State v. Nickels

• Citation: 456 P.3d 795,195 Wash.2d 132
• Decision Date: 30 January 2020
• Docket Number: No. 96943-4,96943-4
• Parties: STATE of Washington, Petitioner, v. David Emerson NICKELS, Respondent.
• Court: United States State Supreme Court of Washington

195 Wash.2d 132

456 P.3d 795

STATE of Washington, Petitioner,

v.David Emerson NICKELS, Respondent.

No. 96943-4

Supreme Court of Washington.

Filed JANUARY 30, 2020

Pamela Beth Loginsky, Washington Association of Prosecuting Attorneys, 206 10th Avenue SE, Olympia, WA 98501-1311, for Petitioner.

Jacqueline Kay Walsh, Mark A. Larranaga, Walsh & Larranaga, 705 2nd Avenue, Suite 501, Seattle, WA 98104-1715, for Respondents.

John Avrom Strait, Seattle University School of Law, 901 12th Avenue, Seattle, WA 98122-4411, Rita Joan Griffith, Attorney at Law, 4616 25th Avenue NE, PMB 453, Seattle, WA 98105-4523, Hillary Ann Behrman, The Washington Defender Association, 110 Prefontaine Place South, #610, Seattle, WA 98104-2626, for Amici Curiae Washington Association of Criminal Defense Lawyers, Washington Defender Association.

Gallic Anne Castillo, Lane Powell, P.O. Box 91302, Seattle, WA 98111-9402, for Amicus Curiae Washington State Attorney General

OWENS, J.

¶1 This case asks us to revisit the question of whether an elected county prosecutor’s prior involvement in a defendant’s case should presumptively disqualify the entire prosecutor’s office from prosecuting the defendant in the same case. When we first addressed this question in State v. Stenger, we held that an elected prosecuting attorney’s previous representation of a defendant in either the same case or a closely interwoven matter "should ordinarily" disqualify the entire prosecutor’s office. 111 Wash.2d 516, 522, 760 P.2d 357 (1988). The State argues the 2006 amendments to Washington’s Rules of Professional Conduct (RPCs)—specifically, two amendments foreclosing office-wide imputations of conflicts for all government attorneys generally—superseded Stenger . But Stenger's narrowly crafted rule applies only to Washington’s 39 elected county prosecutors who, despite adequate screening, retain broad discretionary and administrative powers over their offices and employees. Accordingly, we hold that Stenger remains good law, and we affirm the Court of Appeals’ decision disqualifying the Grant County Prosecuting Attorney’s Office.

FACTS

¶2 The State charged David Nickels with first degree murder on June 16, 2010, in Grant County, Washington. Though represented by counsel, Nickels acquired additional legal assistance from a local criminal defense attorney, Garth Dano. The parties agree that Dano’s involvement in Nickels’ defense creates a conflict of interest requiring Dano’s personal disqualification, but they dispute the scope of his involvement. The record establishes that Dano entered a notice of association of counsel and appeared on the record to receive a jury question and to receive the jury’s verdict. The record further establishes that after Nickels’ conviction in 2012, Dano conducted interviews with jurors and potential exonerating witnesses. Finally, via his counsel’s uncontested affidavit, Nickels asserts Dano received privileged work product through his participation in crafting the defense’s strategy and theory of the case, and his meeting personally with Nickels.

¶3 In 2014, while Nickels’ appeal was pending, Dano was elected Grant County prosecutor. Subsequently, in 2017, the Court of Appeals reversed Nickels’ conviction. State v. Nickels, No. 31642-4-III, 2017 WL 887218 (Wash. Ct. App. Feb. 28, 2017) (unpublished), http://www.courts.wa.gov/opinions/316424_unp.pdf. On remand, the Grant County Prosecuting Attorney’s Office immediately sought to screen now-Prosecutor Dano.¹ Nickels moved to disqualify the entire office, arguing that under Stenger, Dano’s prior involvement in his defense necessitated the blanket recusal.

¶4 The trial court denied Nickels’ motion; but the Court of Appeals reversed and, applying Stenger, ordered the disqualification of the entire Grant County Prosecuting Attorney’s Office. State v. Nickels, 7 Wash. App. 2d 491, 434 P.3d 535 (2019). Further, after determining that Stenger provided for an exception to the presumptive rule of disqualification in certain "extraordinary circumstances" and that we had not defined what is "extraordinary," the Court of Appeals applied its own two-factor "extraordinary circumstances" test. Id. at 497, 501, 434 P.3d 535. The State sought our review, which was granted. State v. Nickels, 193 Wash.2d 1012, 441 P.3d 1201 (2019).

ISSUE

¶5 Does Stenger remain good law, presumptively requiring the disqualification of an entire prosecutor’s office when the elected prosecutor is personally disqualified due to their previous involvement in the defendant’s current case or other closely interwoven matter?

ANALYSIS

¶6 Whether attorney conduct violates the relevant RPCs is a question of law, which we review de novo. Eriks v. Denver, 118 Wash.2d 451, 457-58, 824 P.2d 1207 (1992).

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

¶7 In Stenger, the defendant moved to disqualify the entire prosecutor’s office after the Clark County prosecutor—the defendant’s former counsel—sought the death penalty. 111 Wash.2d at 518-19, 760 P.2d 357. During his service as defendant’s counsel, the elected prosecutor was privy to the defendant’s privileged information. Id. at 519, 760 P.2d 357. Subsequently, as elected prosecutor, he directly participated in and administered over multiple aspects of the defendant’s prosecution before his eventual withdrawal and attempted screening. Id. at 519-520, 760 P.2d 357. In our analysis, we recognized that "privileged information obtained by the prosecuting attorney when he was the defendant’s counsel in the previous case could well work to the accused’s disadvantage in this case." Id. at 522, 760 P.2d 357. Accordingly, we held:

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

Id. Notably, in announcing this rule, we clarified that office-wide disqualification was "neither necessary nor wise" when a deputy prosecuting attorney was personally disqualified. Id. at 523, 760 P.2d 357. Thus, contrary to the characterizations of amici for the State, Stenger's rule does not apply to all public law offices generally or the Washington Attorney General’s Office specifically; it applies only to elected county prosecutors, and then only when their offices seek to prosecute a defendant they previously represented in either the same case or a closely interwoven matter.

¶8 Nearly two decades after our decision in Stenger, RPC 1.10 and 1.11 were substantively amended. Relevant here, these rules now provide that a government lawyer’s personal conflict of interest is no longer imputed to their entire office. See RPC 1.10(d) ; RPC 1.11 cmt. 2.² The State asserts these amendments to the rules superseded Stenger. Accordingly, the State argues the Court of Appeals’ reliance on Stenger 's rule of presumptive disqualification—not the general policy of screening advanced by the current RPCs—was error.

¶9 In support, the State relies on Wallace v. Evans, 131 Wash.2d 572, 934 P.2d 662 (1997), but neither Wallace nor its progeny is dispositive here. In Wallace, we held that a significant change in the rules may supersede our prior decisions interpreting a preamendment version of those rules. Id. at 576-77, 934 P.2d 662. However, Stenger 's rule of presumptive disqualification was not interpreting a prior version of RPC 1.10 or RPC 1.11, relying instead on two out-of-state decisions for its reasoning. See Stenger, 111 Wash.2d at 522 n.13, 760 P.2d 357 (citing People v. Lepe, 164 Cal. App. 3d 685, 688, 211 Cal. Rptr. 432 (1985) ; State v. Tippecanoe County Court , 432 N.E.2d 1377, 1379 (Ind. 1982) ).

¶10 While the 2006 amendments discuss imputations of conflicts for all government attorneys generally, Stenger enumerated a narrow rule for an even narrower class of persons. To be clear, Stenger ’s presumption of office-wide disqualification touches only Washington’s 39 elected county prosecutors and it applies only when their offices are called to prosecute a defendant whom the elected prosecutor previously represented in either the same case or another closely interwoven matter. Stenger, 111 Wash.2d at 522, 760 P.2d 357. The amendments to RPC 1.10(d) and RPC 1.11 comment 2 enumerated a general rule for imputation of conflicts of interest between government attorneys and their offices that we read in harmony with Stenger' s narrow rule. Accordingly, we hold that office-wide disqualification is presumptively proper when an elected prosecutor has previously represented the defendant in the same case or closely interwoven matter.

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

¶11 In addition to our determination that the RPC amendments have not superseded Stenger' s narrow rule of presumptive disqualification, today’s holding is compelled by our mandate to preserve the public’s confidence in the impartial administration of justice and the appearance of a just proceeding. See State v. Tracer, 173 Wash.2d 708, 720, 272 P.3d 199 (2012). The State argues that office-wide disqualification inflicts a distinct harm by depriving the citizenry of its chosen representative. The State contends this deprivation is significant given both the elected prosecutor’s role in shaping office policy and their direct accountability to the electorate for their office’s acts. In support, the State argues that "Prosecutor Dano confers appointments on attorneys whom he trusts to follow his policies," and the State candidly recognizes that any deputy prosecuting attorney who fails to comply with Dano’s policies may be terminated at will.³ State’s Resp. to Br. of Amici Curiae Wash. Ass’n of Criminal Def....