State Supreme Court Revisits Elected Prosecutor Conflicts

Temple of Justice

Last April, we looked at a then-recent decision on elected prosecutor conflicts by Division III of the Washington State Court of Appeals in State v. Nickels, 7 Wn. App. 2d 491, 434 P.3d 535 (2019). In Nickels, a lawyer who had represented the defendant in a murder trial was later elected county prosecutor while the case was on appeal. Once he assumed office, the prosecutor recused himself from the case. On remand, however, the defendant moved to disqualify the entire prosecutor’s office based on State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988), in which the Supreme Court imputed an elected prosecutor’s personal conflict to the prosecutor’s office as a whole. The trial court denied the motion, but Division III reversed—holding that the entire office must be disqualified under Stenger even though RPC 1.11 does not automatically impute a government lawyer’s personal conflict to the lawyer’s office as a whole.

Recently, the Supreme Court granted review and, in a 5-4 decision, affirmed the Court of Appeals. 2020 WL 480382 (Wn. Jan. 30, 2020).

The Supreme Court majority adhered to Stenger—harmonizing it with RPC 1.11 by reading the RPC as applying to government lawyers generally and Stenger as only applying to the state’s 39 elected prosecutors:

“[RPC 1.11] enumerate[s] a general rule for imputation of conflicts of interest between government attorneys and their offices that we read in harmony with Stenger’s narrow rule. Accordingly, we hold that office-wide disqualification is presumptively proper when an elected prosecutor has previously represented the defendant in the same case or closely interwoven matter.” Id. at *3.

The dissent argued that 2006 amendments to the RPCs effectively superseded Stenger. While noting several associated amendments, the dissent focused on Comment 2 to RPC 1.11, which reads, in relevant part:

“Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” Id. at *7.

Because the prosecutor in Nickels had clearly participated in the defense of the same case when he was in private practice, neither the majority nor the dissent at the Supreme Court addressed Stenger’s exception for “extraordinary circumstances.” The contours of Stenger are discussed further in Professor Aronson’s Chapter 7 in the WSBA deskbook, Law of Lawyering in Washington.