State of Tennessee v. Stephen Berline Orrick ( 2018 )

10/15/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 17, 2018 Session
STATE OF TENNESSEE v. STEPHEN BERLINE ORRICK
Appeal from the Circuit Court for Warren County
No. 15-CR-725 Larry B. Stanley, Jr., Judge
No. M2017-01856-CCA-R9-CD
This interlocutory appeal concerns the Warren County Circuit Court’s order granting the
Defendant’s motion to disqualify the Office of the District Attorney General for the
Thirty-First Judicial District based upon an imputed conflict of interests of an assistant
district attorney general. On appeal, the State contends that the trial court abused its
discretion by granting the motion. We reverse the order of the trial court and remand the
case for further proceedings.
Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Order of the Circuit Court
Reversed; Case Remanded
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., and JOHN EVERETT WILLIAMS, P.J., joined.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price and James E.
Gaylord, Assistant Attorneys General; Lisa S. Zavogiannis, District Attorney General;
and Tom Miner, Assistant District Attorney General, for the appellant, State of
Tennessee.
Billy K. Tollison, McMinnville, Tennessee, for the appellee, Stephen Berline Orrick.
OPINION
On October 2, 2015, the Defendant was indicted on four counts of rape of a child
and four counts of aggravated sexual battery. Initially, the District Public Defender’s
Office represented the Defendant but was permitted to withdraw due to a conflict of
interests involving the alleged victim’s sibling. On November 10, 2015, Felicia Walkup
was appointed to represent the Defendant. On December 2, 2015, Ms. Walkup filed a
motion to reduce the Defendant’s bond, and the trial court denied the motion on
December 18, 2015. On January 6, 2016, Ms. Walkup sought permission to withdraw as
counsel because she had accepted a position as an Assistant District Attorney General for
the Seventeenth Judicial District. Ms. Walkup was permitted to withdraw, and the
Defendant’s present counsel was appointed on January 13, 2016.
On April 5, 2017, the Defendant filed a motion to disqualify the Office of the
District Attorney General for the Thirty-first Judicial District due to a conflict of
interests. The defense alleged that Ms. Walkup was an Assistant District Attorney
General for the Thirty-First Judicial District and argued that the district attorney general’s
office should be vicariously disqualified from prosecuting the Defendant because Ms.
Walkup had been substantially involved in the Defendant’s representation.
At the motion hearing, the defense relied upon Rule of Professional Conduct
1.10(d), the general rule regarding imputation of conflicts of interests, as the basis for
disqualifying the district attorney general’s office. The defense argued that Ms. Walkup
was substantially involved in the Defendant’s representation until she “left for public
office,” that her representation was related to a proceeding in which the State’s and the
Defendant’s interests were adverse, and that the proceeding remained pending. The
defense argued that Rule of Professional Conduct 1.11, the special rule regarding
conflicts of interests for former and current government officers and employees, did not
apply in this case because this Rule protected the government’s confidential information,
not the Defendant’s confidential information.
The prosecutor conceded that Ms. Walkup could not participate in the
prosecution based upon an actual conflict of interests. The prosecutor argued that Rule
1.11, pursuant to Comment [2], allowed for screening mechanisms to avoid imputation of
conflicts of interests based upon an attorney’s entering or leaving the public sector. The
prosecutor stated that Comment [9] supported the proposition that Ms. Walkup’s conflict
of interests could not be imputed to other members of the district attorney general’s office
unless the other members had been tainted by Ms. Walkup’s conflict. The prosecutor
stated that as long as other assistant district attorneys general had not acquired relevant
information from Ms. Walkup, those assistant district attorneys general were not
prohibited from prosecuting this case.
The Defendant testified that he and Felicia Walkup had private, confidential
conversations about the facts of this case and that he wrote her letters containing private
information during her representation. On cross-examination, the Defendant stated that
Ms. Walkup represented him from November 4, 2015, to January 11, 2016, and that the
only court proceeding held during this time was related to a motion to reduce his bond.
Felicia Walkup testified that she obtained her license to practice law in 2001 and
that she previously worked for the Coffee County District Attorney’s Office before
entering private practice in Warren County. She agreed with the Defendant’s testimony
relative to the dates of her representation and said that her only court appearance in this
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case was the hearing on the motion to reduce his bond. She said that she began working
for the District Attorney General for the Seventeenth Judicial District on January 11, that
she worked there for six months, and that she transferred to the Office of the District
Attorney General for the Thirty-First Judicial District, which included Warren County.
Ms. Walkup testified that when she began working for the Warren County
District Attorney’s Office, she spoke with District Attorney General Zavogiannis about
conflicts of interests stemming from pending cases in which she had previously served as
defense counsel. Ms. Walkup denied that they discussed the cases with specificity and
noted that she did not know which of her previous cases had been resolved or remained
pending. She said that based upon their discussion, she would have no involvement with
her previous cases.
Ms. Walkup testified that the only discussion she had about the present case
involved the prosecutor’s asking whether she previously represented the Defendant and
the prosecutor’s telling her that the motion to disqualify had been filed. She said that she
did not know where the State’s file was maintained in the office, although she assumed it
was in the prosecutor’s office, and that she did not have access to it. She said that she did
not receive any discovery materials during her representation of the Defendant. She
denied participating in or overhearing conversations relative to the evidence against the
Defendant and meeting any of the witnesses. She did not recall the name of the
prosecuting law enforcement officer in this case and said that if she had spoken to the
officer, their discussions would have been about other cases. On cross-examination, Ms.
Walkup stated that she did not discuss any screening procedures relative to any particular
case.
The trial court determined that Rule of Professional Conduct 1.11(a) addressed
an attorney who had previously served as a public officer or employee but that Rule
1.11(a) did not address whom the former public officer presently served. The court stated
that Rule 1.11(d) did not address the issue in the present case because it discussed
obtaining governmental agency approval relative to conflicts of interests. The court
noted that Comment [2] to Rule 1.11(b) permitted screening procedures and notice to
avoid imputation of conflicts of interests for attorneys moving in and out of government
employment in the same manner as permitted in Rule 1.10. The court noted, though, that
the language of Rule 1.11(b) did not mention screening as a remedy for a conflict of
interests. The court relied, at least in part, on State v. Jason Clinard, No. M2007-00406-
CCA-R3-CD, 2008 WL 4170272, (Tenn. Crim. App. Sept 9, 2008), no perm. app. filed,
in determining that Rule 1.10 applied in the present case because the Jason Clinard court
analyzed a similar scenario pursuant to Rule 1.10. The trial court stated that the Jason
Clinard court determined that “imputed disqualification” could not be avoided when the
disqualified attorney was substantially involved in the representation of the former client.
The trial judge then stated,
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The representation was in connection to an adjudicated proceeding that is
directly adverse to the interest of the current client of the firm. True. And .
. . the proceeding between the firm’s current client and the lawyer’s former
client is still pending at the time the lawyer changes firms. True.
So what I have is a rule that while it claims to – in Rule 1.11 – claims to
deal with government employees who could use 1.10 to get out of a conflict
by doing what you all have done[,] it doesn’t specifically do that. And
quite frankly, I have to take the rule over the comment and I have to take
the Court of Appeals ruling over the comments as well.
The trial court determined that the State followed the procedure outlined in Rule
1.10(c), which allowed another attorney in the district attorney’s office to represent the
State. The court found that Ms. Walkup had no involvement in the case and had not
spoken to the prosecutor about the facts of the case and that the State had instituted
screening procedures to ensure that Ms. Walkup “will not do that.” The court
determined, though, that imputation of the conflict of interests upon the entire district
attorney general’s office could not be avoided pursuant to Rule 1.10(d), which required
vicarious disqualification of the district attorney’s office.
In its written order granting the motion to disqualify, the trial court found that
Ms. Walkup was substantially involved in the Defendant’s representation, that her
previous representation was in connection with an adjudicative proceeding that was
directly adverse to the interests of the district attorney’s office, and that the case remained
pending at the time Ms. Walkup began her employment with the district attorney’s office.
As a result, the court determined that Ms. Walkup’s conflict of interests was imputed
upon the district attorney’s office. The court disagreed with the State’s assertion that
Rule 1.11(d) and Comment [2] were controlling authority and found that Rule 1.11(d)
was inapplicable to this case, although the court recognized a “conflict” between the
language of Rule 1.11(d) and Comment [2].
The State filed a motion requesting that the trial court reconsider its
determinations and, alternatively, sought permission to seek an interlocutory appeal. The
court denied the motion to reconsider but granted the request for permission to seek an
interlocutory appeal in this court. See T.R.A.P. 9. This court granted the State’s request
for an interlocutory appeal. See State v. Stephen Berline Orrick, No. M2017-01856-
CCA-R9-CD (Tenn. Crim. App. Nov. 8, 2017) (order).
On appeal, the State argues that offices of district attorneys general are not
subject to a per se rule of disqualification based upon an imputed conflict of interests. In
relying on State v. Coulter, 67 S.W.3d 3 (Tenn. Crim. App. 2001), abrogated on other
grounds by State v. Merriman, 410 S.W.3d 779 (Tenn. 2013), the State argues that the
trial court erred by applying Rule of Professional Conduct 1.10 and that Rule 1.11 applies
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to assistant district attorneys general. The Defendant responds that the trial court did not
abuse its discretion by applying Rule 1.10 and by disqualifying the Office of the District
Attorney General for the Thirty-First Judicial District.
A trial court’s decision to disqualify an attorney for a conflict of interests and to
impute an attorney’s conflict of interests upon the attorney’s firm is reviewed for an
abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); see State
v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). A court abuses its discretion by
“apply[ing] an incorrect legal standard, or reach[ing] a decision which is against logic or
reasoning that caused an injustice to the party complaining.” State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999); see Clinard, 46 S.W.3d at 182.
Our supreme court has “original and exclusive jurisdiction to promulgate” rules
governing the professional and ethical conduct of attorneys. Petition of Tenn. Bar Ass’n,
539 S.W.2d 805, 807 (Tenn. 1976). Before the Rules of Professional Conduct became
effective on March 1, 2003, the then-existing Code of Professional Responsibility
addressed imputed conflicts of interests and vicarious disqualification. See Tenn. Sup.
Ct. R. 8, Tenn. Code of Prof’l Resp. DR 5-105(D), EC 9-101 (replaced 2003); see also In
Re: Tenn. Rules of Prof’l Conduct, No. M2000-02416-SC-RL-RL (Tenn. Sept. 17, 2002)
(order). In Clinard v. Blackwood, a private attorney representing a client in a pending
civil matter resigned from the attorney’s firm to begin employment with a new private
firm, which represented the attorney’s client’s adversary in the pending civil matter. 46
S.W.3d at 181-82. Although the parties did not dispute that the attorney was disqualified
from representing a former client’s adversary at the new firm, our supreme court
determined that the then-disciplinary rules of the Code of Professional Responsibility
presumed the attorney had shared the former client’s confidences with the new firm,
resulting in the vicarious disqualification of the new firm in the pending civil matter. Id.
at 183; see Tenn. Sup. Ct. R. 8, Tenn. Code of Prof’l Resp. DR 5-105(D) (replaced 2003).
The court determined that this presumption could be rebutted, though, by instituting
adequate screening procedures at the new firm. Clinard, 46 S.W.3d at 184. The court
determined that the new firm in Clinard instituted adequate screening procedures to rebut
the presumption of shared confidences, but the court concluded, as an independent basis
for disqualification, that the “appearance of impropriety” required vicarious
disqualification of the new firm. Id. at 186; see Tenn. Sup. Ct. R. 8, Tenn. Code of Prof’l
Resp. DR 9-6 (replaced 2003) (“Every lawyer owes a solemn duty . . . to avoid not only
processional impropriety but also the appearance of impropriety.”).
In applying Clinard in the context of a criminal defense attorney who resigned
as counsel to accept employment with the district attorney’s office, also before the
adoption of the 2003 Rules of Professional Conduct, this court determined that an
attorney’s actual conflict of interests created the presumption that the attorney had shared
the defendant’s confidences with members of the district attorney’s office but that the
district attorney’s office had instituted adequate screening procedures rebutting this
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presumption. Coulter, 67 S.W.3d at 28-31. Relative to whether an appearance of
impropriety independently required vicarious disqualification of the district attorney’s
office, the Coulter court noted that the supreme court’s analysis in Clinard was in the
context of a civil proceeding and involved a private attorney moving between private law
firms. Id. at 31. The Coulter court explained that
[p]rivate and public practice have significant distinctions, such that
screening procedures for attorneys in government service are generally
viewed with less skepticism: “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.”
Id. at 32 (internal citations omitted); see State v. Tate, 925 S.W.2d 548, 556-57 (Tenn.
Crim. App. 1995) (concluding that a prosecutor’s actual conflict of interests and
disqualification does not require vicarious disqualification of the “entire district attorney
general’s office . . . so long as the attorney at issue does not disclose confidences or
otherwise participate in the prosecution”); Mattress v. State, 564 S.W.2d 678, 680 (Tenn.
Crim. App. 1977) (determining that the trial court did not abuse its discretion by
determining that an appearance of impropriety was not created by disqualifying the
assistant district attorney with an actual conflict of interests but allowing another assistant
attorney general to prosecute the case). The court determined that when a prosecutor has
an actual conflict of interests creating an appearance of impropriety, “‘[e]arly and
adequate screening . . . should resolve [the] problem.’” Coulter, 67 S.W.3d at 32
(quoting Tate, 925 S.W.2d at 556); see Tenn. Bd. Prof. Resp., Formal Op. No. 87-F-111,
1987 WL 1446637, at *2 (Sept. 16, 1987) (stating that a “per se rule” of disqualification
for a district attorney’s office when an assistant district attorney general has a conflict of
interests is inappropriate). The court reasoned that in the context of a defense attorney
joining a district attorney’s office, “the appearance of impropriety is not the central
concern” but rather that a disclosure of confidential information would violate a criminal
defendant’s constitutional rights, including the privilege against self-incrimination, the
effective assistance of counsel, a fair and impartial trial, and due process of law. Coulter,
67 S.W.3d at 32-33 (emphasis added).
Since Clinard and Coulter, the Rules of Professional Conduct were adopted by
our supreme court, replacing the Code of Professional Responsibility provisions
discussed in Clinard and Coulter. See Tenn. Sup. Ct. R. 8, RPC (2003) (amended 2011)
(“The ethical standards relating to the practice of law and to the administration of law in
the courts of this State shall be as hereinafter set out.”). In this case, the parties do not
dispute that Ms. Walkup had an actual conflict of interests, disqualifying her as a
prosecutor in the Defendant’s case. See Tenn. Sup. Ct. R. 8, RPC 1.9(a) (2017) (Duties
to Former Clients). The issue before this court is whether Ms. Walkup’s disqualification
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should be vicariously imputed upon the district attorney general’s office, which requires
an examination of Rules of Professional Conduct 1.10 and 1.11.
Rule of Professional Conduct 1.10(c) states that
if a lawyer is personally disqualified from representing a person with
interests adverse to a client of a law firm with which the lawyer was
formerly associated, other lawyers currently associated in a firm with the
personally disqualified lawyer may represent the person, . . . if both the
personally disqualified lawyer and the lawyers who will represent the
person on behalf of the firm act reasonably to:
(1) identify that the personally disqualified lawyer is prohibited from
participating in the representation of the current client; and
(2) determine that no lawyer representing the current client has acquired
any information from the personally disqualified lawyer that is material to
the current matter and is protected by RPC 1.9(c);
(3) promptly implement screening procedures to effectively prevent the
flow of information about the matter between the personally disqualified
lawyer and the other lawyers in the firm; and
(4) advise the former client in writing of the circumstances that warranted
the implementation of the screening procedures required by this Rule and
of the actions that have been taken to comply with this Rule.
Tenn. Sup. Ct. Rule 8, RPC 1.10(c) (2017). However, these procedures cannot
avoid imputed disqualification of the firm, if: (1) the disqualified lawyer
was substantially involved in the representation of a former client; and (2)
the lawyer’s representation of the former client was in connection with an
adjudicative proceeding that is directly adverse to the interests of a current
client of the firm; and (3) the proceedings between the firm’s current client
and the lawyer’s former client is still pending at the time the lawyer
changes firms.
Tenn. Sup. Ct. Rule 8, RPC 1.10(d)(1)-(3) (2017). “The disqualification of lawyers
associated in a firm with former or current government lawyers is governed by RPC
1.11.” Tenn. Sup. Ct. Rule 8, RPC 1.10(f) (2017).
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Although Rule 1.10(d) does not specifically utilize the “appearance of
impropriety” language from Clinard, the principles of the standard are contained in Rule
1.10(d) because “disqualification of a law firm [is required] when a lawyer [is] perceived
as ‘switching teams’ in the course of pending litigation” regardless of adequate screening
procedures. Tenn. Sup. Ct. Rule 8, RPC 1.10(d), Cmt. [9] (2017); see Tenn. Sup. Ct.
Rule 8, RPC 1.10(d), Commentary [9] (2003) (stating paragraph (d) restates the rule of
law established by Clinard v. Blackwood”). However, “[u]nder [Rule] 1.11(d), where a
lawyer represents the government after having served clients in private practice . . .
imputation is governed by [Rule] 1.11(c)(1).” Tenn. Sup. Ct. Rule 8, RPC 1.10(d), Cmt.
[11] (2017); see Tenn. Sup. Ct. Rule 8, RPC 1.10(d), Commentary [10] (2003); see also
Tenn. Sup. Ct. Rule 8, RPC 1.10(f) (2017).
On January 1, 2011, the amended Rules of Professional Conduct became
effective. Tenn. Sup. Ct. Rule 8, RPC, Complier’s Notes (2011). The 2011 amendment
adopted subsection (f) to Rule 1.10, requiring the application of Rule 1.11 relative to the
disqualification of attorneys associated in a firm with former or current government
attorneys. However, even before the adoption of subsection (f), this court determined
that Rule 1.10 addresses imputed conflicts of interests and vicarious disqualification
when a private attorney “moves from one private law firm or corporate legal office to
another.” State v. Frankie E. Casteel, No. E2003-01563-CCA-R3-CD, 2004 WL
2138334, at *15 (Tenn. Crim. App. Sept. 24, 2004) (declining to analyze whether the
disqualification of a district attorney’s office was proper pursuant to Rule 1.10), perm.
app. denied (Tenn. Dec. 28, 2004).
When the Rules of Professional Conduct were adopted in 2003, Rule 1.11(c)(1),
Successive Government and Private Employment, stated the following:
Except as law may otherwise expressly permit, a lawyer serving as a public
officer or employee shall not:
(1) Participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment,
unless under applicable law no one is, or by lawful delegation may be,
authorized to act in the lawyer’s stead in the matter.
....
Tenn. Sup. Ct. Rule 8, RPC 1.11(c)(1) (2003) (emphasis added). Rule 1.11(c) “does not
disqualify other lawyers in the agency with which the lawyer in question has become
associated.” Id., Commentary [8] (2003). This court determined that the 2003 version of
Rule 1.11(c) “governs situations arising when a lawyer leaves private practice to
represent the government.” Frankie E. Casteel, 2004 WL 2138334, at *16 (applying
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Rule 1.11 in determining whether an assistant district attorney general’s actual conflict of
interests vicariously disqualified the district attorney general’s office).
The amended version of Rule 1.11, Special Conflicts of Interest for Former and
Current Government Officers and Employees, effective at the time the Defendant filed
his motion to disqualify the district attorney’s office states, in relevant part, that an
attorney employed as a public officer or employee
shall not:
(i) participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment,
unless the appropriate government agency gives its informed consent,
confirmed in writing, or under applicable law no one is, or by lawful
delegation may be, authorized to act in the lawyer’s stead in the matter[.]
Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(2)(i) (2017) (emphasis added). Rule 1.10 “is not
applicable to the conflicts of interest[s] addressed by [Rule 1.11],” but Rule 1.10(b)
“permits screening and notice to avoid imputation for lawyers moving into . . . positions
as government officers or employees in the same manner as set forth for other lawyers in
[Rule] 1.10(c).” Id., Cmt. [2] (2017). Likewise, “[b]ecause of the 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.” Id. Rule 1.11 is designed, at least in part, “to protect the former client,”
preventing an attorney “who has pursued a claim on behalf of a private client [from]
pursu[ing] the claim on behalf of the government[.]” Id., Cmt. [3] (2017). Rule 1.11(d)
“does not disqualify other lawyers in the agency with which the lawyer in question has
become associated.” Id., Cmt. [9].
Our supreme court, pursuant to its inherent constitutional authority, “has original
and exclusive jurisdiction to promulgate its own Rules,” and this “authority embraces the
. . . supervision of” the practice of law. Petition of Tenn. Bar Ass’n, 539 S.W.2d at 807;
see Clinard, 46 S.W.3d at 182. Commentary and comments to the Rules are likewise
adopted by our supreme court and are intended to “explain[] and illustrate[] the meaning
and purpose of the Rule” and to be “guides to interpretation” in order to maintain
compliance with the Rules. Tenn. Sup. Ct. Rule 8, Scope [15], [23] (2017). The
interpretation of rules adopted by our supreme court is a question of law and is reviewed
de novo. Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 25 (Tenn. 2012); see
Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009). “When interpreting the Rules of
the Tennessee Supreme Court, [appellate courts] apply the traditional rules of statutory
construction.” Lockett, 380 S.W.3d at 25; see Keough v. State, 356 S.W.3d 366, 370-71
(Tenn. 2011) (applying the rules of statutory construction to interpret Tennessee Supreme
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Court Rule 28 and Tennessee Rule of Evidence 611); Thomas, 279 S.W.3d at 261
(applying the rules of statutory construction to interpret the Tennessee Rules of Civil
Procedure); see Doe v. Board of Prof’l Responsibility, 104 S.W.3d 465, 469 (Tenn. 2003)
(applying the rules of statutory construction to interpret Tennessee Supreme Court Rule
9).
Appellate review of court rules attempts to “ascertain and give effect to the . . .
intent without unduly restricting or expanding a [rule’s] coverage beyond its intended
scope.” Doe, 104 S.W.3d at 469 (internal quotations and citations omitted). Intent is
determined “from the natural and ordinary meaning of the . . . language within the
context of the entire [rule] without any forced or subtle construction that would extend or
limit the . . . meaning.” Id. (internal quotations and citations omitted). “[A]ll sections are
to be construed together in light of the general purpose and plan.” Id. (internal quotation
and citation omitted). “[T]he rules of . . . construction direct us not to apply a particular
interpretation of a [rule] if that interpretation would yield an absurd result.” Id. (internal
quotation and citation omitted). Likewise, “[u]nder the generally accepted rules of . . .
construction, a special [rule], or a special provision of a particular [rule], will prevail over
a general provision in another [rule] or a general provision in the same [rule].” Keough,
356 S.W.3d at 371.
Rule 1.10 recites the general rule governing imputed conflicts of interests of an
attorney upon a firm. Tenn. Sup. Ct. Rule 8, RPC 1.10 (2017). Rule 1.10(b) addresses
the scenario in which an attorney at a current firm is prohibited from representing a client
at the current firm whose interests are adverse to the attorney’s former client at a former
firm. However, subsection (c) permits other attorneys at the current firm to represent the
current client if the attorney with the conflict of interests is disqualified from representing
the current client, the other attorneys in the current firm have not obtained material
information about the representation from the disqualified attorney, adequate screening
procedures are implemented to prevent the flow of information between the disqualified
attorney and the other attorneys in the current firm, and the disqualified attorney’s former
client is advised in writing of the circumstances requiring the screening procedures and of
the procedures implemented. See Tenn. Sup. Ct. Rule 8, RPC 1.10(c)(1)-(4) (2017).
However, the Rule states that vicarious disqualification is required, regardless of
compliance with subsection (c), if the disqualified attorney was substantially involved in
the representation of the former client, the representation of the former client was related
to an adjudicative proceeding that is directly adverse to the current client’s interests, and
the proceeding is pending at the time the attorney changes firms. Tenn. Sup. Ct. Rule 8,
RPC 1.10(d)(1)-(3) (2017).
The language of Rule 1.10(c)(1)-(4) is analogous to and incorporates the
screening procedures discussed in Clinard that were implemented in an effort to prevent
the disclosure of confidential client information and to prevent a current firm’s
disqualification from representing a current client. See Clinard, 46 S.W.3d at 184.
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Although Rule 1.10 does not include the “appearance of impropriety” language from
Clinard, which served as an independent basis for the vicarious disqualification of a firm
pursuant to the Code of Professional Responsibility, subsection (d) “restates the rule of
law established by Clinard,” which “continues under the present Rules.” Tenn. Sup. Ct.
Rule 8, RPC 1.10(d), Cmt. [9]. But c.f. Frankie E. Casteel, 2004 WL 2138334, at *16
(stating that “[n]either Rule 1.10 or 1.11 adopts an appearance of impropriety standard”).
Rule 1.10(d) creates a per se rule of disqualification, consistent with the appearance of
impropriety standard in Clinard, to the extent that a current firm’s adequate screening
procedures will not prevent vicarious disqualification when the disqualified attorney’s
representation was substantial and was related to a pending adjudicative proceeding in
which the interests of the former and current clients are directly adverse.
However, Rule 1.10(f) provides that “[t]he disqualification of lawyers associated
in a firm with former or current government lawyers is governed by RPC 1.11.” Tenn.
Sup. Ct. Rule 8, RPC 1.10(f) (2017); see Tenn. Sup. Ct. Rule 8, RPC 1.10, Cmt. [11]
(“[W]here a lawyer represents the government after having served clients in private
practice . . . imputation is governed by RPC 1.11(c)(1).”). The amended version of Rule
1.10, effective January 1, 2011, adopted subsection (f), and the language mandates the
application of Rule 1.11 when the disqualified attorney is a current or former government
attorney, which includes assistant district attorneys general. Subsection (f) incorporates
the determinations in Coulter that (1) Clinard applies in the context of civil proceedings
in which an attorney moves between private law firms and (2) when a private attorney
leaves criminal defense practice to join a district attorney general’s office, the primary
concern is not the appearance of impropriety, as in Clinard, but rather that the disclosure
of confidential information could violate a criminal defendant’s constitutional rights. See
Coulter, 67 S.W.3d at 32-33.
After the adoption of the 2003 Rules of Professional Conduct but before the
2011 amendment adopting Rule 1.10(f), this court relied on Coulter for the proposition
that vicarious disqualification based upon Clinard was not applicable to scenarios in
which a criminal defense attorney becomes an assistant district attorney general. See
State v. Michelle Tipton, No. E2004-01278-CCA-R3-CD, 2005 WL 2008178, at *5-6
(Tenn. Crim. App. Aug. 22, 2005) (stating, without reference to the Rules of Professional
Conduct, that the “disqualification doctrine” in Clinard “does not apply identically when
an attorney transfers to the district attorney general’s office as it does when an attorney
transfers to a private law firm” and determining that the district attorney general’s
screening procedures adequately rebutted the “central concern” regarding the disclosure
of confidential information and its potential impact on a criminal defendant’s
constitutional rights), perm. app. denied (Tenn. Jan. 30, 2006); Frankie E. Casteel, 2004
WL 2138334, at *16 (stating, after discussing Clinard and Coulter, that Rule 1.10
governs vicarious disqualification when an attorney “moves from one private law firm or
corporate legal office to another” and that Rule 1.11(c) applies when an attorney “leaves
private practice to represent the government”); see also State v. Davis, 141 S.W.3d 600,
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612-615 (Tenn. 2004) (applying principles expressed in Coulter, without reference to the
Rules of Professional Conduct, to a motion to disqualify the district attorney general’s
office because the prosecutor had worked previously as a judicial law clerk to the trial
court judge).
By contrast, Rule 1.11 recites the special rule regarding conflicts of interests for
current and former government officers and employees. See Tenn. Sup. Ct. Rule 8, RPC
1.11 (2017). The majority of the Rule addresses scenarios not relevant to this appeal.
See Tenn. Sup. Ct. Rule 8, RPC 1.11(a) (relevant to attorneys who are former public
officers or government employees); 1.11(b) (relevant to screening procedures to avoid
vicarious disqualification of a firm because an attorney employed by the firm is a former
public officer or government employee subject to disqualification pursuant to subsection
(a)); 1.11(c) (relevant to attorneys who are former government employees or public
officers and the need to protect “confidential government information”). The provision
containing language relevant to an attorney who leaves private practice for government
service is subsection (d)(2)(i), which prohibits an attorney from “participat[ing] in a
matter in which the lawyer participated personally and substantially while in private
practice[.]” See Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(2)(i).
Although the trial court determined, and the Defendant argues on appeal, that
Rule 1.11(d)(2)(i) is not applicable in the present case because its focus is protecting the
confidentiality of the government, subsection (d)(2) applies “regardless of whether a
lawyer is adverse to a former client and [is] thus designed not only to protect the former
client, but also to prevent a lawyer from exploiting public office[.]” Tenn. Sup. Ct. Rule
8, RPC 1.11(d)(2), Cmt. [3] (2017). The language of (d)(2)(i) shows that a government
attorney is prohibited from participating in a matter in which the attorney personally and
substantially participated before becoming a government attorney. Therefore, (d)(2)(i)
prevents an attorney from representing a client in private practice in a matter involving
the government and, before the matter is resolved, representing the government in the
same matter. Rule 1.11(d)(1) reiterates that a public attorney remains bound by the rules
governing not only conflicts of interests involving a current client, which includes the
government entity for which the attorney works, but also conflicts of interests involving
former clients, which includes clients the attorney represented before becoming a
government attorney. See Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(1), 1.7, 1.9 (2017).
Furthermore, the remaining language of Rule 1.11(d)(2)(i) provides three
scenarios in which a government attorney might be permitted to participate in a matter in
which the attorney participated personally and substantially before becoming a public
attorney. However, these are inapplicable and irrelevant for purposes of this case
because in a criminal case, the concern is preventing the disclosure of a defendant’s
confidential information to members of a district attorney general’s office, and a public
attorney remains bound by the rules related to duties to former clients. See Tenn. Sup.
Ct. Rule 8, RPC 1.11(d)(1), 1.9 (2017). Rule 1.11 attempts to balance the interests
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between a private client and the government, and an attorney “who . . . pursued a claim
on behalf of a private client may not pursue the claim on behalf of the government,
except [as] authorized” by subsection (d). Tenn. Sup. Ct. Rule 8, RPC, 1.11, Cmts. [3],
[4] (2017). Although subsection (b) encompasses former government employees, it
allows for screening and notice to avoid vicarious imputation of attorneys who “mov[e]
into . . . positions as government officers or employees in the same manner as set forth by
other lawyers in [Rule] 1.10(c).” Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [1] (2017).
Therefore, adequate screening procedures protect a criminal defendant’s confidential
information. See Tenn. Sup. Ct. Rule 8, RPC 1.11(b), (c) (2017); Coulter, 67 S.W.3d at
32-33. Likewise, the language of Rule 1.11(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[.]” Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmts. [2], [9].
As a result, district attorneys general’s offices are not subject to the Clinard per se
disqualification rule based upon the appearance of impropriety.
The practical implications of applying the per se rule of disqualification in Rule
1.10(d) and Clinard highlight the need for a special rule regarding a public attorney’s
conflicts of interests and vicarious disqualification of the entities for which the attorney
works. Application of the per se disqualification in these cases would create an “absurd
result,” significantly impacting efficiency of the administration of the criminal justice
system. See Doe, 104 S.W.3d at 469. If vicarious disqualification of district attorneys
general’s offices were required each time a district attorney general employed a former
criminal defense attorney, assuming the criterion of Rule 1.10(d)(1)-(3) are satisfied, the
law enforcement function of prosecuting individuals accused of committing criminal
offenses would become disrupted, routinely requiring the appointment of special
prosecutors. Application of the per se rule of disqualification would also deter competent
attorneys from entering public service as assistant district attorneys general, impeding a
district attorney general’s ability to hire competent attorneys while simultaneously
complying with ethical standards. See Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [4] (2017).
The provisions related to screening “are necessary to prevent the disqualification rule
from imposing too severe a deterrent against entering public service.” See Tenn. Sup. Ct.
Rule 8, RPC 1.11, Cmt. [4]. Likewise, application of the per se disqualification rule fails
to consider the primary concern in criminal cases of preventing the disclosure of a
defendant’s confidential information for the protection of constitutional rights. See
Coulter, 67 S.W.3d at 32. Rule 1.10 is a general rule regarding the vicarious imputation
of conflicts of interests, whereas Rule 1.11 is the specialized rule regarding the conflicts
of interests of former and current government attorneys, and the principles of
construction require the specialized rule to prevail over the general rule. See Keough,
356 S.W.3d at 371.
Based upon the foregoing, we conclude that Rule of Professional Conduct 1.11
is the applicable ethical authority when considering whether the conflict of interests of a
disqualified assistant district attorney general should be vicariously imputed upon a
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district attorney general’s office. In making this determination, we have not overlooked
the trial court’s and the defense’s reliance on Jason Clinard, in which a panel of this
court cited Rule 1.10 in determining that vicarious imputation of a prosecutor’s actual
conflict of interests upon the district attorney’s office was not required. 2008 WL
4170272, at *4-5.
In Jason Clinard, the defense sought disqualification of the district attorney
general’s office on the basis that an appearance of impropriety was created when an
assistant public defender, who did not represent the defendant personally, obtained
employment with the district attorney general’s office and the defendant was represented
by the public defender’s office. Id. This court determined that the district attorney
general’s office instituted adequate screening procedures of the disqualified attorney
pursuant to Rule 1.10(c) and that the defendant failed to show vicarious disqualification
could not “be avoided by the implementation of screening procedures.” Id. at *5. Jason
Clinard predates the 2011 amendment to the Rules of Professional Conduct that adopted
subsection (f) to Rule 1.10, requiring the application of Rule 1.11 in cases involving the
disqualification of attorneys associated in a firm with former or current government
attorneys. In any event, this court’s reliance on whether the State complied with the
procedures outlined in Rule 1.10(c) to avoid vicarious disqualification of the district
attorney general’s office was based upon State v. Davis, in which our supreme court
considered the principles expressed in Coulter, distinguishing Davis from Clinard v.
Blackwood, without reference to the 2003 Rules of Professional Conduct. See Davis, 141
S.W.3d at 612-615.
In Davis, the supreme court applied the principles of Coulter to the scenario in
which a judicial law clerk to the trial court judge obtained employment with the district
attorney general’s office. Id. at 614. The supreme court noted that the disqualified
attorney’s involvement as a judicial law clerk was de minimus and that the attorney did
not participate in the prosecution, did not discuss or share information about the case with
any assistant district attorney general, did not have access to the prosecution’s case file,
and understood that he would have no involvement in the prosecution. Id. The court
determined that the attorney was effectively screened from the prosecution and that, as a
result, the trial court did not abuse its discretion by denying the motion to disqualify. Id.
at 615.
As a result, this court’s analysis in Jason Clinard was indirectly based upon the
central concern in Coulter, which we have concluded is analogous to Rule 1.11, that
when a prosecutor has an actual conflict of interests, adequate screening procedures will
prevent the disclosure of a defendant’s confidential information. See Jason Clinard,
2008 WL 4170272, at *4-5. Furthermore, the same screening and notice procedures
provided in Rule 1.10(c) are permitted in Rule 1.11 to prevent the vicarious
disqualification of a firm in which a disqualified public attorney is employed, and this
court’s reliance on the procedures stated in Rule 1.10(c) was not improper. See Tenn.
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Sup. Ct. Rule 8, RPC 1.11(b), Cmt. [2]. Therefore, Jason Clinard implicitly rejected the
per se disqualification rule in Clinard v. Blackwood and Rule 1.10(d). See Jason Clinard,
2008 WL 4170272, at *4-5; Coulter, 67 S.W.3d at 32. We note that in State v. Perry
Lewis Sisco, No. M2017-01202-CCA-R3-CD, 2018 WL 1019870, at *8-10 (Tenn. Crim.
App. Feb. 21, 2018), perm. app. denied (Tenn. May 17, 2018), this court relied
significantly upon Jason Clinard and its reference to Rule 1.10 in determining that a
district attorney general’s screening procedures were adequate to prevent vicarious
disqualification and that the defendant failed to establish the criterion of Rule 1.10(d),
requiring vicarious disqualification regardless of adequate screening procedures.
However, the court in Perry Lewis Sisco did not acknowledge the adoption of subsection
(f) to Rule 1.10 required application of Rule 1.11. See id.
In Klein Adlei Rawlins v. State, No. M2010-02105-CCA-R3-PC, 2012 WL
4470650, at *12-14 (Tenn. Crim. App. Sept. 27, 2012), perm. app. denied (Tenn. Feb. 25,
2013), this court again considered the standard for determining whether a district attorney
general’s office should be disqualified from a prosecution when an assistant district
attorney is disqualified based upon a conflict of interests. This court, without reference to
the Rules of Professional Conduct, determined, pursuant to Coulter, that the district
attorney general’s screening mechanisms were sufficient to prevent the disclosure of the
defendant’s confidential information and that vicarious disqualification was not required.
Id., at *13-14. Likewise, in State v. Thomas Paul Odum, No. E2017-00062-CCA-R3-
CD, 2017 WL 5565629, at *6-8 (Tenn. Crim. App. Nov. 20, 2017), perm. app. denied
(Tenn. Feb. 15, 2018), this court determined, without reference to the Rules of
Professional Conduct, that the per se disqualification rule based upon the appearance of
impropriety expressed in Clinard was “more applicable to civil cases” and private
attorneys than to criminal cases involving prosecutors. Id. at *8 (citing Davis, 141
S.W.3d at 613; Coulter, 67 S.W.3d at 32). The Thomas Paul Odum court determined that
the district attorney general’s office instituted adequate screening procedures preventing
the disclosure of the defendant’s confidential information to the prosecuting attorneys
and that disqualification of the district attorney general’s office was not warranted. Id.
As a result, Klein Adlei Rawlins and Thomas Paul Odum reflect the view consistent with
Rule 1.11 that it is inappropriate to apply a per se disqualification rule, based upon the
appearance of impropriety, to a district attorney general’s office when an assistant district
attorney general has a disqualifying conflict of interests.
We conclude that Tennessee Supreme Court Rule 8, Rule of Professional
Conduct 1.10 is the general rule governing the imputation of conflicts of interests but that
Rule 1.11, the specialized rule regarding public service attorneys, applies to whether a
disqualified prosecutor’s conflict of interests should be imputed upon a district attorney
general’s office. The record reflects that the trial court rejected Rule 1.11 as the
applicable authority and that the court determined vicarious disqualification was required
pursuant to Rule 1.10(d), although it also determined that the State had complied
adequately with the screening procedures provided in Rule 1.10(c).
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The parties do not dispute that Ms. Walkup has an actual conflict of interests
disqualifying her from participating in the Defendant’s prosecution. See Tenn. Sup. Ct.
Rule 8, RPC 1.11(d)(2)(i), 1.9(a) (2017). She testified at the motion hearing that she
represented the Defendant between November 4, 2015, and January 11, 2016, that she
prepared and filed a motion to reduce the Defendant’s bond, and that her only court
appearance in this case was related to the bond motion. She stated that she and the
District Attorney General discussed her conflicts of interests stemming from pending
cases in which she previously served as defense counsel. They did not discuss the cases
with specificity, and Ms. Walkup understood after the discussion that she would not have
any involvement in any of her previous cases. Ms. Walkup did not know which of her
previous cases remained pending.
Ms. Walkup’s only discussion about this case with the prosecutor related to the
prosecutor’s asking if she previously represented the Defendant and the prosecutor’s
telling her that the motion to disqualify had been filed by the defense. She did not know
where the prosecution’s file was maintained in the district attorney’s office, and she did
not have access to the case file. She did not receive discovery material during her
representation of the Defendant and did not recall the name of the prosecuting law
enforcement officer. She said that if she had spoken to the officer, their discussions
would have been about other cases. She denied participating in and overhearing
conversations with colleagues relative to the State’s evidence against the Defendant.
The State submitted the prosecutor’s affidavit, which stated that the District
Attorney General reminded office personnel that Ms. Walkup had previously represented
criminal defendants who might have pending cases and that those cases were not to be
discussed with Ms. Walkup. The prosecutor stated that he and Ms. Walkup had never
discussed the factual or legal merits of the Defendant’s case, although the prosecutor
spoke to Ms. Walkup to determine the extent of her representation in this case after he
received the motion to disqualify.
The prosecutor stated that given the sensitive nature of sexual crimes, his files
were maintained in his office filing cabinets, except when his administrative assistant
needed temporary access. The prosecutor stated that his assistant was aware of the
sensitive nature of the evidence contained in the files and that the assistant did not make
the files available to other office personnel. The prosecutor stated that he and Ms.
Walkup did not share an assistant and that he locked his office when he left each day.
The prosecutor stated that Ms. Walkup did not prosecute offenses involving child abuse
and that, as a result, did not interact with those who investigated the Defendant’s case.
The prosecutor stated that any meetings held relative to the Defendant’s case would have
been held in a conference room located on a different floor from Ms. Walkup’s office.
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The prosecutor stated that when he learned Ms. Walkup had previously
represented the Defendant, the prosecutor sent a March 23, 2017 letter to the Defendant’s
attorney, the victim’s mother, and the trial court notifying them of Ms. Walkup’s conflict
of interests and disqualification from the Defendant’s case. The prosecutor stated that the
victim’s mother had no objection to the District Attorney’s Office continuing to prosecute
this case.
The record reflects that Ms. Walkup was prohibited from participating in the
prosecution of the Defendant and that she did not provide anyone working in the district
attorney’s office with information related to the Defendant’s case. Ms. Walkup and the
prosecutor did not communicate about this case, and any meetings about this case were
held on a different floor from Ms. Walkup’s office. The District Attorney General and
Ms. Walkup discussed generally her conflicts of interests related to cases in which she
previously served as defense counsel, and they decided she would have no involvement
with those cases. The prosecutor’s affidavit reflects that the District Attorney General
instructed personnel not to communicate with Ms. Walkup about any pending case in
which Ms. Walkup had served as defense counsel. The record does not reflect any
improper communications occurred relative to the Defendant’s case. Likewise, the
Defendant’s attorney and the victim’s mother were notified in writing of Ms. Walkup’s
conflict of interests. Therefore, the record supports the trial court’s determinations that
Ms. Walkup had not participated in the prosecution, that she had not spoken to the
prosecutor about the facts of the case, that Ms. Walkup had not disclosed the Defendant’s
confidential information, and that adequate screening procedures had been instituted
preventing the disclosure of confidential information. See Tenn. Sup. Ct. Rule 8, RPC
1.11(b)(1)-(4) (2017) (permitting screening and notice to avoid imputation for attorneys
moving into government service in the same manner as provided for “other” attorneys in
RPC 1.10(c)); see id. 1.10(c)(1)-(4). As a result, the adequate screening procedures
prevented the disclosure of the Defendant’s confidential information, which is the
primary concern in criminal cases. See Coulter, 67 S.W.3d at 32-33. Therefore, Ms.
Walkup’s disqualifying conflict of interests did not warrant vicarious disqualification of
the District Attorney General’s Office.
In consideration of the foregoing and the record as a whole, we conclude that the
trial court abused its discretion by granting the motion to disqualify the Office of the
District Attorney General for the Thirty-First Judicial District. The order of the trial
court is reversed, and the case is remanded to the trial court for further proceedings
consistent with this opinion.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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