State v. Nickels, 35369-9-III

• Decision Date: 07 February 2019
• Docket Number: No. 35369-9-III,35369-9-III
• Citation: 434 P.3d 535
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. David Emerson NICKELS, Petitioner.

434 P.3d 535

STATE of Washington, Respondent,

v.David Emerson NICKELS, Petitioner.

No. 35369-9-III

Court of Appeals of Washington, Division 3.

FILED FEBRUARY 7, 2019

PUBLISHED OPINION

Pennell, J.

¶ 1 When an attorney transitions from representing individual clients to the position of elected prosecutor, conflicts of interest can arise, restricting not only the attorney’s ability to work on a given case, but also necessitating recusal of the entire prosecutor’s office. The standard set by the Washington Supreme Court is that when an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor’s office should ordinarily be disqualified from further participation.

¶ 2 The questions raised by Mr. Nickels’s appeal are whether the Supreme Court’s office-wide recusal standard contemplates a bright-line rule and, if not, what circumstances can disentangle an elected prosecutor’s need for recusal from that of the prosecutor’s office. We hold that a prosecutor’s office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor’s current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor’s conflict of interest.

¶ 3 Here, Grant County Prosecuting Attorney Garth Dano previously represented David Nickels in a first degree murder case that remains pending in Grant County Superior Court. Mr. Dano’s work caused him to be privy to confidential work product and attorney-client information. Given this circumstance, coupled with the seriousness of Mr. Nickels’s criminal charge, extraordinary circumstances do not justify differentiating Mr. Dano’s conflict of interest from that of the entire Grant County Prosecuting Attorney’s Office. Instead, the general rule applies and the entire prosecutor’s office must be recused along with Mr. Dano. The trial court’s order to the contrary is reversed.

BACKGROUND

¶ 4 In 2012, a Grant County jury convicted David Nickels of first degree murder. Deputy prosecutors Tyson Hill and Edward Owens handled the case under the supervision of Grant County’s elected prosecutor, D. Angus Lee.

¶ 5 Mr. Nickels was represented by Seattle-based attorneys Mark Larranaga and Jacqueline Walsh. Because they worked remotely, Mr. Nickels’s attorneys sought local assistance from then-private attorney Garth Dano. According to an uncontested affidavit by Ms. Walsh, defense counsel routinely consulted with Mr. Dano about a wide range of matters regarding Mr. Nickel’s defense, including defense strategy, theory of the case, potential witnesses and jury selection. Ms. Walsh states Mr. Dano was considered a consulting defense attorney on the case and "as such all confidences and communications fell under the attorney client, work product doctrine." Clerk’s Papers at 179.

¶ 6 On September 4, 2012, Mr. Dano entered a notice of association of counsel so that he could represent Mr. Nickels while Mr. Larranaga and Ms. Walsh attended to matters out of state. Mr. Dano subsequently appeared in court with Mr. Nickels for a jury question and when the jury returned its verdict. Mr. Dano did not provide any substantive input at the time of the jury question or the verdict. However, after the verdict, Mr. Dano met with Mr. Nickels to discuss the case.

¶ 7 In November 2014, while Mr. Nickels’s case was pending appeal, Mr. Dano was elected as the Grant County Prosecuting Attorney. Mr. Dano took office in January 2015. The Grant County Prosecuting Attorney’s Office did not handle Mr. Nickels’s appeal. Instead it contracted with the Kitsap County Prosecuting Attorney’s Office for the appointment of two of its deputies, pursuant to RCW 36.27.040, as special deputy prosecuting attorneys for Grant County. Contract details were arranged several months prior to Mr. Dano’s election.

¶ 8 In early 2017, this court reversed Mr. Nickels’s first degree murder conviction based on instructional error.¹ On remand, the case was assigned to Grant County deputy prosecutors Kevin McCrae and Edward Owens. Mr. Dano was recused from the case, and has had no participation at any time during his tenure as the prosecuting attorney.

¶ 9 After Mr. Nickels’s case was remanded to superior court, defense counsel moved to disqualify the entire Grant County Prosecuting Attorney’s Office from further participation based on Mr. Dano’s conflict of interest. The trial court denied the motion; but, recognizing there were substantial grounds for a difference in opinion, the court certified its order for immediate appellate review under RAP 2.3(b)(4). We granted discretionary review.

ANALYSIS

¶ 10 The issue in this case is narrow. The parties agree the elected prosecutor, Garth Dano, has a disqualifying conflict of interest and must be recused from Mr. Nickels’s case. The only issue to be decided is whether Mr. Dano’s entire office must be recused as well. Our review is de novo. State v. Greco, 57 Wash. App. 196, 200, 787 P.2d 940 (1990).

¶ 11 The lead authority governing our analysis is State v. Stenger, 111 Wash.2d 516, 760 P.2d 357 (1988). Stenger addressed the issue of when, under the Rules of Professional Conduct (RPC), an elected prosecutor’s conflict of interest must be imputed to the balance of the prosecutor’s office. The Stenger court articulated the following standard:

Where the prosecuting attorney (as distinguished from a deputy prosecuting attorney) has previously personally represented the accused in the same case or in a matter so closely interwoven therewith as to be in effect a part thereof, the entire office of which the prosecuting attorney is administrative head should ordinarily also be disqualified from prosecuting the case and a special deputy prosecuting attorney appointed. This is not to say, however, that anytime a prosecuting attorney is disqualified in a case for any reason that the entire prosecuting attorney’s office is also disqualified. Where the previous case is not the same case (or one closely interwoven therewith) that is being prosecuted, and where, for some other ethical reason the prosecuting attorney may be totally disqualified from the case, if that prosecuting attorney separates himself of herself from all connection with the case and delegates full authority and control over the case to a deputy prosecuting attorney, we perceive no persuasive reason why such a complete delegation of authority and control and screening should not be honored if scrupulously maintained.

111 Wash.2d at 522, 760 P.2d 357 (footnote omitted).

¶ 12 The parties dispute the nature of the Stenger standard. According to Mr. Nickels, Stenger sets a bright-line rule, requiring office-wide recusal whenever an elected prosecutor has a conflict of interest based on prior representation of a client in the same or similar case as the one currently pending prosecution. The State claims Stenger articulated only a general standard, and that office-wide recusal is not required in extraordinary circumstances.

Stenger did not create a bright-line recusal rule

¶ 13 Stenger’s imputed recusal standard comes close to creating a bright-line rule, but it ultimately falls short. For one thing, Stenger’s analysis is couched in qualified language. In announcing the standard for recusal of a prosecutor’s office, Stenger used the auxillary verb "should;" not "shall" or "must." Id. In so doing, the decision indicated that recusal of an entire office is not always required, even when the elected prosecutor himself or herself must be recused based on prior representation in the same case.

¶ 14 In addition to Stenger’s qualified language, the decision did not purport to change the written RPCs, which specifically exclude government agencies from bright-line rules of imputed conflicts. As recognized in Stenger, 111 Wash.2d at 522-23 & n.15, 760 P.2d 357, a conflict based on a private attorney’s prior representation is automatically imputed to other attorneys in the same law firm. RPC 1.10.² But there is no similar rule for government lawyers. See RPC 1.11.³ Instead, the conflict rules for government lawyers are assessed more narrowly, according to each lawyer’s individual circumstances. Id.

¶ 15 Given an elected prosecutor’s administrative duties, Stenger recognized that an elected prosecutor’s individual circumstances generally will require recusal of the entire prosecuting attorney’s office. But, because no per se recusal rule exists for public service attorneys, there is the possibility of an exception, based on the individual circumstances of the elected prosecutor.

Stenger’s office-wide recusal rule does not apply in extraordinary circumstances.

¶ 16 Rather than a bright-line rule, we interpret Stenger as setting a general standard that an elected prosecutor’s prior representation of the accused in the same or similar case will ordinarily require office-wide recusal, but an exception can apply in extraordinary circumstances. The question left unanswered by Stenger is what constitutes extraordinary circumstances.

Extraordinary circumstances are not informed by the level of participation as a prosecutor

¶ 17 The State posits that the nature of an elected prosecutor’s current activities are relevant to the issue of extraordinary circumstances. It points out that the elected prosecutor in Stenger had taken official actions in support of his former client’s prosecution, including communicating with the press, being present at law enforcement briefings, and receiving updates on the case from deputy prosecutors. 111 Wash.2d at 519, 760 P.2d 357. In contrast, Mr. Dano has never been involved in any aspect of Mr. Nickels’s prosecution. The decision...