When should a District Attorney's office be disqualified from prosecuting former clients of employees?

You may have been following the RICO case brought last year in Chattanooga, Tennessee in the news.  Steve Moore and I represent Courtney High.  Courtney is facing several charges in the RICO presentment.  If convicted of the murder of Bianca Horton, Courtney faces the death penalty. 

We recently filed a motion to disqualify the District Attorney's office from further prosecution in this case.  Judge Greenholtz denied the motion.  We recently filed a motion to reconsider, or in the alternative, for permission to interlocutory appeal.  The issue is complex and the law is unclear, so I decided to just post the text of our motion to reconsider so our position would be clear to anyone interested.  We've done our best to lay out the issue and our interpretation of the law in the motion below:

COMES NOW, Courtney High, Defendant in the above-styled cause, by and through counsel, having had the opportunity to have his Motion No. 7 heard before the Court, and in an effort to elucidate and clarify his position, and to persuade this Honorable Court to amend its earlier ruling, files this Motion to Reconsider, or in the Alternative, Grant its Permission to File an Interlocutory Appeal pursuant to Tennessee Rule of Appellate Procedure 9.

THE UNDISPUTED FACTS BEFORE THE COURT

  1. Attorney Lee Ortwein, who is now employed as a prosecutor for the Eleventh Judicial District Attorney General (hereinafter “District Attorney”), represented Cortez Sims through a jury trial wherein Mr. Sims was convicted of the murder of Talitha Bowman. That conviction is on appeal.  During the pendency of that trial, the State’s chief witness, Bianca Horton, was murdered.[1]  Due to being charged as a codefendant in the RICO Superseding Presentment[2], Cortez Sims is effectively a codefendant in the murder of Bianca Horton and all other counts associated with her even though he is not specifically named in those particular counts. 
  2. Ortwein also previously represented Mr. Montez Murphy.  Mr. Murphy is also charged in the Presentment.[3]
  3. Cortez sims is a direct codefendant of Courtney High in multiple Counts of the Presentment.[4]
  4. The District Attorney admits that Mr. Ortwein who works in his office has an actual conflict of interest with Mr. High and all of the other codefendants in the consolidated Allen[5]
  5. Written notice of Mr. Ortwein’s conflict of interest, the screening procedures implemented prior to this Honorable Court’s Order filed on January 10, 2019 (hereinafter referred as “Order”), and the necessity for such have never been provided to Cortez Sims, Montez Murphy or any other codefendant in the consolidated Allen
  6. No proof was offered by the State regarding where any paper or digital files regarding Mr. Ortwein’s previous representation of Mr. Sims or Mr. Murphy are kept.
  7. No proof was offered by the State as to when, if at all, members of the District Attorney’s staff were alerted to Mr. Ortwein’s conflict of interest, the screening procedures the District Attorney was implementing, and what actions, if any, his staff should take to comply with them.
  8. The District Attorney was aware of Mr. Ortwein’s conflict of interest before hiring him, and he contemplated whether Mr. Ortwein would be able to prosecute the Allen[6]
  9. Courtney High, Cortez Sims, Montez Murphy and all of the other Allen codefendants will never know what confidential information was shared, perhaps inadvertently, before this Court’s Order was issued.

REQUIREMENTS OF THE RULES OF PROFESSIONAL CONDUCT

The Court and the parties seem to agree that Tenn. Sup. Ct. R. 8, RPC 1.11 governs the disqualification of district attorney generals due to the vicarious imputation of their employees’ conflicts of interests.   However, there seems to be some confusion about what that means.  To be clear, Mr. High contends that RPC 1.11, as interpreted by the Court of Criminal Appeals in State v. Orrick, mandates that notice and screening are required to avoid an imputation of a conflict of interest in a district attorney’s office in the same manner as set forth for other lawyers in RPC 1.10(c).[7]

State v. Orrick is a difficult case to understand.[8]  In one passage it seems to imply that Rule 1.11(b) is not relevant to the appeal before the court, but in other passages, following key sections of analysis, the court cites with approval, and in support of its reasoning, the application of Rule 1.11(b) “…permitting screening and notice to avoid imputation for attorneys moving into government service in the same manner as provided for "other" attorneys in RPC 1.10(c)…”[9]  One possible explanation for the apparent confusion in Orrick, is that the relationship among the case law surrounding this issue, Tenn. Sup. Ct. Rule 8, RPC 1.10, and RPC 1.11 is confusing.[10]  There is no rule that specifically governs the responsibilities of a private attorney who formerly represented criminal defendants who then joins a district attorney’s office in the process of prosecuting those same defendants.[11]  The Orrick Court recognizes this, highlights the need for a specialized rule, and spends the rest of the opinion suggesting that the rule would look like RPC 1.11(b).[12] 

The word “permitting,” as used by the Orrick Court after its analysis of why a prosecutor’s actual conflict of interest should not be vicariously imputed to the district attorney’s office where she was employed, may be interpreted in multiple ways.  In everyday language, when we say a behavior is permitted, we usually mean that a person is free to choose whether to engage in a particular behavior without consequence.  This is not the sense in which the Orrick Court meant to use the word “permitting” in the following quotation:

See Tenn. Sup. Ct. Rule 8, RPC 1.11(b)(1)-(4) (2017) (permitting screening and notice to avoid imputation for attorneys moving into government service in the same manner as provided for "other" attorneys in RPC 1.10(c)); see id. 1.10(c)(1)-(4). As a result, the adequate screening procedures prevented the disclosure of the Defendant's confidential information, which is the primary concern in criminal cases.[13]

Here the Orrick Court means the requirements of Tenn. Sup. Ct. Rule 8, RPC 1.11(b)(1)-(4) (2017) are “permitted” if a district attorney’s office wishes to avoid the vicarious imputation of conflicts of interest of a new employee, just as the virtually identical requirements of RPC 1.10(c) are “permitted” if a law firm wishes to avoid the vicarious imputation of conflicts of interest of a new employee.[14] 

The notice and screening procedures, which are required by both RPC 1.10(c) and RPC 1.11(b) to avoid vicarious imputation of conflicts of interests are critical to protect client confidences in a case such as the one at bar where the attorney who has joined the district attorney’s office may be perceived as “switching teams” during ongoing litigation.[15]  When a lawyer “switches teams,” the Tennessee Supreme Court’s paramount concern is promoting lawyer-client communications and avoiding the impression that concerns of lawyer mobility might trump those of client confidentiality–we know this because it maintained the holding of Clinard v. Blackwood enshrined in RPC 1.10:

Although the holding of Clinard was grounded in the prior standard from the Code of Professional Responsibility guarding against the "appearance of impropriety," the Court also noted that its holding was necessary to further lawyer-client communications and to avoid the impression that the judiciary favors considerations of lawyer mobility over those of client confidentiality. Consequently, the Clinard rule continues under the present Rules.[16]

    While we certainly understand the District Attorney’s need to recruit and employ competent and talented attorneys, we do not think the Supreme Court of Tennessee meant to insulate district attorney generals’ offices from being required to follow the most basic notice and screening procedures designed to protect client confidences and Constitutional rights.

QUESTIONS AND PROPOSED ANSWERS FOR THE COURT’S CONSIDERATION

  1. Is Mr. Ortwein “switching teams” during ongoing litigation?

            The term “switching teams” comes to us from the following passage in Clinard v. Blackwood:

This is not a case in which conflict resulted from an attorney's prior representation in a different, unrelated matter. Mr. Davis's firm now stands as adversary against the Blackwoods in the very litigation in which Mr. Davis once represented them and gained their confidences. To analogize to baseball, Mr. Davis has not only switched teams, he has switched teams in the middle of the game after learning the signals. That Mr. Davis has been benched by his new team does little to ameliorate the public perception of an unfair game.[17]

    Mr.  Ortwein represented Cortez Sims at trial for the murder of Talitha Bowman.[18]  Mr. Ortwein argued pretrial motions to exclude the prior recorded testimony of Bianca Horton, to prevent Bianca Horton’s death from being presented to the jury, and to prevent the State from introducing evidence that Cortez Sims was a member of the Athens Park Bloods gang.[19]  It is hard to imagine how Mr. Ortwein could have prepared for and argued these motions without obtaining client confidences from Mr. Sims about the subject matter of the motions.[20]  The confidences Mr. Ortwein likely obtained from Mr. Sims relate to both individual elements and individual counts of the Presentment.[21]  This seems to be the very definition of “switching teams” during ongoing litigation.

            Neither Mr. High, nor Mr. Sims, nor any Allen codefendant will ever know if the client confidences Mr. Ortwein obtained during his former representation of Mr. Sims or Mr. Murphy were used behind the scenes, perhaps inadvertently, to secure their convictions if a conviction should result.  Courtney High is on trial for the murder of Bianca Horton.  If convicted, he faces the death penalty.  A conviction for a capital crime under these circumstances should not and must not stand. 

  1. Are the requirements of Tenn. Sup. Ct. R. 8, Rule 1.10(c) (2017) as they apply to private law firms and attorneys “permitted” or are they mandatory?

    Tenn. Sup. Ct. R. 8, Rule 1.10(c) (2017) states:

(c) Except with respect to paragraph (d) below, if a lawyer is personally disqualified from representing a person with interests adverse to a client of a law firm with which the lawyer was formerly associated, other lawyers currently associated in a firm with the personally disqualified lawyer may represent the person, notwithstanding paragraph (a) above, if both the personally disqualified lawyer and the lawyers who will represent the person on behalf of the firm act reasonably to:

(1) identify that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and

(2) determine that no lawyer representing the current client has acquired any information from the personally disqualified lawyer that is material to the current matter and is protected by RPC 1.9(c);

(3) promptly implement screening procedures to effectively prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm; and

(4) advise the former client in writing of the circumstances that warranted the implementation of the screening procedures required by this Rule and of the actions that have been taken to comply with this Rule.[22]

    Counsel for Mr. High, respectfully, submits that the requirements of Rule 1.10(c) are mandatory.   Law firms seeking to avoid the imputation of conflicts of interest and the associated disqualification from representing a client with adverse interests to a former client of a new employee of the firm must comply with these requirements. 

  1. Are the requirements set out in Tenn. Sup. Ct. R. 8, Rule 1.11(b) (2017) “permitted,” or are they mandatory?

            A plain reading of the text of Tenn. Sup. Ct. R. 8, Rule 1.11(b) (2017) itself seems to make them mandatory:

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless both the personally disqualified lawyer and the lawyers who are representing the client in the matter act reasonably to:

(1) ascertain that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and

(2) determine that no lawyer representing the client has acquired any material confidential government information relating to the matter; and

(3) promptly implement screening procedures to effectively prevent the flow of information about the matter between the personally disqualified lawyer and other lawyers in the firm; and

(4) advise the government agency in writing of the circumstances that warranted the utilization of the screening procedures required by this Rule and the actions that have been taken to comply with this Rule.[23]

    These requirements appear to be mandatory as they apply to government agencies including district attorney general’s offices.  The Orrick court stated as much in its analysis of how the prosecutor in that case had complied with the requirements of Rule 1.11(b)(1-4) after moving into government service:

The record reflects that Ms. Walkup was prohibited from participating in the prosecution of the Defendant and that she did not provide anyone working in the district attorney's office with information related to the Defendant's case. Ms. Walkup and the prosecutor did not communicate about this case, and any meetings about this case were held on a different floor from Ms. Walkup's office. The District Attorney General and Ms. Walkup discussed generally her conflicts of interests related to cases in which she previously served as defense counsel, and they decided she would have no involvement with those cases. The prosecutor's affidavit reflects that the District Attorney General instructed personnel not to communicate with Ms. Walkup about any pending case in which Ms. Walkup had served as defense counsel. The record does not reflect any improper communications occurred relative to the Defendant's case. Likewise, the Defendant's attorney and the victim's mother were notified in writing of Ms. Walkup's conflict of interests. Therefore, the record supports the trial court's determinations that Ms. Walkup had not participated in the prosecution, that she had not spoken to the prosecutor about the facts of the case, that Ms. Walkup had not disclosed the Defendant's confidential information, and that adequate screening procedures had been instituted preventing the disclosure of confidential information. See Tenn. Sup. Ct. Rule 8, RPC 1.11(b)(1)-(4) (2017) (permitting screening and notice to avoid imputation for attorneys moving into government service in the same manner as provided for "other" attorneys in RPC 1.10(c)); see id. 1.10(c)(1)-(4). As a result, the adequate screening procedures prevented the disclosure of the Defendant's confidential information, which is the primary concern in criminal cases. See Coulter, 67 S.W.3d at 32-33. Therefore, Ms. Walkup's disqualifying conflict of interests did not warrant vicarious disqualification of the District Attorney General's Office.[24] 

Taken in context, it seems the Orrick Court was making sure that the notice and screening procedures permitted to “avoid imputation for attorneys moving into government service” had been met, and only then, and “as a result” of the district attorney’s compliance, did the Court find that “adequate screening procedures prevented the disclosure of the Defendant’s confidential information.”[25]

    In the Orrick case, Ms. Walkup never received discovery.  This is factually opposite from the present case where Mr. Ortwein received not only discovery, but the confidences necessary to represent Mr. Sims in a jury trial.   In Orrick, “the District Attorney General and Ms. Walkup discussed generally her conflicts of interests related to cases in which she previously served as defense counsel, and they decided she would have no involvement with those cases” from the outset.[26]   In the case at bar, instead of deciding that Mr. Ortwein would have no involvement in the cases, the District Attorney contemplated whether Mr. Ortwein would be able to prosecute the Allen cases[27].  In the Orrick case, “the District Attorney General instructed personnel not to communicate with Ms. Walkup about any pending case in which Ms. Walkup had served as defense counsel.”[28]  The District Attorney issued no such instruction in this case.  Likewise, in the Orrick case, the Defendant's attorney and the victim's mother were notified in writing of the prosecutor’s conflict of interests.[29]  Upon information and belief, no notice has ever been provided to Cortez Sims, Montez Murphy, Courtney High or any other Allen codefendant.  As such, and as a result of the District Attorney’s failure to comply with Tenn. Sup. Ct. Rule 8, RPC 1.11(b)(1)-(4) (2017), the District Attorney’s office must be disqualified from prosecuting the Allen cases.

    Only requiring district attorney general’s offices to comply with Tenn. Sup. Ct. R. 8, Rule 1.11(d) (2017) would create an unjust result.  Essentially, the Tennessee Supreme Court would be signaling to an already vulnerable defendant under prosecution from a district attorney’s office that he must trust that his former lawyer who now works for his prosecutor, will not, perhaps inadvertently, relay the defendant’s confidences to his new employer.  Which is why the Orrick court incorporated the requirements of Tenn. Sup. Ct. Rule 8, RPC 1.11(b)(1)-(4) (2017) in its analysis and justification for its holding.[30]

    WHEREFORE, for the reasons set out above, Counsel for Courtney High respectfully requests the following:

  1. that an additional evidentiary hearing be held regarding this matter so that additional testimony from witnesses who did not testify at the last hearing may be heard;[31] and
  2. that this Honorable Court enter an order disqualifying the District Attorney General for the Eleventh Judicial District from prosecuting the Allen cases; or
  3. in the alternative provide Courtney High permission to file an interlocutory appeal pursuant to Tenn. Ct. App. R. 9.

                                                    Respectfully submitted,

[1]           See transcripts of Cortez Sims’ pretrial motions and murder trial attached hereto as Exhibit 1 and Exhibit 2 respectively.

[2]           The charging instrument in this case is a superseding presentment brought under Tennessee’s Racketeer Influenced and Corrupt Organization (RICO) Act of 1989.  Tenn. Code. Ann. § 39-12-201 et seq.  It is attached hereto as Exhibit 3.  (hereinafter “Presentment”)

[3]           Id.

[4]           Id.

[5]           This Court generally refers to all of the cases brought by RICO superseding presentment collectively as the "Allen cases" or the "Allen prosecutions," with the reference being to the first named accused.

[6]           See Affidavits of Neal Pinkston and Melydia Clewell attached hereto collectively as Exhibit 4.

[7]           See State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *17 (Tenn. Crim. App. Oct. 15, 2018). 

[8]           See id. generally

[9]           In Orrick, early in its general analysis of the difference between RPC 1.10 and Rule 1.11 the court wrote:   

By contrast, Rule 1.11 recites the special rule regarding conflicts of interests for current and former government officers and employees. See Tenn. Sup. Ct. Rule 8, RPC 1.11 (2017). The majority of the Rule addresses scenarios not relevant to this appeal. See Tenn. Sup. Ct. Rule 8, RPC 1.11(a) (relevant to attorneys who are former public officers or government employees); 1.11(b) (relevant to screening procedures to avoid vicarious disqualification of a firm because an attorney employed by the firm is a former public officer or government employee subject to disqualification pursuant to subsection (a)); 1.11(c) (relevant to attorneys who are former government employees or public officers and the need to protect "confidential government information"). The provision containing language relevant to an attorney who leaves private practice for government service is subsection (d)(2)(i), which prohibits an attorney from "participat[ing] in a matter in which the lawyer participated personally and substantially while in private practice[.]" See Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(2)(i).

State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *12 (Tenn. Crim. App. Oct. 15, 2018)(emphasis added).  This is the only place in Orrick that the Court of Criminal Appeals chose to mention that some scenarios where RPC 1.11(b) apply are not applicable to the facts in Orrick.  But the court goes on to indicate that RPC 1.11(b) does apply in situations such as the case at bar even though not specifically stated in the rule. See State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *17 (Tenn. Crim. App. Oct. 15, 2018). Two pages after noting that the text of RPC 1.11(b) doesn’t specifically include attorneys moving into district attorney’s offices, the court provides guidance as to why it chose to undertake such an exhaustive analysis of Rules 1.10., 1.11, and the per se rule of disqualification:

The practical implications of applying the per se rule of disqualification in Rule 1.10(d) and Clinard highlight the need for a special rule regarding a public attorney's conflicts of interests and vicarious disqualification of the entities for which the attorney works…

…Application of the per se rule of disqualification would also deter competent attorneys from entering public service as assistant district attorneys general, impeding a district attorney general's ability to hire competent attorneys while simultaneously complying with ethical standards. See Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [4] (2017). The provisions related to screening "are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service." See Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [4]…

Id. at *13.  It seems clear from the passage above that the Orrick court believes that Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [4] (2017) directly applies to situations where private attorneys bring their conflicts of interest with them when joining district attorney’s offices.  Further, the provisions related to screening are necessary to strike a balance between the competing interests of the former client whose confidences are in jeopardy and deterring qualified attorneys from entering public service.

    After analyzing the actions of the district attorney’s office in Orrick and finding the district attorney had complied with the requirements of RPC 1.11(b), the court goes on to cite RPC 1.11(b) in support of its reasoning for the ultimate holding.  See State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *17 (Tenn. Crim. App. Oct. 15, 2018). We respectfully submit to this Honorable Court, that the Orrick Court, at least, does not believe that the only responsibility for a district attorney in situations such as the case at bar is found in Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(2)(i).  See id.  Further, we read Orrick to mean that the specialized rule they are proposing may be found in RPC 1.11(b) when taken as a whole with the Comments to RPC 1.11, even though the rule’s text does not make it specific to district attorney’s offices. The Orrick Court’s decision not to rely on RPC 1.11(d)(2)(i) without reference to any other notice and screening procedures in support of its final analysis supports our position.

[10]         See State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *6 (Tenn. Crim. App. Oct. 15, 2018);

[11]         See generally Tenn. Sup. Ct. Rule 8, RPC 1.11.

[12]         See State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *17 (Tenn. Crim. App. Oct. 15, 2018).  Please see footnote 9 for a more detailed analysis.

[13]         See id.

[14]         See id.

[15]         See Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001)(defining “switching teams” as learning a client’s confidences and then becoming the same client’s adversary by joining an adversarial law firm during ongoing litigation involving the same subject matter). 

[16]         Tenn. Sup. Ct. R. 8, RPC 1.10, Cmt. [9] (emphasis added).  While we recognize that the per se disqualification rule does not apply to district attorney’s offices, we believe concerns of client confidentiality should trump lawyer mobility.  The Tennessee Supreme Court recognized this and promulgated the screening and notice procedures as set out in RPC 1.11(b) and RPC 1.10(c).  See id.  These procedures are mandatory for a lawyer who “switches teams” if the lawyer’s new “team” wishes to avoid disqualification and in some instances even that will not save them from disqualification.

[17]         Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001).

[18]         See Exhibit 1 and Exhibit 2.

[19]         See Exhibit 1.

[20]         See id.

[21]         See Exhibit 3

[22]         Tenn. Sup. Ct. R. 8, RPC 1.10(c) (2017).

[23]         Tenn. Sup. Ct. R. 8, Rule 1.11(b)(1-4) (2017). 

[24]         State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *17 (Tenn. Crim. App. Oct. 15, 2018).

[25]         Id.

[26]         Id.

[27]         See affidavits of District Attorney General Neal Pinkston and Melydia Clewell attached hereto as “Exhibit 3”and “Exhibit 4” respectively.

[28]         State v. Orrick, No. M2017-01856-CCA-R9-CD, 2018 WL 4961414 at *17 (Tenn. Crim. App. Oct. 15, 2018).

[29]         Id.

[30]         Id.

[31]         Counsel for Courtney High did not think it would be necessary to subpoena Mr. Cortez Sims to the last hearing.  However, we now believe that he should be able to make an informed decision as to whether he would like to testify regarding client confidences he may have shared with Mr. Ortwein.   

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