C.ofInt.-1

PROSECUTING ATTORNEY EMPLOYMENT CONFLICTING INTERESTS

IMPROPER FOR PROSECUTING ATTORNEY WHILE

PROSECUTING CRIMINAL CHARGES AGAINST A HUSBAND FOR NONSUPPORT TO REPRESENT THE WIFE NAMED DEFENDANT, IN CIVIL ACTION FOR DIVORCE.

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 be taken 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)]

C.ofInt.-2

PROSECUTING ATTORNEY EMPLOYMENT CONFLICTING INTERESTS

IMPROPER FOR PROSECUTING ATTORNEY WHO PROSECUTED ONE OF THREE PERSONS CHARGED WITH MURDER, AFTER RETIREMENT FROM OFFICE TO DEFEND ONE OF ALLEGED MURDERERS.

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, RSMo of the Revised Statutes of Missouri and Rule 4 of the Supreme Court of Missouri.

[Rule 4 1.7(b); 1.9; 1.11]

C.ofInt.-3

CIRCUIT JUDGES

NOT IMPROPER TO CONSIDER FELONY CASES WHERE ATTORNEYS ON BOTH SIDES ARE RELATED.

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]

C.ofInt.-4

ATTORNEYS

NOT IMPROPER FOR ATTORNEYS RELATED TO EACH OTHER TO ACT IN CASE WHERE ONE DEFENDS AND THE OTHER PROSECUTES.

(Withdrawn 12/31/94).

C.ofInt.-5

ATTORNEYS

ASSISTANT ATTORNEY GENERAL CANNOT BE APPOINTED APPRAISER IN INHERITANCE TAX CASES.

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]

C.ofInt.-6

JUDGES

IMPROPER FOR JUDGE OF COURT OF RECORD TO ACT AS CAMPAIGN MANAGER FOR ANOTHER POLITICAL CANDIDATE OR ANOTHER JUDGE.

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.

[See Code of Judicial Conduct; Rule 2]

C.ofInt.-7

ATTORNEYS

IMPROPER FOR A MISSOURI LAWYER TO ACCEPT EMPLOYMENT TO OBTAIN PAROLE FOR PERSONS HE PROSECUTED.

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]

C.ofInt.-8

PROSECUTING ATTORNEYS

A MISSOURI LAWYER ELECTED TO THE OFFICE OF PROSECUTING ATTORNEY MAY PROPERLY PERFECT AN APPEAL IN A CRIMINAL CASE AND ARGUE THE SAME IN THE APPELLATE COURTS, WHERE SUCH CASE WAS TRIED PRIOR TO HIS ASSUMING THE OFFICE OF PROSECUTING ATTORNEY.

(Withdrawn 12/31/94).

C.ofInt.-9

PROSECUTING ATTORNEYS

A MISSOURI LAWYER RETIRING FROM THE OFFICE OF PROSECUTING ATTORNEY OR ASSISTANT PROSECUTING ATTORNEY IN JACKSON COUNTY, CANNOT ACCEPT EMPLOYMENT TO DEFEND ANY CASES WHICH WERE PENDING IN THE OFFICE WHILE HE HELD SUCH OFFICE.

(Withdrawn 12/31/94).

C.ofInt.-10

JUDGES

A MISSOURI LAWYER ELECTED CIRCUIT JUDGE CANNOT AFTER TAKING OFFICE, ENGAGE IN THE PRACTICE OF LAW OR DO A LAW BUSINESS.

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?

ANSWER: No.

[See Code of Judicial Conduct; Rule 2]

C.ofInt.-11

ATTORNEYS

NOT IMPROPER TO REPRESENT JUROR UNDER CERTAIN FACTS.

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.

[Rule 4 1.7]

C.ofInt.-12

ATTORNEYS

LAWYER TRUSTEE MAY REPRESENT EXECUTOR OF TRUST ESTATE WHERE NO CONFLICT OF INTERESTS

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.

[Rule 4 1.7]

C.ofInt.-13

ATTORNEYS

IMPROPER TO ACCEPT EMPLOYMENT OF PAY CLIENTS FROM FREE LEGAL AID BUREAU WHILE SERVING ON BUREAU STAFF.

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?

ANSWER: No.

[Rule 4 1.7(b); 7.3(b)]

C.ofInt.-14

ATTORNEYS

NOT IMPROPER FOR PLAINTIFF'S LAWYER TO OBTAIN WAIVER AND ENTRY OF APPEARANCE IN DIVORCE ACTION FROM DEFENDANT BUT LAWYER FOR PLAINTIFF CANNOT PREPARE ANSWER FOR DEFENDANT.

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]

C.ofInt.-15

PROSECUTING ATTORNEYS

IMPROPER TO REPRESENT DEFENDANT LANDOWNER IN CONDEMNATION SUIT BROUGHT BY STATE.

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?

ANSWER: No.

[Rule 4 1.7]

C.ofInt.-16

ATTORNEYS

IMPROPER FOR MISSOURI ATTORNEYS HOLDING OFFICE OF ASSISTANT ATTORNEY GENERAL OR SPECIAL ASSISTANT ATTORNEY GENERAL ON REGULAR SALARY TO REPRESENT ANY PARTY OTHER THAN THE STATE OF MISSOURI IN PROCEEDINGS BEFORE STATE DEPARTMENTS AND BUREAUS OF STATE GOVERNMENT.

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.

(b) No.

(c) No.

(d) No.

(3) (a) No.

(b) No.

(c) No.

(d) No.

(e) No.

[Rule 4 1.7]

C.ofInt.-17

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.

[Rule 4 1.7]

C.ofInt.-18

ATTORNEYS

UNPROFESSIONAL FOR A MISSOURI LAWYER DRAFTING A WILL FOR A CLIENT TO SUGGEST THAT HE BE NAMED IN THE WILL AS ATTORNEY FOR THE EXECUTOR.

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]

C.ofInt.-19

ATTORNEY JUVENILE OFFICERS

IMPROPER FOR JUVENILE OFFICER TO REPRESENT PERSONS ACCUSED OF CRIMES.

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.

[Rule 4 1.7]

C.ofInt.-20

CONFLICT OF INTEREST CITY ATTORNEY DEFENSE ATTORNEY IN CRIMINAL CASES.

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.

[Rule 4 1.7]

C.ofInt.-21

PROSECUTING ATTORNEY "NO FAULT" DIVORCE LAW

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.

[Rule 4 1.7]

C.ofInt.-22

DISSOLUTION OF MARRIAGE JOINT PETITION

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.

[Rule 4 1.7]

C.ofInt.-23

PROSECUTING ATTORNEY IMPROPER TO DEFEND PROSECUTIONS OF VIOLATIONS OF MUNICIPAL ORDINANCES.

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 for a 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]

C.ofInt.-24

(Opinion omitted. See Notes on Use.)

C.ofInt.-25

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.

[Rule 4 1.7]

C.ofInt.-26

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.

[Rule 4 1.7; 1.10]

C.ofInt.-27

(Opinion omitted. See Notes on Use.)

C.ofInt.-28

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]

C.ofInt.-29

(Opinion omitted. See Notes on Use.)

C.ofInt.-30

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]

C.ofInt.-31

(Opinion omitted. See Notes on Use.)

C.ofInt.-32

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)]

C.ofInt.-33

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.

[Rule 4 1.7]

C.ofInt.-34

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 lawsuit 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.

[Rule 4 1.9]

C.ofInt.-35

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.

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. D What should P.A. do?

d. 3rd party raises a criminal charge vs. P What should P.A. do?

ANSWER 1. a.: The Prosecuting Attorney should disqualify himself 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.

[Rule 4 1.7]

C.ofInt.-36

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)]

C.ofInt.-37

(Withdrawn 1/26/90).

C.ofInt.-38

(Opinion omitted. See Notes on Use.)

C.ofInt.-39

(Opinion omitted. See Notes on Use.)

C.ofInt.-40

(Opinion omitted. See Notes on Use.)

C.ofInt.-41

(Opinion omitted. See Notes on Use.)

C.ofInt.-42

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.

[Rule 4 1.7(b)]

C.ofInt.-43

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.

[Rule 4 1.7]

C.ofInt.-44

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.

[Rule 4 1.7(b)]

C.ofInt.-45

(Opinion omitted. See Notes on Use.)

C.ofInt.-46

(Opinion omitted. See Notes on Use.)

C.ofInt.-47

(Opinion omitted. See Notes on Use.)

C.ofInt.-48

(Opinion omitted. See Notes on Use.)

C.ofInt.-49

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.

[Rule 4 1.7(b)]

C.ofInt.-50

(Opinion omitted. See Notes on Use.)

C.ofInt.-51

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.

[Rule 4 1.7(b)]

C.ofInt.-52

(Opinion omitted. See Notes on Use.)

C.ofInt.-53

(Opinion omitted. See Notes on Use.)

C.ofInt.-54

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?

ANSWER:

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.

[Rule 4 1.7(b)]

C.ofInt.-55

(Opinion omitted. See Notes on Use.)

C.ofInt.-56

QUESTION: 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?

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.

[Rule 4 1.7(b)]

C.ofInt.-57

(Opinion omitted. See Notes on Use.)

C.ofInt.-58

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.

[Rule 4 1.7]

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.

[Rule 4 1.7(b)]

C.ofInt.-60

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 shareholder.

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)]

C.ofInt.-61

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.

[Rule 4 1.7(b)]

C.ofInt.-62

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.

[Rule 4 1.7; 1.10]

C.ofInt.-63

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 outstate 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.2d 296. Rendered June 16, 1978.

[Rule 4 1.7(b); 1.9]

C.ofInt.-64

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 remains pending 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)]

C.ofInt.-65

(Opinion omitted. See Notes on Use.)

C.ofInt.-66

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]

C.ofInt.-67

(Opinion omitted. See Notes on Use.)

C.ofInt.-68

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?

ANSWERs:

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.

[Rule 4 1.7(b)]

C.ofInt.-69

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.

[Rule 4 1.9]

C.ofInt.-70

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.

[Rule 4 1.7(b)]

C.ofInt.-71

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]

C.ofInt.-72

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.

[Rule 4 1.7(b)]

C.ofInt.-73

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.

[Rule 4 1.7(b)]

C.ofInt.-74

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?

ANSWER:

(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]

C.ofInt.-75

(Opinion omitted. See Notes on Use.)

C.ofInt.-76

(Opinion omitted. See Notes on Use.)

C.ofInt.-77

(Opinion omitted. See Notes on Use.)

C.ofInt.-78

(Opinion omitted. See Notes on Use.)

C.ofInt.-79

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.

[Rule 4 1.7(b)]

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.

[Rule 4 1.7(b); 1.10]

C.ofInt.-81

(Opinion omitted. See Notes on Use.)

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.

[Rule 4 1.7]

C.ofInt. -83

(Opinion omitted. See Notes on Use.)

C.ofInt.-84

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?

ANSWER:

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.

[Rule 4 1.7; 1.10]

C.ofInt. -85

(Opinion omitted. See Notes on Use.)

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)]

C.ofInt.-87

(Withdrawn 1/26/90).

C.ofInt.-88

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.

[Rule 4 1.7]

C.ofInt.-89

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.

[Rule 4 1.7(b)]

C.ofInt.-90

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.

[Rule 4 1.7(b)]

C.ofInt.-91

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 Subchapter 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.

ANSWER:

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.

[Rule 4 1.7]

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.

[Rule 4 1.7]

C.ofInt.-93

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.

[Rule 4 1.7]

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.

[Rule 4 1.7]

C.ofInt.-95

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.

[Rule 4 1.7(a)]

C.ofInt.-96

(Opinion omitted. See Notes on Use.)

C.ofInt.-97

(Opinion omitted. See Notes on Use.)

C.ofInt.-98

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?

ANSWER:

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.

[Rule 4 1.7(b)]

C.ofInt.-99

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.

[Rule 4 1.7]

C.ofInt.-100

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.

[Rule 4 1.9(b)]

C.ofInt.-101

(Opinion omitted. See Notes on Use.)

C.ofInt.-102

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.ofInt.-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.

[Rule 4 1.7(b)]

C.ofInt.-103

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.

[Rule 4 1.9(a)]

C.ofInt.-104

(Opinion omitted. See Notes on Use.)

C.ofInt.-105

(Opinion omitted. See Notes on Use.)

C.ofInt.-106

(Opinion omitted. See Notes on Use.)

C.ofInt.-107

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.

[Rule 4 1.7(a)]

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.

[Rule 4 1.7]

C.ofInt.-109

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.

[Rule 4 1.7]

C.ofInt.- 110

(Opinion omitted. See Notes on Use.)

C.ofInt.-111

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?

ANSWER:

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, informations, 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)]

C.ofInt.-112

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 AFCD 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?

ANSWER:

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.

[Rule 4 1.7]

C.ofInt.-113

(Opinion omitted. See Notes on Use.)

C.ofInt.-114

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 interpleader 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.

[Rule 4 1.7]

C.ofInt.-115

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?

ANSWER:

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.

[Rule 4 1.9(a)]

C.ofInt.-116

(Opinion omitted. See Notes on Use.)

C.ofInt.-117

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 of the 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.

[Rule 4 1.9(a)]

C.ofInt.-118

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.

[Rule 4 1.7]

C.ofInt.-119

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.

[Rule 4 1.7]

C.ofInt.-120

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.

[Rule 4 1.7]

C.ofInt.-121

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.

[Rule 4 1.9]

C.ofInt.-122

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.

[Rule 4 1.7]

C.ofInt.-123

(Opinion omitted. See Notes on Use.)

C.ofInt.- 124

QUESTION: A and B are father and son, who are adults who reside 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 the representation 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.

[Rule 4 1.7]

C.ofInt.-125

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.

[Rule 4 1.9(a)]

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.

[Rule 4 1.7]

C.ofInt.-127

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.

[Rule 4 1.7(b)]

C.ofInt.-128

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.

[Rule 4 1.7]

C.ofInt.- 129

(Opinion omitted. See Notes on Use.)

C.ofInt.-130

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.

[Rule 4 1.7]

C.ofInt.-131

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.

[Rule 4 1.7]

C.ofInt.-132

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?

ANSWER:

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.

[Rule 4 1.7]

C.ofInt.-133

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.

[Rule 4 1.7]

C.ofInt.-134

(Opinion omitted. See Notes on Use.)

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?

ANSWER:

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.

[Rule 4 1.7]

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.

[Rule 4 1.9(b)]

C.ofInt.-137

(Opinion omitted. See Notes on Use.)

C.ofInt.-138

(Opinion omitted. See Notes on Use.)

C.ofInt.-139

(Opinion omitted. See Notes on Use.)

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.

[Rule 4 1.7]

C.ofInt.-141

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)?

ANSWER:

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.

[Rule 4 1.7]

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.

[Rule 4 1.9(b)]

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 fra