RI-43

February 6, 1990

SYLLABUS

An assistant prosecutor previously employed as judicial clerk is disqualified from representing the prosecutor's office before that court in any matter which involved the lawyer's personal or substantial participation as clerk.

When an assistant prosecutor is disqualified from a court proceeding because of prior involvement with the case as a judicial clerk, and when the disqualified lawyer holds a supervisory position in the prosecutor's office, the entire staff of the prosecutor's office is disqualified from all those proceedings to which the individual disqualification applies, unless the prosecutor's office can demonstrate a mechanism for screening the tainted lawyer from participation in the case.

Where the screening mechanism was not in place prior to the judicial clerk joining the prosecutor's office, the office is disqualified from all those proceedings to which the individual disqualification applies, notwithstanding an attempted subsequent screening.

References: MRPC 1.9, 1.10, 1.11, 1.12; CI-951; MCR 2.003; People v. Doyle, 159 Mich App 632 (1987); United States v. Hollister, 746 F2d 420 (CA8 1984).

TEXT

Defendant was convicted in a circuit court jury trial and was sentenced by the trial judge. Thereafter, appellate counsel was appointed for the defendant, and filed motions in the trial court to extend the time for taking an appeal of right, to disqualify the prosecutor and all assistant prosecutors from any further work on the case, and to resentence the defendant. The trial judge has requested an opinion regarding the motion to disqualify the prosecutors, see JI-8, providing the following facts.

For the previous three years, including the period of defendant's trial and sentencing, the trial court employed a lawyer in the dual position of court bailiff and law clerk. This lawyer researched and drafted various pretrial opinions issued by the trial judge in defendant's case, and as bailiff was in charge of defendant's jury.

During the period between defendant's sentencing and appointment of appellate counsel, this lawyer was hired as chief appellate prosecutor for the office which prosecuted the defendant. The Appellate Division of this prosecutor's office has one assistant appellate prosecutor. There are a total of twenty prosecutors in the entire prosecutor's office, including the prosecutor, a chief assistant prosecutor, the chief appellate prosecutor, one assistant appellate prosecutor, and sixteen other assistants.

At the motion hearing, the prosecutor testified that the chief appellate prosecutor has "basically executed supervisory capacity only over [the assistant appellate prosecutor]." On cross examination, the prosecutor testified that he did not know how many assistants were currently handling appeals, but opined that it would be possible for an assistant prosecutor to handle this particular appeal without seeking advice from the appellate chief. He admitted, however, that "it wouldn't be unnatural, or certainly wouldn't be rare for [the assistants] to go to the chief of appeals if they ran into a difficult point, and perhaps solicit . . . advice."

It was assumed at the hearing that the chief appellate prosecutor would be disqualified from this case. The Committee agrees, but wishes to emphasize that such disqualification is not mandated by the lawyer's former clerk status. Formal ethics opinion R-4 contains a synopsis of the public policy problems created by such "status disqualifications." Furthermore, MCR 2.003 recognizes that a judge is not automatically disqualified "merely because the judge's former law clerk is an attorney of record for a party in an action that is before that judge . . . ." In view of this rule, it would be contradictory to hold that the former clerk is automatically disqualified solely on the basis of previous status. However, this former law clerk participated both personally and substantially in the defendant's trial and pre-trial proceedings. MRPC 1.12(a) unequivocally disqualifies a lawyer from representing "anyone in connection with a matter in which the lawyer participated personally and substantially as a . . . law clerk." Thus, the chief appellate prosecutor is disqualified because of the participation on the individual matter.

The harder question is whether the entire prosecutor's office is disqualified from all or any portion of the post-trial proceedings concerning this defendant. On the facts presented, the Committee concludes that the prosecutor's entire office is disqualified from all proceedings before the trial judge concerning this defendant.

MRPC 1.12(c) states that if a lawyer is personally disqualified from a matter by MRPC 1.12(a), "no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless the disqualified lawyer is screened from any participation in the matter . . . ." MRPC 1.10 and MRPC 1.11, which deal respectively with imputed disqualification and successive government and private employment, do not expressly address the meaning of "firm" in the context of successive government employment, although the comment to MRPC 1.10 makes it clear that "firm" includes a corporate legal department, while the comment to MRPC 1.11 states:

"When the client is the agency of one government, that agency should be treated as a private client for purposes of this rule if the lawyer thereafter represents an agency of another government . . . ."

Both rules are primarily intended to safeguard client loyalty and confidentiality and to preclude exploitation of public office for private advantage -- values difficult to translate to the context of the prosecutor-defendant relationship. And R-4, which analyzes the propriety of the "Chinese wall" defense under MRPC 1.9 and 1.10, was written in response to an inquiry from a civil litigation firm and therefore fails to address the issue of whether a prosecutor's office constitutes a "firm" for purposes of the imputed disqualification rules.

We believe a prosecutor's office does constitute a "firm" for purposes of the Rules. MRPC 3.8 imposes a special responsibility on the prosecutor as a minister of justice, and therefore it is clear that the prosecutor's office does not lie outside the ambit of ethical constraints. Because the prosecutor has a greater duty of fairness to the opposition than the tort lawyer who was the subject of R-4, a fortiori the strictures of R-4 should apply to the prosector's office.

Having decided that the chief appellate prosecutor is disqualified, and that the lawyer's office is a "firm" within the meaning of the Rules, can disqualification of the entire prosecutor's office be avoided by screening in this instance?

CI-951 addressed whether a part-time judicial clerk could work in any capacity as private counsel in cases pending before that circuit. The Committee not only held that such private employment was improper, but placed the added stricture on the attorney to disclose the disqualification to prospective clients. No exception for "screening" was discussed.

In People v. Doyle, 159 Mich App 632, modified on other grounds, 161 Mich App 743 (1987), the Court of Appeals upheld the trial judge's disqualification of an entire prosecutor's office because the disqualified assistant prosecutor failed to voluntarily withdraw from a case where the prosecutor's personal interest was obvious, and because the tainted lawyer held a supervisory position in the office. In so holding, the Court of Appeals rejected the prosecutor's argument that the appearance of impropriety alone was insufficient to support a disqualification order. The court was concerned with the preservation of public confidence in the impartiality and integrity of the criminal justice system, saying:

"American courts have consistently held that the appearance of impropriety is sufficient to justify disqualification of a prosecuting attorney. Defendant need not prove actual bad faith or unethical conduct on the part of the prosecutor and his staff.

. . . If the assistant prosecuting attorney concerned in the conflict of interest has supervisory authority over other attorneys in the office, or has policy making authority, then recusal of the entire office is likely to be necessary." 159 Mich App 632, 644-645.

In U.S. v. Hollister, 746 F2d 420 (CA 8, 1984), a convicted defendant appealed the trial judge's failure to recuse when the prosecutor in the case was the judge's former law clerk who had finished a clerkship just three months prior to becoming involved in the prosecution. The appeals court held that because the record demonstrated an impartial trial, the refusal to disqualify was not a reversible error. Then, in a classic example of obiter dictum, the panel went on to hold:

"We do, however, endorse the principle that a certain insulation period should pass before a judge sits on a case in which his or her former law clerk acts as counsel. Avoiding the appearance of impropriety is as important to developing public confidence in the judiciary as avoiding impropriety itself . . . . We suggest that any district or circuit judge in the Eighth Circuit seriously consider recusal when an attorney who has recently served as law clerk appears as counsel before him or her." 746 F2d 420, 425-426.

The Committee does not believe that such empty "finger-wagging" is consistent with Michigan's approach to the issue. See MCR 2.003(B) and Haggerty v. State Tenure Comm'n, 179 Mich App 117 (1989). The Committee agrees with the prosecutor's testimony at the motion hearing that it "wouldn't be unnatural for other members of the office to solicit advice" from the disqualified chief appellate prosecutor. Nor is it implausible that the trial judge might be unduly influenced by arguments which have been drafted, edited, or reviewed by a respected former employee upon whom the judge has already relied in making rulings in defendant's case. If screening is accepted to avoid disqualification, the screening must be in place when the employee joins the office; this was not done. After the fact screening is inadequate, R-4 and case law cited therein. It also appears that the constraints of MRPC 1.12(b) were not observed in the instant case, i.e.:

"A lawyer serving as a law clerk to a judge . . . may negotiate for employment with a party or attorney involved in the matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge . . . ." Emphasis added.

One purpose of requiring a law clerk to notify the judge is to allow the judge to "sanitize" pending proceedings by screening the affected clerk from any further involvement. The clerk was not in fact shielded from participation in defendant's case.

Accordingly, the disqualification of the chief appellate prosecutor necessitates recusal of the entire prosecutor's office from all proceedings involving this defendant before the trial court, because of the disqualified lawyer's personal involvement as a judicial officer at trial, because the lawyer's supervisory position in this particular prosecutor's office realistically precludes screening the lawyer from involvement with defendant's case, because the prophylaxis intended by MRPC 1.12(b) was not applied, and because screening the tainted lawyer after the fact is rejected by R-4.