Alpha Inv. Co. v. City of Tacoma, 1812--II
| Decision Date | 20 May 1975 |
| Docket Number | No. 1812--II,1812--II |
| Citation | 536 P.2d 674,13 Wn.App. 532 |
| Parties | ALPHA INVESTMENT COMPANY et al., Respondents, v. The CITY OF TACOMA, a Municipal Corporation, Respondent, Pierce County, a political subdivision of the State of Washington, Petitioner. |
| Court | Washington Court of Appeals |
William R. Hickman, Reed, McClure Moceri & Thonn, Seattle, for petitioner.
James M. Caraher, Tacoma, for respondent.
Petitioner, Pierce County, seeks a writ of certiorari to review an order of the superior court denying its motion to exclude James M. Caraher as counsel for respondent, Alpha Investment Company, et al. We granted the writ as an appropriate remedy for determination of the alleged conflict of interest. See Kurbitz v. Kurbitz, 77 Wash.2d 943, 468 P.2d 673 (1970).
The facts pertaining to the issue of disqualification are as follows. The action by Alpha Investment Company against Pierce County is in the nature of an inverse condemnation suit in which damages are sought. Mr. George Dixon commenced the suit as attorney for Alpha on March 29, 1972 and is still attorney of record. It appears without dispute that Mr. Caraher served as a criminal deputy prosecuting attorney for Pierce County from July 3, 1972 until July 31, 1974. Some time after that, Mr. Caraher became an associate of Mr. Dixon and was given responsibility for handling the case for Alpha in February, 1975.
Pierce County, through its Director of Public Works, refused to consent to having a former deputy prosecuting attorney represent its opponent in this action. Pierce County's motion to exclude Mr. Caraher was heard on affidavits and resulted in an order denying the motion.
In its oral decision the trial court advanced one principal reason for the ruling. First, none of the affidavits established that Mr. Caraher had any knowledge of or responsibility for this case during the time he worked as a deputy prosecuting attorney. In fact the affidavits showed that the office had two separate departments--one civil and one criminal. Mr. Caraher had no responsibility in the civil department.
On the other hand, however, an affidavit of the deputy prosecuting attorney charged with responsibility for the file established that the file of the case contained confidential information and was accessible to all deputy prosecuting attorneys.
In denying the motion to exclude, the trial court reasoned that because of the fact that Mr. Caraher had no knowledge of or responsibility for this case while serving as a deputy, he was not in violation of the Code of Professional Responsibility, DR 9 101(B), which provides: 'A lawyer shall not accept private employment in a matter in which he had substantial resoponsibility while he was a public employee.'
Accordingly, the court ruled that no case for disqualification was established. We agree that the evidence in this case was insufficient to establish a violation of Dr. 9--101(B) which would subject either Mr. Caraher or Mr. Dixon to disciplinary action. We do not agree, however, that it is necessary to establish such a violation in order to effect a disqualification.
In the first place the Preliminary Statement to the Code of Professional Responsibility provides: 'The Disciplinary Rules state the Minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.' (Italics ours.)
In our opinion, the argument that the Minimum level of conduct sets the standard for disqualification of any attorney in a potential conflict of interest case overlooks the spirit of Canons 4 and 9 of the Code of Professional Responsibility. It seems to us that if the objectives of the Code as a whole are to be achieved it is the Spirit of those canons, rather than the minimum behavior proscribed by the disciplinary rules which must be observed. See Hull v. Celanese Corp., 2 Cir., 513 F.2d 568 (1975).
The objectives of the Code are to improve the administration of justice so that the public will develop and maintain a respect for and confidence in our legal and judicial system.
CPR Canon 4 requires a lawyer to preserve the confidences and secrets of a client. We are of course dealing here with a former client, but it is clear that the mandates of this canon survive termination of the attorney-client relationship. See Kurbitz v. Kurbitz, Supra, which came to that conclusion when construing the former Canons of Professional Ethics. DR 4--101(B)(3).
The precise question then is...
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