Young v. State

465 A.2d 1149, 297 Md. 286, 1983 Md. LEXIS 300

• Court: Court of Appeals of Maryland
• Decided: September 29, 1983
• Docket: [No. 153, September Term, 1982.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Davidson, J., dissents, and filed a dissenting opinion at page 298 infra.

The issue before us is whether all of the prosecutors in a county State’s Attorney’s office are disqualified from prosecuting a defendant in a criminal case where one of their number, prior to appointment as an Assistant State’s Attorney, acted as counsel to the defendant.

Clarence Leo Young was indicted in the Circuit Court for St. Mary’s County for the theft of goods worth over $500 in violation of Maryland Code (1957,1982 Repl. Vol.), Art. 27, § 342. Richard D. Fritz, then an Assistant Public Defender, was assigned to represent Young. Discussions between Young and Fritz concerned "everything [Young] knew about the case.” Before the case was tried, Fritz was appointed Assistant State’s Attorney for St. Mary’s County; accordingly, his appearance for Young was stricken, and another Public Defender was assigned to represent the defendant.

Young filed a motion to dismiss the charges against him, alleging that he "imparted to Mr. Fritz various information regarding his charges in a confidential relationship protected by the attorney-client privilege” and that prosecution of Young "by Richard D. Fritz or any of his associates in the St. Mary’s County State’s Attorney’s Office constitutes a conflict of interest with the prosecution of [Young] in these criminal proceedings.” Young prayed that the court "[a]ppoint an Assistant Counsel for the State for any further proceedings by the State of Maryland against the defendant” and "[e]njoin the State’s Attorney and Assistant State Attorneys from any communication with any parties, including an Assistant Counsel for [the] State, regarding these or subsequent proceedings.” At a hearing on the motion, the prosecutor assigned to try the case stated that Fritz had "no contact at all in the preparation of this case” and that "no prejudice towards Mr. Young based on Mr. Fritz’s association with the State’s Attorney’s Office” was demonstrated. The trial judge (Mattingly, J.) held that "in view of the proffer of [the prosecutor] that he has not discussed this case with Mr. Fritz ... the motion will be denied” and instructed the prosecutor not to discuss the case with Fritz.

Upon Young’s conviction, an appeal was taken to the Court of Special Appeals. That court affirmed the conviction, refusing to adopt the per se rule urged by Young, which mandates disqualification of an entire State’s Attorney’s office under the factual circumstances present in this case. Young v. State, 52 Md. App. 550, 450 A.2d 1323 (1982). The court reasoned that

"[s]hould we adopt the per se rule urged by Young, considerable difficulties could arise in the prosecution of any case in which a former defense counsel has later joined the prosecutorial staff, despite lack of participation in the prosecution by the former defense counsel, and despite lack of any disclosure of confidential information.” Id. at 553.

The court concluded:

"Weighing the public interest in prompt and effective prosecution of criminal cases against the also important public interest of confidence in the impartiality of the prosecution, ... [the] possibility of the mere appearance of impropriety, such as existed here, does not mandate appointment of assistant counsel for the State; cf. Lykins v. State, supra, 288 Md. [71] at 85, 415 A.2d at 1119. Instead, when it appears that former defense counsel is presently employed in the prosecutor’s office the trial court should make inquiry as to whether the former defense counsel has in any manner participated in the pending prosecution, and as to whether he has revealed to the prosecutors any information obtained from his erstwhile client; see Wiener v. State, 290 Md. 425, 434-439, 430 A.2d 588, 594-596 (1981).” Id. at 554-55.

We granted certiorari to consider the important issue of first impression presented by the case.

I

Before us, Young maintains that "when his appointed attorney, to whom he had divulged in confidence 'everything [Appellant] knew about the case,’ became a member of the prosecution staff of the St. Mary’s County State’s Attorney’s Office, that office should have been barred from further prosecution of the case.” Young contends that this per se rule of disqualification "should follow from the very close watch which this Court has maintained generally over the consequences of an attorney changing sides in the course of a particular litigation.” He urges that our concern "for the integrity of the Maryland bar and for public confidence in the criminal justice system should require resort in circumstances such as this to supplantation of the local prosecution staff.”

The State contends that under Maryland law the question of the disqualification of a prosecuting attorney is a discretionary matter for the trial judge. It claims, therefore, that a per se vicarious disqualification of an entire State’s Attorney’s staff is not the rule in this State. While recognizing the principle "that a lawyer who represents a client in litigation should not thereafter represent an adversary in the same case,” the State argues that "a logical basis as well as compelling practical reasons [exists] for distinguishing the practice of private law firms from that of the state’s attorney’s office.” Among the reasons cited by the State for disfavoring vicarious disqualification are the resulting unreasonable impairment of the functioning of the State’s Attorney’s office and the fact that the prosecutor’s duty is to seek justice, which thereby reduces the chance that prosecutors will engage in unethical behavior.

II

The question of the recusal of an entire prosecutorial office from trying a criminal case, based on one member’s prior representation of the defendant, has been considered by a number of our sister states. Some jurisdictions follow a per se rule of disqualification. State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972), involved the prosecution of a defendant by a County Attorney’s office whose Chief Deputy had represented the defendant in the same case prior to taking a position in the prosecutor’s office. Despite the fact that the Chief Deputy had taken no part in the prosecution, the Supreme Court of Arizona refused to permit any other member of the office to prosecute the case. The court reasoned that the Chief Deputy had "supervisory powers and duties over the assistant county attorney who is prosecuting,” and that the staff had "frequent meetings to discuss cases, and even without meetings, staff members often talk about their cases with one another.” 502 P.2d at 1342. The court stated further that even if the attorney involved were not the Chief Deputy, the "office would have to divorce itself from the prosecution in this case, because even the appearance of unfairness cannot be permitted.” Id.

In People v. Shinkle, 51 N.Y.2d 417, 415 N.E.2d 909, 434 N.Y.S.2d 918 (1980), the Court of Appeals of New York vacated a defendant’s conviction because the attorney who had represented him in the beginning stages of the case subsequently joined the prosecutor’s office and remained there during the course of the trial. The court so held, despite the fact that "means were designed and scrupulously pursued to insulate” the defendant’s former counsel from prosecution of the case. 415 N.E.2d at 910. The court held:

"The fact that the attorney who had initially represented defendant and participated actively in the preparation of his defense was chief assistant in the office of the prosecutor in the months preceding and during defendant’s trial inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant.” Id.

While recognizing that application of a per se rule of disqualification would impede the transfer of attorneys between the prosecutor’s and public defender’s offices, the court stated:

"This circumstance . .. affords no basis to deny defendants the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them.” Id. at 911.

In State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct. App.), cert. denied, 86 N.M. 372, 524 P.2d 988 (1974), an attorney who represented the defendant in a criminal case which ended in a mistrial was appointed as an assistant district attorney prior to the second trial. The attorney withdrew from representing the defendant and was ordered by the trial court not to "associate as counsel for the State.” 524 P.2d at 1000. The trial court also denied the defendant’s motion to disqualify the district attorney’s office from prosecuting the case because it

"saw nothing in any ground advanced that would cause [it] to feel that there is any impropriety on the part of the district attorney’s office to continue in this case, nor anything that is prejudicial to the rights of the defendant.” Id.

The Court of Appeals of New Mexico reversed the denial of defendant’s motion to disqualify the office, believing itself compelled to so hold by "the fair and impartial administration of justice.” Id. at 1004. The per se disqualification rule was also adopted in State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070 (1980), and People v. Stevens, Colo. App. , 642 P.2d 39 (1981), cert. denied, P.2d (1982). Cf. Love v. Superior Court, 111 Cal. App. 3d 367, 374, 168 Cal. (1980) (recusal of one section of district attorney’s office necessary because "appearance of impropriety is manifest and must be minimized or eliminated”).

Other jurisdictions subscribe to a different and less exacting rule. Courts in these states have not viewed the mere fact that a prosecutor at one time represented the defendant as automatically mandating disqualification of the entire office. Rather, these courts inquire into whether the attorney divulged any confidential information to other prosecutors or participated in some way in the prosecution of the defendant. If any impropriety is found to have occurred, then recusal of the entire office is required. The determination is made by the trial court and, absent an abuse of discretion, will not be reversed on appeal. See Hannon v. State, 48 Ala. App. 613, 266 So.2d 825 (Crim. App. 1972); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); Chadwick v. Superior Court, 106 Cal. App. 3d 108, 164 Cal. Rptr. 864 (1980); State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980); Thompson v. State, 246 So.2d 760 (Fla. 1971); State v. Bell, 346 So.2d 1090 (La. 1977); Collier v. Legakes, Nev., 646 P.2d 1219 (1982); State v. Cline, R.I., 405 A.2d 1192 (1979); State v. Miner, 128 Vt. 55, 258 A.2d 815 (1969). Accord, United States v. Caggiano, 660 F.2d 184 (6th Cir. 1981), cert. denied, 455 U.S. 945 (1982).

Several of these courts have addressed challenges to the denial of a motion to disqualify an entire prosecutor’s office, based on an alleged "appearance of impropriety.” In State v. Cline, supra, the Supreme Court of Rhode Island rejected defendant’s claim that "the entire Attorney General’s office should have been disqualified in order to avoid the appearance of impropriety.” 405 A.2d at 1205. The court reasoned that even after recusal of an office and appointment of special counsel,

"it would be necessary to trust to the integrity of the lawyers in question to obey that which would have been their obligation in any event to avoid the revealing of confidences made by the client to his former attorney.” Id. at 1206.

The court stated further:

"Even in those states where one prosecutor’s office has been disqualified, the necessity still exists for representatives of that office ... to work closely with a special prosecutor in whose integrity (and that of the former counsel for the accused) reliance must ultimately have been reposed. Thus, we believe that transferring responsibility from one office to another, or the appointment of a special prosecutor, provides a purported remedy which 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. On this record, there was no suggestion of any such prejudice.” Id. at 1207.

The Supreme Court of Nevada vacated a trial court order disqualifying an entire district attorney’s office in Collier v. Legakes, supra. The court found that the order "was based solely on the appearance of impropriety.” 646 P.2d at 1221. The court decided that the trial court failed to exercise its discretion by not considering

"all the facts and circumstances and determining] whether the prosecutorial function could be carried out impartially and without breach of any privileged communication.” Id. at 1220.

The court did recognize

"that vicarious disqualification may be warranted in extreme cases where the appearance of unfairness or impropriety is so great that the public trust and confidence in our criminal justice system could not be maintained without such action.” Id. at 1221.

Addressing a similar challenge made in State v. Jones, supra, the Supreme Court of Connecticut declared:

"[T]he appearance of impropriety alone is 'simply too slender a reed on which to rest a disqualification order except in the rarest of cases.’ ” 429 A.2d at 941 (quoting Bd of Ed. of N.Y. City v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979)).

The court said:

"It can be argued that withdrawal of the entire law firm, here the entire state’s attorney’s office, when the slightest chance of betrayal of confidential communications exists might better preserve the integrity of the judicial system. But a rule this broad would result in many unnecessary withdrawals, limit mobility in the legal profession, and restrict the state in the assignment of counsel where no breach of confidentiality has in fact occurred.” 429 A.2d at 942-43.

In varying circumstances, other courts have declined to adopt a perse rule of disqualification in cases where, as here, a member of the prosecutor’s office was formerly counsel to the defendant. See State v. Tippecanoe County Court, Ind., 432 N.E.2d 1377 (1982) (although recusal of entire prosecutorial staff is not necessarily appropriate, disqualification was proper when defendant’s counsel in two prior cases had "administrative control over the entire staff’ of prosecutors); State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982) (disqualification not required where prosecutor represented defendant in a case three years prior to present case); Brinkman v. State, 95 Nev. 220, 592 P.2d 163 (1979) (disqualification not required where prosecutor defended accused on an unrelated charge six years prior to instant case); Com. v. Miller, 281 Pa. Super. 392, 422 A.2d 525 (1980) (disqualification not required where prosecutor, while a member of public defender’s office, took no part in defending the accused nor did attorney receive any confidential information from or about accused). To the same effect, see Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App. 1977) and Myers v. State, 459 S.W.2d 859 (Tex. Crim. App. 1970). See also generally Annot., 31 A.L.R.3d 953 (1970 & Supp. 1982).

Other tribunals have taken cognizance of differences between public employment as a prosecutor and private law practice in applying less strict vicarious disqualification rules to prosecutors. In United States v. Caggiano, supra, the Sixth Circuit noted the district court’s implicit reliance upon Disciplinary Rule 5-105 (D) of the Code of Professional Responsibility in disqualifying an entire United States attorney’s office.¹ In reversing, the court recognized a difference in the relationship between law partners and associates in private law firms and lawyers representing the government. It quoted with approval from Formal Opinion 342 of the American Bar Association Committee on Professional Ethics, 62 A.B.A.J. 517, 521 (1976):

"When the disciplinary rules of Canons 4 and 5 mandate the disqualification of a government lawyer who has come from private practice, his governmental department or division cannot practicably be rendered incapable of handling even the specific matter. Clearly, if DR 5-105 (D) were so construed, the government’s ability to function would be unreasonably impaired. Necessity dictates the government action not be hampered by such a construction of DR 5-105 (D). The relationships among lawyers within a government agency are different from those among partners and associates of a law firm. The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice. The important difference in the adversary posture of the government lawyer is recognized by Canon 7: the duty of the public prosecutor to seek justice, not merely to convict, and the duty of all government lawyers to seek just results rather than the result desired by a client. The channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates. Accordingly, we construe DR 5-105 (D) to be inapplicable to other government lawyers associated with a particular government lawyer who is himself disqualified by reason of DR 4-101, DR 5-105, DR 9-101 (B), or similar disciplinary rules.” ² 660 F.2d at 190-191.

Ill

Although we have not before considered the question of vicarious disqualification of an entire prosecutor’s office, we have addressed related issues. In Sinclair v. State, 278 Md. 243, 363 A.2d 468 (1976), we were presented with the question of whether a state’s attorney could "initiate or participate in a prosecution when he has a conflicting private interest in a civil matter.” 278 Md. at 244. We there held that

"if a prosecutor has, or would clearly appear to a reasonable person having knowledge of the pertinent facts to have, any pecuniary interest or a significant personal interest in a civil matter which may impair his obligation in a criminal matter to act impartially toward both the State and the accused, then he is, on the basis of this State’s public policy, disqualified from initiating or participating in the prosecution of that criminal cause.” Id. at 254.

Notwithstanding an appearance of impropriety in Sinclair, we remanded the case to the trial court for determination of whether disqualification was actually required in the circumstances. Lykins v. State, 288 Md. 71, 415 A.2d 1113 (1980), involved a state’s attorney who had represented the defendant in a domestic matter and who later presented evidence against the defendant to a grand jury resulting in an indictment. The defendant charged that

"because of the State’s attorney’s prior representation of her there is an appearance of impropriety and that a possibility exists that in some way in the prosecution he might inadvertently use information previously confided to him by her in their attorney-client relationship. This, she says, not only should bar participation in the prosecution by her former attorney, but requires dismissal of her indictment.” 288 Md. at 81.

In declining to order dismissal of the indictment, we held that

"the proper action to be taken by a trial judge, when he encounters circumstances similar to those in the case at bar which he determines to be so grave as to adversely affect the administration of justice but which in no way suggest the bringing of a prosecution for improper motives... is to supplant the prosecutor, not to bar the prosecution. Of course, a trial judge may determine that the facts presented to him are not sufficiently grave to require even this action. Normally, the evaluation of such circumstances is left to the sound discretion of the trial judge who is upon the scene and able to sense the nuances of that before him. Ordinarily an appellate court will not interfere with his conclusion as to the proper course of action to be followed in the absence of a showing of an abuse of discretion upon the part of the trial judge.” Id. at 85.

We think it clear from the rationale of Sinclair and Lykins that the mere appearance of impropriety is not of itself sufficient to warrant disqualification of an entire State’s Attorney’s office, based upon one member’s prior representation of a defendant presently under prosecution. Where disqualification is sought, the trial court must make inquiry as to whether the defendant’s former counsel participated in the prosecution of the case or divulged any confidential information to other prosecutors. Absent an abuse of discretion, the trial court’s judgment on the matter will not be disturbed on appeal. See also Wiener v. State, 290 Md. 425, 430 A.2d 588 (1981). Our review of the record in this case convinces us that, in the circumstances, the trial judge did not abuse his discretion in overruling the disqualification motion and in declining to supplant the State’s Attorney’s office with a special prosecutor.

Judgment affirmed, with costs.

1 . Disciplinary Rule 5-105 (D) provides:

"If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”

2 . Canons 4, 5, 7 and 9 of the Code of Professional Responsibility, together with the ethical considerations and disciplinary rules which accompany the canons, deal, respectively, with a lawyer’s obligation to preserve the confidences and secrets of a client; to exercise independent professional judgment on behalf of a client; to represent a client zealously within the bounds of the law; and to avoid even the appearance of professional impropriety.