Olivier v. Town of Cumberland

• Decision Date: 20 April 1988
• Docket Number: No. 87-270,87-270
• Citation: 540 A.2d 23
• Parties: Richard OLIVIER et al. v. TOWN OF CUMBERLAND et al. M. P.
• Court: Rhode Island Supreme Court

Page 23

540 A.2d 23

Richard OLIVIER et al. v. TOWN OF CUMBERLAND et al.

No. 87-270 M. P.

Supreme Court of Rhode Island.

April 20, 1988.

Robert S. Stitt, Pearlman & Vogel, Providence, for plaintiffs.

George E. Healy, Jr., George T. Gilson, John A. Baglini, Higgins & Slattery, Providence, for defendants.

OPINION

KELLEHER, Justice.

In late November 1982 several members of the Cumberland police department were directed to proceed to the scene of a two-car automobile collision. The mishap occurred on Diamond Hill Road in the town of Cumberland. The operators of the two motor vehicles were Susan Olivier (Susan) and Richard Morin (Morin). Since Morin appeared to be under the influence of alcohol, the Cumberland police took him into custody. A routine on-the-scene investigation turned into a tragedy when Morin suddenly pulled out a gun, shot two of the officers, and fatally wounded Susan. As a result of this episode, criminal charges were lodged against Morin. The violence that occurred on Diamond Hill Road serves as a backdrop for the significant issue presented to us in this litigation.

When Susan's parents (the Oliviers) initiated this suit in August 1983, their attorney was Arlene Violet (Violet). The gist of plaintiffs' claim is that their daughter's death was the result of the police officers' negligence. The named defendants include Morin and the six officers who were present when the shootings occurred.

During the first fifteen months this case was pending in the Superior Court, Violet vigorously pursued various pretrial discovery procedures. Sometime in 1984, Violet declared her candidacy for the office of attorney general. After the ballots were cast in the November 1984 election, she was elected to that office. Before she assumed office, Violet arranged for other counsel to succeed her as trial counsel in any cases that were pending in the Superior Court. Jill Votta (Votta), a member of the Rhode Island Bar, entered her appearance in this litigation as attorney for the Oliviers.

Time marched on, and the November 1986 election was held. Violet's bid for reelection was unsuccessful. Sometime in early 1987, she returned to private practice. In March 1987 Votta withdrew her appearance as the Oliviers' attorney, and four days later Violet entered her appearance as Votta's successor.

Violet's reentry caused the town of Cumberland and the six individual police officers to file a motion asking that Violet be "barred" from representing the Oliviers because her return as counsel created an appearance of impropriety. In making this claim, defendants rely upon the provisions of Disciplinary Rule 9-101(B) of this court's Code of Professional Responsibility, which states, "A lawyer shall not accept private employment in a matter in which he [or she] had substantial responsibility while he [or she] was a public employee."

In responding to the motion, Violet submitted two affidavits--her own and an affidavit executed by an individual who was Violet's secretary during her term as attorney general. In her affidavit Violet states that while she was attorney general, she recused herself completely from any participation in the Morin case and had directed the deputy attorney general or his designee to make all decisions about the case without any input from her. She also stated:

"I at no time discussed this case or directed any part of it * * * I reviewed no tapes or transcripts of testimonies of Richard Morin * * * or the instant defendants * * * I received no knowledge whatsoever about these cases in my capacity as Attorney General."

The secretary, in her affidavit, explained that although Violet had held weekly meetings with her deputies and assistants to discuss cases, whenever the Morin case was discussed, Violet would leave the meeting and "[t]he case was discussed and decisions were made on the case without the Attorney General's input."

The disqualification motion was denied by a Superior Court justice. Thereafter defendants filed a petition for issuance of a writ of certiorari, which this court granted.

In addition to their claim of impropriety, defendants also argue that, as police officers, they should not be forced to concern themselves with a civil prosecution by a former member of the attorney general's staff with whom they were required to cooperate. The officers contend that unless their disqualification motion is granted, all police officers may lose confidence in the Office of the Attorney General and the "seeds of mistrust" will be sown between that department and the various police departments that operate within the state.

On the other hand, the Oliviers see no transgression by Violet of her duty to the public, the bench, or the bar in her dealing with these matters. Disciplinary Rule 9-101(B) consists of one simple declarative sentence; however, its promulgation presents a court with a plethora of factors that must be considered when the disqualification of an attorney is sought because of an alleged violation of the rule.

We begin our discussion of Rule DR 9-101(B) by first considering Formal Opinion 342 from the American Bar Association's Committee on Ethics and Professional Responsibility. There the committee pointed out that although the rule appears under the maxim of Canon 9--which directs attorneys to avoid even the appearance of professional impropriety--the appearance of impropriety is not a standard, test, or element of the rule. Rather, the committee has stated, "[t]he appearance of evil is only one of the underlying considerations * * * and is probably not the most important reason for the creation and existence of the rule itself." ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975), published in Formal and Informal Ethics Opinions, at 112 (1985).

The other considerations that precipitated the adoption of the rule include the treachery of switching sides, the safeguarding of confidential governmental information from future use against the government, the need to discourage government lawyers from handling particular assignments in such a way as to encourage their own future employment, and the professional benefit to be derived from avoiding the appearance of evil. Id. at 112-13.

In essence the issue to be determined when a litigant seeks to disqualify an attorney such as Violet from representing a client is whether the attorney has accepted "private employment" in a "matter" in which he or she had "substantial responsibility" while he or she was a "public employee." Here the first and last of these terms present no difficulty. Obviously Violet has now accepted private employment and was a public employee under the provisions of this rule.

The term "matter," according to Formal Op. 342, "seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties." Formal and Informal Ethics Opinions at 115. The term also includes the same issue of fact involving the same parties and the same situation.

Although there are differences between the Olivier civil suit and Morin's criminal case, they both arose from the same situation and there is a substantial overlap of factual issues. It is true that with the exception of Morin, the parties are different in each case. Yet we believe that the criminal charges and the Olivier claim are so closely linked that they can be considered one matter for the purposes of DR 9-101(B). Cf. Wagner v. Lehman Brothers Kuhn Loeb, Inc., 646 F.Supp. 643 (N.D. Ill. 1986) (a former attorney for the Securities and Exchange Commission (SEC) who, as a government lawyer, investigated possible violations by a broker...