87-F-111 - Vicarious Disqualification of Entire Staff of District Attorney

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 87-F-111


Inquiry is made concerning the vicarious disqualification of the entire staff of a District Attorney General when one member of the staff is disqualified from handling a particular matter.

The Tennessee District Attorneys General Conference on behalf of all District Attorneys General and their Assistants has made an ethics inquiry concerning the vicarious disqualification of the entire staff of a District Attorney General when one member of the staff is disqualified.

In the case of State v. Phillips, 672 S.W.2d 427 (Tenn. Cr. App. 1984) the court reversed the defendants conviction and disqualified the District Attorney General from participating in the retrial after finding that the defendants former counsel had become an Assistant District Attorney and worked on the case for the prosecution.

While serving as Assistant District Attorney the former defense counsel assisted in trial preparation, reviewed the state's file, made notes in the file, assisted with discovery, prepared and filed motions, interviewed prospective witnesses and obtained an expert to refute the defense he had interposed for the defendant. In disqualifying the District Attorney General the court directed the trial judge to appoint a District Attorney pro tempore to represent the state on retrial, and further directed the trial judge to insure that the contents of the District Attorney General's file from the time defense counsel was employed was not available to the District Attorney pro tempore. In disqualifying the District Attorney General the Court stated:

The courts simply cannot countenance the desertion of the accused by his defense counsel, acceptance of employment with the prosecutor and any subsequent participation in any manner in the trial, including pre-trial preparation. It seems inconceivable that the challenged attorney and his new employer did not know that.

The court distinguished the facts in State v. Phillips from the facts in its previous ruling in Mattress v. State, 564 S.W.2d 678 (Tenn. Cr. App. 1977). In Mattress the court held that the trial court's action in disqualifying the challenged Assistant District Attorney from participating in the trial but allowing another assistant on the same staff to prosecute was adequate to dispel any appearance of impropriety. In Mattress the challenged Assistant District Attorney had formerly been a legal clinic staff attorney and accepted a case involving one of the defendants but had not interviewed the defendant. Another legal clinic file revealed that the challenged attorney had been assigned to defend Mattress. The challenged Assistant District Attorney did not recall the cases and did not recall talking with either of the defendants. Neither defendant claimed to have been interviewed by him nor to have divulged any confidential information to him. The former legal clinic attorney interviewed the state's witnesses and prepared a motion for continuance after becoming Assistant District Attorney. The court held that the defense counsel/prosecutors actions in the Mattress case did not approach the extensive pre-trial representation by the challenged attorney in State v. Phillips.

The court also cited and distinguished Autry v. State, 430 S.W.2d 808 (Tenn. Cr. App. 1967) as well as cases from Illinois, Oklahoma, Missouri, New Jersey, Florida, Kansas, Mississippi and West Virginia wherein convictions were reversed and remanded for new trial because defense counsel had switched sides.

The Supreme Court of Tennessee, in the case of State of Tennessee v. Jesse Jones, In Re: Larry S. Banks, Attorney 726 S.W.2d 515 struck down the Board's per se rule in Ethics Opinion 83-F-41 that county attorneys and their associates cannot represent criminal defendants prosecuted by county officers. The court found that each incident should be examined and determined on a case-by-case basis.

It appears that a per se rule in this instance is likewise inappropriate and that the question concerning the vicarious disqualification of the entire staff of a District Attorney General when one member of the staff is disqualified should be examined and determined by the court on a case-by-case basis.

This 16th day of September, 1987.

ETHICS COMMITTEE:

Michael E. Callaway
Charles T. Herndon III
G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD