Young v. State

Adkins, J., delivered the opinion of the Court. In this case, appellant Clarence Leo Young asks us to rule that the entire staff of a county state’s attorney’s office must be disqualified from prosecuting a criminal case if one member of the office, prior to his appointment as assistant state’s attorney, represented the defendant in the case. On the record before us, we decline to do so, and thus affirm Young’s conviction in the Circuit Court for St. Mary’s County (Mattingly, J.). The Facts Young was indicted for theft of goods valued at over $500.

Richard D. Fritz, Esq., was appointed to represent him, consulted with him on several occasions, and according to Young, learned "everything [Young] knew about the case.” Later, Fritz was appointed assistant state’s attorney and his appearance for Young was stricken. Prior to Young’s trial, Young moved to dismiss on the ground that prosecution by the St. Mary’s County State’s Attorney’s Office would constitute a conflict of interest. 1 He also asked for appointment of an assistant counsel for the State, pursuant to § 2-102 (a) of the Courts and Judicial Proceedings Article. At the hearing on the motion, Thomas ⁵⁵² McManus, Esq., the assistant state’s attorney in charge of the prosecution, advised that he had had no communications with Fritz about the case and that Fritz had "no contact at all in the preparation of the case.” On the basis of this information, Judge Mattingly denied the motion. Young was tried and convicted.

This appeal followed. The Issue In State v. Chambers, 86 N.M. 383 , 524 P.2d 999 (1974), cert. den. 86 N.M. 372 , 524 P.2d 988 (1974) the New Mexico Court of Appeals, following State v. Latigue, 108 Ariz. 521 , 502 P.2d 1340 (1972), concluded that in circumstances like those presented here, the entire prosecutor’s office was perse disqualified from prosecuting a criminal case. This conclusion was reached on the basis of the appearance of impropriety that the court thought arose from the employment as assistant prosecutor of a lawyer who had earlier represented the defendant in the same case even though the former defense counsel had not participated in the prosecution, and had revealed no information obtained from his former client to the other prosecutors. See also State v. Cooper, 63 Ohio Misc. 1 , 409 N.E. 2d 1070 (Ohio Com.

Pl. 1980); and compare Love v. Superior Court, 111 Cal. App. 3d 367 , 168 Cal. Rptr. 577 (CA 3d Dist. 1980). It is such a per se rule of disqualification that Young would have us adopt here.

Other jurisdictions have declined to do so. For example, in State v. Bell, 346 So.2d 1090 (1977) the Supreme Court of Louisiana held it was not error for the trial court to decline to recuse the entire district attorney’s office, absent a showing that former defense counsel, who had later joined the district attorney’s staff, had passed any confidential information to those who actually prosecuted his former client. To the same effect are Upton v. State, 516 S.W.2d 904 (Ark. 1974); State v. Miner, 258 A.2d 815 (Vt. 1969); and Hannon v. State, 266 So.2d 825 (Ala. CCA 1972).

This split in authority highlights the issue before us: Does ⁵⁵³ the possibility of the mere appearance of impropriety produced by prior defense representation of a criminal defendant by a lawyer later employed in a prosecutor’s office automatically mandate disqualification of the entire office in a continuing prosecution of the former client? Or is the matter within the discretion of the trial court to decide after determining whether in fact any impropriety has occurred? The Decision We recognize that a state’s attorney’s "decision to prosecute, just like the methods he employs to procure conviction, must be in accord with the fair and impartial administration of justice, untainted by any contaminating influence”; Sinclair v. State, 278 Md. 243, 260 , 363 A.2d 468, 478 (1976). We recognize, too, that a lawyer is required to preserve the confidences and secrets of his client; Code of Professional Responsibility, Canon 4 and DR 4-101; that the