Cleary v. District Court in and for Eighteenth Judicial Dist., No. 85SA41

Docket NºNo. 85SA41
Citation704 P.2d 866
Case DateAugust 19, 1985
CourtSupreme Court of Colorado

Page 866

704 P.2d 866
Robert Allan CLEARY, Petitioner,
v.
The DISTRICT COURT IN AND FOR the EIGHTEENTH JUDICIAL
DISTRICT and John P. Gately, One of the Judges
Thereof, Respondents.
No. 85SA41.
Supreme Court of Colorado,
En Banc.
Aug. 19, 1985.

Page 868

Jeffrey A. Springer, P.C., Jeffrey A. Springer, Denver, for petitioner.

Respondents appearing pro se.

KIRSHBAUM, Justice.

In this original proceeding the petitioner seeks relief by means of prohibition from the respondent trial court's order denying a request by petitioner's retained counsel to enter an appearance on behalf of petitioner in a criminal case. We issued a rule to show cause, and now make the rule absolute.

The facts underlying this original proceeding are not disputed. 1 On April 27, 1984, a complaint and information was filed against petitioner in Division 2 of the Arapahoe County District Court which charged petitioner with the crimes of aggravated incest and sexual assault on a child. At that time the respondent trial court presided over that division and Arapahoe County deputy district attorney Harvey Steinberg was assigned to it. Steinberg did not sign the complaint and information and in fact was serving as a special prosecutor on another case in another judicial district during that week. Steinberg left the district attorney's office and entered the private practice of law in October 1984.

Petitioner retained counsel, but on December 14, 1984, that attorney filed a motion for substitution of counsel which stated that the attorney was withdrawing from the case at petitioner's request. The motion also stated that Steinberg, as a member of the private law firm of Jeffrey A. Springer, P.C., was entering an appearance on behalf of petitioner. The respondent trial court granted the motion, but set a hearing for January 14, 1985, to review Steinberg's entry of appearance. 2

At the outset of that hearing, Steinberg orally renewed the request that he and his firm be permitted to enter an appearance on behalf of petitioner. Steinberg stated that he had "no contact with the ... matter, either as far as any type of review of the case initially when it was brought in or any court appearances," and that he first learned of the existence of the case after he left the district attorney's office. Steinberg noted that the custodial parent of the minor children alleged to have been the victims of petitioner's conduct had no objection to Steinberg's entry of appearance. Steinberg also stated that petitioner, after being fully informed of the circumstances, desired to retain Steinberg as counsel.

Page 869

This statement was confirmed by the petitioner, in response to questions posed to him by the respondent trial court.

Two affidavits were introduced into evidence at the hearing. One affidavit, executed by Robert Gallagher, District Attorney for Arapahoe County, stated that Steinberg, while employed as a deputy district attorney, "had no knowledge or contact with the Cleary case, either in the investigative stage, filing stage, or litigation stage," and that the district attorney's office had no objection to Steinberg's representation of petitioner. The other affidavit, executed by the guardian ad litem representing the alleged minor victims, stated that, to the affiant's knowledge, Steinberg had no contact or knowledge of the case while employed by the government and that the affiant had no objection to Steinberg's representation of petitioner. At the conclusion of the hearing, the respondent trial court noted that the information had been filed on April 27, 1984; stated that Steinberg was a member of the district attorney's office until October 1, 1984; and denied the request for entry of appearance on the ground that "there is a distinct possibility of an appearance of impropriety in the eyes of the general public...."

I

When the propriety of an attorney-client relationship involving a lawyer previously employed by a governmental agency is raised in the course of litigation, 3 the standard of conduct set forth in Disciplinary Rule 9-101(B) (DR9-101(B)) of the Code of Professional Responsibility (the Code) is a primary source for resolution of the issue. 4 Osborn v. District Court, 619 P.2d 41 (Colo.1980). Disciplinary Rule 9-101(B) provides that "[a] lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." The rule, which has been adopted in this jurisdiction, see Osborn, 619 P.2d 41, was promulgated by the American Bar Association in response to the recognition that attorneys employed by government offices acquire special responsibilities with regard to information obtained during such employment and with regard to the exercise of the governmental authority entrusted to them. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975). Concerns that offers of employment to such attorneys might influence the discharge of their governmental duties, that sensitive or confidential information acquired during governmental service might later be used improperly to benefit clients in the private sector, and that while employed by the government such attorneys might seek to obtain private employment by improper use of information or improper exercise of authority, also led to the adoption of DR9-101(B) and its predecessor, Canon 36 of the ABA Canons of Professional

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Ethics. 5 See id. The rule as drafted presents a relatively fact-specific approach to the problem, as opposed to some vague expression of general disapproval which might complicate rather than resolve particular controversies. See, e.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 370 F.Supp. 581 (E.D.N.Y.1973), aff'd 518 F.2d 751 (2d Cir.1975).

We recognized in Osborn, 619 P.2d 41, that the critical test of improper conduct by former government employees under the mandatory provisions of DR9-101(B) is the requirement that the attorney have "substantial responsibility" in the matter while employed by the government. 6 The great majority of courts interpreting this rule have concluded that the phrase "substantial responsibility" refers to actual rather than theoretical conduct. See, e.g., State v. Borg, Inc., 553 F.Supp. 178 (N.D.Ill.1982); Kadish v. Commodity Futures Trading Commission, 548 F.Supp. 1030 (N.D.Ill.1982); In re Asbestos Cases, 514 F.Supp. 914 (E.D.Va.1981); International Union, United Automobile Aerospace and Agricultural Implement Workers of America (UAW) v. National Caucus of Labor Committees, 466 F.Supp. 564 (S.D.N.Y.), aff'd 607 F.2d 996 (2d Cir.), cert. denied, 444 U.S. 839, 100 S.Ct. 77, 62 L.Ed.2d 51 (1979). ABA Formal Opinion 342, cited with approval in Osborn, reviews the origins, purposes and contemporary applications of DR9-101(B) and concludes that the prohibition against subsequent employment of a former government official mandated by this disciplinary rule requires some degree of personal involvement in a prior related matter. 7 Formal Op. 342 at 118. This conclusion seems reasonable in view of the fact that the rule requires substantial responsibility "in " some matter, rather than substantial responsibility "for " some matter.

In Osborn, an attorney retained to represent a defendant facing a retrial on criminal charges had, when previously employed as a government prosecutor, interviewed the victim and numerous witnesses connected with the incidents underlying the charges filed against the defendant. In addition, the then deputy district attorney had engaged in several conversations with the chief prosecuting attorney about the case and, as a result of an ongoing relationship with the victim, had obtained information which would have been of great value in the defense of the charges pending against the defendant. Based on these facts, the conclusion was inescapable that while employed by the government the attorney

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had exercised "substantial responsibility" in the initial prosecution of the defendant she later sought to represent, and that pursuant to DR9-101(B) and DR5-105(D) 8 respectively, she and her law firm were prohibited from representing that defendant in the retrial.

The unrebutted evidence in this case establishes that Steinberg did not have substantial responsibility in the matter in which petitioner is involved. He had no personal involvement in the investigation, preparation or prosecution of the case filed against petitioner, discussed the case with no one while a government employee, and had no knowledge of any aspect of the case while employed as a deputy district attorney. Although Steinberg could have learned many facts about the case and could have been assigned specific tasks relating to its prosecution, the fact that such opportunities were present does not answer the question of whether he must be barred by DR9-101(B)...

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15 practice notes
  • Graf v. Frame, No. 16815
    • United States
    • Supreme Court of West Virginia
    • 12 Marzo 1986
    ...this rule have concluded 'substantial responsibility' refers to actual rather than theoretical conduct." Cleary v. District Court, 704 P.2d 866, 870 (1985) citing State v. Borg, Inc., F.Supp. 178 (N.D.Ill.1982); Kadish v. Commodity Futures Trading Commission, 548 F.Supp. 1030 (N.D.Ill.1982)......
  • Rodriguez v. District Court for City and County of Denver, No. 85SA98
    • United States
    • Colorado Supreme Court of Colorado
    • 19 Mayo 1986
    ...States v. Hobson, 672 F.2d 825 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); Cleary v. District Court, 704 P.2d 866 (Colo.1985); Osborn v. District Court, 619 P.2d 41 (Colo.1980); Rodriguez v. State, 129 Ariz. 67, 628 P.2d 950 (1981). The judicial analysis r......
  • Fognani v. Young, No. 04SA303.
    • United States
    • Colorado Supreme Court of Colorado
    • 14 Febrero 2005
    ...private attorney and firm in criminal matters, see People ex rel. Peters v. Dist. Court, 951 P.2d 926 (Colo. 1998); Cleary v. Dist. Court, 704 P.2d 866 (Colo. 2. For a discussion of the advocate-witness rule's origin and history, see Jeffrey A. Van Detta, Lawyers as Investigators: How Eller......
  • People v. Perez, No. 08SA130.
    • United States
    • Colorado Supreme Court of Colorado
    • 23 Febrero 2009
    ...vertical intra-agency relationships, we conclude that the presumption may be rebutted by contrary evidence." Cleary v. Dist. Court, 704 P.2d 866, 873 (Colo.1985). Citing the foregoing language in Cleary, Chavez set forth the test for determining whether, under section 20-1-107, the presumpt......
  • Request a trial to view additional results
15 cases
  • Graf v. Frame, No. 16815
    • United States
    • Supreme Court of West Virginia
    • 12 Marzo 1986
    ...this rule have concluded 'substantial responsibility' refers to actual rather than theoretical conduct." Cleary v. District Court, 704 P.2d 866, 870 (1985) citing State v. Borg, Inc., F.Supp. 178 (N.D.Ill.1982); Kadish v. Commodity Futures Trading Commission, 548 F.Supp. 1030 (N.D.Ill.1982)......
  • Rodriguez v. District Court for City and County of Denver, No. 85SA98
    • United States
    • Colorado Supreme Court of Colorado
    • 19 Mayo 1986
    ...States v. Hobson, 672 F.2d 825 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); Cleary v. District Court, 704 P.2d 866 (Colo.1985); Osborn v. District Court, 619 P.2d 41 (Colo.1980); Rodriguez v. State, 129 Ariz. 67, 628 P.2d 950 (1981). The judicial analysis r......
  • Fognani v. Young, No. 04SA303.
    • United States
    • Colorado Supreme Court of Colorado
    • 14 Febrero 2005
    ...private attorney and firm in criminal matters, see People ex rel. Peters v. Dist. Court, 951 P.2d 926 (Colo. 1998); Cleary v. Dist. Court, 704 P.2d 866 (Colo. 2. For a discussion of the advocate-witness rule's origin and history, see Jeffrey A. Van Detta, Lawyers as Investigators: How Eller......
  • People v. Perez, No. 08SA130.
    • United States
    • Colorado Supreme Court of Colorado
    • 23 Febrero 2009
    ...vertical intra-agency relationships, we conclude that the presumption may be rebutted by contrary evidence." Cleary v. Dist. Court, 704 P.2d 866, 873 (Colo.1985). Citing the foregoing language in Cleary, Chavez set forth the test for determining whether, under section 20-1-107, the presumpt......
  • Request a trial to view additional results

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