unless the matters now before the Court involve the prior case in some way. The mere fact that Attorney C had once prosecuted defendant X, so long as that matter has been completed and out of the way, would not bar his representation of that defendant at this time. Rendered October 1, 1981.
C.ofInt.- 190
QUESTION: Attorney B is representing a minor child in connection with injuries she sustained arising out of a dog bite. He also represents both parents on their loss of services claim. No lawsuit has been filed to date.
The father has filed a dissolution of marriage action. The mother wants Attorney B to represent her.
Can Attorney B undertake to represent the wife in the dissolution case?
ANSWER: No. Where Attorney B has been employed by the parents to represent the parents and the child, it would be improper for him to represent the wife in the parents' dissolution action. If the husband consents to Attorney B representing the wife, then such representation would be proper. Any conflict of interest can be waived by the consent of the opposing party Rendered October 1, 1981.
QUESTION: Would a City Attorney, because of appearance alone,be prohibited from handling defense cases that arise within the city here presents in the following situations:
(a) Where the offense occurred solely within the city but no police department personnel or other city personnel were involved in handling the offense, i.e., a bad check offense.
ANSWER: Yes, he is prohibited.
(b) If the offense occurred in part within the city and in part outside the city.
(c) If the offense was discovered as the result of clandestine operations by a law enforcement agency other than the City Police Department, with or without knowledge of the City Police Department.
(d) Where the offense occurs outside of the city limits but because of the jurisdiction of the Circuit Court would be tried within the city limits.
ANSWER: No, he is not prohibited.
(e) Are these questions answered differently if the attorney appears as retained counsel, having advised his client, or if he appears by appointment of the Court?
ANSWER: No, there is no difference.
Rendered October 29, 1981.
QUESTION: May an attorney ethically accept employment by defendant to defend him in the following cases: (Attorney is an active Commissioned Reserve Police Officer in City X in County Y).
(a) Defendant is charged with a traffic violation in City X Municipal Court.
(b) Defendant is charged with a general ordinance violation in City X Municipal Court.
(c) Defendant is charged with a violation of the state criminal statutes in Y County Circuit Court, offense committed in City X.
(d) Defendant is charged with violation of the state criminal statutes in Z County Circuit Court, offense committed outside of City X.
(e) Defendant is charged with a traffic violation and general ordinance violation in City U, a city located in County Y.
(f) Defendant is charged in federal court under federal criminal statutes.
ANSWER: Yes, if the City X Police are not involved.
(g) Defendant is charged with a traffic violation and general ordinance violation in a city in another county.
(h) Defendant is charged with violation of the state criminal statutes in another county.
If the attorney is in a partnership rather than being a sole practitioner, his partner is disqualified in any case in which the attorney is disqualified. Rendered October 29, 1981.
QUESTION: A prosecuting attorney submits for guidance two factual situations involving possible conflicts of interest between his official duties and his outside civil practice.
(1) His civil client is involved in two pending civil cases wherein the prosecuting attorney is representing the client individually and as a corporation. Six months later the client is charged in unrelated cases with assault and DWI charges. The attorney files the charges and informs the client to seek other counsel to defend him on those charges. What should the prosecutor do in these civil and criminal cases?
ANSWER: A prosecuting attorney must ask for appointment of a Special Prosecutor if a case is to be filed against an individual who he is currently representing in civil litigation. The reason for that is the public could well believe that the prosecutor's decisions in the prosecution were influenced by the fact of his private representation and that the client was given preferential treatment. He can continue to represent the client in the pending civil actions.
(2) The prosecuting attorney confers with a prospective civil client concerning a fire loss and undertakes representation in that case. Negotiations are conducted with the attorney representing the fire insurance carrier. The insurer contends that arson was the cause of the fire but forwarded no evidence to support that contention. What should the attorney do?
ANSWER: The prosecuting attorney can accept the civil representation if he has no reason to think there would be a conflict at the time that the representation is accepted. If evidence of arson is subsequently given to him, then he must withdraw from the civil representation. He should have a Special Prosecutor appointed to investigate and determine if an arson case should be filed.
This case is treated differently from the one above, because both the civil representation and the possible criminal prosecution arise out of the same set of facts. In the first case, it is permissible for him to continue the civil representation since the client is being prosecuted for something entirely different.
C.ofInt.- 195
C.ofInt.- 196
QUESTION: Can a county prosecuting attorney represent a potential federal defendant on an alleged ASCS violation?
ANSWER: Yes. It is the opinion of the Committee that no conflict of interest exists if a county prosecuting attorney counsels and represents a potential federal defendant on an ASCS violation since there could be no basis for an action to be filed from the prosecutor's office. Rendered December 10, 1981.
QUESTION: Attorney A now represents a client who desires a suit be brought against Y, who is X's husband in an unrelated matter.
Can Attorney A represent the new client in the unrelated matter against the husband of a former client?
ANSWER: Yes. In the Committee's view, there is nothing to prevent Attorney A from filing this lawsuit against his former client's husband on the unrelated case unless the attorney obtained information in the course of his representation of the wife which could be used against her interest. Rendered December 10, 1981.
C.ofInt.- 198
QUESTION: Is it improper for a part-time Assistant Prosecuting Attorney and a part-time Special Assistant Public Defender to act as co-counsel for plaintiff in a personal injury case? The part-time Special Assistant Public Defender is currently representing a convicted defendant in a case on appeal. In that case the State is now represented by the Attorney General's Office.
ANSWER: No. It is the Committee's conclusion that there is nothing improper in the association of the part-time Assistant Prosecuting Attorney and the part-time Special Assistant Public Defender in the personal injury case. The continued representation of the defendant by the lawyer would not prohibit the association. There is nothing in the status of the two lawyers as a part-time Prosecutor and part-time Public Defender which would prohibit their association on the civil matter. Rendered January 11, 1982.
QUESTION: The attorney submits the following factual situation for review of the Committee for possible conflict of interest.
He represents the property owner in a pending condemnation casein which exceptions are filed by the State and landowner. Thereafter, he is retained to act as attorney for the personal representative of Mr. X. Mr. X had acted as one of the appraisers for the State. That appraisal will not be used in evidence at the trial of the condemnation case.
Is there a conflict present under these facts?
ANSWER: No. It is the opinion of the Committee that the attorney representing the property owner has no conflict under the above facts. It is our belief that the representation of the personal representative of a deceased appraiser would not prohibit the attorney from serving as attorney for the property owner in the condemnation case. Rendered February 12, 1982.
QUESTION: An attorney submits the following for an opinion:
A and B were formerly partners in A and B law firm. Both partners at various times represented C and D, husband and wife, in various real estate and business matters in which C and D were jointly interested. Partner B has now withdrawn from the firm.
The wife, D, wishes for remaining partner A to represent her in her dissolution action against her husband, C.
Although A is of the opinion that he possesses no "inside" information which would give D, the wife, an undue advantage, he nevertheless questions whether or not he can ethically represent D, the wife.
ANSWER: If A possesses no confidential information obtained from the husband which could be used to his detriment, then the Committee believes A can represent the wife, D, in the dissolution proceeding. If C, the husband believes that A does possess privileged information which could be used to his detriment, then C can file a motion to disqualify A and have it ruled upon by the trial court. Rendered February 12, 1982.
QUESTION: What conflicts, if any, would there be for an attorney in the county to hold the office of Circuit Clerk?
ANSWER: It is the Committee's opinion that an attorney who was the Circuit Clerk in a county could not practice in any court in the county. It believes that his position of advocate for a client would be in conflict with his official duty to maintain a complete accurate, unbiased record of the proceedings in the court. Rendered February 12, 1982.
QUESTION: A law school is engaged in a clinical legal education program for its students. Sometimes low-income clients seek assistance on claims against the university. Can the program undertake to represent such clients against the university?
ANSWER: No. It is the opinion of the Committee that the program cannot represent individuals who have claims against the university without the consent of both the university and the client. Rendered April 29, 1982.
QUESTION: X and Y are partners in a law practice. Y is the elected City Attorney for a city of the third class. A police officer of the same city was injured during the time Y was serving as City Attorney.
The police officer desires to retain X to represent the police officer on his worker's compensation claim. The City had worker's compensation insurance. Y has no substantial involvement in the case nor has he had any prior involvement in any worker's compensation claim. Y as City Attorney advises the City Council, draws ordinances, and represents the City in litigation where there is no insurance. He also prosecutes violations of city ordinances.
(a) Can X accept the employment?
ANSWER: No. It is the opinion of the Committee that the partner of elected City Attorney Y cannot accept representation of a police officer of the same city in his worker's compensation claim against the City even though such claim will be defended by counsel for the worker's compensation insurance carrier.
(b) May X accept the employment if Y resigns as City Attorney?
ANSWER: Yes, if the City Attorney-partner should elect to resign as City Attorney, then the other partner (X) can accept the employment if(Y) has no knowledge of the facts giving rise to the claim against the City.
Rendered June 3, 1982.
QUESTION: Can attorney represent B and C in their suit against A for fraud in the inducement in the following factual situation?
The attorney represented individuals A, B and C in forming a general business corporation in which A, B and C were the shareholders,officers and directors. The corporation operated a retail business for a period of two years. During the two years of the corporation's existence, the attorney performed functions of a bookkeeping/clerical nature for the corporation, such as preparation of annual reports and routine annual corporate minutes. After approximately two years, Shareholder A convinced Shareholders B and C to quit business operations and to liquidate the corporation. The attorney prepared the necessary documents for liquidation. Among the assets of the corporation at the time of liquidation was a lease with option to purchase real estate. Prior to inducing the other shareholders to liquidate, Shareholder A convinced the Lessor/Optioner to transfer the option to Shareholder A, with the credits off of the option purchase price generated by the corporation over the previous two years,and concealed this information from Shareholders B and C until after the corporation had been liquidated. B and C now wish to sue A for fraud in the inducement concerning the liquidation of the corporation.
ANSWER: It is the Committee's conclusion that the attorney cannot represent two of the shareholders in a suit against the third shareholder for fraud in the inducement growing out of the liquidation of the corporation.
Rendered October 1, 1982.
QUESTION: A former Assistant Attorney General is now in private practice. He is handling one lawsuit for the State as a Special Assistant Attorney General.
He is offered employment as Assistant Public Defender in a Judicial Circuit.
Can he continue in the one case and simultaneously serve as Assistant Public Defender?
ANSWER: Yes. The Committee concludes such employment is permissible. The Committee has the view that this situation is analogous to an attorney who has criminal defendants as clients and is then appointed as a Special Prosecuting Attorney for the purpose of prosecuting one case on behalf of the State. Rendered January 27, 1983.
QUESTION: An Assistant Prosecuting Attorney works almost exclusively as a salaried attorney collecting child support payments. He has previously represented the wife in proceedings against the husband in securing a court order requiring partial wage assignment by the husband. The husband is current in child support as per decreed amount.
The wife seeks to retain the Assistant Prosecutor as her private attorney to seek additional order requiring husband to maintain medical insurance.
Can the Assistant Prosecutor accept the civil employment?
ANSWER: No. The Committee concluded that the Assistant Prosecutor could not accept civil employment where the Prosecuting Attorney's Office has previously taken any official action regarding the matter. Rendered January 27, 1983.
QUESTION: Is it permissible for the Prosecuting Attorney to simultaneously prosecute an individual defendant for a criminal offense and at the same time defend in Federal Court a civil rights suit filed by the individual against the County and Sheriff for alleged injuries sustained as a pre-trial detainee in County Jail?
ANSWER: Yes. The Advisory Committee is of the opinion that there would be no conflict in the Prosecutor proceeding against an individual on a specific felony charge and for the same Prosecutor to defend the County in a civil action instituted by that individual. The facts of the two actions are not the same. The Committee has previously ruled that a Prosecutor cannot engage in any civil litigation growing out of the same set of facts upon which he is prosecuting a criminal defendant. That does not appear to be present in this case. Rendered March 31, 1983.
QUESTION: Lawyer A and Lawyer B are partners in a two-member law firm. Lawyer A is currently hired as Treasurer of a City Special Road District. Attorney A is an employee of the Road District. Attorney A sometimes acts as Attorney for the Road District on an hourly fee basis separate and apart from his employment as Treasurer of the Road District.
Attorney A has been requested to consider accepting appointment as City Attorney of a City of the Fourth Class on a basis of an annual salary set by ordinance.
By statute the City receives up to one-fourth of the Road districts annual revenue. Traditionally there is a contract entered into between the Road District and the City for payment of this money to the City.
1. May Attorney A accept appointment as City Attorney and continue his employment as Treasurer of the Road District?
ANSWER 1: In the opinion of the Committee, Attorney A can accept appointment as City Attorney and continue employment as Treasurer of the Road District.
2. May Attorney A continue to act as legal counsel for the Road District in matters not involving the City?
ANSWER 2: He may continue to act as legal counsel for the Road District in matters not involving the City.
3. May Attorney A draft a contract between the Road District and the City for the one-fourth of Road District revenue if the terms of said contract are negotiated by the officers of the Road District and the City.
ANSWER 3: Attorney A may not draft the contract between the Road District and the City for the Road District revenue even though said contract is negotiated by the officers of the Road District and the City. Rendered April 14, 1983.
QUESTION: Does Rule 4 Professional Conduct prohibit a lawyer from advancing any funds other than court costs and expenses of litigation in connection with pending or contemplated litigation?
ANSWER: A lawyer can advance only court costs and expenses of litigation. Rule 1.8 Conflict of Interest: Prohibited Transactions states at Rule 1.8(e)(1):
1.8(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except with:
(1) A lawyer may advance court costs and expenses of litigation, there payment of which may be contingent on the outcome of the matter, . . .
The Advisory Committee believes that "court costs and expenses of litigation" do not include daily living costs, housing, payment of personal property debts or any expense other than specific court costs and expenses directly related to litigation such as discovery expense and expert witness fees. Further, Rule 8.4 Misconduct, declares that it is professional misconduct for a lawyer to violate, or attempt to violate, the Rules of Professional Conduct through the acts of another. This would prohibit an attorney from providing improper financial assistance to a client through a third party.
Adopted: August 30, 1990
[Rule 4 1.8(e)(l); 8.4]
QUESTION: Child A held durable power of attorney for parents and was personal representative of father's estate. Child B was concerned about Child A's actions and sued for an accounting. Mother later joined in suit. Mother later changed attitude toward Child A. Mother has now sued Child B for an accounting. May a member of the firm which represented Mother and Child B against Child A now defend Child B in the suit by Mother?
QUESTION: Wife and Husband 1 had Child A. After divorce, Wife had custody of Child A. Wife remarried and Attorney's firm represented Wife in case involving custody of Child B. May attorney now represent Husband 1 in custody case involving Child A?
ANSWER: No, unless Wife gives a knowing and intelligent waiver of the conflict.
QUESTION: May attorney enter into a contingent fee arrangement to collect on final judgment which was entered in a domestic relations case? Because payments to client as a result of collection action will be in installments over a lengthy period, may attorney require that client irrevocably designate attorney as payee of the payments?
ANSWER: The contingent fee arrangement is not prohibited. Their revocable assignment implicates Rule 1.8(a) on conflicts of interest.
[Rule 4 1.5(d)(1); 1.8(a)]
QUESTION: Client seeks representation in a personal injury case against owners of a building in which attorney offices. Is this a conflict?
ANSWER: The Rules do not require the attorney to voluntarily withdraw from the representation.
[Rule 4 1.7; 1.16]
QUESTION: May a lawyer advance housing and living expenses to a client?
ANSWER: No, this conduct violates Rule 1.8(e).
[Rule 4 1.8(e)]
QUESTION: (1) May a law student who works part time on cases for the prosecuting attorney's office under an assistant prosecuting attorney also work for a private law firm which handles criminal cases? (2) Would screening be a solution?
ANSWER: The answer to both questions is no.
QUESTION: To what extent is an attorney disqualified from handling cases against attorneys in a firm which previously employed the attorney's paralegal?
ANSWER: Attorney would not be required to withdraw from or decline cases adverse to clients of the paralegal's former firm as long as (1)the paralegal is screened from participation in those cases and (2) the paralegal does not reveal any confidential information from the former employment to any person in the attorney's firm. These measures apply to all situations in the former firm, regardless of whether the paralegal had any involvement in those cases.
ABA Informal Opinion 88-1526
[Rule 4 1.6; 1.7; 5.3]
QUESTION: Attorney enters into a relationship with a company which makes the initial contact with individuals regarding possible estate planning. Estate planning documents are drafted by a lawyer employed by the company outside Missouri. The documents and data are delivered to the attorney for review. The documents are delivered to the individual by are presentative of the corporation.
ANSWER: The question does not provide enough specific information for an opinion. However, a number of rules may be involved depending on the exact nature of the relationships and procedures followed. These include: Rule 1.7(b), Conflict of Interest: General Rule; Rule 5.4, Professional Independence of a Lawyer; Rule 5.5, Unauthorized Practice of Law;Rule 7.2(c) Advertising; and Rule 7.3(b), Direct Contact with Prospective Clients.
[Rule 4 1.7(b); 5.4; 5.5; 7.2(c); 7.3(b)]
QUESTION: May a law student who works part time on cases for the prosecuting attorney's office under an assistant prosecuting attorney also work for a private law firm that does defense work in municipal court in that county?
Formal Opinion 110
QUESTION: Attorney represented Entity A in a previous case on this issue. Entity B now wants attorney to represent it on the same issue against Entity A. A recent court decision has ruled that a statutory change since the previous case has completely changed the legal issues. Attorney has no confidential information related to representation of Entity A which could be used to Entity A's disadvantage in the case of B vs. A.
ANSWER: Attorney may represent B in its litigation with A if there cent case which ruled that the issues are now completely changed is final.
QUESTION: Does the answer to the previous opinion request(930109) change if the recent court decision is still subject to appeal?
ANSWER: Yes. Under these circumstances, attorney may not represent Entity B in its litigation with Entity A.
QUESTION: A separate business would be established which would offer will preparation to members of churches. If the church wants to make the service available, it will announce it and schedule appointments. A certain day will be set aside for appointments at the church. Clients will meet privately with attorney and documents will be prepared and executed. Attorney will not be a part of the separate business but will be paid an hourly rate by the business for will preparation. The business would make donations to the churches.
ANSWER: The arrangement would be contrary to one or more of the Rules of Professional Conduct. Depending on the exact logistics of the arrangement, it could violate Rule 1.7, Conflict of Interest: General Rule;Rule 5.4, Professional Independence of a Lawyer; and Rule 7.3, Direct Contact with Prospective Clients. The relationship and role of the independent business creates many problems.
[Rule 4 1.7; 5.4; 7.3]
QUESTION: Attorney is employed as an assistant prosecutor. Attorney plans to leave the prosecutor's office and join a private firm which has one or more cases with that prosecutor's office. Is this acceptable?
ANSWER: Yes, Rule 1.11 allows for screening of the former government attorney. Be sure to carefully study and follow the requirements of that rule.
QUESTION: Attorney represents a union and one of its employees in a grievance proceeding. Union is responsible for the fees. Union cannot pay the fees. The employee is willing to pay the fees and be reimbursed by the union. May the attorney accept payment from the employee?
ANSWER: Yes, if the employees waives the Rule 1.8(a) conflict in writing after full disclosure.
[Rule 4 1.8(a)]
QUESTION: What are the implications of a member of the firm being the child of a local judge? Is that member or any other member disqualified?
ANSWER: This question really relates to the Code of Judicial Conduct. The judge should ask for an opinion from the Judicial Commission.
[Rule 4 1.8(i)]
QUESTION: Attorney works in a private firm but works part time for the prosecutor handling child support enforcement. Attorney only works on cases establishing paternity and child support but not modifications or jury trials if paternity is contested. Is attorney's firm disqualified from doing criminal work?
ANSWER: Follow the procedures in Conflict of Interest Opinions 62 and 122 in the Missouri Advisory Committee Opinions desk book. In addition, full disclosure must be given and written consent obtained from any client whom the firm will defend in a criminal case. This additional requirement is consistent with State v. Ross, 829 S.W.2d 948 (Mo. banc 1992).
[C.ofInt-62 and 122; State v. Ross]
[Rule 4 1.7; 1.11]
QUESTION: Prosecutor's office had a conflict on grand jury proceeding and a special prosecutor was appointed. Subject of proceeding has now filed a motion to expunge the grand jury report. May the prosecutor or the special prosecutor handle the motion to expunge?
ANSWER: The prosecutor may not. The special prosecutor may.
QUESTION: Attorney represented Man in his business. Man has two children by previous wife. Man marries Wife 2. Man dies. Wife 2 and children consult with attorney regarding the estate. Wife 2 and children then begin disagreement and each get separate counsel. Children now want attorney to represent them.
ANSWER: Attorney may not represent the children unless Wife 2 consents after full disclosure.
QUESTION: Attorney represents step-parent in step-parent adoption. This case is pending. The parent and step-parent are now divorcing. May attorney represent either party in the dissolution action?
QUESTION: Four defendants were accused of a crime. Defendant 1 hired attorney and attorney represented him for a time. Defendant 1 then changed to another attorney. Defendant 2 now wants to hire attorney.
ANSWER: Attorney may not represent Defendant 2 unless Defendant 1 consents after full disclosure.
QUESTION: Four defendants were accused of a crime. Defendant 1 hired attorney and attorney represented him for a time. Defendant 1 then changed to another attorney. Defendant 2 now wants to hire attorney. Defendant 1 has now pled guilty.
ANSWER: Rule 1.9(a) applies and Rule 1.9(b) may apply, depending on the circumstances. Attorney may not represent Defendant 2 unless Defendant 1 consents after full disclosure.
QUESTION: Attorney represents Husband to change court records to show emancipation of child. Wife 1 signs acknowledgement. Husband is now married to Wife 2. Wife 2 now seeks to be represented by attorney regarding marital matters. May attorney represent Wife 2?
ANSWER: Attorney may not represent Wife 2 under Rule 1.9 if any of the marital matters are substantially related to the emancipation of the child. Additionally, attorney may not represent Wife 2 if information about Husband or the marriage was obtained in the course of representing Husband which could be used to Husband's disadvantage in representing Wife 2.
QUESTION: Attorney is on the Board of Trustees of a town. The town sometimes asks Attorney to represent it, in some instances with compensation and in some instances without compensation. Is this a conflict of interest?
ANSWER: If no compensation is received, it is not a conflict. If compensation is received, it is not a conflict if Attorney takes no part in, and uses no influence to affect,the selection or compensation.
[Rule 4 1.7; 1.8(a)]
QUESTION: Attorney represents two cities within a road district. The road district and the county have a dispute regarding distribution of tax money. The dispute is the subject of a lawsuit. The cities would receive some of the tax money under at least one interpretation. May Attorney represent the cities and the road district in this case? Does the answer change if the cities consent? May Attorney represent either the cities or the road district?
ANSWER: Under Rule 4-1.7, Attorney may not represent the cities and the road district. The conflict is one which the cities can't waive. Insufficient information is provided to determine the applicability of Rule 4-1.9. Therefore, no opinion can be given regarding representing only the cities or only the road district.
QUESTION: Attorney is contract attorney for a city. A current city council member who will be running for office has requested Attorney's support. Would this be a conflict?
ANSWER: Involvement in the political campaign of one council member would create a conflict of interest which would require Attorney to withdraw from representation of the city.
QUESTION: Attorney represented client A on municipal DWI charges. Client A failed to pay the attorney fees. Client A was married to B at the time. A and B are now divorced. Attorney was in no way involved in the dissolution. B has asked Attorney to represent B in a motion to modify filed by B. Is there a conflict?
ANSWER: No, as long as Attorney does not have confidential information related to representation of A which could be used to A's disadvantage in the modification action. This opinion does not affect the ability of a court to disqualify Attorney.
QUESTION: Attorney is president of a small corporation (not a law firm). Attorney does not provide legal representation to the corporation. All of the records and business transactions of the corporation are kept separate from Attorney's law practice. May Attorney have the executive offices of the corporation housed within Attorney's law offices? This would include notation on the door and the building directory as well as the office address being listed on the corporation's letterhead.
ANSWER: Sharing space with another business is permitted but the two businesses must be maintained separately. The corporation must have a separate phone number answered for the business and not the law office. The files and other information must be separately maintained to ensure confidentiality of information related to the law practice. The physical arrangement should be one which enables clients of both businesses to understand that the businesses are separate. Also, aside from the executive office question, Attorney should be very careful to take Attorney's relationship to the corporation into account in Attorney's conflicts checking system.
[Rule 4 1.6; 1.7; 7.1]
QUESTION: Attorney proposes to send prospective clients a letter which states that Attorney "specializes" in automobile law. The letter would also convey that people who have been injured in an automobile collision should consider hiring an experienced attorney. The letter would offer a free office conference and would indicate that the recipient may be eligible for healthcare without out of pocket expense.
ANSWER: The word "specializes" would require inclusion of the Rule 4-7.4 disclaimer. Although healthcare without out of pocket expense may be available from some sources, Attorney should be aware that Rule 4-1.8(e) prohibits Attorney from advancing money to clients for expenses other than litigation expenses.
[Rule 4 1.8(e); 7.1; 7.3; 7.4]
QUESTION: FACTUAL SITUATION 1: Attorney will purchase information from a separate business obtained from police reports of traffic accidents. Attorney will solicit prospective clients from this information, by mail only.
FACTUAL SITUATION 2: Attorney will be retained to represent drivers employed by a business in traffic ticket cases. Either the company or the drivers will retain Attorney. Attorney would charge a flat monthly fee per driver. Would this violate the rule on fees for months when a driver received
ANSWER: FACTUAL SITUATION 1: This would not, as a general rule be a violation. However, special attention must be paid to Rule 4-7.3(c). It seems particularly likely that Rule 4-7.3(c)(1) would apply to some accident victims.
FACTUAL SITUATION 2: This arrangement would not violate Rule 4-1.5. However, if the employer pays the retainer fee, special attention should be paid to Rule 4-1.8(f).
[Rule 4 1.5; 1.8(f); 7.3]
QUESTION: Attorney represents P in a suit against D and obtained a verdict for plaintiff. C, who is also Attorney's client, has purchased D. The case has been remanded. (1) Can Attorney represent Pin discovery against C? (2) Can Attorney give full disclosure to obtain consent? (3) Can an independent attorney handle just discovery? (4) Can a settlement idea adverse to C be discussed with P? (5) Could an independent attorney discuss this idea? (6) Can Attorney withhold the idea and still represent P? (7) There may be a binding injunction against D binding on C. Is this a conflict? (8) Is it waivable? (9) Can the conflict be cured?
ANSWER: (1) No. (2) No. (3) No. (4) No. (5) No. (6) No. (7) Yes. (8) No. (9) No, and Attorney may not assist P's new attorney in preparing for trial.
QUESTION: Attorney A and Attorney B share office space. Attorney A represents clients in an adoption. Attorney B was appointed GAL when A and B did not share offices. Attorney A and B ran a joint advertisement with a general heading "law offices" and their joint address. Their individual names and phone numbers also appeared. Is it a conflict for B to be the GAL?
ANSWER: Yes, the advertisement implies a relationship between the attorneys. Therefore, A and B will be treated as a firm for conflict of interest purposes, including imputed disqualification.
[Rule 4 1.7; 1.10; 7.5(f)]
QUESTION: Attorney is a prosecuting attorney. Attorney has a civil practice and represents a small estate. The Department of Social Services has a claim against the estate for reimbursement of Medicaid expenses. Is this a conflict?
ANSWER: Yes, Attorney must withdraw from the probate case.
QUESTION: Attorney is a part time assistant city attorney. May attorney defend clients in criminal cases in circuit court in that county?
ANSWER: Yes, except, Attorney may not defend clients in criminal cases arising out of the city or in cases in which the city police are involved.
QUESTION: Attorney represents a client who was a driver in a boating accident with another boat. Passengers in the client's boat want Attorney to represent them also. Attorney knows that the client was drinking at the time of the accident. Is there a conflict of interest and can the conflict be waived?
ANSWER: Yes there is a conflict of interest under 1.7(a) and under 1.7(a)(1) it cannot be waived.
QUESTION: Would it solve the confidentiality problem in Opinion No. 930172 if the client were asked to sign a waiver of confidentiality statement before the information is gathered by the agent and sent to Attorney?
ANSWER: No. An attorney should not be encouraging clients to waive confidentiality without first advising them of the ramifications of that action. Since the attorney will not be present at that time, this would constitute further unauthorized practice of law by the agent.
QUESTION: Attorney represents a criminal client in a case involving offenses which arose in the city. Attorney became City Attorney. Is this a conflict? Can it be cured by resigning as City Attorney? Can it be waived by the city?
ANSWER: It is a conflict if any of the City Attorney's duties involve prosecution or advice to the police department. It can be cured by resigning as City Attorney if no confidential information was obtained related to the matter in Attorney's role as City Attorney and if the criminal client gives consent. The conflict cannot be waived by the city.
QUESTION: Attorney was contacted by Wife regarding her intention to file for divorce. Attorney declined to discuss the matter with Wife because of Attorney's personal relationship with Husband's family. Husband has now contacted Attorney for representation in the divorce. May Attorney represent Husband?
ANSWER: Yes, if Attorney did not obtain any information from Wife that would be confidential under Rule 1.6.
[Rule 4 1.6; 1.9]
QUESTION: Attorney has been asked to represent plaintiff against two defendants. One defendant is a distant relative of Attorney. May Attorney represent the plaintiff?
ANSWER: Attorney may represent the plaintiff against both defendants if Attorney makes full disclosure to her client in writing and obtains her client's consent in writing.
QUESTION: Attorney represents the driver and passengers involved in an automobile accident. Attorney has learned that there may be facts which would indicate possible fault on the part of the driver and create a conflict between the driver and the passengers. One passenger is an adult,the others are minors.
ANSWER: Attorney has two options. First, Attorney could withdraw from the representation completely. Second, Attorney could withdraw from representing the passengers but continue representing the driver, if the passengers waive the conflict. The next friend could waive the conflict on behalf of the minors.
QUESTION: Attorney would be a partner in two firms. Attorney would not do the same type of work in both firms.
ANSWER: This would be a violation of the rules because Attorney would have conflicts from both firms. Attorney's clients would not be aware of all of the conflict situations which could involve the other firm.
QUESTION: Attorney represents insureds on behalf of an insurance company. To whom does Attorney owe the duty of candid communication and confidentiality?
ANSWER: Attorney has an attorney client relationship with the insured. Attorney owes a duty of candor and confidentiality to the insured. Those duties can only be limited with the express consent of the insured after full disclosure. Attorney also owes a duty of candor and confidentiality to the insurance company unless that duty has been limited with the express consent of the insurance company. This dual representation can result in irreconcilable conflicts of interest requiring withdrawal from representation of both.
[Rule 4 1.4; 1.6; 1.7]
QUESTION: Attorney represented a client who entered a plea of stealing from an employer. The employer has now asked Attorney to represent it in an action against a person who should have detected the theft. The employer says it has no interest in bringing an action against Attorney's former client.
ANSWER: Attorney may only represent the employer if the former client consents after full disclosure. The situation will be further complicated if the former client is brought in as a defendant by the other defendant. In that situation, Attorney will have to withdraw.
QUESTION: Fact Situation 1: Attorney represents a defendant who was the driver in an auto accident. The suit has been amended to include the driver's employer as a defendant. The possibility exists that the driver and the employer's interests will diverge. May Attorney represent both at this point? Fact Situation 2: Attorney's firm represents an employer in a workers compensation case. Attorney's firm also accepted the same employee as a client in an auto accident case totally unrelated to the workers compensation suit. May the firm continue representation in either or both cases?
ANSWER: Fact Situation 1: Yes, if each defendant is given full disclosure and each independently consents to the joint representation. If an actual conflict develops, Attorney will have to withdraw from representing both. Fact Situation 2: Attorney's firm may not continue in both cases unless both clients consent under Rule 1.7(a). If the firm does not represent both clients with their consent, the situation would be governed by Rule 1.9.The firm could represent either as long as members of the firm did not obtain confidential information from the other client which could be used to the other client's disadvantage in the representation.
QUESTION: Attorney is a prosecuting attorney. As prosecutor,Attorney successfully prosecuted Defendant for DWI related to an auto accident. Attorney also has a private practice and has been asked to represent Plaintiff in a civil action against Defendant related to the same auto accident.
ANSWER: This would be a conflict of interest under Rule 1.7(b).Because the state is one of Attorney's client's, consent to the conflict is not an option.
QUESTION: Attorney is the corporate attorney for a corporation. The corporation would like Attorney to serve on its Board of Directors. May Attorney do this and remain the corporate attorney?
ANSWER: This would be a conflict of interest but Rule 4-1.8(a) sets out the steps an attorney must follow to enter into such a business relationship. This situation creates numerous opportunities for conflicts under Rule 4-1.7(b). Attorney should study the last paragraph under the heading "Other Conflict Situations" in the comments to this rule.
[Rule 4 1.7(b); 1.8(a)]
QUESTION: Attorney's client is receiving Medicaid. Attorney has obtained agreement from an insurance company to settle a personal injury case. Statutes require both Attorney and client to notify Social Services of the settlement. Client has withdrawn authority to settle and discharged Attorney after Attorney informed client of this obligation. May Attorney report to Social Services?
ANSWER: If Attorney reports without client's consent, Attorney will violate the confidentiality obligation under Rule 4-1.6. Attorney should counsel client regarding the obligations under the statutes prior to withdrawing. If client will not consent to reporting, Attorney must remain silent and withdraw under Rule 4-1.16(a)(1).
[Rule 4 1.6; 1.16(a)(1)]
QUESTION: Attorney conducts administrative hearings. A closely related "in-law" is a party who regularly appears before Attorney. Do the conflict of interest provisions of the Code of Judicial Conduct or the Rules of Professional Conduct apply?
ANSWER: The Chief Disciplinary Counsel does not interpret the Code of Judicial Conduct, including its applicability. However, we understand that the Judicial Commission has taken the position that that Code does not apply to quasi-judicial administrative officials. Attorney may preside over cases in which this relative is a party if Attorney gives full disclosure of the relationship to the parties and if all parties consent. Although the government cannot normally consent to a conflict, this situation is an exception. Canon 3(C)(4) of the Code of Judicial Conduct is helpful in determining how the conflict under Rule 4-1.7(b) can be handled. Although Rule 1.8(i) does not strictly apply in this situation, it is instructive in this regard because it indicates that conflicts of this sort can be waived.
QUESTION: May Attorney participate in a credit card program that is marketed through law firms and is used exclusively for payment of legal fees? Attorney or staff of the firm will be the one informing the client of the program and signing the client into the program.
ANSWER: Participation in this program would raise conflict of interest questions under Rule 4-1.7(b). This conflict could be handled through full disclosure and written consent of the client. Full disclosure would involve making certain that the client understands the terms and obligations of the financing, including the interest rate, as well as the extent to which Attorney benefits by sharing in the interest paid by the client and by reducing concerns regarding collect ability of fees. This opinion does not address other laws, such as Truth in Lending.
QUESTION: A legal services program asks about two situations. In both situations, two people who are married may each qualify for services and may seek a dissolution of their marriage. When each potential client comes in, they will elicit information from the person regarding the circumstances. Situation 1: May the legal services program pay for an attorney for both parties? The legal services program would have an interest in keeping litigation costs to a minimum. Situation 2: In the same general situation, but one of the staff attorneys began representing one of the parties and then transferred the case to an outside attorney. May the legal services program pay for an attorney for both parties?
ANSWER: Both situations would involve conflicts under Rules 4-1.7 and 4-1.8(f). They would also create problems involving confidentiality. Although these problems are not necessarily insurmountable, we must be presented with a specific plan before we can give an opinion. Also, it is clear that the legal services program will not be able to retain financial control even if the other conflict issues can be handled.
[Rule 4 1.6; 1.7; 1.8(f)]
QUESTION: Attorney will become prosecuting attorney. What impact will that have on pending civil cases? What impact on future civil cases involving automobile accidents? Attorney is currently working with another attorney in a firm. After Attorney becomes prosecutor, may Attorney work with the other attorney on civil cases on a case by case basis without disqualifying the other attorney from defending criminal cases in Missouri?
ANSWER: Attorney may continue in pending civil cases unless some aspect of the factual situations from which those cases arise was considered by that prosecuting attorney's office. After becoming prosecuting attorney, Attorney may represent parties in auto accident cases which occur in other counties and other states as long as nothing related to those cases is considered by Attorney's prosecutor's office. If Attorney maintains a separate office from the other Attorney and is occasionally co-counsel on individual cases, it will not affect Attorney's ability to represent criminal defendants. However, if there is an ongoing relationship or the appearance of an ongoing relationship, the other attorney would be disqualified from handling any criminal defendants in Missouri as well as any other case from which prosecuting attorney would be disqualified.
QUESTION: Situation 1. Attorney would prepare a Petition for a dissolution of marriage for Attorney's client. Attorney would prepare an Entry of Appearance, Waiver of Service and pro forma Answer for the other part, who is not represented. This would be accompanied by a cover letter which would explain what the documents are.
Situation 2. In a situation similar to Situation 1, the parties to the marriage want a separation agreement. In order to do this, Attorney's client must file the Petition and the other party must file an Answer denying that the marriage is irretrievably broken. Attorney would draft the Answer for the other party. Attorney's client actually wants a dissolution.
ANSWER: Both situations would violate Rules 4-4.3 and 4-1.7 Situation 1. Attorney would inherently be providing legal advice to the unrepresented spouse. Although the unrepresented spouse is told that Attorney is not representing him or her, he or she is trusting Attorney to look after his or her interests. Situation 2. In addition to the problems cited above, Attorney would be violating Rule 4-4.3. Attorney would also be violating Rule 4-1.7 by assisting the unrepresented spouse to obtain a separation when the client actually wants a dissolution.
QUESTION: Attorney is a city prosecutor. Attorney has been asked to represent a defendant on two felony charges. The criminal offense occurred outside the boundaries of the city for which Attorney is city prosecutor. No law enforcement officers for that municipality were involved in the case. May Attorney represent the criminal defendant?
QUESTION: Attorney is a member of one firm and will be "of counsel" to another firm. The two firms share office space and some equipment, otherwise they are separate. Does this violate the Rules of Professional Conduct?
ANSWER: In order to avoid violating Rule 4-7.1 attorney would need to identify both firms with which the attorney is connected on each firm's letterhead and other forms of communication to the public and other law firms. The two firms will be considered as one for conflicts purposes.
[Rule 4 1.10; 7.1]
QUESTION: Attorney represents the driver and passenger who are plaintiffs in a case arising out of an automobile accident. Attorney has filed suit on behalf of the driver but not on behalf of the passenger. Attorney is hoping to resolve the driver's case before the statute of limitations runs on the passenger's case. Both clients have been informed of this action. Must Attorney withdraw from the passenger's case now? If Attorney must withdraw, may Attorney assert a lien? How will the legal fees be calculated?
ANSWER: To represent both the driver and passenger, Attorney must make a determination that the dual representation will not adversely affect representation of either party. Each client must be given full disclosure of the conflicts and potential conflicts involved in the situation. Each client must affirmatively act to consent. If a problem arises after representation is begun, this procedure must be repeated. If either client will not consent, Attorney must withdraw from representing both, unless both clients consent to Attorney continuing to represent one. Attorney may assert a lien for fees. The question of how fees will be calculated is a legal issue.
[Rule 4 1.5; 1.7]
QUESTION: Attorney is a prosecuting attorney. Attorney has filed a civil action to attempt to collect back child support. Attorney has also filed a criminal nonsupport charge against the same person. May Attorney dismiss the criminal charge in exchange for payment of the back child support?
ANSWER: Section 454.513, RS Mo 1994, provides that, in civil cases for child support enforcement brought by a state official, the client shall exclusively be the "state of Missouri, department of Social Services, division of child support enforcement." Representation of a specific agency is not the same as representing the state of Missouri in a criminal case. This situation involves a conflict between the interests of the State and the interests of the Division. Therefore, Attorney may not dispose of the criminal case in the manner described.
[Rule 4 1.7; § 454.513]
QUESTION: Attorney would participate in a living trust program run by a separate company. Non-attorneys who are not under the supervision of an attorney would contact the clients and gather information to prepare the living trust and would obtain a check for the company and a check for the attorney. Attorney would be a review attorney for documents sent by the company and advising the company of any changes needed to comply with Missouri law. Attorney will be compensated by the clients at a rate set by the company. Attorney is encouraged to make direct contact with the clients. Attorney will send the approved trust document or recommendations to the company. The company will send the final document to the client.
ANSWER: This program would violate the following rules within Rule 4: 1.6, 1.7(b), 5.3, 5.4, 5.5, 7.3(b) and 8.4(a).
[Rule 4 1.6; 1.7(b); 5.3; 5.4; 5.5; 7.3(b); 8.4(a)]
QUESTION: Attorney is a prosecuting attorney. Attorney is representing a plaintiff in a personal injury case arising out of Attorney's county. Attorney has recently learned that the defendant was ticketed and paid the fine without an appearance. The ticket arose out of the same automobile accident that resulted in the personal injury case. (1) May Attorney stay in the case? (2) Can the conflict be waived? (3) May Attorney stay in the case if Attorney resigns as prosecuting attorney at this point?
ANSWER: (1) No. (2) No, the state of Missouri cannot waive a conflict. (3) No.
QUESTION: Attorney is representing the County Juvenile Office in a salaried position. May Attorney represent adult criminal defendants in any municipal or circuit court in Missouri?
QUESTION: One member of the firm is a part time municipal judge. Another member has a case in which the city is a defendant. Is this a conflict? Can it be waived?
ANSWER: Yes, it is a conflict and the member must withdraw from the case. As a governmental entity, the city cannot waive the conflict.
QUESTION: Attorney is a criminal defense attorney. (1) What is Attorney's duty to a state's witness who asks Attorney whether he is required to honor a subpoena served on behalf of the prosecutor? (2) What if the state's witness tells Attorney the witness no longer wishes to prosecute? (3) What if a witness for either side who has not been interviewed wishes to speak with the witness' own attorney before speaking with Attorney? (4) What if defense counsel knows that a potential state's witness is likely to incriminate himself if he is interviewed? Would it be appropriate for Attorney to arrange for counsel for this witness? (5) If Attorney knows that a witness will incriminate himself or herself when testifying, must Attorney take steps to alert the court in advance? May Attorney call the witness?
ANSWER: (1) Under Rule 4-4.3, it would be improper for counsel to give the witness any advice. Attorney may only suggest that the witness get advice from his or her own attorney. (2) Same answer as (1) but Attorney may advise the witness to communicate the information to the prosecutor. (3) Attorney may not speak to the witness unless the witness voluntarily agrees to do so or the appropriate legal process is used. (4) Same answer as to (1). It would be improper for Attorney to arrange counsel for the witness. (5) Attorney has a duty of undivided loyalty to the client. If Attorney's concerns about the witness will interfere with Attorney's duties to the client, under Rule 4-1.7(b), Attorney must seek to withdraw.
[Rule 4 1.7(b); 4.3; 4.4]
QUESTION: Attorney represents a client on a real estate contract. A person (X) who is not an attorney or a real estate professional comes to Attorney's office with client and informs Attorney that X has negotiated the contract for client. X has been advising client on possibly conveying the real estate to a charitable trust which client has established and of which X is trustee. (1) Should Attorney advise X that X is violating the law? (2) Should Attorney report X to the proper authorities? (3) Should Attorney inform client that X is engaging in the unauthorized practice of law? (4) Should Attorney refuse to represent client further in this situation?
ANSWER: (1) Attorney should not advise X of anything because X would become a client and this would create a conflict with Attorney's current client under Rule 4-1.7(a). (2) Yes. (3) Attorney should advise client of the concerns using Attorney's legal judgment. (4) Attorney may continue to represent client as long as X has no further involvement in the transaction. Attorney must advise client of the ramifications of having a third party present during attorney-client conferences.
[Rule 4 1.7(a); 4.3; 5.5]
QUESTION: Attorney is a part time city attorney. May Attorney represent a defendant on a felony criminal charge arising within the boundaries of the city?
QUESTION: Husband (H) and Wife (W) are attorneys in separate firms. H asks whether the hiring of one precludes or impacts the hiring of the other.
ANSWER: Under Rule 4-1.8(i), H will not be able to take a case in which W represents an adverse party unless H's potential client consents after full disclosure. As indicated in the comment, this conflict will not disqualify other members of H's firm under Rule 4-1.10. However, another member of the firm who takes a case in which W is representing an adverse party should disclose this fact to the client.
[Rule 4 1.8(i); 1.10]
QUESTION: Attorney was previously guardian ad litem for a person. The guardian and conservator of that person now wants Attorney's representation regarding the guardianship and conservators hip. Is this a conflict?
ANSWER: Yes, under Rule 4-1.9.
QUESTION: Attorney represents an individual as nominal plaintiff in a lawsuit in which another individual is the real party in interest. On behalf of another client, Attorney wants to sue the nominal plaintiff in the other case. Is this a conflict of interest?
ANSWER: Yes, under Rule 4-1.7(a), Attorney would have a conflict of interest by filing a lawsuit against the individual who is Attorney's current client even though that individual is only nominally a client.
QUESTION: A case has arisen involving an automobile accident in which the child was a passenger and the mother was one of the drivers. There is no reason to believe that the mother is liable. May the clients waive the potential conflict of interest? May Attorney represent the driver and passengers in the accidents?
ANSWER: Yes, the passengers may waive the potential conflict of interest. Concerns are raised if the mother acts on the child's behalf to waive the conflict. The father, or other independent person, should act on the child's behalf regarding the waiver. If an actual conflict develops,Attorney must withdraw from representing all clients. Attorney should be certain that Attorney has made sufficient disclosures and has thoroughly documented the disclosures as well as any consent given.
QUESTION: Attorney firm had represented H in a step parent adoption and a dissolution. Attorney currently represents a woman seeking a dissolution from H. This woman was not involved in the previous proceedings. H claims that the custody of the adopted child will be an issue in the current case and therefore Attorney has a conflict of interest. Attorney does not see how this could be an issue in the current case. Is there a conflict? Must Attorney withdraw?
ANSWER: The analysis which would apply would be under Rule 4-1.9. However, this situation involves a factual dispute. This office cannot resolve factual disputes in the context of an informal opinion. This issue is best resolved in the court in which the case is pending.
QUESTION: Attorney has been asked to represent a person in a wrongful death action. The action may be filed against the county as one of the defendants. Attorney's partner represents the County Industrial Commission on certain matters. The county commission appoints the Board of Directors of the County Industrial Commission. Does Attorney have a conflict which prevents him from representing the person? Would the conflict be eliminated if the partner withdrew from representing the County Industrial Commission?
ANSWER: Yes, there is a conflict. Yes, withdrawing from representation of the County Industrial Commission would eliminate the conflict.
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.
QUESTION: A governmental agency employs staff attorneys. May the agency have staff attorneys represent other employees who have been involved in accidents and ticketed for traffic violations? There are benefits to the government agency if the employee defends the ticket in a certain manner. Is this a conflict of interest?
ANSWER: Yes, and waiver is not a possibility because conflicts cannot be waived by a government agency.
QUESTION: Attorney represented H on charges of DWI and assault on his W. H and W are no longer married. Attorney represented neither party in the dissolution. Attorney is now representing W in a child custody dispute with H. Does Attorney's knowledge of H's drinking and driving and behavior toward W disqualify Attorney from representing W against H in this matter?
ANSWER: The knowledge of H's history which is a matter of public record does not disqualify Attorney. Attorney has an obligation to review the previous representation of H and the current representation of W to determine whether confidential information Attorney obtained in the course of representing H COULD be used to H's disadvantage in the current representation of W. If so, he cannot undertake or continue there presentation. Attorney has the duty to engage in this review regardless of whether the former client raises the issue.
QUESTION: A legal services program asks about the situation in juvenile matters in which both parents need representation. In some situations there is no apparent conflict between the interests of the parents. In other situations, a conflict is apparent from the outset. May the program assign attorneys to represent both parents in each of these types of situations? May the program exercise financial control by approving or disapproving expenditures for expenses of representation?
ANSWER: If there is a potential conflict of interest and the program wants to assign the same attorney to both parents for representation, each of the parents must first be given full disclosure about the possible conflicts. If they consent, that attorney may represent both of them until an actual conflict arises. If an actual conflict arises, that attorney will have to withdraw from representing both parents and the parents will need new, separate attorneys. Where a conflict is apparent from the outset or develops during representation, the legal services program may not exercise independent financial control of the representation of each parents beyond setting a cap or limit on the total amount the program will expend.
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