When one assistant district attorney is disqualified from a case, must the entire District Attorney General's office be disqualified too?

Plain-English summary

The Tennessee District Attorneys General Conference, on behalf of all District Attorneys General and their assistants, asked the Board whether the entire staff of a District Attorney General is vicariously disqualified when one staff member is disqualified from handling a particular matter. The opinion examined State v. Phillips, in which the Court of Criminal Appeals reversed a conviction and disqualified the entire District Attorney General's office from a retrial after the defendant's former defense counsel became an assistant district attorney and, while on the prosecution side, assisted in trial preparation, reviewed the state's file, made notes in it, assisted with discovery, prepared and filed motions, interviewed prospective witnesses, and obtained an expert to refute the defense the lawyer had previously raised for the defendant. The Phillips court directed the trial judge to appoint a district attorney pro tempore for retrial and to wall off the file from the time the conflicted lawyer was employed, stating that the courts cannot countenance an attorney's desertion of an accused, acceptance of employment with the prosecution, and any subsequent participation in the case.

The opinion contrasted Phillips with Mattress v. State, where the court found that disqualifying only the individual challenged assistant district attorney, while allowing another assistant on the same staff to prosecute, adequately dispelled any appearance of impropriety: the challenged lawyer's prior involvement as a legal-clinic attorney assigned to one of the defendants had been minimal (no recollection of the case, no claim by either defendant of having been interviewed or having divulged confidences), unlike the extensive pre-trial involvement in Phillips. The opinion also noted the Tennessee Supreme Court's decision in State of Tennessee v. Jesse Jones, which struck down the Board's own per se rule in Formal Ethics Opinion 83-F-41 that county attorneys and their associates could never represent criminal defendants prosecuted by county officers, holding instead that each case should be examined on its own facts.

Following that case-by-case approach, the opinion concluded that a per se rule was likewise inappropriate for vicarious disqualification of an entire District Attorney General's staff, and that the question should be examined and determined by the court on a case-by-case basis.

Currency note

This opinion was issued in 1987, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did disqualifying one assistant district attorney automatically disqualify the entire office?

A: No. The opinion concluded there is no per se rule of automatic office-wide disqualification; the question is decided case by case on the facts.

Q: What facts led to disqualifying an entire District Attorney General's office in the case law the opinion discussed?

A: In State v. Phillips, the defendant's former defense counsel had extensively assisted the prosecution after switching sides, including reviewing the state's file, assisting with discovery, preparing motions, and obtaining a rebuttal expert, leading the court to disqualify the whole office for the retrial.

Q: When did the courts decline to disqualify an entire office?

A: In Mattress v. State, the conflicted assistant district attorney's prior involvement as defense-side counsel had been minimal and was not recalled by the lawyer or either defendant, so disqualifying only that individual lawyer was enough to dispel any appearance of impropriety.

Background and rules framework

The opinion addressed former DR 5-105(D) (imputed or vicarious disqualification) as applied to a District Attorney General's office, drawing on State of Tennessee v. Jesse Jones's rejection of a per se disqualification rule for government attorneys. The modern analogs are Model Rule 1.10 / Tennessee RPC 1.10 (imputation of conflicts of interest) and Model Rule 1.11 / Tennessee RPC 1.11 (special conflicts rules for former and current government officers and employees).

Citations and references

Rules of Professional Conduct (former Code):

• DR 5-105(D) (imputed or vicarious disqualification). Modern analogs: Model Rule 1.10 / Tennessee RPC 1.10 and Model Rule 1.11 / Tennessee RPC 1.11

Cases:

• State v. Phillips, 672 S.W.2d 427 (Tenn. Cr. App. 1984), disqualifying an entire District Attorney General's office after a former defense lawyer extensively assisted the prosecution
• Mattress v. State, 564 S.W.2d 678 (Tenn. Cr. App. 1977), individual disqualification sufficient where the conflicted lawyer's prior involvement was minimal
• Autry v. State, 430 S.W.2d 808 (Tenn. Cr. App. 1967)
• State of Tennessee v. Jesse Jones, In Re: Larry S. Banks, Attorney, 726 S.W.2d 515, rejecting a per se rule barring county attorneys and associates from representing criminal defendants prosecuted by county officers

Other opinions cited:

• Tennessee Formal Ethics Opinion 83-F-41 (the Board's prior per se rule, struck down in Jesse Jones)

See also

• Tennessee Op. 83-F-41: County Attorney May Not Defend Criminal Cases Prosecuted by the County's Own Officers (the per se rule struck down in Jesse Jones)
• WV Ethics Op. 92-01: Imputed Disqualification of Prosecuting Attorneys and Their Assistants
• AL Ethics Op. 1990-05: Imputed Disqualification of District Attorneys
• Ohio BPC Op. 1988-015: Former Public Defender, Now Prosecutor, Appointing a Special Prosecutor

Source

• Landing page: https://www.tbpr.org/ethic_opinions/87-F-111

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87-F-111 - Vicarious Disqualification of Entire Staff of District Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 87-F-111

Inquiry is made concerning the vicarious disqualification of the entire staff of a District Attorney General when one member of the staff is disqualified from handling a particular matter.

The Tennessee District Attorneys General Conference on behalf of all District Attorneys General and their Assistants has made an ethics inquiry concerning the vicarious disqualification of the entire staff of a District Attorney General when one member of the staff is disqualified.

In the case of State v. Phillips, 672 S.W.2d 427 (Tenn. Cr. App. 1984) the court reversed the defendants conviction and disqualified the District Attorney General from participating in the retrial after finding that the defendants former counsel had become an Assistant District Attorney and worked on the case for the prosecution.

While serving as Assistant District Attorney the former defense counsel assisted in trial preparation, reviewed the state's file, made notes in the file, assisted with discovery, prepared and filed motions, interviewed prospective witnesses and obtained an expert to refute the defense he had interposed for the defendant. In disqualifying the District Attorney General the court directed the trial judge to appoint a District Attorney pro tempore to represent the state on retrial, and further directed the trial judge to insure that the contents of the District Attorney General's file from the time defense counsel was employed was not available to the District Attorney pro tempore. In disqualifying the District Attorney General the Court stated:

The courts simply cannot countenance the desertion of the accused by his defense counsel, acceptance of employment with the prosecutor and any subsequent participation in any manner in the trial, including pre-trial preparation. It seems inconceivable that the challenged attorney and his new employer did not know that.

The court distinguished the facts in State v. Phillips from the facts in its previous ruling in Mattress v. State, 564 S.W.2d 678 (Tenn. Cr. App. 1977). In Mattress the court held that the trial court's action in disqualifying the challenged Assistant District Attorney from participating in the trial but allowing another assistant on the same staff to prosecute was adequate to dispel any appearance of impropriety. In Mattress the challenged Assistant District Attorney had formerly been a legal clinic staff attorney and accepted a case involving one of the defendants but had not interviewed the defendant. Another legal clinic file revealed that the challenged attorney had been assigned to defend Mattress. The challenged Assistant District Attorney did not recall the cases and did not recall talking with either of the defendants. Neither defendant claimed to have been interviewed by him nor to have divulged any confidential information to him. The former legal clinic attorney interviewed the state's witnesses and prepared a motion for continuance after becoming Assistant District Attorney. The court held that the defense counsel/prosecutors actions in the Mattress case did not approach the extensive pre-trial representation by the challenged attorney in State v. Phillips.

The court also cited and distinguished Autry v. State, 430 S.W.2d 808 (Tenn. Cr. App. 1967) as well as cases from Illinois, Oklahoma, Missouri, New Jersey, Florida, Kansas, Mississippi and West Virginia wherein convictions were reversed and remanded for new trial because defense counsel had switched sides.

The Supreme Court of Tennessee, in the case of State of Tennessee v. Jesse Jones, In Re: Larry S. Banks, Attorney 726 S.W.2d 515 struck down the Board's per se rule in Ethics Opinion 83-F-41 that county attorneys and their associates cannot represent criminal defendants prosecuted by county officers. The court found that each incident should be examined and determined on a case-by-case basis.

It appears that a per se rule in this instance is likewise inappropriate and that the question concerning the vicarious disqualification of the entire staff of a District Attorney General when one member of the staff is disqualified should be examined and determined by the court on a case-by-case basis.

This 16th day of September, 1987.

ETHICS COMMITTEE:

Michael E. Callaway

Charles T. Herndon III

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD