State Ex Rel. Eidson v. Edwards

TEAGUE, Justice,

dissenting.

The issue in this cause arose when a motion to disqualify was filed on behalf of James Edward Clayton, who was then accused of committing several crimes, including capital murder. The motion to disqualify questioned whether Hon. James Eidson, the Criminal District Attorney of Taylor County, and his entire staff should be permitted to prosecute Clayton because to permit such to occur might violate DR 9-101, Code of Professional Responsibility. 1

The facts of this cause relating to the issue are actually quite simple. Hon. Ross Adair, who was then in private practice in Abilene, along with Hon. Ken Leggett, another attorney in Abilene, was appointed by the trial judge to represent Clayton in several cases, one of which was for allegedly committing the offense of capital murder. The record is clear that both Adair and Leggett were at all times diligent, hardworking, and conscientous in their efforts to adequately represent Clayton, leaving no rocks unturned in their endeavors. Many confidential conversations obviously occurred between the three of them. This arrangement lasted for several months until Adair was appointed judge of the County Court at Law No. 2 of Taylor County, *8 after which he withdrew from representing Clayton, and later resigned being judge and then became employed by Eidson as an assistant district attorney.

The trial judge, after a hearing, and after invoking the Code of Professional Responsibility, see Vol. 3, Government Code, Section 9, commencing at page 412, granted the motion to disqualify Eidson and his staff from prosecuting Clayton on the ground that to further permit them to prosecute Clayton might cause the general public to believe that there was something improper about Eidson and his staff prosecuting Clayton, which obviously might constitute a violation of the Code of Professional Responsibility, DR 9-101.

Probably the most damaging piece of evidence that was presented during the hearing was the fact that soon after Eidson employed Adair, Eidson charged Adair with the responsibility of assisting him in the preparation of his defense to the motion to disqualify himself and his staff from prosecuting Clayton.

Thereafter, Eidson sought the writ of mandamus from this Court to rescind the order of the trial judge disqualifying Eid-son and his staff from prosecuting Clayton. Since the trial judge granted the motion to disqualify, special prosecutors have now prosecuted Clayton for capital murder, the jury answered the special issues, see Art. 37.071, V.A.C.C.P., in the affirmative, and the trial judge imposed the death penalty on Clayton. Two remaining non-capital cases are still pending against Clayton on the docket of the trial court. Eidson has not sought leave of this Court to prosecute those cases nor, by the record before us, has he manifested any intent that either he or one or more members of his staff will prosecute those cases at any time in the near future.

The sole issue before this Court is whether, pursuant to the Code of Professional Responsibility, in particular DR 9-101, which provides, “A Lawyer Should Avoid Even the Appearance of Professional Impropriety,” the trial judge was authorized to grant the motion to disqualify Eidson and his entire staff from prosecuting Clayton.

Eidson and the majority opinion by Judge White, also see Presiding Judge McCormick’s dissenting opinion on original submission, appear to argue that for purposes of prosecuting a particular individual, a District Attorney and his office are immune from the Code of Professional Responsibility and that under no facts or circumstances may he or his office be disqualified by a trial judge simply because there is the possibility that during a particular prosecution, the prosecutor might violate one or more provisions of the Code of Professional Responsibility.

Perhaps not so amazingly, Eidson does have some authority to support his position. See Pannell v. State, 666 S.W.2d 96 (Tex.Cr.App.1984); Henrich v. State, 694 S.W.2d 341 (Tex.Cr.App.1985). Compare, however, State Bar of Texas v. Edwards, 646 S.W.2d 543 (Tex.App.—Houston [1st Dist.] 1982, writ ref d n.r.e.); Bert Wheeler’s, Inc. v. Ruffino, 666 S.W.2d 510 (Tex.App.—Houston [1st Dist.] 1983).

Just recently this Court gave its implicit approval of the application of the Code of Professional Responsibility to members of the criminal defense bar when defending an accused person. See Harrison v. State, 788 S.W.2d 18 (Tex.Cr.App.1990). Cf. Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989). Should this same holding not be applied to prosecuting attorneys?

The general rule is that before this Court will issue the writ of mandamus the moving party must satisfy two requirements: (1) that the act sought to be compelled is purely ministerial as opposed to discretionary or judicial in nature, i.e., whether the respondent has the authority to do what is the subject of the complaint, see State ex rel. Thomas v. Banner, 724 S.W.2d 81, 83 (Tex.Cr.App.1987); Stearnes v. Clinton, supra, and (2) no other adequate remedy at law is available, i.e., before the remedy may be deemed adequate, it must be equally convenient, beneficial, and effective as the proceeding by mandamus, see Smith v. Flack, 728 S.W.2d 784 (Tex.Cr.App.1987). Also see State ex rel. Curry v. Gray, 726 *9 S.W.2d 125 (Tex.Cr.App.1987). In this instance, if the trial judge acted within his authority to grant the motion, there is no need to concern ourselves with the second prong of the above test.

On original submission, this Court held that because Clayton had been tried and convicted of committing the offense of capital murder, and had been assessed the death penalty, “for ‘prosecution purposes’, [the District Attorney’s] application for the writ of mandamus is now clearly moot as to the first cause number ... [FJinding no justiciable controversy before us to decide at this time, Relator’s application for the writ of mandamus is Ordered dismissed.”

Thereafter, on May 10, 1989, this Court granted the State’s motion for rehearing, in which the State argued that the application for the writ of mandamus was not moot because, in addition to the capital murder and death sentence case, which was then pending on direct appeal, two other non-capital felony cases against Clayton were then pending disposition in the trial court, although the State since February 15,1989, had not seen fit to seek leave to prosecute Clayton on those cases.

I pause to point out that since February 15, 1989, this Court has not been asked to rule on a similar type case, from any county of this State including Taylor County. Thus, and contrary to the State’s “Chicken Little” argument, there does not appear to be any substance to the State’s claim that should this Court sustain the trial court’s decision in this cause, to disqualify Eidson and his staff from prosecuting the defendant Clayton, in order to avoid the possible appearance of impropriety, that this will cause trial judges throughout this State to wholesale disqualify district attorneys and their staffs from prosecuting certain defendants in this State.

Presiding Judge McCormick, in the dissenting opinion that he filed on original submission, and Judge White, in his majority opinion on rehearing, appear to take the position that a District Court Judge has no authority to disqualify a District Attorney and his office from prosecuting a particular defendant, except for (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty caused by drinking an alcoholic beverage. § 87.013, Local Government Code. In other words, they argue that even if the trial judge concludes after conducting a hearing on a motion to disqualify that the district attorney’s continuing to prosecute a particular defendant might violate the Code of Professional Responsibility, the trial judge is powerless to disqualify the district attorney. I wholeheartedly disagree with this argument.

It appears to me that Presiding Judge McCormick and Judge White are erroneously arguing that what occurred in this cause is tantamount to the trial court removing, and not simply disqualifying for the prosecution of Clayton’s cases, the District Attorney of Taylor County and his staff. Again, the only issue before this Court is whether the trial judge had the authority to prevent the District Attorney of Taylor County and his staff from prosecuting a named defendant because the trial judge concluded after a hearing that to permit same to occur might cause the general public to believe that the District Attorney and his staff were acting improperly. However, no one is attempting to remove, suspend, or oust District Attorney Eidson from his position of District Attorney of Taylor County, either on a temporary or permanent basis, and to imply that that is what this Court is doing if it sustains the trial judge’s decision to disqualify Eidson in Clayton’s cases should be offensive to every member of this Court.

The motion to disqualify Eidson and his staff was addressed to the trial court’s sound discretion. I find that, based upon the record before us, the trial judge was certainly within his authority to grant the motion, and, under the facts and circumstances, he most certainly did not abuse his discretion in granting the motion.

Although a majority of this Court erroneously held in Pannell v. State, supra, that for purposes of Art. 38.23, V.A.C.C.P., the Code of Professional Responsibility does not constitute a statute or law of the State of Texas, “We agree with our brothers in *10 the federal system that such ethical violations are to be dealt with by means of the administrative mechanisms specially established for dealing with such unethical conduct,” (98), also see Henrich v. State, 694 S.W.2d 341 (Tex.Cr.App.1985); Henrich v. State, supra; cf. Silverman v. State Bar of Texas, 405 F.2d 410, 414 (5th Cir.1968), on remand 303 F.Supp. 486 (W.D.Tex.1969), I would apply the Code of Professional Responsibility to a motion to disqualify a district attorney and his staff from prosecuting a particular defendant if such representation might violate the Code of Professional Responsibility, or, as in this case, might give to the general public the appearance of impropriety.

Therefore, I would hold in this cause that the trial judge had the lawful authority and discretion to grant the motion to disqualify Eidson and his staff, in order to avoid the appearance of impropriety, from prosecuting Clayton, which can be a violation of the Code of Professional Responsibility.

In this instance, the trial judge conducted a hearing on the motion to disqualify Eid-son, the District Attorney of Taylor County, and his staff from prosecuting Clayton. After the hearing, the trial judge granted the motion to disqualify because, as he put it: “I have great concerns about that, those portions of our ethical considerations that require attorneys, including District Attorneys, to avoid the appearance of impropriety, and for that reason I do disqualify the District Attorney’s Office, and the District Attorney and your staff is disqual-ified_” (My emphasis.) Canon 9 of the Code of Professional Responsibility expressly states that “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” The gist of this Canon is to promote public confidence in our system and the legal profession. It exists simply because public confidence in law and lawyers must not be eroded by irresponsible or improper conduct of a lawyer, or which to a lay person might appear to be irresponsible or improper conduct, even though in reality it may not be improper conduct, but simply have the appearance that it is, which can be just as harmful to the Bench and Bar of this State as a showing of actual improper conduct.

It is true that statutorily a district attorney can be involuntarily removed from office only for incompetency, official misconduct, or intoxication, and then only after a jury trial. See § 87.013, Local Government Code. Also see Art. 2.08, V.A. C.C.P., which provides that a district attorney shall not be of counsel adversely to the State in any case, in any court, nor shall he, after he ceases to be such, be of counsel adversely to the State in any case in which he has been of counsel for the State, which would be a basis for disqualification. Furthermore, see Art. 2.01, V.A.C.C.P., which provides in part that the District Attorney shall not represent the State in any criminal case in the district courts of his district, in appeals therefrom, where he has been, before his election, employed adversely to the State. Thus, contrary to what the majority opinion appears to hold, in certain instances of statutory law, a district attorney does not himself decide whether he should remain on the case.

A motion to disqualify a particular district attorney is, however, “a matter of ethical, not legal, considerations ..., and that, particularly in cases involving Canon 9, the interest of the client is not the only consideration. Indeed, part of our test for disqualification under Canon 9 calls for a weighing of the likelihood of public suspicion ...” In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1348 (5th Cir.1981).

In this instance, the district court judge, obviously with his hand on the pulse of the community’s heartbeat, concluded after a public hearing that to permit the district attorney and his staff to prosecute Clayton might give to the general public the appearance of impropriety, and thus granted the motion to disqualify Eidson and his staff from prosecuting Clayton. Obviously, had attorney Adair figuratively been gagged and bound inside of a straight jacket, and kept locked in a closet, after he became employed by District Attorney Eid-son, one might intelligently argue that the trial judge abused his discretion in grant *11 ing Clayton’s motion to disqualify Eidson and his office from prosecuting him. However, after Adair became employed by Eid-son, Adair was actually the individual chosen by Eidson himself to assist him in preparing his defense against the motion to disqualify him and his office from prosecuting Clayton. To me, this was more than sufficient cause for the trial judge to exercise his discretion in the premises and grant the motion to disqualify not only Eidson, the district attorney, but Eidson’s entire office as well.

The Florida Supreme Court, in Florida v. Fitzpatrick, 464 So.2d 1185, 1188 (Fla.1985), held in extremely limited fashion “that imputed disqualification of the entire state attorney’s office is unnecessary when the record establishes that the disqualified attorney has neither provided prejudicial information relating to the pending criminal charge nor has personally assisted, in any capacity, in the prosecution of the charge.” In this instance, we are not confronted with the situation where the disqualified attorney had absolutely nothing to do, either directly or indirectly, with the cause about which the motion to disqualify relates, because Adair, though not a participant in the actual prosecution of Clayton, by assisting Eidson in the preparation of his defense to the motion to disqualify, certainly could not have totally ignored his former relationship with Clayton. Who better than Adair knew the actual facts of that relationship?

In Florida v. Fitzpatrick, Justice Ehrlich of that court concluded in the dissenting opinion that he filed in that cause that the entire state attorney’s office should have been disqualified in the prosecution of that case because of confidential communications that might have existed between the defendant and the attorney who was later hired by that office.

Justice Ehrlich displayed a certain amount of wisdom in his concern over the “avoiding the appearance of professional impropriety” Canon that exists in Florida, which is similarly worded to our own like Canon of Ethics, when he pointed out that “To the public at large, the potential for betrayal in itself [of the client confidentiality] creates the appearance of evil, which in turn calls into question the integrity of the entire judicial system.” ( 464 So.2d at 1188 ). Justice Ehrlich also pointed out that the relative cost and hardship flowing from disqualification is minor compared to the harm to the Bench and Bar that might ensue should the motion to disqualify not be granted, i.e., “to maintain public confidence in the Bar it is necessary not only to avoid actual wrong doing but an appearance of wrong doing.” Drinker, Legal Ethics 115 (1953). I pause to point out that, regarding Clayton’s capital murder case, in which special prosecutors were appointed to prosecute that case, and they did so successfully, neither Eidson, the district attorney, nor any member of his staff, has furnished this Court with any information showing how his office sustained any kind of real hardship in that prosecution, either financially or otherwise; therefore, I must presume none exists.

In a situation such as here, in addition to the fact that Adair was assigned the task of assisting in the preparation of a defense to the motion to disqualify Eidson and his office from prosecuting Clayton, the danger of Adair unintentionally or accidentally transmitting confidential information gained from Clayton when he represented Clayton would always be unquestionably great, notwithstanding that Adair might do everything humanly possible to isolate himself from Clayton’s cases, or a discussion thereof.

Disqualification under the circumstances in this cause is not to say that Adair cannot be trusted either to discharge his duties as an assistant district attorney faithfully, or not to maintain the confidences he learned when he represented Clayton. It is the appearance of impropriety, and not actual impropriety, that was the issue that the trial judge had to deal with. Again, the appearance of impropriety can be just as harmful as actual impropriety.

Furthermore, I believe that trial judges of this State are not going to grant motions to disqualify district attorneys, much like Legislative Continuances were obtained *12 many years ago by defense attorneys. Trial judges are simply not going to grant wholesale motions to disqualify district attorneys and their staffs from prosecuting named defendants. "Should, however, that occur I believe that this Court stands ready, able, and willing to overrule such action, and to grant those district attorneys summary relief.

Again, the issue in this cause does not encompass the situation where an effort is being made to remove Eidson from office, suspend him from office, oust him from office, either temporarily or permanently, or to dispute his right to that office; it only concerns whether the trial judge had the authority to decide whether Eidson and his staff should be disqualified from prosecuting Clayton. For the majority to state that “By preventing the Taylor County District Attorney from participating in a criminal prosecution, the trial court has effectively removed the District Attorney from his elected office,” at 4; “the trial judge has for all practical purposes removed the Taylor County Criminal District Attorney from his constitutionality protected office regarding the prosecution of this case,” at 7, is, under the facts of this cause, totally and absolutely absurd and shockingly ridiculous. To permit a District Attorney to be the sole judge of whether he is disqualified from prosecuting a particular defendant, no matter what the basis or the reason for the motion to disqualify might be, is ludicrous at best, and flawed to the gills at worst. It closely resembles leaving the wolf to guard the henhouse, in order to protect the chickens from the wolf. Furthermore, for purposes of the Code of Professional Responsibility, if “[tjhere is quite a difference in the relationship between lawyers working in private law firms and lawyers representing the State,” at 6, fn. 6, as the majority opinion argues, then perhaps we need to immediately draft two sets of the Code of Professional Responsibility; one for the prosecutors and one for the other members of the Bar.

Although not deciding whether the trial judge would have erred if he had removed defense counsel pursuant to the Canons of Ethics, in Stearnes v. Clinton, supra, this Court was confronted with the situation where a trial judge, without any justifiable legal basis, attempted to remove a court appointed attorney from representing the defendant. This Court held that “the power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at his discretionary whim_” ( 780 S.W.2d at 223 ), and ruled that under the facts and circumstances of that case the trial judge did not have the authority to remove the court appointed attorney from the case. As easily seen, the removal issue in Steames is not implicated in this cause because here we are only dealing with a motion to disqualify the District Attorney of Taylor County from prosecuting a named defendant, Clayton, as to his cases only, and no one else, because the District Attorney employed former counsel for Clayton. Cf. Emerson v. State, 54 Tex.Crim. 628 , 114 S.W. 834 (Tex.Cr.App.1908), (Held, because “the facts do not sufficiently show that the counsel mentioned had been employed by appellant or placed in such relation to the case as to disqualify him from representing the state,” ( 114 S.W. at 836 ), counsel, now a prosecuting attorney, was not disqualified from representing the State).

There is, of course, only one Code of Professional Responsibility of this State for all members of the Bar. The issue in this cause is whether a trial judge can disqualify a licensed member of the Bar, the Criminal District Attorney of Taylor County, and his staff, from participating in a particular criminal case because of the possibility such might violate at least one of the Canons.

The authorities all appear to agree that in determining whether a lawyer has avoided “ ‘even the appearance of professional impropriety’ under Canon 9, the movant must show that there is a reasonable possibility of the occurrence of ‘specifically identifiable appearance of improper conduct,’ and that the ‘likelihood of public suspicion or obloquy outweighs the social interest’ in obtaining counsel of one’s choice.” (Citations omitted.) In re Corrugated Con *13 tainer Antitrust Litigation, 659 F.2d at 1345 . All appear to agree that violations of other Canons may implicate Canon 9, the appearance of impropriety Canon, for purposes of deciding whether an attorney is disqualified from representing an individual or an entity. For example, one may establish a violation of Canon 4 simply by showing that there was an attorney-client relationship between the party seeking disqualification (here, the defendant Clayton) and Adair, Clayton’s former attorney. Of course, Adair’s former representation of Clayton is substantially related to the matters involved in the former representation. If a substantial relationship can be shown to exist between the subject matter of a former representation by the attorney and subsequent adverse representations, then a “substantial relationship” exists, i.e., the subject matters of the two representations are substantially related. Gleason v. Coman, 693 S.W.2d 564 (Tex.App.—14th Dist. 1985). Knowledge is imputed to “partners” of the lawyer disqualified, even if the members of the “partnership”, here the members of the District Attorney’s Office, later cease to be the District Attorney of Taylor County or assistant district attorneys of Taylor County.

The argument that to disqualify an entire law firm simply because one member formerly represented a client whose interests are now adverse to the member’s present law firm or employer can cause great harm is not necessarily specious, although such argument closely borders on being specious. In In re Corrugated Container Antitrust Litigation, supra, the Fifth Circuit held that “even great prejudice to the party whose attorney is disqualified would warrant departure from the substantial relationship standard.” ( 659 F.2d at 1346 ).

The Fifth Circuit .also pointed out that some courts invoke and apply two irrebuta-ble presumptions in this area. “The first is that confidential information has been given to the attorney actually doing work for the client (here, Adair). The second is that the attorney shared the information with his partners (here, Adair sharing confidential information obtained from Clayton with Eidson, the District Attorney).” ( 659 F.2d at 1346 ). The first presumption, the presumption of disclosure, is actually self-explanatory. Thus, a violation of Canon 4 will actually trigger a violation of Canon 9. The second presumption involves whether the likelihood of public suspicion outweighs the social interest in Eidson’s continued prosecution of Clayton, Adair’s former client. “Canons 9 and 4 do not contemplate comparing the relative harm to the former and present clients (the State and Clayton). This part of Canon 9’s test is designed to weigh social interests against each other. Though the protection of the right of a civil litigant to counsel of his choice is important, that social goal is outweighed here by the likelihood that the image of the legal profession would be tarnished by the continuance of this relationship.” In re Corrugated, supra, at p. 1348 .

I observe that just recently the Amarillo Court of Appeals, in Sherrod v. Carey, 790 S.W.2d 705 (Tex.App.-7th Dist.1990), handed down a “white horse” case, both factually and legally, to this cause. The only main distinction between this cause and that cause is there the State was attempting to certify the defendant to stand trial as an adult. Just as here, the defendant’s court appointed attorney left private practice and became employed as an assistant district attorney. Just as here, counsel was told by the District Attorney to isolate himself from discussions about the case and “have nothing to do with that case.” Contrary to here, however, counsel did not participate in preparing or assisting in the preparation of a defense to the motion to disqualify.

After counsel was replaced by other counsel, new counsel filed a motion to disqualify the District Attorney of Randall County and his staff from prosecuting the juvenile. Just as here, the trial judge granted the motion and appointed a special prosecutor.

The Amarillo Court of Appeals ruled that the “State’s assurances that [counsel] has been isolated from other members of the district attorney’s office is an acknowl-edgement that an apparent conflict of *14 interest exists. Under such circumstances, steps must be taken to ensure that the child’s rights are not jeopardized, invoking the trial court’s discretionary powers.” (My emphasis.)

Much like the State argues in this cause, the District Attorney of Randall County also argued that the trial judge had no authority to disqualify him and his staff from prosecuting the case. The Amarillo Court of Appeals, relying upon this Court’s cases of Ex parte Spain, 589 S.W.2d 132 (Tex.Cr.App.1979); Ex parte Morgan, 616 S.W.2d 625 (Tex.Cr.App.1981); the then San Antonio Court of Civil Appeals case of May v. State, 270 S.W.2d 682 (Tex.Cr.App.1954); and the Houston (1st) Court of Appeal’s case of Worthington v. State, 714 S.W.2d 461 (Tex.App.—1st Dist.1986, pet. ref'd), overruled the State’s arguments, and held that “article 2.01 must be construed broadly enough to protect a defendant from conflicts of interest involving not only the elected district attorney himself, but also members of his staff. The district attorney, and his entire office under appropriate circumstances, may be disqualified from participation in a particular case on constitutional grounds as well as under the Disciplinary Rules of Professional Conduct. The trial court has a duty to protect a defendant’s right to due process of law under both the United States and Texas Constitutions. These constitutional considerations override the inconsistent implications, if any, of article 2.01 argued by the State.” Because the Amarillo Court of Appeals correctly decided the issue in Sherrod v. Carey, I approve, without any reservations whatsoever, that decision. I further believe that if the Supreme Court of Texas is given the opportunity to review Sherrod v. Carey, it, too, will approve that decision.

As previously pointed out, the most harmful piece of evidence against Eidson is the fact that after he employed Adair as an assistant district attorney he assigned Adair to assist him in defending against the motion to disqualify. Presumptively, this caused Eidson and his office to have a conflict of interest, thus presumptively violating at least one of the Canons of Ethics.

Sherrod v. Carey, supra, implies that it is impossible to erect “The Chinese Wall Defense To Law-Firm Disqualification,” see Volume 128 University of Pennsylvania Law Review 677 (1980). Perhaps this is true. However, I save writing on “The Chinese Wall Defense” until the defense is established on the record and the record also shows that the defense had been fully complied with. We have neither in the record of this cause.

For the above and foregoing reasons, I respectfully dissent to this Court issuing the writ of mandamus to Eidson in this cause to rescind Judge Edwards’ order disqualifying Eidson and his staff from prosecuting Clayton in the capital murder case as well as the non-capital cases.

. Now see The Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, adopted by the Supreme Court of Texas on January 1, 1990, and found in the appendix immediately following Texas Government Code Ann. § 83.006 (Vernon Supp.1990).