State v. Nickels

456 P.3d 795, 195 Wash. 2d 132

• Court: Washington Supreme Court
• Decided: January 30, 2020
• Docket: 96943-4
• Status: Published

Opinion

This opinion was IN CLIilKN OmCI fiied for record ooun;jm( at^(3k..MonCSA^^ 3oao DATE. «3 I) 2i« Susan L. Carlson juai Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Petitioner, No. 96943-4

En Banc

DAVID EMERSON NICKELS, Filed JAN 3 y 2020 Respondent.

OWENS,J. — This case asks us to revisit the question of whether an elected

county prosecutor's prior involvement in a defendant's case should presumptively

disqualify the entire prosecutor's office from prosecuting the defendant in the same

case. When we first addressed this question in State v. Stenger, we held that an

elected prosecuting attorney's previous representation of a defendant in either the

same case or a closely interwoven matter "should ordinarily" disqualify the entire

prosecutor's office. Ill Wn.2d 516, 522, 760 P.2d 357(1988). The State argues the

2006 amendments to Washington's Rules ofProfessional Conduct(RPCs)—

specifically, two amendments foreclosing office-wide imputations of conflicts for all State V. Nickels, No. 96943-4

government attorneys generally—superseded Stenger. But StengeNs narrowly crafted rule applies only to Washington's 39 elected county prosecutors who, despite

adequate screening, retain broad discretionary and administrative powers over their

offices and employees. Accordingly, we hold that Stenger remains good law, and we

affirm the Court of Appeals' decision disqualifying the Grant County Prosecuting

Attorney's Office.

FACTS

The State charged David Nickels with first degree murder on June 16, 2010, in

Grant County, Washington. Though represented by counsel. Nickels acquired additional

legal assistance from a local criminal defense attorney. Garth Dano. The parties agree

that Dano's involvement in Nickels' defense creates a conflict of interest requiring

Dano's personal disqualification, but they dispute the scope of his involvement. The

record establishes that Dano entered a notice of association of counsel and appeared on

the record to receive a jury question and to receive the jury's verdict. The record further

establishes that after Nickels' conviction in 2012,Dano conducted interviews with jurors

and potential exonerating witnesses. Finally, via his counsel's uncontested affidavit.

Nickels asserts Dano received privileged work product through his participation in

crafting the defense's strategy and theory ofthe case, and his meeting personally with

Nickels.

In 2014, while Nickels' appeal was pending, Dano was elected Grant County

prosecutor. Subsequently, in 2017,the Court of Appeals reversed Nickels' conviction. State V. Nickels, No. 96943-4

State V. Nickels, No. 31642-4-III(Wash. Ct. App. Feb. 28, 2017)(unpublished),

http://www.courts.wa.gov/opinions/316424_unp.pdf. On remand, the Grant County

Prosecuting Attorney's Office immediately sought to screen now-Prosecutor Dano.'

Nickels moved to disqualify the entire office, arguing that under Stenger, Dano's prior

involvement in his defense necessitated the blanket recusal.

The trial court denied Nickels' motion; but the Court of Appeals reversed and,

applying Stenger, ordered the disqualification ofthe entire Grant County Prosecuting

Attorney's Office. State v. Nickels, 7 Wn. App. 2d 491, 434 P.3d 535 (2019).

Further, after determining that Stenger provided for an exception to the presumptive rule

of disqualification in certain "extraordinary circumstances" and that we had not defmed

what is "extraordinary," the Court of Appeals applied its own two-factor "extraordinary

circumstances" test. Id. at 497, 501. The State sought our review, which was granted.

State V. Nickels, 193 Wn.2d 1012(2019).

ISSUE

Does Stenger remain good law, presumptively requiring the disqualification of

an entire prosecutor's office when the elected prosecutor is personally disqualified

due to their previous involvement in the defendant's current case or other closely

interwoven matter?

The adequacy of the State's current screening measures are not before us. State V. Nickels, No. 96943-4

ANALYSIS

Whether attorney conduct violates the relevant RPCs is a question of law,

which we review de novo. Eriks v. Denver, 118 Wn.2d 451, 457-58, 824 P.2d 1207

(1992).

1. The 2006 Amendments to RFC 1.10(d) and Comment 2 to RFC 1.11 Do Not Supersede Stenger's Narrow Rule

In Stenger, the defendant moved to disqualify the entire prosecutor's office

after the Clark County prosecutor—^the defendant's former counsel—sought the death

penalty. 111 Wn.2d at 518-19. During his service as defendant's counsel, the elected

prosecutor was privy to the defendant's privileged information. Id. at 519.

Subsequently, as elected prosecutor, he directly participated in and administered over

multiple aspects of the defendant's prosecution before his eventual withdrawal and

attempted screening. Id. at 519-520. In our analysis, we recognized that "privileged

information obtained by the prosecuting attorney when he was the defendant's

counsel in the previous case could well work to the accused's disadvantage in this

case." Id. at 522. Accordingly, we held:

Where the prosecuting attorney (as distinguished from a deputy prosecuting attorney) has previously personally represented the accused in the same case or in a matter so closely interwoven therewith as to be in effect a part thereof, the entire office of which the prosecuting attorney is administrative head should ordinarily also be disqualified from prosecuting the case.

Id. Notably, in announcing this rule, we clarified that office-wide disqualification was

"neither necessary nor wise" when a deputy prosecuting attorney was personally State V. Nickels, No. 96943-4

disqualified. Id. at 523. Thus, contrary to the characterizations of amici for the State,

StengeNs rule does not apply to all public law offices generally or the Washington

Attorney General's Office specifically; it applies only to elected county prosecutors,

and then only when their offices seek to prosecute a defendant they previously

represented in either the same case or a closely interwoven matter.

Nearly two decades after our decision in Stenger, RPC 1.10 and 1.11 were

substantively amended. Relevant here, these rules now provide that a government

lawyer's personal conflict of interest is no longer imputed to their entire office. See

RPC 1.10(d); RPC 1.11 cmt. 2.^ The State asserts these amendments to the rules

superseded Stenger. Accordingly, the State argues the Court of Appeals' reliance on

Stenger's rule of presumptive disqualification—^not the general policy of screening

advanced by the current RPCs—^was error.

In support, the State relies on Wallace v. Evans, 131 Wn.2d 572, 934 P.2d 662

(1997), but neither Wallace nor its progeny is dispositive here. In Wallace, we held

that a significant change in the rules may supersede our prior decisions interpreting a

preamendment version ofthose rules. Id. at 576-77. However,Stenger's rule of

^ RPC 1.10(d) states in part that "[t]he disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11." RPC 1.11 comment 2 states in part that "[bjecause of the special problems raised by imputation within a govemment agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated govemment officers or employees, although ordinarily it will be prudent to screen such lawyers." State V. Nickels, No. 96943-4

presumptive disqualification was not interpreting a prior version of RPC 1.10 or RPC

1.11, relying instead on two out-of-state decisions for its reasoning. See Stenger, 111

Wn.2d at 522 n.l3 (citing People v. Lepe, 164 Cal. App. 3d 685, 688, 211 Cal. Rptr.

432(1985); State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379(Ind. 1982)).

While the 2006 amendments discuss imputations of conflicts for all

government attorneys generally, Stenger enumerated a narrow rule for an even

narrower class of persons. To be clear, Stenger'^ presumption of office-wide

disqualification touches only Washington's 39 elected county prosecutors and it

applies only when their offices are called to prosecute a defendant whom the elected

prosecutor previously represented in either the same case or another closely

interwoven matter. Stenger, 111 Wn.2d at 522. The amendments to RPC 1.10(d) and

RPC 1.11 comment 2 enumerated a general rule for imputation of conflicts of interest

between government attorneys and their offices that we read in harmony with

StengeCs narrow rule. Accordingly, we hold that office-wide disqualification is

presumptively proper when an elected prosecutor has previously represented the

defendant in the same case or closely interwoven matter.

2. Public Policy and the Public's Absolute Right to the Appearance ofa Just Proceeding Further Support Our Decision To Uphold Stenger

In addition to our determination that the RPC amendments have not superseded

StengePs narrow rule of presumptive disqualification, today's holding is compelled

by our mandate to preserve the public's confidence in the impartial administration of State V. Nickels, No. 96943-4

justice and the appearance of a just proceeding. See State v. Tracer, 173 Wn.2d 708,

720, 272 P.3d 199(2012). The State argues that office-wide disqualification inflicts a

distinct harm by depriving the citizenry of its chosen representative. The State

contends this deprivation is significant given both the elected prosecutor's role in

shaping office policy and their direct accountability to the electorate for their office's

acts. In support, the State argues that "Prosecutor Dano confers appointments on

attorneys whom he trusts to follow his policies," and the State candidly recognizes

that any deputy prosecuting attorney who fails to comply with Dano's policies may be

terminated at will.^ State's Resp. to Br. of Amici Curiae Wash. Ass'n of Criminal

Def. Lawyers & Wash. Def. Ass'n at 7. Furthermore, the State argues office-wide

disqualification will require courts to appoint independent prosecutors who are "not

required to have any familiarity with Prosecutor Dano's policies or office practices"

and will not be "subject to termination by Prosecutor Dano for failing to comply with

Prosecutor Dano's policies or office practices." Id. at 8-9.

Implicit in these arguments, however, is the State's recognition that an elected

prosecutor retains considerable power over their office and employees in every case

from which the elected prosecutor is merely screened. Like the Court of Appeals

recognized below, no amount of screening can be sufficient to fully wall off Dano

^ See RCW 36.16.070 (providing for an elected prosecutor's power of appointment of office deputies and employees); RCW 36.27.040 (providing for an elected prosecutor's power of appointment of special deputies). State V. Nickels, No. 96943-4

from the case or prevent him from being cognizant of the resources being committed

to Nickels' case and, thus, not devoted to other office priorities. Nickels, 7 Wn. App.

2d at 501. At bottom, the same arguments that the State advances in favor of

screening and preserving the elected prosecutor's power over their office—

administrative oversight of cases, control over office policy, and the power to

terminate employees at will—highlight the many factors that weigh strongly in favor

of a presumptive rule of office-wide disqualification.

We find further support in Tracer. There, we held that "'[t]he public has a

right to absolute confidence in the integrity and impartiality of the administration of

justice'" and that this right is impaired by the existence of conflicts that may '"give

the proceeding an appearance of being unjust and prejudicial.'" 173 Wn.2d at 720

(alteration in original)(quoting Howerton v. State, 1982 OK CR 12, 640 P.2d 566,

568). We further held that this "absolute" public right to confidence in the integrity

and impartiality of the justice system was not only based in the RPCs but also rooted

in the importance of avoiding "the appearance of impropriety." Id. at 721. Thus, we

affirmed that conflicts of interest implicate not only a defendant's right to a fair trial

but also the State's and the public's interest in maintaining the appearance of a fair

judicial process. See id.

To be clear, we have no reason to believe that either the Grant County

prosecutor or his office behaved unethically in attempting to address the present

conflict. However, the quality of their character is not determinative. What is State V. Nickels, No. 96943-4

determinative is our evaluation ofthe effect of permitting the office of a conflicted

elected prosecutor who retains significant administrative and discretionary powers,

regardless of any screening—^to prosecute the same defendant in the same case, which

we must then measure against the public's right to absolute confidence in the integrity

and impartiality ofthe administration ofjustice and the appearance of a just

proceeding. See Tracer, 173 Wn.2d at 720-21. Stenger was right—except in

extraordinary circumstances, office-wide disqualification and prosecution by an

independent prosecutor is most faithful to the principles of integrity and impartiality

required of our justice system.

Finally, while the State argues that our interpretation ofStenger should be

cabined to its unique, underlying facts, we must observe that Stenger's rule of

presumptive disqualification is not couched in any limiting, fact-specific language. In

effect, the State argues that our true holding in Stenger was our concluding

observation that because the elected prosecutor failed to properly screen himself,

"[w]e need go no further in this capital case in order to conclude that it is appropriate

that a special prosecuting attorney be appointed." 111 Wn.2d at 523. But this narrow

interpretation of our decision necessarily begs the question why did we announce a

rule at all? Stenger's rule of presumptive disqualification for elected prosecutors

omits any reference to the underlying case's severity or the State's prior screening

efforts. Id. at 522. Moreover, Stenger's separate, concluding discussion ofthe facts

on which the State relies actually highlights the ease with which we could have State V. Nickels, No. 96943-4

resolved the question of disqualification without promulgating any rule. However, we

chose a different path. The fact we announced a presumptive rule of disqualification

that is unmoored from Stenger's unique facts is significant and something the State's

proposed reading of our decision is wrong to ignore.

3. Because the Elected Prosecutor's Involvement Here Was Not Extraordinary, We Reject the Court ofAppeals'Extraordinary Circumstances Test

The Court of Appeals correctly concluded that Stenger did not announce a

bright-line rule of disqualification but, instead, reserved an exception for

"extraordinary circumstances." Nickels, 1 Wn. App. 2d at 498. However,the Court of

Appeals further determined that Stenger did not defme what "extraordinary" means, and

so it crafted a two-factor test, including "(1) whether the prosecutor was privy to

privileged information and (2)the nature ofthe case giving rise to the elected

prosecutor's conflict of interest." Id. at 492-93. The State argues that the Court of

Appeals' proposed test erroneously fails to consider current circumstances and that

any test we adopt should consider "the complexity of the case, cost of[a] substitute

lawyer, proximity to the trial date, availability of altemat[e] counsel, and adequacy of

screening measures." Pet. for Review at 19. However, as explained below, because

Dano's involvement in Nickels' defense was not extraordinary, we presently decline

to endorse either test.

Regardless ofthe parties' sparring characterizations, the record is clear that

Dano was sufficiently involved in Nickels' defense such that his participation was not

10 State V. Nickels, No. 96943-4

extraordinary and no further analysis is required for us to conclude that office-wide

disqualification is appropriate. Dano made multiple appearances on the record at trial

on Nickels' behalf. Additionally, after the first trial, Dano spoke with jurors and

interviewed potential exonerating witnesses. Actual, direct involvement ofthe

character shown here is not extraordinary representation—it is the norm, even if it is

limited. We cannot envision every unusual case. Rather than devise a test to capture

what may theoretically be considered extraordinary in some future case, we believe

that project is better left for a case that actually raises the question.

CONCLUSION

Washington's 39 elected county prosecutors possess considerable

administrative and discretionary powers over their offices and employees. Though

Washington's RPCs have eliminated imputations of conflicts among government

attorneys generally and permit screening in most circumstances, Stenger created a

narrow exception in those few cases where the elected county prosecutor has

previously represented the defendant in the same case or a closely interwoven matter.

In those cases, office-wide disqualification—not screening—is required to preserve

the appearance of a just proceeding and the public's confidence in the impartial

administration ofjustice. For these reasons, we hold that Stenger remains good law

and affirm the Court of Appeals' decision to disqualify the entire Grant County

Prosecutor's Office. However, because Dano's involvement in Nickels' defense was

not extraordinary, and no further analysis is required for us to conclude that office-

11 State V. Nickels, No. 96943-4

wide disqualification is appropriate in the instant case, we reject the Court of Appeals'

extraordinary circumstances test.

12 State V. Nickels, No. 96943-4

WE CONCUR:

JA

Q^<2.&-77 ^

13 State V. Nickels {David Emerson), No. 96943-4 (Gordon McCloud, J., concurring)

No. 96943-4

GORDON McCLOUD,J.(concurring)—^As the lead opinion states, the

people ofthis state have an "absolute right to the appearance of a just

proceeding." Lead opinion at 6 (italics and capitalization omitted). This is

especially true where, as here, the State charges an individual with a serious crime

that carries a lengthy term of imprisonment. I further agree that this court's 30-

year-old decision in State v. Stenger, 111 Wn.2d 516, 760 P.2d 357(1988), is

necessary to preserve that right. For that reason, I join Parts 2 and 3 of the lead

opinion and its conclusion that the Stenger rule of office-wide disqualification

"remains good law." Lead opinion at 11. State V. Nickels {David Emerson), No. 96943-4 (Gordon McCloud, J., concurring)

1:; State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

YU,J.(concurring in part and dissenting in part) — The lead opinion's

presumptive rule of office-wide disqualification is not supported by State v.

Stenger, 111 Wn.2d 516, 760 P.2d 357(1988), and directly conflicts with the

current Rules of Professional Conduct(RPCs). Indeed, our 2006 amendments to

the RPCs marked a profound reformulation of our rules concerning government

lawyers' conflicts of interest and significantly altered how we address conflicts in

public offices. Furthermore, contrary to the lead opinion's assertions, public

policy does not support presumptive disqualification, as timely ethical screening

generally preserves the appearance of a just proceeding. Therefore, I would hold

that RPC 1.11 governs conflicts of interest for government attorneys, including

elected prosecutors, and strongly disfavors imputing a government lawyer's

personal conflicts to their entire office. Accordingly, I would reverse the Court of

Appeals and hold that the Grant County Prosecuting Attorney's Office is not State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

presumptively disqualified from representing the State in this case. However, I

agree with the lead opinion that we should decline to adopt the Court of Appeals'

extraordinary circumstances test. I therefore respectfully dissent in part and concur

in part.

A. The language in Stenger that the lead opinion relies on is dicta, and the facts are distinguishable from the facts presented in this case

The crux of the lead opinion's argument favoring presumptive

disqualification is based on the following dicta from Stenger.

"Where the prosecuting attorney (as distinguished from a deputy prosecuting attorney) has previously personally represented the accused in the same case or in a matter so closely interwoven therewith as to be in effect a part thereof, the entire office of which the prosecuting attorney is administrative head should ordinarily also be disqualifiedfrom prosecuting the case."

Lead opinion at 4(emphasis added)(quoting Stenger, 111 Wn.2d at 522).

However,the lead opinion misidentifies this dicta as Stenger'& holding. To the

contrary, Stenger'^ actual holding is limited to the facts ofthe case:

Under the facts ofthe case before us, although the prosecuting attorney did eventually delegate handling of the case to a deputy prosecuting attorney in his office, he did not effectively screen and separate himself from the case but instead maintained quite close contact with it. We need go no further in this capital case in order to conclude that it is appropriate that a special prosecuting attorney be appointed to handle and control the case. State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

Stenger, 111 Wn.2d at 523 (emphasis added). Accordingly, our holding in Stenger

is actually very narrow and fact specific, and is based on ineffective screening,

rather than presumptive office-wide disqualification. Further evidence of this

limited holding can be found in our narrow framing of the issue; ''Under thefacts

ofthis case, should the prosecuting attorney's representation of the defendant in a

prior criminal case disqualify the prosecuting attorney as well as his staff from

handling the prosecution of the defendant. . . where the death penalty is sought?"

Id. at 520(emphasis added).

Moreover, on review to this court, the parties in this case do not dispute the

adequacy of the screening mechanism, only whether the entire office should be

presumptively disqualified. This is in stark contrast to Stenger, where the

prosecutor's ineffective screening served as the basis for disqualifying his entire

office. Id. at 523. In short, Stenger did not hold that presumptive disqualification

is proper. Rather, ineffective screening and the unique circumstances surrounding

Stenger's capital case led to this court's narrow holding. Accordingly, the lead

opinion misidentifies Stenger's actual holding and errantly relies on dicta to

support presumptive disqualification.

B. The 2006 amendments to the RPCs supersede Stenger and do not support presumptive, office-wide disqualification of an entire county prosecutor's office State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

Even if the lead opinion did accurately identify a controlling holding in

Stenger, it is well settled that a material change to a court rule may supersede prior

case law interpreting that rule. See State v. Greenwood, 120 Wn.2d 585, 845 P.2d

971 (1993); see also Wallace v. Evans, 131 Wn.2d 572, 934 P.2d 662(1997).

Moreover, this court has further clarified that we need not "overrule old cases that

have been superseded by a significant change in the [court] rule they interpret."

Wallace, 131 Wn.2d at 577. RPC 1.10 and 1.11 were substantively amended in

2006. These amendments supersede StengeEs suggestion that office-wide

disqualification is presumptively required, and the lead opinion's efforts to

harmonize Stenger with the current RPCs effectively reads elected prosecutors out

of rules 1.10 and 1.11 without any textual support.

1. The 2006 amendments to the RPCs supersede Stenger

When analyzing whether a court rule supersedes a prior decision, we inquire

whether its amendment "materially change[s]" the rule. Greenwood, 120 Wn.2d at

592-93. We do not presume that amendments overturn settled legal principles

unless '"an intention to do so plainly appears by express declaration or necessary

or unmistakable implication, and the language employed [in the amendment]

admits of no other reasonable construction.'" Id. at 593 (alteration in original)

(quoting Ashenhrenner v. Dep't ofLabor & Indus., 62 Wn.2d. 22, 26, 380 P.2d

730 (1963)). Our 2006 amendments to RPC 1.10 and 1.11 did not expressly State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

declare our intention to supersede Stenger, but they necessarily imply this

intention.

We construe the RPCs "to foster the purposes for which they were enacted."

Id. In 2006, this court made several material changes to the RPCs that alter the

way conflicts of interest among government lawyers are handled, and we expressly

stated that the purpose behind the amendments was to avoid imputing conflicts to

entire public offices.

First, we added RPC 1.10(d) to indicate that "[t]he disqualification of

lawyers associated in a firm with former or current government lawyers is

governed by Rule 1.11." Adoption of RPC 1.10(d), 157 Wn.2d 1208 (2006). This

indicates that we intended to treat govermuent lawyers' conflicts differently than

those oflawyers who work in private firms. Notably, RPC 1.10 expressly provides

for imputed disqualification in private firms, in contrast to RPC 1.11, which does

not.

Next, we added RPC 1.10 cmt. 2 to explain that the rule of imputed

disqualification "gives effect to the principle of loyalty to the client.... Such

situations can be considered from the premise that a firm of lawyers is essentially

one lawyer for purposes of the rules governing loyalty to the client." Adoption of

RPC 1.10 cmt. 2, 157 Wn.2d 1209 (2006). We therefore amended RPC 1.10 to State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

ensure that government lawyers, with the exception of public defenders, are not

subject to a rule that allows for imputed disqualification.

Third, we changed the title of RPC 1.11 to clarify that the amended rule

applies to "Special Conflicts of Interest for Former and Current Government

Officers and Employees." Adoption of RPC 1.11, 157 Wn.2d 1213 (2006). Prior

to our 2006 amendments. Rule 1.11 was entitled "Successive Government and

Private Employment." Id. This shows a further intent to treat conflicts among

government lawyers and private firm lawyers differently.

Finally, to clear any remaining doubt about office-wide conflict imputation,

we added RPC 1.11 cmt. 2, which provides:

Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee ofthe government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

Adoption of RPC 1.11 cmt. 2, 157 Wn.2d 1215 (2006)(emphasis added). Our

intention behind this comment is unmistakable; we sought to ensure that

government lawyers' conflicts of interest would not be imputed to other associated

government lawyers. While 1 disagree with the lead opinion that Stenger created a State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

rule of presumptive disqualification, as discussed above, any rule that

presumptively disqualifies an entire county prosecutor's office directly conflicts

with our material changes to RPC 1.10 and i.1 i. Therefore, our 2006 amendments

to the RPCs supersede Stenger.

Significantly, the lead opinion does not dispute that the 2006 amendments

materially changed our rules concerning the imputation of conflicts of interest.

Indeed, the lead opinion acioiowiedges that "[n]early two decades after our

decision in Stenger, RPC 1.10 and 1.11 were substantively amended." Lead

opinion at 5. As the lead opinion recognizes,"these rules now provide that a

government lawyer's personal conflict of interest is no longer imputed to their

entire officeS Id. (emphasis added). Because presumptive disqualification is "in

irreconcilable conflict with the amendment[s]," Stenger is impliedly repealed.

Greenwood, 120 Wn.2d at 593. The lead opinion therefore errs by reading RPC

1.10 and 1.11 "in harmony with Stenger'^ naiTow rule." Lead opinion at 6.

Notably, the lead opinion does not offer any legal authority to support its

contention that the RPCs do not supersede Stenger. Instead, the lead opinion

unpersuasively argues thatStenger's. rule of presumptive disqualification was not

interpreting a prior version of RPC 1.10 or RPC 1.11, relying instead on two out-

of-state decisions for its reasoning." Id. at 5-6. This is simply incorrect. In fact,

Stenger's analysis begins with an overview of what "[t]he Rules of Professional State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

Conduct require," then cites to the RPCs a total of three times. Stenger, 111

Wn.2dat 520 & n.5 (citing RPC 1.9(a), 1.11(c)(1)), 523 n.l5 (citing RPC 1.11).

Stenger first cites to RPC 1.9, which was then titled "Conflict of Interest;

Former Client." Our 2006 amendments changed the title to "Duties to Former

Clients" on the basis that "conflicts that arise based on a lawyer's former

association with a firm are now addressed in [RPC 1.9], while Rule 1.10 addresses

solely imputation of that conflict." Adoption of RPC 1.9, 157 Wn.2d 1202(2006);

Adoption of RPC 1.10 cmt. 9, 157 Wn.2d 1211 (2006). The lead opinion thus

overlooks Stenger's reference to RPC 1.9 and therefore fails to recognize the role

that the outdated rule played in shaping Stenger's outcome.

Stenger further cites RPC 1.11 twice, including as authority for the

proposition that "disqualification ofthe entire prosecuting attorney's office is

neither necessary nor wise." 111 Wn.2d at 523. And while I disagree with the

Court of Appeals' holding, that court also recognized that Stenger relied on the

RPCs for its analysis: ""Stenger addressed the issue of when, under the Rules of

Professional Conduct(RPC), an elected prosecutor's conflict of interest must be

imputed to the balance of the prosecutor's office." State v. Nickels, 1 Wn. App. 2d

491, 495, 434 P.3d 535 (2019). Contrary to the lead opinion's reasoning, the

Stenger court thus consulted the RPCs governing conflicts and relied on the rules

for its reasoning. Consequently, the lead opinion's primary argument against State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

finding that the amended RPCs supersede Stenger does not find support in Stenger

itself.

2. RFC 1.11 governs elected prosecutors' conflicts of interest

We interpret court rules in accordance with the rules of statutory

construction. City ofSeattle v. Guay, 150 Wn.2d 288, 300, 76 P.3d 231 (2003).

Our interpretation of the RPCs begins with the plain meaning of the rules. Lake v.

Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).

Plain meaning "is to be discerned from the ordinary meaning of the language at issue, the context of the [rule] in which that provision is found, related provisions, and the [RPC]scheme as a whole." . . .[W]e "must not add words where the [court] has chosen not to include them," and we must "construe [court rules] such that all of the language is given effect." If the [rule] is unambiguous after a review of the plain meaning, the court's inquiry is at an end.

Id. (citation omitted)(quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009); Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)).

Here, a plain reading of RPC 1.10 and 1.11 makes clear that a government

lawyer's conflicts of interest should not disqualify their entire public office. This

is gleaned from both the structure and language of the RPCs. There is no

exemption for elected prosecutors, who are certainly government lawyers, subject

to RPC 1.11's conflicts rules.

With respect to the structure of the RPCs, our 2006 amendments bifurcated

our treatment of conflicts of interest, which turn on whether a lawyer works in a State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

public or private office: RPC 1.10 goveras the "Imputation of Conflicts of

Interest: General Rule," which permits the imputation of conflicts to associated

lawyers in private and public defense firms, while RPC 1.11 governs "Special

Conflicts of Interest for Former and Current Government Officers and

Employees." The amendments added what is now RPC 1.10(d), whieh states that

"[t]he disqualification oflawyers associated in a firm with former or eurrent

government lawyers is governed by Rule 1.11." Adoption of RPC 1.10(d), 157

Wn.2d at 1208. Our deliberate restructuring of RPC 1.10 and 1.11 during the 2006

amendment process therefore demonstrates our intention to have different conflict

of interest rules for government lawyers and those in private firms.

Moreover, we amended RPC 1.10 and 1.11 again in 2018 to clarify that RPC

1.10 applies to public defenders, as well as lawyers in private firms. Adoption of

RPC 1.10(d), 189 Wn.2d 1134(2018); Adoption of RPC 1.11 cmt. 11, 189 Wn.2d

1134-35 (2018). Our stated purpose for amending RPC 1.10(d) was "to make RPC

1.10 applicable to all public defenders regardless ofwhether they are government

employeesr Proposed amendment to RPC 1.10(d), 187 Wn.2d Proposed-11

(Official Advance Sheet No. 8, Apr. 25, 2017)(emphasis added). We also adopted

a comment to RPC 1.11 explaining that "[p]ublic defenders represent individuals,

not the government. For this reason, imputed confliets in public defender firms are

determined under RPC 1.10 rather than this rule regardless of whether the lawyers

10 State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

are public officers or employees." Adoption of RFC 1.11 cmt. 11, 189 Wn.2d at

1135. Notably, we did not include elected prosecutors in RFC 1.10, along with

public defenders. Rather, all other government officers or employees, including

elected prosecutors, are subject to RFC 1.11.

As previously discussed, the unambiguous language of RFC 1.11 could not

be clearer: "Because of the special problems raised by imputation within a

government agency, paragraph (d) does not impute the conflicts ofa lawyer

currently serving as an officer or employee ofthe government to other associated

government officers or employees."" RFC 1.11 cmt. 2(emphasis added).

Despite the plain meaning of RFC 1.10 and 1.11, the lead opinion seeks to

carve out an exception for elected prosecutors in RFC 1.11 with no textual support.

Instead, the lead opinion reasons that Stenger "touches only Washington's 39

elected county prosecutors," therefore presumptive disqualification can be

harmonized with RFC 1.11. Lead opinion at 6. In short, the lead opinion justifies

the drastic measure of disqualifying an entire county prosecutor's office, even

when timely and effective screening measures are put in place, because only 39

individuals can trigger this process. Accepting this reasoning runs afoul of our

rules of statutory construction by altogether reading a group of government

lawyers out of a rule that expressly regulates government lawyers' conflicts of

interest. There is no justification for such a reading.

11 State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

I would therefore hold that our 2006 amendments to RFC 1.10 and 1.11

superseded Stenger and do not support presumptive, office-wide disqualification of

an entire county prosecutor's office.

C. Public policy does not support disqualifying an entire prosecutor's office

Turning now to public policy concerns, I agree with the lead opinion that the

appearance of a just proceeding is of paramount importance. However, I disagree

that allowing the Grant County Prosecutor's Office to proceed with prosecuting

Nickels creates the appearance of unfairness. Not only is ethical screening a

preferable and practical alternative to office-wide disqualification, erecting a

timely screen preserves the appearance of a just proceeding. Moreover, the use of

screens complements our long-standing principle that we presume our public

officers act in good faith. Accordingly, public policy supports the use of timely

ethical screens in lieu of disqualifying the entire prosecutor's office when the

elected prosecutor has a personal conflict of interest.

1. Timely ethical screening preserves the appearance of a just proceeding

The lead opinion contends that "no amount of screening can be sufficient to

fully wall off[elected prosecutor] Dano from the case," which undermines "the

public's confidence in the impartial administration ofjustice." Lead opinion at 7-

8, 6-7. As support for this proposition, the lead opinion points to State v. Tracer,

which held that a defense attorney was not qualified to serve as a special deputy

12 State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

prosecutor because the attorney regularly represented criminal defendants in the

same court. 173 Wn.2d 708, 720, 272 P.3d 199 (2012). But Tracer is readily

distinguishable.

Tracer's concerns about the appearance of impropriety were supported by

the RPC's rules surrounding concuiTent conflicts of interest, which pointedly

prohibited the defense attorney from representing the State. Id. at 720-21. The

lead opinion's reliance on Tracer is therefore unavailing, as the facts concerned a

direct violation of the RPCs based on a concurrent conflict of interest, which

implicated the appearanee of a fair proceeding. That is not the case here. No party

alleges that any RPCs were violated, and the RPCs plainly disfavor imputing

conflicts in public offices.

Furthermore, the lead opinion's position is inconsistent with this court's

endorsement of ethical screens as mechanisms to effectively ward off and contain

conflicts of interest. Recognizing the disruption and hardship that blanket

disqualification can cause, we amended the RPCs to avoid sweeping imputation of

conflicts in public offices. RPC 1.11 cmt. 2. Moreover, on review before this

court, there is no dispute that Prosecutor Dano was timely screened from this case

or that "[t]he screen was erected before Prosecutor Dano discussed the case with

any members of the Grant County Prosecuting Attorney's Office." Pet. for Review

13 State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

at 4. Consequently, the lead opinion's policy argument is not supported by the

facts ofthis case or by our own rules that favor the use of ethical screens.

2. We presume elected prosecutors carry out their duties in good faith

The lead opinion further asserts that "we have no reason to believe that

either the Grant County prosecutor or his office behaved unethically in attempting

to address the present conflict. However, the quality of their character is not

determinative." Lead opinion at 8. This statement is problematic, as it overlooks

the well-established principle that public officers are presumed to act properly.

Bracy v. Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 138 L. Ed. 2d 97(1997)

("Ordinarily, we presume that public officials have 'properly discharged their

official duties.'" (internal quotation marks omitted)(quoting United States v.

Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d 687(1996))); State

V. Terrovonia, 64 Wn. App. 417, 422, 824 P.2d 537(1992)(presuming that

prosecutors act in good faith); Jones v. Halvorson-Berg, 69 Wn. App. 117, 127,

847 P.2d 945 (1993)("A judge is presumed to perform [their] functions 'regularly

and properly and without bias or prejudice.'"(quoting Kay Corp. v. Anderson, 72

Wn.2d 879, 885, 436 P.2d 459 (1967))). Because we presume that elected

prosecutors act in good faith, I disagree with the lead opinion's concern that the

appearance of fairness is compromised if the elected prosecutor is properly

screened and a deputy prosecuting attorney represents the State.

14 State V. Nickels, No. 96943-4 (Yu, J., concurring in part and dissenting in part)

D. We need not reach the Court of Appeals' extraordinary circumstances test

Because I would hold that the RPCs supersede Stenger and that presumptive

disqualification is improper, I would not reach the question of whether we should

adopt the Court of Appeals' extraordinary circumstances test. However, even if

Stenger remains good law, I agree with the lead opinion that Prosecutor Dano's

involvement in Nickels' defense was not extraordinary. I therefore concur with the

lead opinion's holding that we should reject the extraordinary circumstances test.

The lead opinion relies on distinguishable dicta from Stenger that has been

superseded by the 2006 amendments to the RPCs. Further, elected prosecutors'

conflicts of interest are subject to RPC 1.11 because they are government lawyers.

Accordingly, Prosecutor Dano's conflict of interest should not be presumptively

imputed to the entire Grant County Prosecuting Attorney's Office. However, I

agree with the lead opinion that we should reject the Court of Appeals'

extraordinary circumstances test. I therefore respectfully dissent in part and concur

15 State V. Nickels, No. 96943-4 (Yu,'J.', concurring in part and dissenting in part)

7C