dissenting.
I respectfully dissent.
The majority opinion (1) fails to identify any lawyer involved in the prosecution of defendant whose conduct violated the Rules of Professional Conduct; (2) relies on case authorities that are distinguishable; (3) fails to apply case authorities that are clearly applicable; and (4) fails to give adequate consideration to the fact that defendant failed to raise any objection at a time when the claimed error could have been corrected without a mistrial.
I.
When the criminal complaint against defendant was filed by Klopfenstein, neither Mowry, Klopfenstein, nor any other member of the Von Erdmannsdorff & Zimmerman firm was ethically prohibited from assisting in defendant’s prosecution. All subsequent prosecutorial activity disclosed in the record was performed by John Newber-ry, an attorney who was not associated with the Von Erdmannsdorff & Zimmerman firm.
The Rules of Professional Conduct disqualify lawyers, not law offices. To the extent information is imputed to other lawyers, the imputation is limited to those who are associated in a “law firm.” Law firms are distinguished from governmental agencies in the Rules of Professional Conduct.
Rule 1.10 provides in part:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.
(Emphasis added.)
Rule 1.7 provides, in part:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(Emphasis added.)
Rule 1.11 provides in part:
(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
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(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(1) participate in any matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter. ...
(Emphasis added.)
In the case of Blair v. Armontrout, 916 F.2d 1310 (8th Cir.1990), a defendant *955sought to disqualify the entire Missouri Attorney General’s office because one member, when previously a public defender, had represented Blair during various attempts to attack his conviction. The court refused to disqualify the entire office for the reason that a screening mechanism or “Chinese wall” could be implemented. The court applied the Missouri Rules of Professional Conduct because the United States District Court for the Western District of Missouri has adopted those rules. Id. at 1333. Nothing in that case supports the erroneous contention of the majority that “the Eighth Circuit based its decision on federal law rather than on Missouri law, which it recognized as dictating the opposite result.” The Eighth Circuit clearly based its decision on Rule 1.11(c) of the Missouri Rules of Professional Conduct which by its terms does not disqualify all lawyers in the same governmental agency or office. In the same way that Blair prevented disqualification of the entire Attorney General’s office, in the present case, the entire prosecutor’s office should not be disqualified.
Applying the Rules of Professional Conduct here, no one could argue that when Klopfenstein signed the criminal complaint, defendant was his client, or that he violated the Rules of Professional Conduct by failing to be able to foresee that defendant at some time in the future would employ the Yon Erdmannsdorff & Zimmerman firm. Similarly, no one argues that defendant was a client of John Newberry, or that Newberry is a member of the Von Erd-mannsdorff & Zimmerman firm, so that representation and knowledge of any of that firm’s members is imputed to Newber-ry. To so hold, flies squarely in the face of our rule that disqualifies only those government lawyers who “participated personally and substantially” in representing the defendant. Rule 1.11(c). The majority fails to identify the rule that imputes Mow-ry’s misconduct, assuming it was misconduct, to Newberry or, retroactively, to Klopfenstein.
No court in this state has ever held that a governmental agency is a “law firm” within the meaning of Rule 1.10. The comment under Rule 1.10 defines the word “firm” as including “lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization, or in a legal services organization.” The comment goes on to state:
Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government.... The government deals with all private citizens and organizations, and thus has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government’s recruitment of lawyers would be seriously impaired if Rule 1.10 were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11.
To impute any confidential communication of defendant to Newberry or Klopfenstein requires the Court to look beyond the plain language of Rules 1.7, 1.10 and 1.11. The Court must apply artificial rules of construction and rely on abstract and subjective notions of “appearances of impropriety.” If this Court wishes to amend the Rules of Professional Conduct to disqualify an entire government agency where a potential conflict exists and treat such agency like a private law “firm,” we should do so directly by writing a rule in language so plain that no doubt will exist in the minds of reasonable persons as to our intent.
II.
The majority, though it has strained mightily to do so, fails to cite a single Missouri authority that precisely supports its holding. The primary cases upon which the majority relies, State v. Burns, 322 S.W.2d 736 (Mo.1959), and State v. Croka, 646 S.W.2d 389 (Mo.App.1983), are distinguishable from the case at hand.
In Bums, attorney Colson was employed to defend Burns on a charge at issue. Col-son then took office as prosecuting attorney, turning the case over to an assistant. However, Colson appeared in court on at *956least one occasion to oppose a defense motion for continuance. Colson also prepared the instructions used by the state at defendant’s trial. Unquestionably Colson knew of his prior representation of defendant when he assisted in defendant’s prosecution. Burns did not object until he filed a motion for new trial. This Court noted that Colson’s actions were “more than a question of technical error.” 322 S.W.2d at 741. The fact that Colson “acquired that information as counsel for defendant and that he might use it, render[ed] his subsequent position wholly untenable.” Id. Thus, Colson’s actions were a direct violation of clearly articulated professional norms.
A significant distinction between this case and Burns is that Bums was decided under the “Canons of Ethics.” Those rules were displaced in 1970 by the “Code of Professional Responsibility.” That code has since been replaced in 1986 by adoption of the current “Rules of Professional Responsibility.” Unlike the present rules, the Canons of Ethics made no distinction between lawyers moving between law firms and lawyers moving between a law firm and the government. The majority fails to take note of this significant distinction found in the present rules.
Here the violation of the rules is shadowy and uncertain. In contrast to Bums, no one who actually communicated with defendant was shown to have participated in his criminal prosecution. Newberry, unlike Colson, was not shown to be aware of the potential conflict. In the words of our rules, no lawyer who had personally and substantially been involved in representing defendant was involved in the prosecution, and no lawyer associated in the law firm representing defendant participated in defendant’s prosecution. Because Burns involved more than a “technical” violation of the rules, the Court presumed prejudice. The Bums court did not say an “appearance of impropriety” without direct evidence of a violation of a disciplinary rule would always justify reversal where the issue was not timely raised. For an example of a case involving a mere technical violation, see State v. Howard, 118 Mo. 127, 24 S.W. 41, 43 (1893), where this Court found no grounds for reversal where an attorney was nominally appointed to defend a client, obtained no confidential information, and later assisted in prosecution.
State v. Croka is also distinguishable from this case in some respects. In other respects, the majority fails to follow Cro-ka. In that case, attorney Busker was appointed in May of 1979 to represent defendant in the case at issue. A preliminary hearing was held and defendant was bound over for trial. In August of that year Busker moved to withdraw because he had been appointed assistant prosecuting attorney in the same county. The defendant moved to disqualify the entire prosecutor’s office. Although the motion was overruled, prosecuting attorney Peterson voluntarily withdrew and a special prosecutor was appointed. However, after withdrawing, Peterson spoke with a prosecution witness prior to a deposition on October 9, 1979, telling her “what to expect” at the deposition. The court of appeals did not identify any particular rule that had been violated but noted that when Busker joined the prosecutor’s office, further prosecution by the office would create “an appearance of impropriety.” According to the court of appeals, Peterson’s withdrawal could have cured any error, but his further representation nullified the effect of the withdrawal. Nevertheless, the court questioned whether there had been any “actual prejudice” to defendant. It held that on remand the trial court should, if requested by defendant, inquire into the substance of the conversation between Peterson and the witness on the record. “If as a result of such hearing, it is determined that defendant has suffered actual prejudice, the trial court is instructed to take appropriate measures.” 646 S.W.2d at 393.
Unlike Croka and Burns, the prosecutor assigned to prosecute defendant in this case was not shown to be on notice of any potential conflict of interest at trial or before. Also, Croka is distinguishable because a timely objection was made to the court and prosecutor of the possible conflict of interest.
*957Croka suggests that where there is only a technical violation, such as an “appearance of impropriety,” then there must be a showing of actual prejudice as a result of the alleged misconduct. One may conjure up any number of scenarios that might give rise to “appearances of impropriety” in the eyes of the cynic. But the time honored policy of the courts has been not to reverse cases in the absence of prejudice. The time, energy, and expense of reversing and retrying cases where no prejudice exists is unjustified. The traditional rule is sound policy and, I believe, good law. In this regard, Croka points the way that we should follow.
III.
As previously noted, the Missouri Rules of Professional Conduct do not disqualify an entire prosecutor’s office merely because one member of the office previously represented a defendant in a related matter. No case of this Court has adopted a per se rule disqualifying an entire prosecutor’s staff because of the prior representation of a defendant by one member of the prosecutor’s office. The cases from other jurisdictions are not in agreement on the question. Some states have held that the entire office is disqualified, even though the lawyer involved did not obtain or divulge any confidences. See, e.g., State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (banc 1972); People v. Stevens, 642 P.2d 39 (Colo.App.1981); State v. Chambers, 86 N.M. 383, 524 P.2d 999 (App.1974), cert. denied 86 N.M. 372, 524 P.2d 988 (1974); People v. Shinkle, 51 N.Y.2d 417, 415 N.E.2d 909, 434 N.Y.S.2d 918 (1980). The holding in the cases just cited has been criticized for (1) failing to consider the distinction between “lawyers engaged in private practice and prosecutors engaged in constitutionally and statutorily mandated duties on behalf of the public,” and (2) basing the disqualification on an “appearance of impropriety” without analyzing the facts before the court. State v. Camacho, 329 N.C. 589, 406 S.E.2d 868, 873 (1991). In addition, none of the cases noted above were decided under rules consistent with ours which distinguish between lawyers moving between law firms and lawyers moving between a law firm and a government agency.
Under the opposing and, I believe, better reasoned view, the per se rule is rejected, and the Court must determine whether the individual lawyer obtained and used any confidential information against the defendant. The individual lawyer, not the entire office, is disqualified. This result is, of course, consistent with the plain language of our present rules. Decisions rejecting the per se rule of disqualification for prosecutors’ offices include Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980); Thompson v. State, 246 So.2d 760 (Fla.1971); Summit v. Mudd, 679 S.W.2d 225 (Ky.1984); State v. Bell, 346 So.2d 1090 (La.1977); Young v. State, 297 Md. 286, 465 A.2d 1149 (1983); Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982); State v. Camacho, 329 N.C. 589, 406 S.E.2d 868, 873 (1991); and Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980). Even when special prosecutors are appointed or procedures are adopted to insulate disqualified lawyers, it is necessary to trust to the integrity of the lawyers in question.
[Transferring responsibility from one office to another, or the appointment of a special prosecutor ... is more cosmetic than substantial. Essentially the question is whether defendant has been in any way prejudiced by virtue of the imparting of knowledge from his former counsel to anyone involved in his prosecution.
State v. Cline, 122 R.I. 297, 325, 405 A.2d 1192, 1207 (1979).
Compare also the three-step inquiry utilized in United States v. Goot, 894 F.2d 231, 235 (7th Cir.1990):
First, does a “substantial relationship” exist between the subject matter of the prior and present representations? Second, if so, has the presumption of shared confidences with respect to the prior representation been rebutted? Third, if not, has the presumption of shared confidenc*958es with respect to the present representation been rebutted?
In Goot the convictions were affirmed where defendant’s attorney later became the United States attorney but recused himself from the case, appointed an assistant in his office, and provided affidavits that he had not communicated with the attorneys in the case. 894 F.2d at 233. The end result was that the entire United States Attorney’s Office for the Northern District of Indiana was not required to be disqualified because defendant’s former attorney was sufficiently screened from the prosecution. Id. at 237. The better rule, then, is to make a case-by-case analysis to determine if there has been any violation of a defendant’s confidences or other prejudice to him in the case.
IV.
At minimum, I would not adopt the draconian per se rule requiring disqualification of the entire prosecutor’s office in a case where the potential conflict was fully disclosed to defendant prior to trial but the defendant waited until weeks after an unfavorable verdict to make his objection by way of an after trial motion. One fact that is certain from this record is that defendant recognized Mo wry’s name during voir dire and that neither defendant nor his attorney objected at' trial. The trial court rejected defendant’s claim that he was “chilled” from testifying, and so should we. Defendant and his attorney had all the facts at hand to let their concerns be known and inexplicably failed to act. In short, I would not apply the per se rule based on mere technical grounds of “an appearance of impropriety” without a showing of either (1) actual prejudice or (2) a timely objection.
The result I suggest would also be consistent with State v. Wacaser, 794 S.W.2d 190, 195-96 (Mo. banc 1990). There, this Court upheld a trial court finding after a hearing that the prosecutor was not disqualified in that he had not possessed confidential information, though his private law firm represented defendant in a related matter.
For all the reasons set forth above, I respectfully dissent.