State v. Baker
Annotate this Case
State v. Baker (2006-358)
2007 VT 84
[Filed 24-Aug-2007]
ENTRY ORDER
2007 VT 84
SUPREME COURT DOCKET NO. 2006-358
MAY TERM, 2007
State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 3, Orleans Circuit
Donald Baker }
} DOCKET NO. 653-12-04 OsCr
Trial Judge: A. Gregory
Rainville
In the above-entitled cause, the Clerk will enter:
¶ 1. The State appeals the decision of the trial court to
disqualify the prosecuting attorney and the entire Orleans County State's
Attorney's Office (OCSA) based on the appearance of a conflict of interest.
While in private practice, before becoming Deputy State's Attorney for
Orleans County, Joseph Malgeri represented a co-defendant and state's
witness in defendant's case. The issue in this appeal is whether the
deputy state's attorney was properly disqualified, under
conflict-of-interest rules, because of the earlier representation. We find
he was not and reverse.
¶ 2. On December 2, 2004, the Ammex duty-free store in Derby Line,
Vermont was robbed. On December 9, 2004, following an investigation of the
crime, the State charged defendant with kidnaping and grand larceny in
violation of 13 V.S.A. § 2402(a)(1)(E) and 13 V.S.A. § 2501 respectively.
More than a year later, the State charged a co-defendant with aiding in the
commission of a felony and perjury in relation to that same robbery. The
perjury charge resulted from false statements the co-defendant allegedly
made during a deposition taken in the defendant's case. The state
dismissed the perjury charge as part of a plea agreement resolving all
pending charges against the co-defendant. The co-defendant became a chief
witness in the prosecution of defendant.
¶ 3. Defense counsel learned on July 20, 2006 that Joseph Malgeri,
the deputy state's attorney acting as lead prosecutor in this case, had
previously represented the co-defendant on DUI and
false-information-to-a-police-officer (FIPO) charges in 1995. Deputy
State's Attorney Malgeri had no recollection of this prior representation
and therefore did not disclose it.
¶ 4. Defendant subsequently filed a motion to disqualify Deputy
State's Attorney Malgeri and the entire OCSA as prosecutors in his case,
and the State opposed that motion. The co-defendant entered a waiver of
any conflict of interest related to his prior representation by attorney
Malgeri on August 8, 2006. The Orleans District Court ruled that the
appearance of a conflict of interest was sufficient to warrant
disqualification of Deputy State's Attorney Malgeri and, by extension, the
whole OCSA office.
¶ 5. There is scarce Vermont case law dealing with a conflict of
interest resulting from a prior representation of a co-defendant by the
prosecuting attorney against a current defendant. Thus, the trial court
examined case law from other jurisdictions in reaching its decision. The
court acknowledged that most states find disqualification is not
"automatic" in similar circumstances. It reasoned, though, that "given the
need to protect against the appearance of impropriety and the risk of
prejudice attendant on abuse of confidence, however slight," Deputy State's
Attorney Malgeri should be disqualified. (quoting People v. Tessitore, 577 N.Y.S.2d 680, 682 (N.Y. App. Div. 1991). The court then imputed the
disqualification to the entire OCSA because various attorneys in the office
had appeared in court during the course of the prosecution of both
defendant's and the co-defendant's cases, which lasted more than six
months.
¶ 6. "A motion to disqualify counsel is a matter that rests within
the sound discretion of the trial court, and its ruling will not be
disturbed absent a showing of an abuse of discretion." Stowell v. Bennett,
169 Vt. 630, 631, 739 A.2d 1210, 1211 (1999) (mem.). "[The] decision will
stand on appeal unless the requesting party shows that the court either
failed to exercise its discretion altogether or exercised it for reasons
that are clearly untenable or unreasonable." Herald Ass'n v. Dean, 174 Vt.
350, 359-60, 816 A.2d 469, 477-78 (2002) (citing Burlington Free Press v.
Univ. of Vt., 172 Vt. 303, 307, 779 A.2d 60, 64 (2001)). When the
appellant contends that the trial court erred in applying the law, the
review is de novo. Alger v. Dep't of Labor & Indus., 2006 VT 115, § 36,
___ Vt. ___, 917 A.2d 508.
¶ 7. "The precept that an attorney scrupulously avoid representing
conflicting interests and hold inviolate the confidence and secrets
entrusted to him by his client" applies equally to a prosecuting attorney
as to an attorney in the private sector. State v. Miner, 128 Vt. 55,
61-62, 258 A.2d 815, 819 (1969). In Vermont, attorney conflicts of
interest are addressed by the Vermont Rules of Professional Conduct, which
state, "[a] lawyer who has formerly represented a client in a matter shall
not thereafter represent another person in the same or a substantially
related matter in which that person's interests are materially adverse to
the interests of the former client unless the former client consents after
consultation." V.R.Pr.C. 1.9(a). This rule would preclude Deputy State's
Attorney Malgeri from representing the State (another person) against the
co-defendant "in the same or a subtantially related matter." Id.
(emphasis added). Here, though, Deputy State's Attorney Malgeri is
representing the State against a person other than the co-defendant, and
Rule 1.9 must be viewed with this important distinction in mind.
¶ 8. Although there are no Vermont cases which directly address
the particular conflict-of-interest issue presented here, two cases are
useful in establishing the current state of Vermont law. We applied the
framework of Rule 1.9 in State v. Crepeault, in which the defendant in a
sexual abuse case had previously been represented by the prosecuting
attorney in a CHINS (child in need of care or supervision) proceeding. 167
Vt. 209, 704 A.2d 778 (1997). We held that where a prosecuting attorney
becomes aware that she or an associate had previously represented a
defendant in a substantially related matter, the attorney has a duty to
disclose this relationship to the court and defense counsel. Id. at
218-19, 704 A.2d at 784. Two years later, we addressed the issue in a case
in which an attorney represented the defendant in a criminal matter and
then represented the plaintiff in a civil suit to regain possession of a
mobile home from the same defendant several years later. Stowell, 169 Vt.
at 630-31, 739 A.2d at 1210-11. The defendant moved to disqualify the
attorney by arguing that, despite a lack of substantial relationship
between the matters, the appearance of impropriety was sufficient to
justify disqualification. Id. We rejected that argument, however, finding
that " 'the appearance of impropriety alone is simply too slender a reed on
which to rest a disqualification order except in the rarest of cases.' "
Id. at 632, 739 A.2d at 1212 (quoting Bergeron v. Mackler, 623 A.2d 489,
494 (Conn. 1993)). We found that because the two matters were unrelated,
no presumption of confidential disclosure arose. Id.
¶ 9. Here, the trial court relied on two cases from other
jurisdictions in which the attorney previously represented a co-defendant
and then switched hats and joined the same prosecution against a defendant.
In Tessitore, the court held that disqualification was proper where the
attorney had preliminarily represented the co-defendant and then appeared
for the prosecution at the defendant's sentencing hearing in the same case.
577 N.Y.S.2d at 682. In Lane v. State, the court found a due process
violation when an attorney first represented a co-conspirator and then
appeared as special prosecutor in the defendant's case. 233 S.E.2d 375, 378 (Ga. 1977). The trial court here, though, failed to distinguish the
critical fact that the prosecuting attorneys in both these cases had
previously represented co-defendants in the same controversy, and so an
examination of whether the matters were substantially related was not
necessary. The Tessitore and Lane courts properly recognized that "[s]uch
counsel must be presumed to have received confidential communications from
his client concerning the crimes charged against the alleged co-conspirator
which he can use in prosecuting the [defendant]." Lane, 233 S.E.2d at 378.
¶ 10. In a leading Connecticut case, the trial court disqualified
plaintiff's counsel for a conflict of interest based solely on an
"appearance of impropriety" and the perception of impropriety by the
defendant. Bergeron, 623 A.2d at 494. The Connecticut Supreme Court
reversed because the trial court "failed to consider the relationship
between the firm's representation of the defendant in a residential house
closing and its representation of the plaintiffs seeking a protective order
as witnesses in the defendant's [divorce] action." Id. In the case before
us, the trial court likewise failed to consider whether the co-defendant's
1995 case and defendant's 2005 case involve substantially related matters.
Without this necessary examination of the relationship between the two
matters, the trial court's exercise of discretion cannot be sustained.
¶ 11. We next consider whether the two matters in which Deputy
State's Attorney Malgeri participated were, in fact, substantially related.
"Substantiality is present if the factual contexts of the two
representations are similar or related." Crepeault, 167 Vt. at 216, 704 A.2d at 783 (citation and quotations omitted). "Thus, 'determining whether
an attorney's current representation involves a substantially related
matter to that of a former client requires an analysis of the facts,
circumstances, and legal issues of the two representations.' " Id.
(quoting State ex rel. McClanahan v. Hamilton, 430 S.E.2d 569, 572-73 (W.
Va. 1993)). Courts have not settled on a single standard to determine when
a prosecutor must be disqualified from prosecuting a defendant because of
the prosecutor's prior association with the representation of a
co-defendant. Generally, they conclude that each case requires careful
analysis of all relevant circumstances.
¶ 12. The Bergeron court advised that "[t]he standards for
attorney disqualification are directed at protecting client confidences."
623 A.2d at 494. "The substantial relationship test is not a formalistic
inquiry into degrees of closeness, but is in large measure a judgment as to
whether the former client's confidences are at risk of being turned against
him." 1 G. Hazard & W. Hodes, The Law of Lawyering § 13.5, at 13-13 (Supp.
2005). To make these judgments, courts apply a variety of criteria. Id.
Many courts emphasize two significant factors:
(1) the presence or absence of a prior direct attorney-client
relationship between the defendant seeking disqualification and
the prosecuting attorney and (2) the presence or absence of
evidence that the prosecuting attorney actually received
confidential information from or about the complaining defendant.
McFarlan v. Dist. Court, 718 P.2d 247, 250 (Colo. 1986) (citations
omitted). See also Chambers v. Superior Court, 175 Cal. Rptr. 575, 578
(Ct. App. 1981) ("Once the [attorney-client] relationship is established,
the question is whether confidential information was imparted during its
existence."); Martin v. Commonwealth, 361 S.W.2d 654, 656 (Ky. Ct. App.
1962) (finding no conflict when no attorney-client relationship existed
between prosecutor and defendant, so long as confidential information was
not disclosed by the appellant); Crawford v. State, 840 P.2d 627, 637
(Okla. Crim. App. 1992) (excluding an attorney from "assist[ing] in the
prosecution of a criminal case if, by reason of his professional relations
with the accused, he has acquired a knowledge of facts upon which the
prosecution is predicated or which are closely interwoven therewith"
(quotations and citation omitted)). The McFarlan court considered whether
a newly-elected District Attorney, who had been a law partner in the firm
representing a co-defendant in the same matter, should be disqualified. It
held that "an accused seeking to disqualify a prosecutor because of prior
representation of a co-defendant . . . must show that . . . the prosecutor
. . . by virtue of the prior professional relationship with the
co-defendant, received confidential information about the accused which was
substantially related to the pending criminal action." McFarlan, 718 P.2d
at 251. The court there held that no presumption of confidential
disclosure was required and found no such allegation of confidential
disclosure by the petitioner. Id.
¶ 13. In Crepeault, we found that the two representations were
"substantially related" because the prior case concerned the defendant's
parenting abilities and relationship with her children, and the later case
involved sexual molestation of one of the children by that same defendant.
167 Vt. at 217-18, 704 A.2d at 784. Because a substantial relationship was
found to exist, the court held that presumptive disqualification was
required to mitigate even the appearance of any conflict or bias. Id. at
218, 704 A.2d at 784. Thus, the concern for an "appearance of impropriety"
arises only once the "substantially related" element is demonstrated. Id.
at 217, 704 A.2d at 783 (stating that "[i]n addition to safeguarding client
confidentiality, the presumptive disqualification serves to avoid any
appearance of impropriety" (quotations and citation omitted)). Here,
though, there is no similar underlying relationship between the 1995
criminal case against the co-defendant and the current criminal case facing
defendant.
¶ 14. These decisions lead us to conclude that the trial court's
disqualification of Deputy State's Attorney Malgeri was not justified by
the circumstances. We find no relationship between the co-defendant's 1995
case and defendant's 2004 case. The defense argues that the co-defendant's
lack of truthfulness connects these cases because Deputy State's Attorney
Malgeri was exposed to the co-defendant's 1995 FIPO charge and his alleged
perjury during his deposition in preparation for defendant's 2004 case.
Yet this argument is without merit; Deputy State's Attorney Malgeri gains
no advantage in prosecuting the case against defendant by knowing that his
chief witness has a conviction for dishonesty. This information would be
available to any prosecutor involved in the case, and the co-defendant's
apparent propensity for dishonesty only arms the defense with stronger
ammunition to impeach his testimony at defendant's eventual trial. This
argument fails to meet any of the tests established by the various
jurisdictions discussed above. The facts supporting the prosecution of a
DUI and FIPO charge against the co-defendant in 1995 have no relation to
the facts supporting the kidnaping and grand larceny charges against
defendant in 2004. The two cases are not substantially related and it was,
therefore, error to look for an appearance of impropriety.
¶ 15. Vermont Rule of Professional Conduct 1.10(a) states "[w]hile
lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing
so by Rules 1.7, 1.8(c), 1.9 or 2.2." Because no conflict of interest
exists for Deputy State's Attorney Malgeri, the OCSA cannot be disqualified
through imputation. Therefore, the trial court's ruling to disqualify both
Deputy State's Attorney Malgeri and the OCSA is reversed.
Reversed.
BY THE COURT:
_________________________________________
Paul L. Reiber, Chief Justice
_________________________________________
John A. Dooley, Associate Justice
_________________________________________
Denise R. Johnson, Associate Justice
_________________________________________
Marilyn S. Skoglund, Associate Justice
_________________________________________
Brian L. Burgess, Associate Justice
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