Com. v. Maricle, 98-SC-000898-MR.

• Decision Date: 26 August 1999
• Docket Number: No. 98-SC-000898-MR.,98-SC-000898-MR.
• Citation: 10 S.W.3d 117
• Parties: COMMONWEALTH of Kentucky, Appellant, v. R. Cletus MARICLE, Judge, Clay Circuit Court, Appellee, and Scott Madden; Larry Joe Roberts; Robert Stivers, Real Parties in Interest.
• Court: United States State Supreme Court — District of Kentucky

Page 117

10 S.W.3d 117

COMMONWEALTH of Kentucky, Appellant, v. R. Cletus MARICLE, Judge, Clay Circuit Court, Appellee, and Scott Madden; Larry Joe Roberts; Robert Stivers, Real Parties in Interest.

No. 98-SC-000898-MR.

Supreme Court of Kentucky.

August 26, 1999.

Rehearing Denied February 24, 2000.

Daniel Luke Morgan, Christina M. Napier, Assistant Attorney General, Frankfort, for Appellant.

R. Scott Madden, Larry Joe Roberts, Manchester, Bertram Robert Stivers II, Commonwealth Attorney, Manchester, for Appellee.

GRAVES, Justice.

The Commonwealth of Kentucky appeals from an order of the Court of Appeals which denied the Commonwealth's petition for a writ of prohibition and/or mandamus. The Commonwealth sought an order directing the Clay Circuit Court to disqualify Appellees from further representation of Reginald Stidham. For the reasons set forth herein, we reverse, in part, the Court of Appeals and grant the Commonwealth extraordinary relief.

Stidham, the defendant in the underlying criminal action, is charged with murder, first-degree assault, first-degree wanton endangerment, leaving the scene of an accident, passing in a no passing zone, driving under the influence, third offense, and operating a vehicle on a suspended license. The charges stem from an August 1997 motor vehicle collision in which two victims died and two other victims were injured. At the preliminary hearing on September 8, 1997, Sharon Allen, then the sole assistant to the Clay County Commonwealth Attorney, assumed the role of lead counsel for the prosecution. Stidham was represented by Appellees, Scott Madden, Larry Joe Roberts, and Robert Stivers.

On May 31, 1998, less than one month before trial, Sharon Allen left her position with the Commonwealth Attorney's office and began working with Appellees, Madden and Roberts. Following expressions of outrage from the victims' family, Commonwealth Attorney Gary Gregory filed a motion to disqualify himself as prosecutor, citing the conflict of interest and appearance of impropriety created by Allen's move to the employ of Madden and Roberts' law firm. By order entered June 25, 1998, the trial court ruled that because of the appearance of impropriety created by virtue of Allen's new employment with the attorneys representing Stidham, Gregory would be disqualified from all further proceedings.

Thereafter, the special prosecutor filed a motion to disqualify Appellees as defense counsel. On August 6, 1998, the trial court held an evidentiary hearing, during which one of the surviving victims, Geraldine Abner, testified as to the extensive communications which took place between herself and Allen, including trial strategies and witness testimony. Ms. Abner stated that Allen discussed anticipated cross-examination from defense counsel and how Ms. Abner would respond. Further, Allen and Ms. Abner discussed Ms. Abner's eleven-year-old son's testimony and how he would react on the witness stand.

In addition to Ms. Abner's testimony, evidence was presented that Allen had actually accepted employment with Madden and Roberts in March 1998, although she did not inform the Commonwealth Attorney's office until sometime in April. In response, Madden and Roberts attempted to distance themselves from Allen, calling the employment relationship merely a "loose association." Madden and Roberts qualified the association as a case-by-case fee sharing arrangement.

In an order dated August 19, 1998, the trial court denied the motion to disqualify counsel. The court stated that there were no grounds to disqualify Robert Stivers since he was simply co-counsel, and was not associated with Madden and Robert's law firm. Moreover, the trial court found that Allen had been screened from participation in the Stidham matter since joining the offices of defense counsel, and that even if Madden and Roberts had improperly negotiated for employment with Allen during the pendency of the criminal action, Allen's disqualification was not imputed to them. The trial court noted that a defendant's right to choice of counsel outweighed the appearance of impropriety created by Allen's change of employment.

As a result, the Commonwealth filed a petition for a writ of prohibition and/or mandamus in the Court of Appeals. In an order dated October 13, 1998, the Court of Appeals denied relief, and this appeal ensued.

Supreme Court Rule 3.130 (Rule 1.11), Successive Government and Private Employment, provides:

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate public body or government agency consents after consultation. No lawyer in a firm in which that lawyer associated may knowingly undertake or continue representation in such a matter unless:

(1) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) Written notice is promptly given to the appropriate public body or government agency to enable it to ascertain compliance with the provisions of this rule.

(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of the person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) Participate in a matter 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; or

(2) Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.

(d) As used in this rule, the term "matter" includes:

(1) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and

(2) Any other matter covered by the conflict of interest rules of the appropriate government agency.

(e) As used in this rule, the term "confidential government information" means information which has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.

In Whitaker v. Commonwealth, Ky., 895 S.W.2d 953 (1995), we were presented with a situation where the defendant was initially represented by a member of the public defender's office, Carolyn Keeley. Approximately two and one-half months later, Keeley resigned from her position with the public defender's office and accepted employment in the office of the Commonwealth Attorney. The issue before this Court concerned the disqualification of Keeley, as well as the entire Commonwealth Attorney's office, on ethical grounds. In examining SCR 3.130 (Rule 1.11), we stated:

We are mindful that the commentary to SCR 3.130 (Rule 1.11) specifically states that: "Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated." Kentucky Rules of Professional Conduct, Rule 1.11 cmt. [9] (1989)....