State ex rel. Goldsmith v. Superior Court of Hancock County, No. 179S9

• Docket Nº: No. 179S9
• Citation: 270 Ind. 487, 386 N.E.2d 942
• Case Date: March 22, 1979
• Court: Supreme Court of Indiana

Page 942

386 N.E.2d 942 270 Ind. 487 STATE 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. No. 179S9. Supreme Court of Indiana. March 22, 1979.

[270 Ind. 488]

Page 943

Craig E. Pinkus, Indianapolis, Theodore L. Sendak, Atty. Gen. of Ind., Donald P.

Page 944

Bogard, Chief Counsel-Staff, Indianapolis, for relator.

Phillip W. Brown, Brown, Brown & McQueen, Shelbyville, for respondents.

ORIGINAL ACTION

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 [270 Ind. 489] 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,...