State of Washington v. David Emerson Nickels , 434 P.3d 535 ( 2019 )

FILED
FEBRUARY 7, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35369-9-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
DAVID EMERSON NICKELS, )
)
Petitioner. )
PENNELL, J. — When an attorney transitions from representing individual clients to
the position of elected prosecutor, conflicts of interest can arise, restricting not only the
attorney’s ability to work on a given case, but also necessitating recusal of the entire
prosecutor’s office. The standard set by the Washington Supreme Court is that when an
elected prosecutor has previously represented a criminally accused person in a case that is
No. 35369-9-III
State v. Nickels
the same, or substantially the same, as the one currently pending prosecution, the entire
prosecutor’s office should ordinarily be disqualified from further participation.
The questions raised by Mr. Nickels’s appeal are whether the Supreme Court’s
office-wide recusal standard contemplates a bright-line rule and, if not, what
circumstances can disentangle an elected prosecutor’s need for recusal from that of the
prosecutor’s office. We hold that a prosecutor’s office is not subject to bright-line recusal
rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception
can exist in extraordinary circumstances. Extraordinary circumstances are informed not
by the nature of the elected prosecutor’s current activities, but by his or her prior work
as counsel, including (1) whether the prosecutor was privy to privileged information and
(2) the nature of the case giving rise to the elected prosecutor’s conflict of interest.
Here, Grant County Prosecuting Attorney Garth Dano previously represented
David Nickels in a first degree murder case that remains pending in Grant County
Superior Court. Mr. Dano’s work caused him to be privy to confidential work product
and attorney-client information. Given this circumstance, coupled with the seriousness of
Mr. Nickels’s criminal charge, extraordinary circumstances do not justify differentiating
Mr. Dano’s conflict of interest from that of the entire Grant County Prosecuting
Attorney’s Office. Instead, the general rule applies and the entire prosecutor’s office
must be recused along with Mr. Dano. The trial court’s order to the contrary is reversed.
2
No. 35369-9-III
State v. Nickels
BACKGROUND
In 2012, a Grant County jury convicted David Nickels of first degree murder.
Deputy prosecutors Tyson Hill and Edward Owens handled the case under the supervision
of Grant County’s elected prosecutor, D. Angus Lee.
Mr. Nickels was represented by Seattle-based attorneys Mark Larranaga and
Jacqueline Walsh. Because they worked remotely, Mr. Nickels’s attorneys sought local
assistance from then-private attorney Garth Dano. According to an uncontested affidavit
by Ms. Walsh, defense counsel routinely consulted with Mr. Dano about a wide range
of matters regarding Mr. Nickel’s defense, including defense strategy, theory of the case,
potential witnesses and jury selection. Ms. Walsh states Mr. Dano was considered a
consulting defense attorney on the case and “as such all confidences and communications
fell under the attorney client, work product doctrine.” Clerk’s Papers at 179.
On September 4, 2012, Mr. Dano entered a notice of association of counsel so that
he could represent Mr. Nickels while Mr. Larranaga and Ms. Walsh attended to matters
out of state. Mr. Dano subsequently appeared in court with Mr. Nickels for a jury
question and when the jury returned its verdict. Mr. Dano did not provide any substantive
input at the time of the jury question or the verdict. However, after the verdict, Mr. Dano
met with Mr. Nickels to discuss the case.
3
No. 35369-9-III
State v. Nickels
In November 2014, while Mr. Nickels’s case was pending appeal, Mr. Dano was
elected as the Grant County Prosecuting Attorney. Mr. Dano took office in January 2015.
The Grant County Prosecuting Attorney’s Office did not handle Mr. Nickels’s appeal.
Instead it contracted with the Kitsap County Prosecuting Attorney’s Office for the
appointment of two of its deputies, pursuant to RCW 36.27.040, as special deputy
prosecuting attorneys for Grant County. Contract details were arranged several months
prior to Mr. Dano’s election.
In early 2017, this court reversed Mr. Nickels’s first degree murder conviction
based on instructional error. 1 On remand, the case was assigned to Grant County deputy
prosecutors Kevin McCrae and Edward Owens. Mr. Dano was recused from the case,
and has had no participation at any time during his tenure as the prosecuting attorney.
After Mr. Nickels’s case was remanded to superior court, defense counsel moved
to disqualify the entire Grant County Prosecuting Attorney’s Office from further
participation based on Mr. Dano’s conflict of interest. The trial court denied the motion;
but, recognizing there were substantial grounds for a difference in opinion, the court
certified its order for immediate appellate review under RAP 2.3(b)(4). We granted
discretionary review.
1
State v. Nickels, No. 31642-4-III (Wash Ct. App. Feb. 28, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/316424_unp.pdf.
4
No. 35369-9-III
State v. Nickels
ANALYSIS
The issue in this case is narrow. The parties agree the elected prosecutor, Garth
Dano, has a disqualifying conflict of interest and must be recused from Mr. Nickels’s
case. The only issue to be decided is whether Mr. Dano’s entire office must be recused
as well. Our review is de novo. State v. Greco, 57 Wash. App. 196, 200, 787 P.2d 940
(1990).
The lead authority governing our analysis is State v. Stenger, 111 Wash. 2d 516,
760 P.2d 357 (1988). 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. The Stenger court articulated the following
standard:
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 and a
special deputy prosecuting attorney appointed. This is not to say, however,
that anytime a prosecuting attorney is disqualified in a case for any reason
that the entire prosecuting attorney’s office is also disqualified. Where the
previous case is not the same case (or one closely interwoven therewith)
that is being prosecuted, and where, for some other ethical reason the
prosecuting attorney may be totally disqualified from the case, if that
prosecuting attorney separates himself of herself from all connection with
the case and delegates full authority and control over the case to a deputy
prosecuting attorney, we perceive no persuasive reason why such a
complete delegation of authority and control and screening should not be
5
No. 35369-9-III
State v. Nickels
honored if scrupulously maintained.
111 Wash. 2d at 522 (footnote omitted).
The parties dispute the nature of the Stenger standard. According to Mr. Nickels,
Stenger sets a bright-line rule, requiring office-wide recusal whenever an elected
prosecutor has a conflict of interest based on prior representation of a client in the same
or similar case as the one currently pending prosecution. The State claims Stenger
articulated only a general standard, and that office-wide recusal is not required in
extraordinary circumstances.
Stenger did not create a bright-line recusal rule
Stenger’s imputed recusal standard comes close to creating a bright-line rule, but it
ultimately falls short. For one thing, Stenger’s analysis is couched in qualified language.
In announcing the standard for recusal of a prosecutor’s office, Stenger used the auxillary
verb “should;” not “shall” or “must.” Id. In so doing, the decision indicated that recusal
of an entire office is not always required, even when the elected prosecutor himself or
herself must be recused based on prior representation in the same case.
In addition to Stenger’s qualified language, the decision did not purport to change
the written RPCs, which specifically exclude government agencies from bright-line rules
of imputed conflicts. As recognized in Stenger, 111 Wash. 2d at 522-23 & n.15, a conflict
based on a private attorney’s prior representation is automatically imputed to other
6
No. 35369-9-III
State v. Nickels
attorneys in the same law firm. RPC 1.10. 2 But there is no similar rule for government
lawyers. See RPC 1.11. 3 Instead, the conflict rules for government lawyers are assessed
more narrowly, according to each lawyer’s individual circumstances. Id.
Given an elected prosecutor’s administrative duties, Stenger recognized that an
elected prosecutor’s individual circumstances generally will require recusal of the entire
prosecuting attorney’s office. But, because no per se recusal rule exists for public service
attorneys, there is the possibility of an exception, based on the individual circumstances
2
At the time of Stenger, RPC 1.10(a) provided as follows: “While lawyers are
associated in a firm, none of them shall knowingly represent a client when any one of
them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9, or 2.2.”
Former RPC 1.10(a) (1987). The same provision now states, “Except as provided in
paragraph (e) [regarding waiver], while lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them practicing alone would be
prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a
personal interest of the disqualified lawyer and does not present a significant risk of
materially limiting the representation of the client by the remaining lawyers in the firm.”
RPC 1.10(a).
3
At the time of Stenger, the applicable rule stated, “Except as law may otherwise
expressly permit, a lawyer serving as a public officer or employee shall not . . .
[p]articipate 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 designation may be, authorized to act in the lawyer’s stead in the
matter.” Former RPC 1.11(c)(1) (1987). The relevant provision now states, “Except as
law may otherwise expressly permit, a lawyer currently serving as a public officer or
employee: (1) is subject to Rules 1.7 and 1.9; and (2) 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.” RPC 1.11(d).
7
No. 35369-9-III
State v. Nickels
of the elected prosecutor.
Stenger’s office-wide recusal rule does not apply in extraordinary
circumstances.
Rather than a bright-line rule, we interpret Stenger as setting a general standard
that an elected prosecutor’s prior representation of the accused in the same or similar case
will ordinarily require office-wide recusal, but an exception can apply in extraordinary
circumstances. The question left unanswered by Stenger is what constitutes extraordinary
circumstances.
Extraordinary circumstances are not informed by the level of
participation as a prosecutor
The State posits that the nature of an elected prosecutor’s current activities are
relevant to the issue of extraordinary circumstances. It points out that the elected
prosecutor in Stenger had taken official actions in support of his former client’s
prosecution, including communicating with the press, being present at law enforcement
briefings, and receiving updates on the case from deputy prosecutors. 111 Wash. 2d at 519.
In contrast, Mr. Dano has never been involved in any aspect of Mr. Nickels’s prosecution.
The decision to charge Mr. Nickels was handled by a prior administration and Mr. Dano
has been completely screened from all information regarding the prosecution of Mr.
Nickels by deputy prosecutors.
8
No. 35369-9-III
State v. Nickels
We find the elected prosecutor’s current activities irrelevant to the question of
extraordinary circumstances. Whether an elected prosecutor has participated in an
ongoing case against a prior client goes to the issue of screening. Effective screening is
not an extraordinary circumstance. It is an ordinary requirement, applicable to all types of
conflicts regardless of the identity of conflict holder. Id. at 522-23 (Screening, as
opposed to office-wide recusal, is required when a prosecuting attorney is conflicted for
reasons other than prior representation in the same case.); Washington State Bar
Association (WSBA) Advisory Opinion 1773 (1997) (Screening is required when a
conflict is held by a deputy prosecuting attorney.). We therefore must look beyond an
elected prosecutor’s work as a prosecutor to discern the nature of Stenger’s extraordinary
circumstances standard.
Extraordinary circumstances are informed by the prior representation
Rather than being informed by the nature of an elected prosecutor’s current work
as a prosecutor, we interpret Stenger’s extraordinary circumstances standard to be focused
on the elected prosecutor’s prior work as counsel for the accused. Two aspects of an
elected prosecutor’s prior work are salient: (1) whether the elected prosecutor’s prior
work involved acquisition of privileged work product and/or confidential attorney-client
information, and (2) the nature of the case giving rise to the elected prosecutor’s conflict
of interest.
9
No. 35369-9-III
State v. Nickels
In announcing a general standard for imputed conflicts, Stenger was primarily
concerned with protecting “privileged information.” 111 Wash. 2d at 521-22. Stenger was
a death penalty prosecution. The elected prosecutor had previously represented Mr.
Stenger in an unrelated case. The Supreme Court recognized that had Mr. Stenger been
charged with an ordinary felony, the elected prosecutor’s prior representation would not
have created a conflict of interest. However, because a death penalty prosecution
involves an assessment of an accused’s past, including “earlier criminal and antisocial
conduct,” there was a danger that the current prosecution could be tainted by “privileged
information obtained by the prosecuting attorney when he was the defendant’s counsel.”
Id.
Stenger relied heavily on State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982),
which also emphasized a concern for privileged information. According to the Kansas
rule set out in Laughlin, the test for recusal of a prosecuting attorney and his office turns
completely on access to confidential information. In Kansas, recusal of an entire
prosecutor’s office is required if “by reason of his [or her] prior professional relationship
with the accused, [the prosecuting attorney] has obtained knowledge of facts upon which
the later case is predicated or facts which are closely interwoven therewith.” Id. at 114.
If no material confidences were shared during the prior representation, disqualification is
not required. Id.
10
No. 35369-9-III
State v. Nickels
Given Stenger’s emphasis on protecting privileged information, it is apparent that
the existence of confidential attorney-client communications is relevant to the
extraordinary circumstances analysis. Generally, an attorney’s representation of a client
will involve acquisition of privileged information through confidential communications.
Thus, an elected prosecutor and his or her office will typically need to be recused from
prosecuting a case in which the elected prosecutor previously served as defense counsel.
But in unusual circumstances, the elected prosecutor’s prior representation may have been
so brief, or so attenuated, that no confidential communications were shared. Such
circumstances would be extraordinary and might not necessitate recusal of the entire
prosecutor’s office.
Apart from the concern for privileged information, we recognize the Stenger
standard as also informed by the nature of the case under prosecution. Because Stenger
was a death penalty prosecution, there was a “heightened ‘need for reliability in the
determination that death [was] the appropriate punishment.’” State v. Clark, 143 Wash. 2d
731, 761, 24 P.3d 1006 (2001) (quoting Woodson v. North Carolina, 428 U.S. 280, 305,
96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)). Given the significant commitment of resources
necessary for a death penalty prosecution, it is difficult to imagine that an elected
prosecutor, tasked with prioritizing a county’s prosecution resources, can ever be fully
walled off from a death penalty prosecution. It is perhaps for this reason that in 1997 the
11
No. 35369-9-III
State v. Nickels
WSBA’s RPC Committee 4 issued an advisory opinion, stating that, in death penalty cases,
recusal of an elected prosecutor based on prior representation in the same criminal case
must result in recusal of the prosecutor’s office as a whole. WSBA Advisory Opinion
1773 (1997). But in less significant prosecutions, there is a greater chance that an elected
prosecutor could be effectively walled off from a case brought by his or her office. We
therefore discern the nature of the case as relevant to Stenger’s extraordinary
circumstances standard.
Our assessment of the importance of the nature of the case under prosecution finds
support in the commentary to Washington’s RPCs. As recognized by the comment to
RPC 1.11, the question of whether or how recusal should apply to a government agency
involves “a balancing of interests.” RPC 1.11 cmt. 4. Although steps must always be
taken to protect client confidences, the recusal standard should not be so broad as to limit
the pool of qualified attorneys who might work in government service. Id. This concern
for the governmental talent pool applies to elected prosecutors. By taking the nature of a
prior case into account, Stenger’s exceptional circumstances standard provides space for a
greater pool of potential elected prosecutors including, for example, a defense attorney
4
The RPC Committee was the predecessor of the current WSBA Committee on
Professional Ethics. Advisory opinions of these committees are based solely on the
RPCs, of which the Washington Supreme Court is the ultimate arbiter.
12
No. 35369-9-III
State v. Nickels
whose practice has focused on misdemeanor work or the supervisor in a public defender’s
juvenile unit. Under a flexible Stenger standard, individuals involved in routine defense
cases would be free to seek election as prosecuting attorney without raising the concern
that the county would be burdened by a significant number of office-wide recusals.
Extraordinary circumstances do not permit continued prosecution by
the Grant County Prosecuting Attorney’s Office
Having discerned two factors relevant to our analysis, we find no extraordinary
circumstances that would excuse the Grant County Prosecuting Attorney’s Office from
being conflicted out of Mr. Nickels’s case. It is uncontested, based on Ms. Walsh’s
affidavit, that Mr. Dano was privy to privileged work product information during his
association with Mr. Nickels’s defense team. In addition, because Mr. Dano met with
Mr. Nickels individually after entry of the jury verdict, he presumably engaged in
confidential attorney-client communications. If Mr. Nickels were merely facing a low-
profile misdemeanor charge, Mr. Dano’s work on the case might not have created the
need for office-wide recusal. In such a circumstance, Mr. Dano’s conflict might have
been sufficiently handled by instituting screening mechanisms. But Mr. Nickels is
charged with first degree murder. While this is not a death penalty case, the charge
against Mr. Nickels is of great significance. No amount of screening can be sufficient to
fully wall off Mr. Dano from the case or prevent him from being cognizant of the
13
No. 35369-9-111
State v. Nickels
resources being committed to Mr. Nickels's case, and thus not devoted to other office
priorities. Given the foregoing circumstances, Mr. Dano' s conflict of interest and need
for recusal must extend to the entire Grant County Prosecuting Attorney's Office.
CONCLUSION
Because Mr. Nickels has been charged with a serious offense, the same offense
about which the Grant County Prosecuting Attorney has acquired privileged information
through work product and attorney-client communications during his time as a private
attorney, the entire Grant County Prosecuting Attorney's Office must be recused from Mr.
Nickels's first degree murder prosecution. The trial court's ruling to the contrary is
reversed. Mr. Nickels's case is remanded to the trial court for further proceedings
consistent with this decision.
Pennell, J.
I CONCUR:
Lawrence-Berrey, C.J.
14
No. 35369-9-III
KORSMO, J. (dissenting) - Although I agree with much of what the majority
writes, my concern is that the test adopted is too narrow and operates as a per se standard.
The likely outcome is that no small county attorney with significant practice involving
the county government, nor a head public defender in any county, could become the
elected prosecutor without causing severe conflict of interest problems. Mr. Dano's
token appearance at the end of the first trial rightly leads to his exclusion from the
prosecution of his former client, but screening him from the retrial of this case is an
adequate remedy. There is no need for recusal of the entire prosecutor's office for the
retrial of a case previously prosecuted by another administration. 1
I agree with the majority that this case is controlled by State v. Stenger, 111 Wash. 2d
516, 760 P.2d 357 (1988). I also agree with the majority's construction of the Stenger
dicta 2 concerning recusal of the entire prosecutor's office when the elected prosecutor
1
Interestingly, this court once decided that a trial judge did not have to recuse
from a criminal case even though he had both defended and prosecuted the defendant in
earlier cases. State v. Dominguez, 81 Wash. App. 325, 914 P.2d 141 (1996). A former
client's secrets can more easily be used against him by a judge than by an attorney.
2
Stenger involved a death penalty prosecution of the defendant for aggravated
murder; the elected prosecutor had previously represented the defendant a decade earlier
in a different case. 111 Wash. 2d at 518. Thus, the discussion of how to address the elected
prosecutor's representation of the defendant in the same case his new office was
prosecuting technically is dicta, though it was understandable that the court would use the
opportunity to opine on a problem that could easily arise.
No. 35369-9-111
State v. Nickels-Dissent
previously represented the defendant in the same case-"ordinarily" the entire office will
be recused. Id. at 522. However, I see nothing in that language suggesting that only
"extraordinary" circumstances will justify a remedy other than recusal of the entire
office; rather, recusal is the presumptive remedy. However, RPC 1.11 provides for
screening of conflicted government attorneys, not recusal of the entire office.
Instead, I think the key to Stenger is found in the paragraphs of the opinion
following the one emphasized by the majority. Noting that there is a significant
difference in imputing disqualification in the government sphere than in the private firm
context, the court opined, also in dicta, that screening ordinarily will be the remedy when
a deputy prosecutor has a conflict of interest. Stenger, 111 Wash. 2d at 522-23. The court
then finally turned to the issue of the elected prosecutor's actions in that case:
Under the facts of the 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.
Id. at 523.
In sum, the prosecutor had been involved in the preparation of the case against his
former client and was not screened. Under those circumstances, the entire office had to
be recused. There would have been no need to talk about the ineffectual screening of the
prosecutor if his conflict had required recusal of the entire office from the beginning.
2
No. 35369-9-III
State v. Nickels-Dissent
Rather, the ineffectual screening simply demonstrated that recusal of the entire office was
necessary since the screening remedy had failed.
This case is completely different. The charging decision had been made, the
evidence developed, and the trial had been completed two years before Mr. Dano was
elected prosecutor. Screening could be an effective remedy since there were no
discretionary decisions to make about the case and none of the client's secrets could
possibly be used against him in the future because the evidence and record already was
settled. I do not believe that Stenger requires anything more in this case.
Nonetheless, I need to comment further because the majority's chosen test factors
are ineffectual. First, the majority discounts the prosecutor's current activities as
prosecutor, arguing they are irrelevant. They aren't. Prosecutor's offices run the gamut
from two attorney offices to those numbering in the hundreds. Elected prosecutors vary
in their practices-some are merely managers who set policy and have little or no
responsibility for any particular case, while others maintain significant caseloads and
have only minimal management functions. Some work solely on the civil or the criminal
side of the office. Others leave civil and criminal department heads the job of managing
their respective sides of the office. In many of these situations, it is easy to effectively
screen the elected prosecutor from a particular case because it is a case that the
prosecutor normally would not be involved with.
3
No. 35369-9-111
State v. Nickels-Dissent
The majority ignores these differing office arrangements and turns, instead, to the
nature of the prior representation of the defendant and the nature of the case charged.
Without considering the possibility of effective screening in the particular circumstances
of each office, the majority effectively writes that option out of existence. Instead, it
relies on factors that are likely to always require recusal of the entire office.
The first of those factors is that nature of the prior representation. Although I
agree that this factor could have some application to the remedy, the majority's limitation
of the factor necessarily requires only one remedy-recusal. That arises from the fact
that the majority is concerned with the prior representation only if the "prior work
involved acquisition of privileged work product and/or confidential attorney-client
communications." All3 private communications between an attorney and client are
privileged, whether or not the communications involve a client secret or not. In other
words, as long as the client talked to the attorney, this factor will always suggest recusal
is in order. As applied by the majority, this factor is largely meaningless except in those
"extraordinary" cases where an attorney somehow represented a client without
communicating with the client.
The second factor involves the seriousness of the case being prosecuted. This
factor is problematic for two very different reasons. First, it draws the wrong lesson from
3 Subject to the exceptions ofRPC 1.6(b).
4
No. 35369-9-III
State v. Nickels-Dissent
Stenger and fails to focus on the problem of privileged information. Second, this factor is
going to be very difficult to apply.
As to the first problem, the majority rightly notes that Stenger was concerned with
the possible misuse of privileged information in making the decision to seek the death
penalty. 4 From this, it discerns that the nature of the case is meaningful in deciding
whether recusal is required. That is an overly ambitious leap of logic. Capital cases are
sui generis, in part because the defendant's character and his prior convictions necessarily
are at issue during sentencing. They are not necessarily at issue in any other criminal
case. The leap from Stenger to a non-capital case is not justified.
More importantly, this factor is problematic because it only considers how the
potential misuse of privileged information will affect the pending case, not how it will
affect the client whose secrets are being misused. I think such a narrow focus is
misplaced. It is the nature of the privileged information, not the nature of the current
charge, that can make the privileged information particularly problematic. On occasion
privileged information will be relevant to the case at hand, but likely the privileged
information is potentially more damaging to the client's reputation than it is to the case in
4 From a practical perspective, admission of the prior judgment and sentence
during the sentencing phase of a capital case that shows the prosecuting attorney's name
as the former attorney for the defendant is likely to be extremely damaging to the
defendant. A juror might conclude that the prosecutor who represented the client has
additional valid reasons for seeking the death penalty than those presented at trial.
5
No. 35369-9-III
State v. Nickels-Dissent
question. The fact that damaging secrets are betrayed in a misdemeanor case rather than
in a Class A felony is of no comfort to the damaged client. Thus, I see this focus, too, as
too narrow.
The significance of the current case factor also is going to be very difficult to
apply. What makes a case serious? Although our legislature has established seriousness
levels for felony cases, it would be an arbitrary decision for judges to determine which
ones are serious enough to matter for conflict of interest purposes. And, how would that
work in the civil context? If the newly elected prosecutor was the county's preeminent
private land use attorney and represented most of the county's big land developers, would
that fact require that all cases involving those developers be farmed out to special
prosecutors over the length of the entire term, or simply require that only pending
projects the prosecutor had worked on before the election be sent out? Would, or should,
the standard vary simply because the prosecutor had worked on only one small land use
case involving a non-developer? These are very real problems in smaller counties where
the smaller bars necessarily means that most attorneys will have worked on behalf of
clients who were being opposed by the prosecutor's office, or by county agencies
represented by that office.
Contrary to the majority opinion, I also see no reason why the seriousness level of
the prior crimes matters. The fact that high-volume misdemeanor or juvenile court cases
are "routine defense cases" should be meaningless except to suggest the possibility of
6
No. 35369-9-III
State v. Nickels-Dissent
large numbers of future conflicts arising from having large numbers of former clients.
One's privileged secrets, shared with defense counsel, simply do not become less
important because the case in which they were divulged is less serious than a current
case.
At issue in Stenger was the potential importance of privileged information to the
charging decision in the pending case. The factors discerned by the majority from that
decision are largely divorced from the privilege problem presented there. For that reason,
I don't think those factors work.
Rather, I think a totality of the circumstances approach is necessary to determine if
this, or any other, case is exempted from the "ordinary" or presumptive remedy of office-
wide recusal. Rather than apply fixed factors that, to my mind, don't appear to determine
which cases are "extraordinary," I think that factors to consider are those aspects of the
particular case that suggest the "ordinary" remedy is unnecessary.
As to the totality of the circumstances applied to this case, I have already stated
most of those considerations: (1) Mr. Dano had pretty minimal involvement in the
defense of Mr. Nickels, serving primarily as a local contact attorney and taking the
verdict, while not developing or implementing the defense; (2) the case was tried two
years before Mr. Dano was elected prosecutor; (3) the case against Mr. Nickels was
developed long before the election and without any possible disclosure of client secrets
by Dano; (4) one of the deputy prosecutors on the original trial is still available to try the
7
No. 35369-9-III
State v. Nickels-Dissent
case, and the other deputy assigned to the case was hired by the prior prosecutor; (5) this
court ordered a new trial due to judicial error, not error contributed to by the attorneys on
either side; (6) as prosecutor, Dano has had no involvell}.ent with this case, nor is there
any evidence in the record that suggests the elected prosecutor normally would have had
any involvement with the retrial-ergo, the screening has been effective. Two other
factors, not previously mentioned, also suggest that this is the out-of-the-ordinary case
where screening per RPC 1.11 would be effective and office-wide recusal is unnecessary.
One reason is that the county has tried to find a special prosecutor to handle the
retrial. No other county was willing to take the case on, nor was the attorney general.
The second reason is related to the first. This case took multiple weeks to try. 5 It will be
extremely burdensome to some other office to take on this case, and it will be extremely
expensive to Grant County to pay for a special prosecutor. Major murder cases are tried
by experienced deputy prosecutors, and few counties are so well stocked with such
veterans that they can afford to be without them for several weeks. 6 Even if such
attorneys can be located and borrowed, it will cost the county money to feed and house
them for several weeks, to say nothing of any salary costs. While these factors are
5 My review of the previous file indicates that the Report of Proceedings totaled 29
volumes through final argument and verdict; sentencing and post-trial motions consumed
additional hearings.
6 As a result, I suspect that the attorney general is likely to be assigned these types
of cases by trial judges needing to find a special prosecutor.
8
No. 35369-9-III
State v. Nickels-Dissent
irrelevant to the determination that a conflict of interest exists, they should be factors
taken into consideration in deciding whether there is any utility in imputing a conflict to
an entire prosecutor's office in the absence of evidence that screening has failed to do the
job.
The majority's resolution of this case will impose unnecessary office-wide
recusals. While large offices can more easily address the comparatively small number of
recusals generated by a single attorney in practice, even they will have problems dealing
with the large number of cases handled by a public defender with significant supervisory
authority. Small prosecutor offices will incur significant expenses in large cases, and
probably have conflicts in a higher percentage of cases. Imputing an individual
prosecutor's personal conflicts to the entire office is not necessary here.
In my opinion, the trial court did not err in deciding that screening Mr. Dano was
adequate to protect Mr. Nickels' right to a fair retrial. Accordingly, I would affirm.
9