Opinion 2101

QUESTIONS PRESENTED:
The specific question posed is whether there would be a conflict of interest if a County Prosecuting Attorney’s Office prosecuted a felony charge of illegal voting against an individual who, for a brief time, was a paid employee of the political campaign to elect the Wife of the Prosecutor.
The inquiry also presents the question whether, if the elected Prosecutor has a conflict of interest, that conflict would be imputed to any attorney in the Prosecuting Attorney’s Office.

FACTS:

The County Sheriff’s office referred Mr. M. to the Prosecutor’s Office to be charged, asserting that he had improperly voted under the statute regulating voter eligibility (RCW 29A.84.660 ), based on the following circumstances. M., who was an attorney at the time, pled guilty to Theft and Forgery, two felonies. He was sentenced and ordered to pay restitution. M. failed to pay his financial obligations under the sentence and failed to pay the required Department of Corrections supervision costs. Because M. had not satisfied all the terms of his sentence and the related financial obligations, his civil rights, including his right to vote, had not been restored. M. registered to vote in 2000 and had voted 13 times at the time of the Sheriff`s investigation. M. asserted that the County website information about the qualifications of voters led him to believe that if he was not in prison or on parole for a felony he was qualified to register and vote.

During the investigation of M.’s voting, it was discovered that he been paid $1,000 for two months` work on the campaign of the Wife of the Prosecuting Attorney. An article in the local paper reported that the Wife indicated M.’s involvement in the campaign was minimal.

The County Prosecuting Attorney`s Office employs more than 30 attorneys and more than 30 administrative support staff. The Office is responsible for prosecuting all adult and juvenile felony crimes committed in the County as well as gross misdemeanors and misdemeanors.
The Criminal divisions are non-investigative entities that accept referrals for prosecution from police agencies within the county. The Office is divided down into the Felony, Special Assault, Misdemeanor, and Juvenile Divisions, and supported by the Victim Advocate Division. Cases are assigned to the divisions depending on the type and level of the crime. There are numerous attorneys assigned to work on felony matters.

DISCUSSION:
Assuming that the County Prosecutor’s Office decides to prosecute the case against M., Rule of Professional Conduct ("RPC") 1.7, would apply to guide the Prosecutor’s decision as to whether he, or any attorney in his Office, may represent the State’s interest in the criminal proceedings. The Rule addresses conflicts created by representation of multiple clients and, at Section (b), RPC 1.7 addresses conflicts that arise from a lawyer`s personal interests and responsibilities.
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure." RPC 1.7(b).

In order to determine whether a conflict would arise for the Prosecutor’s Office under RPC 1.7 (b), the Prosecutor must assess the interests of his client. The statute and case law regarding the duties of a county prosecuting attorney clarify who the prosecutor’s client is. Under RCW 36.27.020(4), it is the duty of a prosecuting attorney to “prosecute all criminal and civil actions in which the state or the county may be a party.” The Washington Supreme Court has clarified that in filing and prosecuting a criminal action, a county prosecutor is acting as "an agent of the State and not the County." Thurston County v. Gorton, 85 Wash.2d 133, 530 P.2d 309 (1975). Although the Prosecutor represents a public entity as his client, the State is entitled to diligent representation, unhampered by conflicts of interest, just as an individual client would be. RPC 1.3; RPC 1.11.

In this instance the conflict, if there is one, would be between the State`s interest and the Prosecutor`s own interests. The Prosecutor must assess whether his Wife’s involvement with M. in the course of his campaign work would lead to relevant testimony that would be helpful in the prosecution. Because the accused worked on her political campaign, Wife might be able to testify about facts, which would go to whether M. actually knew that he did not possess the qualifications to vote, knowledge being an element of an RCW 29A.84.660 violation. Such facts, if they existed, might be either incriminating or embarrassing, and a desire not to put on such testimony might materially limit the Prosecutor’s efforts to represent the State.

In applying RPC 1.7, the condition precedent for disqualification of an attorney is the existence of a conflict of interest. This determination is necessarily the first step in the process and if it is determined in the negative there is no need to go further. The standard to be applied, under RPC 1.7 (b), is whether the representation would be “materially limited by the lawyer’s responsibilities to…a third person or by the lawyer’s own interests.” The Comments to the Suggested Amendments to RPC 1.7 explain this standard as follows:

"…even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interest." Comment 8, Suggested Amendments to RPC 1.7.

If there is no significant risk that the lawyer`s ability to consider, recommend or carry out an appropriate course of action will be materially limited, then no conflict exists and the inquiry ends there. Also, when the lawyer is a prosecutor, that standard may be applied in a somewhat less stringent manner.

At one time there might have been concern about an appearance of fairness, in a question of a prosecutor`s charging decision, but the Washington Supreme Court has determined that the appearance of fairness doctrine does not apply to prosecutors, even in making charging decisions. State v. Finch, 137 Wn.2d 792 (1999). The United States Supreme Court has observed that "[p]rosecutors need not be entirely `neutral and detached`" and may be rewarded for initiating and carrying out prosecutions in the name of the people. State v. Finch, 137 Wn.2d at 810, quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 248, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980).

"Although the constitution prevents prosecutors from making decisions that are `motivated by improper factors...or contrary to law... [T]he strict requirements of neutrality cannot be the same for...prosecutors as for judges...`" (emphasis in original) Id. quoting Marshall at 249-50.

Depending on the level of M.`s involvement with Wife’s campaign, it may be reasonable to conclude, however, that the prosecution would be limited in some ways because of the association of the Prosecutor`s Wife with the accused in a political campaign, an activity that is directly dependent upon voting. The Committee has not been provided with sufficient facts to make this determination.

The determination as to whether these considerations would be "materially limiting" is only the first step of the analysis. The application of RPC 1.7(b) is a two-tier process. Under the current RPC 1.7(b) (and Suggested Amendments to RPC 1.7), even if the Prosecutor thinks there is a material limitation, but the Prosecutor “reasonably believes” that the State’s “representation will not be adversely affected” as provided in RPC 1.7 (b)(1), then the Prosecutor could proceed with the prosecution after fulfilling RPC 1.7(b)(2).

Subsection RPC 1.7(b)(2) requires consent from the client, “in writing after consultation and a full disclosure of the material facts.” “In Washington, a governmental entity is not prevented from properly consenting to a representational conflict of interest.” Comment 38 to the Suggested Amendments to RPC 1.7. However, pragmatically, it may be impossible to fulfill this requirement for written consent to a conflict of interest. Even if the Prosecutor determines that he personally is disqualified by a conflict, if that conflict is not imputed to the entire Prosecutor’s office, the situation could be resolved by a deputy prosecutor handling the case.

Imputation of a Conflict in a Prosecutor’s Office
Imputing a disqualification to other lawyers is governed by RPC 1.10, which states:
"…while lawyers are associated in a firm, none of them should knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7…"

The current RPC 1.10 provides a relief from disqualification of the entire firm through screening

"…the prohibition on the firm shall not apply if:
(1) The personally disqualified lawyer is screened by effective means from participation in the matter …"

The current RPC 1.10 provides a solution, through screening, for a prosecuting attorney’s office in the event that the elected prosecutor finds himself limited by his personal responsibilities or interests in such a way that it would adversely affect the case. However, the new Suggested Amendments to RPCs go even further to address circumstances like the Prosecutor’s inquiry.

Comment 10 to the Suggested Amendment to RPC 1.7 addresses “Personal Interest Conflicts,” and states that a personal interest conflict, under Rule 1.7, ordinarily would not be imputed to other lawyers in a law firm. Comment 10 refers to Suggested Amendments to RPC 1.10. The Suggested Amendment to RPC 1.10 expressly provides a new exception to the broad requirement to impute conflicts to an entire firm, by adding an exception where:
"...the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm."

Under the Suggested Amendments (see proposed text for RPC 1.10 and RPC 1.11 ), specific screening measures may not even be required if the disqualification of the Prosecutor is based on a personal interest, although it would certainly be considered prudent. Under the current RPC 1.10 effective screening will allow for one of the deputy prosecutors to handle the matter.

Another factor that may make the concept of imputing the Prosecutor’s disqualification (should the Prosecutor decide that he is disqualified due to personal interests), completely irrelevant, is the RPC’s definition of “law firm.” The Terminology section of the current RPC’s defines firm as “lawyers in a private firm,” “lawyers employed in the legal department of a corporation or other organization” and “lawyers employed in a legal service organization.” The Rule does not expressly encompass public law offices and that omission is reinforced by the Suggested Amendments. The Suggested Amendments to RPC 1.0 define a law firm as:
"Lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization of the legal department of a corporation or other organization."

It seems significant that, even after enumerating additional entities that are defined as law firms, the new Terminology section does not expressly mention public law offices. The omission supports this Committee’s opinion that a public law office, specifically a prosecutor’s office, is not a law firm.

Whether or not a prosecutor’s office is considered a law firm, the standard for imputation in a public law office is recognized as different from the standard applied to an ordinary law firm. In 1993, in Informal Opinion #1574, the Committee advised that, under RPC 1.7(b), an entire prosecutor’s office was not vicariously disqualified in a matter in which one deputy had a conflict of interest. Comment 2 to Suggested Amendment to RPC 1.11 states:
"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.

Although the RPC Committee does not opine about law relevant to the inquiry, other than the RPCs, State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988), provides a discussion that is helpful to an understanding of how RPC 1.10 would be applied in a prosecutor`s office. State v. Stenger, supra, was a death penalty case involving a conflict of interest due to prosecuting attorney’s previous representation of the defendant in another criminal matter, which addressed the concept of imputed conflicts of interest in a prosecutor’s office. The Washington Supreme Court distinguished among three circumstances: one that disqualifies the prosecutor and the entire office; another that disqualifies just the prosecutor; and a third, where a deputy prosecutor is disqualified.

The first instance, the disqualification of the entire prosecutor’s office occurs when the prosecutor has represented the accused, a conflict based on representation of a previous client, which is not analogous to a conflict based on personal interests. State v. Stenger, 111 Wn.2d at 522. The second instance allows for disqualification of just the prosecutor, not all the deputies, based on the curative effect of screening procedures similar to those prescribed by RPC 1.10 (b).
"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…if that prosecuting attorney separates himself or 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." State v. Stenger, supra.

If the delegation of full authority and control is implemented, we assume that the inquiring Prosecutor`s conflict could be resolved as the court described in its second example, by the Prosecutor screening himself away from the case.

The deputy assigned to the case would have to make a personal decision, about whether, if there was damaging evidence regarding the association of the Wife with the accused, he or she would be limited by a personal interest, such as respect for the Prosecutor and his Wife. A factor in that decision would, of course, be the deputy’s sense of public duty, which might overcome and nullify any sense of limitation. Regarding a deputy, with a conflict of interest, the court said:
"…where a deputy prosecuting attorney is for any reason disqualified from a case, and is thereafter effectively screened and separated from any participation or discussion of matters concerning which the deputy prosecuting attorney is disqualified, then the disqualification of the entire prosecuting attorney’s office is neither necessary nor wise." Id.

So, even if a particular deputy determined that she would be materially limited that would not warrant “the disqualification of the entire prosecuting attorney’s office.”

It is our understanding that the Prosecutor has been screening himself from the case. A deputy prosecutor prepared the factual memo that brought the issue to the Prosecutor`s attention. If the inquiring Prosecutor continues to screen himself away from the case, then he and the assigned deputy must give further consideration to whether that is effective in this case. The Prosecutor must delegate full, unfettered authority, including the ability to make the charging decision, which may have potential political ramifications, especially because this matter involves voting rights. The concept of delegation of full authority and control may not be achievable. The deputy`s position and respect for the Prosecutor and his Wife, the structure of the employment relationship in the Prosecutor`s office, and the reality that the deputies are employed at his pleasure, may have a dampening effect on the deputy`s willingness to bring the case or to develop testimony regarding M.`s alleged crime that would be connected in any embarrassing way to the political campaign of the Prosecutor`s Wife. Conversely, the deputy prosecutor`s judgment about whether to bring the case might be overly affected by an interest in exposing the facts of the matter and, thereby, exonerating the Wife of the Prosecutor from any connection with criminal activity; whereas, in the ordinary course, evidentiary issues might militate against bringing such a case to prosecution.

Thus, the deputy must make a similar 1.7(b) analysis as to whether there is any significant risk that his loyalty to the elected Prosecutor might materially limit his representation of the State. If the deputy believes that screening will not work, that a significant risk exists that the representation might be adversely affected, then the County will need to use its alternative means for prosecution. Assuming that a deputy decided that he or she was not materially limited by responsibilities to a third person or personal interests, and an appropriate screening is maintained, the County Prosecuting Attorney’s Office could proceed with the prosecution on behalf of the State.