State v. Ross

829 S.W.2d 948, 1992 Mo. LEXIS 69, 1992 WL 79020

• Court: Supreme Court of Missouri
• Decided: April 21, 1992
• Docket: 74353
• Status: Published

Opinions

BENTON, Judge.

Franklin M. Ross appeals his convictions for assault in the first degree and armed criminal action, which were affirmed by the Court of Appeals, Western District. This Court granted transfer to examine the effect of the conflicts of interest by some members of the prosecuting attorney’s office, who were also in the private practice of law. The judgment is reversed; the case is remanded for a new trial in accordance with this opinion.

The charges arise from an incident in the early morning of August 5, 1989. Appellant, while drinking in a Liberty bar, spoke to a business acquaintance, Lisa Lee Baker, and a friend of hers, Kenneth Green. Shortly after the bar closed, at 2:45 a.m., appellant was talking to Baker in the parking lot. Returning to her car, Baker mentioned to Green, a passenger in her car— who was standing outside the ear waiting for Baker to unlock the doors — that she was tired of “all these assholes in bars.” As appellant started to drive off, Green, assuming that she was referring to appellant, yelled at appellant, “See you later, asshole.” Appellant turned his car around, stopped, and got out of the car.

After confirming that Green had been talking to him, appellant and Green started to fight. In the course of this fight, appellant shot Green. Appellant claims self-defense.

Later that morning, appellant drove to the North Patrol Division of the Kansas City Police Department, where, after being warned of his rights, he talked to police about the incident. Also on August 5, 1989, Assistant Prosecuting Attorney Brian J. Klopfenstein filed a complaint charging appellant with assault in the first degree and armed criminal action. At that time, Klopfenstein worked part-time as an Assistant Prosecuting Attorney and was also associated with the law firm of Von Erd-mannsdorff and Zimmerman.

In connection with a civil case filed by Green, appellant (as the civil defendant) contacted the firm of Von Erdmannsdorff and Zimmerman “months” after the original incident. After Max Von Erdmanns-dorff became ill, Stephen Mowry took over the case for the firm, and interviewed appellant, taking a confidential statement about the very facts of the case. Mowry also took depositions as appellant’s counsel, and spoke on the telephone with appellant, apparently as late as one week before the criminal trial. Appellant met with other members of the law firm, though never with Klopfenstein, and considered Mowry as the attorney handling his case.

Mowry also serves as a part-time Assistant Prosecuting Attorney for Clay County, handling the traffic docket on three Thursdays a month. There is no evidence that appellant was ever informed by anyone acting for the law firm that two of its members were also assistant prosecuting attorneys. Appellant, apparently, first learned of the possible conflict of interest during voir dire on the first day of a three-day trial, when Assistant Prosecuting Attorney John Newberry informed the venire of the names of all attorneys working for the prosecutor’s office, including Mowry and Klopfenstein. Upon hearing Mowry’s name, appellant informed one of his criminal attorneys that the Mowry working for the prosecutor’s office might be the same Mowry who was representing appellant in the related civil case. Appellant’s attorneys claim that they were unable to confirm the dual employment of Mowry and Klopfenstein until after the trial. Appellant’s attorneys first raised the conflict issue in a motion for new trial, regarding which two hearings were held.

There is no evidence of any communication — between the members of the law firm and the members of the prosecuting attorney’s office who worked on the criminal case — concerning anything that the law firm was told by appellant or learned on his behalf.¹ Apparently, Klopfenstein did no work on the civil case and was not involved in the criminal case other than filing the original complaint. Apparently, Mowry had no involvement with the criminal case.

Appellant did not testify in the criminal case, though he considered testifying as late as the second day of trial. At the post-trial hearing, appellant testified that he was “very nervous” during trial about the fact that his attorney, Mowry, knew all about his case, and how confidential information he had given Mowry might be used. In deciding whether to testify, appellant claimed that the attorney-conflict had “some bearing” on his decision not to testify, as did the fact that his statement to the police was in evidence. Appellant now claims that the potential conflict of interest “chilled” him from testifying.

The Rules of Professional Conduct (adopted as Missouri Supreme Court Rule 4) impose an essential duty of loyalty to an attorney’s clients. See Comment on Rule 1.7. Rules 1.7, 1.10, and 1.11 of the Rules of Professional Conduct establish when a law firm can represent clients despite conflicts of interest. The State of Missouri argues the prosecuting attorney’s office did not violate the letter of these rules, and thus the entire prosecuting attorney’s office was not disqualified in this case.

Rules 1.10 and 1.11 distinguish lawyers who change firms from lawyers who move between private practice and government agencies. From the perspective of the prosecuting attorney’s office, it is conceded that at least Rule 1.11(a) applies, and requires Klopfenstein’s private law firm (in order to represent appellant) to notify the prosecuting attorney’s office.

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 a 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.

Klopfenstein and Mowry were employed by the prosecuting attorney at the same time that their firm, and Mowry personally, represented appellant. This simultaneous employment is not governed by Rule 1.11 alone, as demonstrated by considering both sides of the employment/representation.

From the perspective of appellant, he must consent to the private firm’s simultaneous, continuing conflict of interest under Rules 1.7 and 1.10(a). The consent required by Rule 1.7 was not given in this case.

In cases dealing with the equivalents of Rules 1.7 and 1.10 in the predecessor Code of Professional Responsibility, several of the federal courts imposed strict standards of consent and disqualification. “[I]n those instances in which a lawyer is justified in representing two or more clients having differing interests, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so desires.” Storm Drilling Company v. Atlantic Richfield Corp., 386 F.Supp. 830, 832 (E.D.La.1974).

In Cheng v. GAF Corp.,² the Second Circuit rejected a “Chinese Wall” defense to a motion to disqualify a law firm:

[H]ere there exists a continuing danger that Gassel [Cheng’s former attorney now working for law firm representing GAF] may unintentionally transmit information he gained through his prior association with Cheng during his day-to-day contact with defense counsel. If after considering all of the precautions taken by the Epstein firm [GAF’s law firm] this Court still harbors doubt as to the sufficiency of these preventive measures, then we can hardly expect Cheng or members of the public to consider the attempted quarantine to be impenetrable. Although we do not question Mr. Gas-sel’s integrity or his sincere efforts to disassociate himself from the Cheng case, we are not satisfied that under the facts of this case the screening will be effective....

While in many cases, only one of the two rules — Rule 1.7 or Rule 1.11 — would apply, simultaneous employment by a private law firm and a government agency makes both rules relevant to this case. As such, the members of the law firm had a conflict of interest that created at least the appearance of impropriety.

The ultimate question is whether the behavior of the law firm disqualifies the prosecuting attorney’s office from handling this case. In State v. Burns, 322 S.W.2d 736, 742 (Mo.1959), this Court stated that the conduct of the prosecution in a criminal case involving conflicts of interest “like Caesar’s wife, ‘ought to be above suspicion.’ ” In State v. Boyd, 560 S.W.2d 296, 297 (Mo.App.1977), the court of appeals stated that as a quasi-judicial officer, the prosecuting attorney must avoid even “the appearance of impropriety.” In State v. Croka, 646 S.W.2d 389, 393 (Mo.App.1983), the court of appeals noted:

When [former defense attorney] Busker joined the prosecutor’s office, that office was thereby disqualified from prosecuting the case irrespective of the assumed facts that Busker revealed no confidences and did not himself participate in the prosecution. The disqualification does not result from information acquired and used to [defendant] Croka’s detriment, but because [prosecuting attorney] Peterson’s office was placed in a position where continued involvement would create an appearance of impropriety-

The decision in State v. Wacaser, 794 S.W.2d 190 (Mo. banc 1990), is cited in opposition to this line of authority. In Wa-caser, the special prosecutor appointed had been the judge in defendant’s prior divorce proceeding and had then joined the law firm which represented defendant in that divorce proceeding. This Court noted in Wacaser, id. at 196, that “a prosecutor should not serve if he has access to privileged information which might be used to the defendant’s detriment.” In that case the trial court held a hearing to determine if there were such access, though it is unclear when the hearing was held or its specific findings.³

In this case, the interconnections between the prosecuting attorney’s office and the law firm handling appellant’s related civil case create such suspicions and appearances of impropriety and show that members of the prosecuting attorney’s office had the potential access condemned in Wacaser. As Klopfenstein and Mowry were employed by the prosecutor throughout the period this case was pending trial, their actions and the actions of their law firm disqualify the entire prosecuting attorney’s office. A similar conclusion was reached on similar facts in State v. Detroit Motors, 62 N.J.Super. 386, 163 A.2d 227, 231 (N.J.Super.Ct.1960).

As stated in Burns, 322 S.W.2d at 742, this Court will not require a showing of actual prejudice in a case of this type. Prejudice is presumed, subject to rebuttal only upon a showing that the defendant waived the conflict and that steps were taken to insulate the actual prosecution from the conflict.

The State would construe defense counsel’s delay in notifying the court and the actual prosecutor as a waiver by the appellant. In considering attorney-client breakdowns, the acts of the appellant are the key. Here, the record shows that appellant was never notified of the conflict until the beginning of trial, and that appellant immediately notified his defense counsel (whose allegedly dilatory investigation is not appellant’s fault). Appellant in no way waived the conflict of interest.

There is equally no evidence of steps taken to insulate the actual prosecutor from the conflict. The State construes certain unsworn, timely-objected-to statements by the prosecutor as evidence that insulation occurred de facto. On this record, there is not sufficient evidence to rebut the presumption of prejudice. Appellant alleges that he was “chilled” from testifying by the potential conflict. This allegation is sufficient to justify reversal, on the present record.

On remand, the Clay County Prosecuting Attorney, including any assistant, is disqualified from trying this ease due to the conflict of interest. The circuit court shall appoint a special prosecutor pursuant to § 56.110 RSMo 1986. See State v. Jones, 306 Mo. 437, 268 S.W. 83, 85 (1924); State v. Duncan, 116 Mo. 288, 22 S.W. 699, 703-04 (1893), writ of error dismissed, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894); State v. Moxley, 102 Mo. 374, 14 S.W. 969, 971 (1890); State v. Steffen, 647 S.W.2d 146, 151-54 (Mo.App.1982).

Part-time assistant prosecuting attorneys may be necessary in some counties. The possible recurrence of conflicts in other criminal cases compels this Court to articulate preventive steps that would rebut the inference of prejudice. In every case — upon discovery by any party or counsel of the potential conflict of interest— that person shall disclose the conflict in open court in the presence of the defendant. Absent a waiver of the conflict of interest by the defendant, a special prosecutor shall be appointed. If the defendant has waived, or then chooses to waive, the conflict, the prosecuting attorney shall still show before the start of trial that the individual attorney(s) with the potential conflict have been insulated.

The mechanisms for such insulation are: First, both offices shall implement a system of internal communication to inform all members of each office about potential conflicts before they arise, so that attorneys with potential conflicts can be screened from any participation in the case, and apportioned no fee therefrom. Second, the private law firm shall inform individuals seeking representation about the relationship of the law firm with the prosecuting attorney’s office before receiving any information from the client. Third, to implement Rule 1.7 of the Rules of Professional Conduct, the law firm should maintain a signed waiver of any conflict from the client at the start of representation.

The judgment below is reversed, and the case is remanded for a new trial in accordance with this opinion.

ROBERTSON, C.J., COVINGTON, J., and BLACKMAR, Senior Judge, concur. THOMAS, J., concurs in separate opinion filed. RENDLEN, Senior Judge, concurs in separate opinion filed. HOLSTEIN, J., dissents in separate opinion filed.

1 . Based on the record, excluding Klopfenstein and Mowry, there were approximately four other attorneys working at the law firm and seven other attorneys working at the prosecutor’s office.

2 . 631 F.2d 1052, 1057 (2d Cir.1980) (reversal of denial of motion to disqualify defense attorneys), vacated on other grounds, 450 U.S. 903, 101 S.Ct. 1338, 67 L.Ed.2d 327 (1981) (denial of motion to disqualify defense attorneys was not appealable, thus no jurisdiction), on remand, 566 F.Supp. 350 (S.D.N.Y.1982) (attorney’s fees awarded to defendant for frivolous appeal), reversed, 713 F.2d 886 (2d Cir.1983), after remand, 747 F.2d 97 (affirmed district court's subsequent granting of motion to disqualify defense attorneys), vacated on other grounds, 472 U.S. 1023, 105 S.Ct. 3493, 87 L.Ed.2d 626 (1985) (no jurisdiction to hear appeal of disqualification of defense attorneys).

3 . Also cited is Blair v. Armontrout, 916 F.2d 1310, 1332-33 (8th Cir.1990). The Eighth Circuit — applying similar rules for attorneys’ practicing in the federal courts — did not require the disqualification of the entire Attorney General’s office. The Eighth Circuit assumed that a "Chinese Wall” could be built. Id. at 1333. Unlike federal law, the law in Missouri does not assume the existence of Chinese Walls. As implicitly noted in that decision, the Eighth Circuit based its decision on federal law rather than on Missouri law, which it recognized as dictating the opposite result. Id. at 1332-33.