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Defense attorney on a case now the prosecutor?

Posted Tuesday, February 19, 2019 by Andrew Charles Huff

What happens to a case when the defense attorney has been elected county prosecutor? An interesting situation arose after Mr. Garth Dano was elected Grant County Prosecuting Attorney but a case was returned on appeal he was previously involved in.

Prior courts have found that in similar situations when an attorney transitions from representing individual clients to the position of elected prosecutor, conflicts of interest can arise, restricting not only the attorney’s ability to work on a given case, but also necessitating recusal of the entire prosecutor’s office. The standard set by the Washington Supreme Court is that when an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor’s office should ordinarily be disqualified from further participation.

The question raised by Mr. Nickels in this case was whether the Supreme Court’s office-wide recusal standard contemplates a bright-line rule and, if not, what circumstances can disentangle an elected prosecutor’s need for recusal from that of the prosecutor’s office.

This court held that a prosecutor’s office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor’s current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor’s conflict of interest.

Here, Grant County Prosecuting Attorney Garth Dano previously represented David Nickels in a first degree murder case that remains pending in Grant County Superior Court. Mr. Dano’s work caused him to be privy to confidential work product and attorney-client information. Given this circumstance, coupled with the seriousness of Mr. Nickels’s criminal charge, extraordinary circumstances do not justify differentiating Mr. Dano’s conflict of interest from that of the entire Grant County Prosecuting Attorney’s Office. Instead, the general rule applies and the entire prosecutor’s office must be recused along with Mr. Dano.

State v. Nickels, WA State Court of Appeals, Division III, No. 35369-9-III