State v. Fitzpatrick

• Decision Date: 28 February 1985
• Docket Number: No. 63752,63752
• Citation: 464 So.2d 1185,10 Fla. L. Weekly 141
• Parties: 10 Fla. L. Weekly 141 STATE of Florida, Petitioner, v. Larry E. FITZPATRICK, Respondent.
• Court: Florida Supreme Court

Page 1185

464 So.2d 1185

10 Fla. L. Weekly 141

STATE of Florida, Petitioner, v. Larry E. FITZPATRICK, Respondent.

No. 63752.

Supreme Court of Florida.

Feb. 28, 1985.

Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for petitioner.

Dan R. Warren of Judge & Warren, Daytona Beach, for respondent.

OVERTON, Justice.

This is a petition to review a decision reported as Fitzpatrick v. Smith, 432 So.2d 89 (Fla. 5th DCA 1983), in which the Fifth District Court of Appeal required the disqualification of the entire state attorney's office for the Seventh Judicial Circuit from prosecuting Fitzpatrick on the ground that confidential communications relating to the charges against him had been made by him to an attorney who was subsequently hired as an assistant state attorney in that office. The district court's decision affects a class of constitutional officers and we have jurisdiction. Art. V, § 3(b)(3), Fla.Const. For the reasons expressed, we quash the decision of the district court.

Fitzpatrick was arrested on two counts of sale of a controlled substance and conspiracy to traffic in cocaine. While in jail, Fitzpatrick discussed his case with an attorney who was married to Fitzpatrick's ex-wife, but did not employ the attorney to represent him in the matter. The attorney was subsequently hired as an assistant state attorney, after which Fitzpatrick moved to disqualify the entire state attorney's office from prosecuting the case against him under the conflict of interest provisions of the Code of Professional Responsibility.

The trial court held a disqualification hearing and found that the conversations between the attorney and Fitzpatrick were confidential communications of the nature contemplated by Ethical Consideration 4-1 ¹ and Disciplinary Rule 4-101 ² of the Code of Professional Responsibility. These provisions generally prohibit a lawyer from revealing or using, to a client's disadvantage, the confidences or secrets of a client. The trial court expressly found that the attorney was not involved in the prosecution of the respondent and had not revealed any confidential information to other assistant state attorneys, and refused to disqualify the office, holding that the state attorney's office is not a law firm within the meaning of Disciplinary Rule 5-105(D). That rule provides: "If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment." The district court reversed, holding that the state attorney's office constitutes a law firm within the meaning of Canon 5. The district court analogized state attorney's offices to public defender's offices, which have been held by two district courts of appeal to be law firms under Canon 5. See Roberts v. State, 345 So.2d 837 (Fla. 3d DCA 1977); Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976). The district court acknowledged this Court's decision in Babb v. Edwards, 412 So.2d 859 (Fla.1982), in which we held that the language of section 27.53(3), Florida Statutes (Supp.1980),

clearly and unambiguously requires the trial court to appoint other counsel not affiliated with the public defender's office upon certification by the public defender that adverse defendants cannot be represented by him or his staff without conflict of interest. The statute ... does not permit the appointment of other counsel affiliated with the public defender's office once conflict is certified.

Id. at 862. The district court in the instant case concluded there is no rational distinction between the offices of the state attorney and public defender and "each is a single 'firm' for the purposes of Canon 5 of the Code." 432 So.2d at 91.

The state contends that the state attorney's office is not a law firm for purposes of Canon 5, and that disqualification should not extend to the entire office unless the disqualified attorney has acted directly against the former client or provided information or assistance to the attorneys who would prosecute the former client. Fitzpatrick, on the other hand, asserts that even in situations where there is no actual conflict, the existence of the potential for conflict mandates the disqualification of the entire state attorney's office. There is no issue concerning the disqualification of the individual assistant state attorney who received the confidential communications. He is properly disqualified under Canon 4. The question to be decided concerns the disqualification of an entire prosecutorial office. Babb is not controlling or applicable to this cause because that case was decided solely upon an interpretation of a statute which applies only to public defenders' offices, and not upon a determination that the public defender's office is a law firm within the meaning of Canon 5.

We fully adhere to the view that state attorneys must abide by the same high standards of fidelity imposed by the Code of Professional Responsibility on private practitioners. We find, however, that the Code of Professional Responsibility was intended to recognize a distinction between private law firms and government prosecutorial offices. In so holding, we are in accord with the majority of jurisdictions. See, e.g., People v. Lopez, 155 Cal.App.3d 813, 202 Cal.Rptr. 333 (1984); State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982); Pisa v. Commonwealth, 378 Mass. 724, 393 N.E.2d 386 (1979); Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980). But see Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982).

By requiring disqualification of all members of a law firm under Disciplinary Rule 5-105(D), the authors of the Code sought to prevent disqualified attorneys from circumventing the disciplinary rules by acting through their associates. In Formal Opinion 342, the American Bar Association indicated it did not intend for the imputed disqualification rule to encompass government law offices, and explained the rationale for distinguishing between those offices and private law firms with respect to the application of this disciplinary rule:

When the disciplinary rules of Canons 4 and 5 mandate the disqualification of a government lawyer who has come from private practice, his governmental department or division cannot practicably be rendered incapable of handling even the specific matter. Clearly, if D.R. 5-105(D) were so construed, the government's ability to function would be unreasonably impaired. Necessity dictates that government action not be hampered by such a construction of D.R. 5-105(D). The relationships among lawyers within a government agency are different from those among partners and associates of a law firm. The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice. This important difference in the adversary posture of the government lawyer is recognized by Canon 7: the duty of the public prosecutor to seek justice, not merely to convict, and the duty of all government lawyers to seek just results rather than the result desired by a client. The channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates. Accordingly, we construe D.R. 5-105(D) to be inapplicable to other government lawyers associated with a particular government lawyer who is himself disqualified by reason of D.R. 4-101, D.R. 5-105, D.R. 9-101(B), or similar disciplinary rules. Although vicarious disqualification of a government department is not necessary or wise, the individual lawyer should be screened from any direct or indirect participation in the matter, and discussion with his colleagues concerning the relevant transaction or set of transactions is prohibited by those rules.

62 A.B.A.J. 517, 522 (1976) (emphasis added).

We also note that the Model Rules of Professional Conduct, ³ which are currently under consideration by this Court ⁴ and the adopting authorities of at least forty other states, expressly distinguish between government and non-government lawyers for purposes of imputed disqualification. Model Rule 4-1.11(c), which specifically governs the conduct of attorneys who move from private practice into government employment, provides that a lawyer serving as a public employee shall not "participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment." The commentary states that the rule "does not disqualify other lawyers in the agency with which the lawyer in question has become associated."

Further, this Court considered the due process ramifications of a directly related issue in Thompson v. State, 246 So.2d 760 (Fla.1971), in which we held that

the State Attorney can only be disqualified if it were shown that as Public Defender he had actually gained confidential information from a prior attorney-client relationship with the defendant, which information would be usable in the new matter to defe...