State ex rel. Goldsmith v. Superior Court of Hancock County

Decision Date22 March 1979
Docket NumberNo. 179S9,179S9
Citation270 Ind. 487,386 N.E.2d 942
PartiesSTATE of Indiana on the relation of Stephen GOLDSMITH, Prosecuting Attorney for the Nineteenth Judicial Circuit, Relator, v. SUPERIOR COURT OF HANCOCK COUNTY, and the Honorable Richard T. Payne, as Judge of said Court, Respondents.
CourtIndiana Supreme Court

GIVAN, Chief Justice.

On January 11, 1979, oral argument was had and this Court issued a temporary writ of mandate and prohibition. Respondent filed his return and on January 19, we immediately made the writ permanent by order so that the prosecution of the defendant by Prosecutor Stephen Goldsmith could continue. This opinion states our reasons for making the writ permanent.

At the time this original action was filed, Relator James F. Kelley was the duly elected prosecuting attorney for the 19th Judicial Circuit, consisting solely of Marion County. In this capacity, relator was representing the State of Indiana in the homicide prosecution of State of Indiana v. Daniel F. Cantwell, Cause No. SCR 78-15, now pending before the respondents, the Hancock Superior Court and The Honorable Richard T. Payne, Judge. George F. Martz, a deputy prosecutor, was handling the case for relator's office. On December 4, 1978, Martz filed with the respondents a "Verified Petition to Withdraw." In this petition, Martz stated that recent developments had made it clear that he would be a witness in the case. He therefore requested that he be removed from the case and other counsel be appointed.

On December 12, the respondent issued an order disqualifying the entire staff of the prosecuting attorney. He held that the prosecutor and his staff of deputies constitute a "firm" within the meaning of Disciplinary Rules 5-101(B) and 5-102(A) of the Code of Professional Responsibility. The respondent further held in this order that the newly elected prosecuting attorney of the 19th Judicial Circuit, Stephen Goldsmith, and his staff were also disqualified since the prosecutor's office "continues through the change of administration" and since some deputy prosecutors would remain on the job with the new prosecutor. On December 29, respondent appointed Don A. Tabbert as Special Prosecutor. Relators thereupon petitioned this Court for immediate relief. As this case presents an emergency and a situation of substantial public interest concerning the prosecuting attorney and the execution of the duties of his office, the remedy of extraordinary relief in this Court is appropriate. State ex rel. Sendak v. Marion Sup. Ct., (1978) Ind., 373 N.E.2d 145.

The initial question we must address is whether the Code of Professional Responsibility requires the recusation of the prosecutor's entire staff of deputies when one deputy becomes a witness in the case. DR 5-102(A) provides:

"If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4)."

The exceptions listed in DR 5-101(B) are: (1) if the testimony will relate solely to an uncontested matter; (2) if the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition; (3) if the testimony will relate solely to the nature and value of legal services rendered in the case; and (4) if refusal to represent a client will work a substantial hardship on the client by reason of the distinctive value of the lawyer or his firm in the case. None of these exceptions applies here.

The precise question herein presented has not been decided in this State. Relator, however, points to the recent case of People v. Sup. Ct., Cty. of San Bernardino and Rabaca, (1978) 86 Cal.App.3d 180, 150 Cal.Rptr. 156, wherein the California Court of Appeals held that an entire prosecutorial staff was not required to withdraw when a deputy became a witness in a case handled by the office. We have studied the Rabaca opinion and find that it comports with our view of the Code of Professional Responsibility. As the Court points out, many of the Disciplinary Rules, including DR 2-101, DR 2-102, DR 2-107, DR 2-110(A) (3) and DR 3-102, "contain rather unmistakable indicia that these expressions were intended to refer to law firms undertaking employment for remuneration . . . . The content of the regulatory provisions would have little, if any, application except to a law firm engaged in practice for remuneration and in many instances would be nonsensical if applied to a multi-deputy district attorney's office." 150 Cal.Rptr. at 164.

The reasons for DR 2-102(A) are advanced in Ethical Consideration 5-9:

"Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively."

These reasons, relating largely to the common interest of the attorney-witness and his law firm in the outcome of the litigation and the appearance of impropriety, have no applicability in the case of a multi-deputy prosecuting attorney's staff. The relationship between the prosecuting attorney and his sole client, the citizens of the circuit in which he serves, is fundamentally and decisively different from a lawyer and the ordinary attorney-client relationship. Rabaca, supra, 150 Cal.Rptr. at 170. The lawyers in a law firm have a common financial interest in the case whereas the deputies in a prosecutor's office have an independent duty by law to represent the State of Indiana in criminal matters. Their relationship to...

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