State v. Nickels ( 2020 )

This opinion was
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Susan L. Carlson
juai Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Petitioner, No. 96943-4
En Banc
DAVID EMERSON NICKELS,
Filed JAN 3 y 2020
Respondent.
OWENS,J. — This case asks us to revisit the question of whether an elected
county prosecutor's prior involvement in a defendant's case should presumptively
disqualify the entire prosecutor's office from prosecuting the defendant in the same
case. When we first addressed this question in State v. Stenger, we held that an
elected prosecuting attorney's previous representation of a defendant in either the
same case or a closely interwoven matter "should ordinarily" disqualify the entire
prosecutor's office. Ill Wn.2d 516, 522, 760 P.2d 357(1988). The State argues the
2006 amendments to Washington's Rules ofProfessional Conduct(RPCs)—
specifically, two amendments foreclosing office-wide imputations of conflicts for all
State V. Nickels, No. 96943-4
government attorneys generally—superseded Stenger. But StengeNs narrowly crafted
rule applies only to Washington's 39 elected county prosecutors who, despite
adequate screening, retain broad discretionary and administrative powers over their
offices and employees. Accordingly, we hold that Stenger remains good law, and we
affirm the Court of Appeals' decision disqualifying the Grant County Prosecuting
Attorney's Office.
FACTS
The State charged David Nickels with first degree murder on June 16, 2010, in
Grant County, Washington. Though represented by counsel. Nickels acquired additional
legal assistance from a local criminal defense attorney. Garth Dano. The parties agree
that Dano's involvement in Nickels' defense creates a conflict of interest requiring
Dano's personal disqualification, but they dispute the scope of his involvement. The
record establishes that Dano entered a notice of association of counsel and appeared on
the record to receive a jury question and to receive the jury's verdict. The record further
establishes that after Nickels' conviction in 2012,Dano conducted interviews with jurors
and potential exonerating witnesses. Finally, via his counsel's uncontested affidavit.
Nickels asserts Dano received privileged work product through his participation in
crafting the defense's strategy and theory ofthe case, and his meeting personally with
Nickels.
In 2014, while Nickels' appeal was pending, Dano was elected Grant County
prosecutor. Subsequently, in 2017,the Court of Appeals reversed Nickels' conviction.
State V. Nickels, No. 96943-4
State V. Nickels, No. 31642-4-III(Wash. Ct. App. Feb. 28, 2017)(unpublished),
http://www.courts.wa.gov/opinions/316424_unp.pdf. On remand, the Grant County
Prosecuting Attorney's Office immediately sought to screen now-Prosecutor Dano.'
Nickels moved to disqualify the entire office, arguing that under Stenger, Dano's prior
involvement in his defense necessitated the blanket recusal.
The trial court denied Nickels' motion; but the Court of Appeals reversed and,
applying Stenger, ordered the disqualification ofthe entire Grant County Prosecuting
Attorney's Office. State v. Nickels, 7 Wash. App. 2d 491, 434 P.3d 535 (2019).
Further, after determining that Stenger provided for an exception to the presumptive rule
of disqualification in certain "extraordinary circumstances" and that we had not defmed
what is "extraordinary," the Court of Appeals applied its own two-factor "extraordinary
circumstances" test. Id. at 497, 501. The State sought our review, which was granted.
State V. Nickels, 193 Wn.2d 1012(2019).
ISSUE
Does Stenger remain good law, presumptively requiring the disqualification of
an entire prosecutor's office when the elected prosecutor is personally disqualified
due to their previous involvement in the defendant's current case or other closely
interwoven matter?
The adequacy of the State's current screening measures are not before us.
State V. Nickels, No. 96943-4
ANALYSIS
Whether attorney conduct violates the relevant RPCs is a question of law,
which we review de novo. Eriks v. Denver, 118 Wash. 2d 451, 457-58, 824 P.2d 1207
(1992).
1. The 2006 Amendments to RFC 1.10(d) and Comment 2 to RFC 1.11 Do Not
Supersede Stenger's Narrow Rule
In Stenger, the defendant moved to disqualify the entire prosecutor's office
after the Clark County prosecutor—^the defendant's former counsel—sought the death
penalty. 111 Wash. 2d at 518-19. During his service as defendant's counsel, the elected
prosecutor was privy to the defendant's privileged information. Id. at 519.
Subsequently, as elected prosecutor, he directly participated in and administered over
multiple aspects of the defendant's prosecution before his eventual withdrawal and
attempted screening. Id. at 519-520. In our analysis, we recognized that "privileged
information obtained by the prosecuting attorney when he was the defendant's
counsel in the previous case could well work to the accused's disadvantage in this
case." Id. at 522. Accordingly, we held:
Where the prosecuting attorney (as distinguished from a deputy
prosecuting attorney) has previously personally represented the accused
in the same case or in a matter so closely interwoven therewith as to be
in effect a part thereof, the entire office of which the prosecuting
attorney is administrative head should ordinarily also be disqualified
from prosecuting the case.
Id. Notably, in announcing this rule, we clarified that office-wide disqualification was
"neither necessary nor wise" when a deputy prosecuting attorney was personally
State V. Nickels, No. 96943-4
disqualified. Id. at 523. Thus, contrary to the characterizations of amici for the State,
StengeNs rule does not apply to all public law offices generally or the Washington
Attorney General's Office specifically; it applies only to elected county prosecutors,
and then only when their offices seek to prosecute a defendant they previously
represented in either the same case or a closely interwoven matter.
Nearly two decades after our decision in Stenger, RPC 1.10 and 1.11 were
substantively amended. Relevant here, these rules now provide that a government
lawyer's personal conflict of interest is no longer imputed to their entire office. See
RPC 1.10(d); RPC 1.11 cmt. 2.^ The State asserts these amendments to the rules
superseded Stenger. Accordingly, the State argues the Court of Appeals' reliance on
Stenger's rule of presumptive disqualification—^not the general policy of screening
advanced by the current RPCs—^was error.
In support, the State relies on Wallace v. Evans, 131 Wash. 2d 572, 934 P.2d 662
(1997), but neither Wallace nor its progeny is dispositive here. In Wallace, we held
that a significant change in the rules may supersede our prior decisions interpreting a
preamendment version ofthose rules. Id. at 576-77. However,Stenger's rule of
^ RPC 1.10(d) states in part that "[t]he disqualification of lawyers associated in a firm
with former or current government lawyers is governed by Rule 1.11." RPC 1.11
comment 2 states in part that "[bjecause of the special problems raised by imputation
within a govemment agency, paragraph (d) does not impute the conflicts of a lawyer
currently serving as an officer or employee of the government to other associated
govemment officers or employees, although ordinarily it will be prudent to screen such
lawyers."
State V. Nickels, No. 96943-4
presumptive disqualification was not interpreting a prior version of RPC 1.10 or RPC
1.11, relying instead on two out-of-state decisions for its reasoning. See Stenger, 111
Wash. 2d at 522 n.l3 (citing People v. Lepe, 164 Cal. App. 3d 685, 688, 211 Cal. Rptr.
432(1985); State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379(Ind. 1982)).
While the 2006 amendments discuss imputations of conflicts for all
government attorneys generally, Stenger enumerated a narrow rule for an even
narrower class of persons. To be clear, Stenger'^ presumption of office-wide
disqualification touches only Washington's 39 elected county prosecutors and it
applies only when their offices are called to prosecute a defendant whom the elected
prosecutor previously represented in either the same case or another closely
interwoven matter. Stenger, 111 Wash. 2d at 522. The amendments to RPC 1.10(d) and
RPC 1.11 comment 2 enumerated a general rule for imputation of conflicts of interest
between government attorneys and their offices that we read in harmony with
StengeCs narrow rule. Accordingly, we hold that office-wide disqualification is
presumptively proper when an elected prosecutor has previously represented the
defendant in the same case or closely interwoven matter.
2. Public Policy and the Public's Absolute Right to the Appearance ofa Just
Proceeding Further Support Our Decision To Uphold Stenger
In addition to our determination that the RPC amendments have not superseded
StengePs narrow rule of presumptive disqualification, today's holding is compelled
by our mandate to preserve the public's confidence in the impartial administration of
State V. Nickels, No. 96943-4
justice and the appearance of a just proceeding. See State v. Tracer, 173 Wash. 2d 708,
720, 272 P.3d 199(2012). The State argues that office-wide disqualification inflicts a
distinct harm by depriving the citizenry of its chosen representative. The State
contends this deprivation is significant given both the elected prosecutor's role in
shaping office policy and their direct accountability to the electorate for their office's
acts. In support, the State argues that "Prosecutor Dano confers appointments on
attorneys whom he trusts to follow his policies," and the State candidly recognizes
that any deputy prosecuting attorney who fails to comply with Dano's policies may be
terminated at will.^ State's Resp. to Br. of Amici Curiae Wash. Ass'n of Criminal
Def. Lawyers & Wash. Def. Ass'n at 7. Furthermore, the State argues office-wide
disqualification will require courts to appoint independent prosecutors who are "not
required to have any familiarity with Prosecutor Dano's policies or office practices"
and will not be "subject to termination by Prosecutor Dano for failing to comply with
Prosecutor Dano's policies or office practices." Id. at 8-9.
Implicit in these arguments, however, is the State's recognition that an elected
prosecutor retains considerable power over their office and employees in every case
from which the elected prosecutor is merely screened. Like the Court of Appeals
recognized below, no amount of screening can be sufficient to fully wall off Dano
^ See RCW 36.16.070 (providing for an elected prosecutor's power of appointment of
office deputies and employees); RCW 36.27.040 (providing for an elected prosecutor's
power of appointment of special deputies).
State V. Nickels, No. 96943-4
from the case or prevent him from being cognizant of the resources being committed
to Nickels' case and, thus, not devoted to other office priorities. Nickels, 7 Wash. App.
2d at 501. At bottom, the same arguments that the State advances in favor of
screening and preserving the elected prosecutor's power over their office—
administrative oversight of cases, control over office policy, and the power to
terminate employees at will—highlight the many factors that weigh strongly in favor
of a presumptive rule of office-wide disqualification.
We find further support in Tracer. There, we held that "'[t]he public has a
right to absolute confidence in the integrity and impartiality of the administration of
justice'" and that this right is impaired by the existence of conflicts that may '"give
the proceeding an appearance of being unjust and prejudicial.'" 173 Wash. 2d at 720
(alteration in original)(quoting Howerton v. State, 1982 OK CR 12, 640 P.2d 566,
568). We further held that this "absolute" public right to confidence in the integrity
and impartiality of the justice system was not only based in the RPCs but also rooted
in the importance of avoiding "the appearance of impropriety." Id. at 721. Thus, we
affirmed that conflicts of interest implicate not only a defendant's right to a fair trial
but also the State's and the public's interest in maintaining the appearance of a fair
judicial process. See id.
To be clear, we have no reason to believe that either the Grant County
prosecutor or his office behaved unethically in attempting to address the present
conflict. However, the quality of their character is not determinative. What is
State V. Nickels, No. 96943-4
determinative is our evaluation ofthe effect of permitting the office of a conflicted
elected prosecutor who retains significant administrative and discretionary powers,
regardless of any screening—^to prosecute the same defendant in the same case, which
we must then measure against the public's right to absolute confidence in the integrity
and impartiality ofthe administration ofjustice and the appearance of a just
proceeding. See Tracer, 173 Wash. 2d at 720-21. Stenger was right—except in
extraordinary circumstances, office-wide disqualification and prosecution by an
independent prosecutor is most faithful to the principles of integrity and impartiality
required of our justice system.
Finally, while the State argues that our interpretation ofStenger should be
cabined to its unique, underlying facts, we must observe that Stenger's rule of
presumptive disqualification is not couched in any limiting, fact-specific language. In
effect, the State argues that our true holding in Stenger was our concluding
observation that because the elected prosecutor failed to properly screen himself,
"[w]e need go no further in this capital case in order to conclude that it is appropriate
that a special prosecuting attorney be appointed." 111 Wash. 2d at 523. But this narrow
interpretation of our decision necessarily begs the question why did we announce a
rule at all? Stenger's rule of presumptive disqualification for elected prosecutors
omits any reference to the underlying case's severity or the State's prior screening
efforts. Id. at 522. Moreover, Stenger's separate, concluding discussion ofthe facts
on which the State relies actually highlights the ease with which we could have
State V. Nickels, No. 96943-4
resolved the question of disqualification without promulgating any rule. However, we
chose a different path. The fact we announced a presumptive rule of disqualification
that is unmoored from Stenger's unique facts is significant and something the State's
proposed reading of our decision is wrong to ignore.
3. Because the Elected Prosecutor's Involvement Here Was Not Extraordinary, We
Reject the Court ofAppeals'Extraordinary Circumstances Test
The Court of Appeals correctly concluded that Stenger did not announce a
bright-line rule of disqualification but, instead, reserved an exception for
"extraordinary circumstances." Nickels, 1 Wash. App. 2d at 498. However,the Court of
Appeals further determined that Stenger did not defme what "extraordinary" means, and
so it crafted a two-factor test, including "(1) whether the prosecutor was privy to
privileged information and (2)the nature ofthe case giving rise to the elected
prosecutor's conflict of interest." Id. at 492-93. The State argues that the Court of
Appeals' proposed test erroneously fails to consider current circumstances and that
any test we adopt should consider "the complexity of the case, cost of[a] substitute
lawyer, proximity to the trial date, availability of altemat[e] counsel, and adequacy of
screening measures." Pet. for Review at 19. However, as explained below, because
Dano's involvement in Nickels' defense was not extraordinary, we presently decline
to endorse either test.
Regardless ofthe parties' sparring characterizations, the record is clear that
Dano was sufficiently involved in Nickels' defense such that his participation was not
10
State V. Nickels, No. 96943-4
extraordinary and no further analysis is required for us to conclude that office-wide
disqualification is appropriate. Dano made multiple appearances on the record at trial
on Nickels' behalf. Additionally, after the first trial, Dano spoke with jurors and
interviewed potential exonerating witnesses. Actual, direct involvement ofthe
character shown here is not extraordinary representation—it is the norm, even if it is
limited. We cannot envision every unusual case. Rather than devise a test to capture
what may theoretically be considered extraordinary in some future case, we believe
that project is better left for a case that actually raises the question.
CONCLUSION
Washington's 39 elected county prosecutors possess considerable
administrative and discretionary powers over their offices and employees. Though
Washington's RPCs have eliminated imputations of conflicts among government
attorneys generally and permit screening in most circumstances, Stenger created a
narrow exception in those few cases where the elected county prosecutor has
previously represented the defendant in the same case or a closely interwoven matter.
In those cases, office-wide disqualification—not screening—is required to preserve
the appearance of a just proceeding and the public's confidence in the impartial
administration ofjustice. For these reasons, we hold that Stenger remains good law
and affirm the Court of Appeals' decision to disqualify the entire Grant County
Prosecutor's Office. However, because Dano's involvement in Nickels' defense was
not extraordinary, and no further analysis is required for us to conclude that office-
11
State V. Nickels, No. 96943-4
wide disqualification is appropriate in the instant case, we reject the Court of Appeals'
extraordinary circumstances test.
12
State V. Nickels, No. 96943-4
WE CONCUR:
JA
Q^<2.&-77 ^
13
State V. Nickels {David Emerson), No. 96943-4
(Gordon McCloud, J., concurring)
No. 96943-4
GORDON McCLOUD,J.(concurring)—^As the lead opinion states, the
people ofthis state have an "absolute right to the appearance of a just
proceeding." Lead opinion at 6 (italics and capitalization omitted). This is
especially true where, as here, the State charges an individual with a serious crime
that carries a lengthy term of imprisonment. I further agree that this court's 30-
year-old decision in State v. Stenger, 111 Wash. 2d 516, 760 P.2d 357(1988), is
necessary to preserve that right. For that reason, I join Parts 2 and 3 of the lead
opinion and its conclusion that the Stenger rule of office-wide disqualification
"remains good law." Lead opinion at 11.
State V. Nickels {David Emerson), No. 96943-4
(Gordon McCloud, J., concurring)
1:;
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
No. 96943-4
YU,J.(concurring in part and dissenting in part) — The lead opinion's
presumptive rule of office-wide disqualification is not supported by State v.
Stenger, 111 Wash. 2d 516, 760 P.2d 357(1988), and directly conflicts with the
current Rules of Professional Conduct(RPCs). Indeed, our 2006 amendments to
the RPCs marked a profound reformulation of our rules concerning government
lawyers' conflicts of interest and significantly altered how we address conflicts in
public offices. Furthermore, contrary to the lead opinion's assertions, public
policy does not support presumptive disqualification, as timely ethical screening
generally preserves the appearance of a just proceeding. Therefore, I would hold
that RPC 1.11 governs conflicts of interest for government attorneys, including
elected prosecutors, and strongly disfavors imputing a government lawyer's
personal conflicts to their entire office. Accordingly, I would reverse the Court of
Appeals and hold that the Grant County Prosecuting Attorney's Office is not
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
presumptively disqualified from representing the State in this case. However, I
agree with the lead opinion that we should decline to adopt the Court of Appeals'
extraordinary circumstances test. I therefore respectfully dissent in part and concur
in part.
ANALYSIS
A. The language in Stenger that the lead opinion relies on is dicta, and the facts
are distinguishable from the facts presented in this case
The crux of the lead opinion's argument favoring presumptive
disqualification is based on the following dicta from Stenger.
"Where the prosecuting attorney (as distinguished from a deputy
prosecuting attorney) has previously personally represented the
accused in the same case or in a matter so closely interwoven therewith
as to be in effect a part thereof, the entire office of which the
prosecuting attorney is administrative head should ordinarily also be
disqualifiedfrom prosecuting the case."
Lead opinion at 4(emphasis added)(quoting Stenger, 111 Wash. 2d at 522).
However,the lead opinion misidentifies this dicta as Stenger'& holding. To the
contrary, Stenger'^ actual holding is limited to the facts ofthe case:
Under the facts ofthe case before us, although the prosecuting attorney
did eventually delegate handling of the case to a deputy prosecuting
attorney in his office, he did not effectively screen and separate himself
from the case but instead maintained quite close contact with it. We
need go no further in this capital case in order to conclude that it is
appropriate that a special prosecuting attorney be appointed to handle
and control the case.
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
Stenger, 111 Wash. 2d at 523 (emphasis added). Accordingly, our holding in Stenger
is actually very narrow and fact specific, and is based on ineffective screening,
rather than presumptive office-wide disqualification. Further evidence of this
limited holding can be found in our narrow framing of the issue; ''Under thefacts
ofthis case, should the prosecuting attorney's representation of the defendant in a
prior criminal case disqualify the prosecuting attorney as well as his staff from
handling the prosecution of the defendant. . . where the death penalty is sought?"
Id. at 520(emphasis added).
Moreover, on review to this court, the parties in this case do not dispute the
adequacy of the screening mechanism, only whether the entire office should be
presumptively disqualified. This is in stark contrast to Stenger, where the
prosecutor's ineffective screening served as the basis for disqualifying his entire
office. Id. at 523. In short, Stenger did not hold that presumptive disqualification
is proper. Rather, ineffective screening and the unique circumstances surrounding
Stenger's capital case led to this court's narrow holding. Accordingly, the lead
opinion misidentifies Stenger's actual holding and errantly relies on dicta to
support presumptive disqualification.
B. The 2006 amendments to the RPCs supersede Stenger and do not support
presumptive, office-wide disqualification of an entire county prosecutor's
office
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
Even if the lead opinion did accurately identify a controlling holding in
Stenger, it is well settled that a material change to a court rule may supersede prior
case law interpreting that rule. See State v. Greenwood, 120 Wash. 2d 585, 845 P.2d
971 (1993); see also Wallace v. Evans, 131 Wash. 2d 572, 934 P.2d 662(1997).
Moreover, this court has further clarified that we need not "overrule old cases that
have been superseded by a significant change in the [court] rule they interpret."
Wallace, 131 Wash. 2d at 577. RPC 1.10 and 1.11 were substantively amended in
2006. These amendments supersede StengeEs suggestion that office-wide
disqualification is presumptively required, and the lead opinion's efforts to
harmonize Stenger with the current RPCs effectively reads elected prosecutors out
of rules 1.10 and 1.11 without any textual support.
1. The 2006 amendments to the RPCs supersede Stenger
When analyzing whether a court rule supersedes a prior decision, we inquire
whether its amendment "materially change[s]" the rule. Greenwood, 120 Wash. 2d at
592-93. We do not presume that amendments overturn settled legal principles
unless '"an intention to do so plainly appears by express declaration or necessary
or unmistakable implication, and the language employed [in the amendment]
admits of no other reasonable construction.'" Id. at 593 (alteration in original)
(quoting Ashenhrenner v. Dep't ofLabor & Indus., 62 Wn.2d. 22, 26, 380 P.2d
730 (1963)). Our 2006 amendments to RPC 1.10 and 1.11 did not expressly
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
declare our intention to supersede Stenger, but they necessarily imply this
intention.
We construe the RPCs "to foster the purposes for which they were enacted."
Id. In 2006, this court made several material changes to the RPCs that alter the
way conflicts of interest among government lawyers are handled, and we expressly
stated that the purpose behind the amendments was to avoid imputing conflicts to
entire public offices.
First, we added RPC 1.10(d) to indicate that "[t]he disqualification of
lawyers associated in a firm with former or current government lawyers is
governed by Rule 1.11." Adoption of RPC 1.10(d), 157 Wash. 2d 1208 (2006). This
indicates that we intended to treat govermuent lawyers' conflicts differently than
those oflawyers who work in private firms. Notably, RPC 1.10 expressly provides
for imputed disqualification in private firms, in contrast to RPC 1.11, which does
not.
Next, we added RPC 1.10 cmt. 2 to explain that the rule of imputed
disqualification "gives effect to the principle of loyalty to the client.... Such
situations can be considered from the premise that a firm of lawyers is essentially
one lawyer for purposes of the rules governing loyalty to the client." Adoption of
RPC 1.10 cmt. 2, 157 Wash. 2d 1209 (2006). We therefore amended RPC 1.10 to
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
ensure that government lawyers, with the exception of public defenders, are not
subject to a rule that allows for imputed disqualification.
Third, we changed the title of RPC 1.11 to clarify that the amended rule
applies to "Special Conflicts of Interest for Former and Current Government
Officers and Employees." Adoption of RPC 1.11, 157 Wash. 2d 1213 (2006). Prior
to our 2006 amendments. Rule 1.11 was entitled "Successive Government and
Private Employment." Id. This shows a further intent to treat conflicts among
government lawyers and private firm lawyers differently.
Finally, to clear any remaining doubt about office-wide conflict imputation,
we added RPC 1.11 cmt. 2, which provides:
Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an
individual lawyer who has served or is currently serving as an officer
or employee ofthe government toward a former government or private
client. Rule 1.10 is not applicable to the conflicts of interest addressed
by this Rule. Rather, paragraph (b) sets forth a special imputation rule
for former government lawyers that provides for screening and notice.
Because of the special problems raised by imputation within a
government agency, paragraph (d) does not impute the conflicts of a
lawyer currently serving as an officer or employee of the government
to other associated government officers or employees, although
ordinarily it will be prudent to screen such lawyers.
Adoption of RPC 1.11 cmt. 2, 157 Wash. 2d 1215 (2006)(emphasis added). Our
intention behind this comment is unmistakable; we sought to ensure that
government lawyers' conflicts of interest would not be imputed to other associated
government lawyers. While 1 disagree with the lead opinion that Stenger created a
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
rule of presumptive disqualification, as discussed above, any rule that
presumptively disqualifies an entire county prosecutor's office directly conflicts
with our material changes to RPC 1.10 and i.1 i. Therefore, our 2006 amendments
to the RPCs supersede Stenger.
Significantly, the lead opinion does not dispute that the 2006 amendments
materially changed our rules concerning the imputation of conflicts of interest.
Indeed, the lead opinion acioiowiedges that "[n]early two decades after our
decision in Stenger, RPC 1.10 and 1.11 were substantively amended." Lead
opinion at 5. As the lead opinion recognizes,"these rules now provide that a
government lawyer's personal conflict of interest is no longer imputed to their
entire officeS Id. (emphasis added). Because presumptive disqualification is "in
irreconcilable conflict with the amendment[s]," Stenger is impliedly repealed.
Greenwood, 120 Wash. 2d at 593. The lead opinion therefore errs by reading RPC
1.10 and 1.11 "in harmony with Stenger'^ naiTow rule." Lead opinion at 6.
Notably, the lead opinion does not offer any legal authority to support its
contention that the RPCs do not supersede Stenger. Instead, the lead opinion
unpersuasively argues thatStenger's. rule of presumptive disqualification was not
interpreting a prior version of RPC 1.10 or RPC 1.11, relying instead on two out-
of-state decisions for its reasoning." Id. at 5-6. This is simply incorrect. In fact,
Stenger's analysis begins with an overview of what "[t]he Rules of Professional
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
Conduct require," then cites to the RPCs a total of three times. Stenger, 111
Wn.2dat 520 & n.5 (citing RPC 1.9(a), 1.11(c)(1)), 523 n.l5 (citing RPC 1.11).
Stenger first cites to RPC 1.9, which was then titled "Conflict of Interest;
Former Client." Our 2006 amendments changed the title to "Duties to Former
Clients" on the basis that "conflicts that arise based on a lawyer's former
association with a firm are now addressed in [RPC 1.9], while Rule 1.10 addresses
solely imputation of that conflict." Adoption of RPC 1.9, 157 Wn.2d 1202(2006);
Adoption of RPC 1.10 cmt. 9, 157 Wash. 2d 1211 (2006). The lead opinion thus
overlooks Stenger's reference to RPC 1.9 and therefore fails to recognize the role
that the outdated rule played in shaping Stenger's outcome.
Stenger further cites RPC 1.11 twice, including as authority for the
proposition that "disqualification ofthe entire prosecuting attorney's office is
neither necessary nor wise." 111 Wash. 2d at 523. And while I disagree with the
Court of Appeals' holding, that court also recognized that Stenger relied on the
RPCs for its analysis: "Stenger addressed the issue of when, under the Rules of
Professional Conduct(RPC), an elected prosecutor's conflict of interest must be
imputed to the balance of the prosecutor's office." State v. Nickels, 1 Wash. App. 2d
491, 495, 434 P.3d 535 (2019). Contrary to the lead opinion's reasoning, the
Stenger court thus consulted the RPCs governing conflicts and relied on the rules
for its reasoning. Consequently, the lead opinion's primary argument against
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
finding that the amended RPCs supersede Stenger does not find support in Stenger
itself.
2. RFC 1.11 governs elected prosecutors' conflicts of interest
We interpret court rules in accordance with the rules of statutory
construction. City ofSeattle v. Guay, 150 Wash. 2d 288, 300, 76 P.3d 231 (2003).
Our interpretation of the RPCs begins with the plain meaning of the rules. Lake v.
Woodcreek Homeowners Ass'n, 169 Wash. 2d 516, 526, 243 P.3d 1283 (2010).
Plain meaning "is to be discerned from the ordinary meaning of the
language at issue, the context of the [rule] in which that provision is
found, related provisions, and the [RPC]scheme as a whole." . . .[W]e
"must not add words where the [court] has chosen not to include them,"
and we must "construe [court rules] such that all of the language is
given effect." If the [rule] is unambiguous after a review of the plain
meaning, the court's inquiry is at an end.
Id. (citation omitted)(quoting State v. Engel, 166 Wash. 2d 572, 578, 210 P.3d 1007
(2009); Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash. 2d 674, 682, 80 P.3d 598
(2003)).
Here, a plain reading of RPC 1.10 and 1.11 makes clear that a government
lawyer's conflicts of interest should not disqualify their entire public office. This
is gleaned from both the structure and language of the RPCs. There is no
exemption for elected prosecutors, who are certainly government lawyers, subject
to RPC 1.11's conflicts rules.
With respect to the structure of the RPCs, our 2006 amendments bifurcated
our treatment of conflicts of interest, which turn on whether a lawyer works in a
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
public or private office: RPC 1.10 goveras the "Imputation of Conflicts of
Interest: General Rule," which permits the imputation of conflicts to associated
lawyers in private and public defense firms, while RPC 1.11 governs "Special
Conflicts of Interest for Former and Current Government Officers and
Employees." The amendments added what is now RPC 1.10(d), whieh states that
"[t]he disqualification oflawyers associated in a firm with former or eurrent
government lawyers is governed by Rule 1.11." Adoption of RPC 1.10(d), 157
Wash. 2d at 1208. Our deliberate restructuring of RPC 1.10 and 1.11 during the 2006
amendment process therefore demonstrates our intention to have different conflict
of interest rules for government lawyers and those in private firms.
Moreover, we amended RPC 1.10 and 1.11 again in 2018 to clarify that RPC
1.10 applies to public defenders, as well as lawyers in private firms. Adoption of
RPC 1.10(d), 189 Wn.2d 1134(2018); Adoption of RPC 1.11 cmt. 11, 189 Wash. 2d
1134-35 (2018). Our stated purpose for amending RPC 1.10(d) was "to make RPC
1.10 applicable to all public defenders regardless ofwhether they are government
employeesr Proposed amendment to RPC 1.10(d), 187 Wn.2d Proposed-11
(Official Advance Sheet No. 8, Apr. 25, 2017)(emphasis added). We also adopted
a comment to RPC 1.11 explaining that "[p]ublic defenders represent individuals,
not the government. For this reason, imputed confliets in public defender firms are
determined under RPC 1.10 rather than this rule regardless of whether the lawyers
10
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
are public officers or employees." Adoption of RFC 1.11 cmt. 11, 189 Wash. 2d at
1135. Notably, we did not include elected prosecutors in RFC 1.10, along with
public defenders. Rather, all other government officers or employees, including
elected prosecutors, are subject to RFC 1.11.
As previously discussed, the unambiguous language of RFC 1.11 could not
be clearer: "Because of the special problems raised by imputation within a
government agency, paragraph (d) does not impute the conflicts ofa lawyer
currently serving as an officer or employee ofthe government to other associated
government officers or employees." RFC 1.11 cmt. 2(emphasis added).
Despite the plain meaning of RFC 1.10 and 1.11, the lead opinion seeks to
carve out an exception for elected prosecutors in RFC 1.11 with no textual support.
Instead, the lead opinion reasons that Stenger "touches only Washington's 39
elected county prosecutors," therefore presumptive disqualification can be
harmonized with RFC 1.11. Lead opinion at 6. In short, the lead opinion justifies
the drastic measure of disqualifying an entire county prosecutor's office, even
when timely and effective screening measures are put in place, because only 39
individuals can trigger this process. Accepting this reasoning runs afoul of our
rules of statutory construction by altogether reading a group of government
lawyers out of a rule that expressly regulates government lawyers' conflicts of
interest. There is no justification for such a reading.
11
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
I would therefore hold that our 2006 amendments to RFC 1.10 and 1.11
superseded Stenger and do not support presumptive, office-wide disqualification of
an entire county prosecutor's office.
C. Public policy does not support disqualifying an entire prosecutor's office
Turning now to public policy concerns, I agree with the lead opinion that the
appearance of a just proceeding is of paramount importance. However, I disagree
that allowing the Grant County Prosecutor's Office to proceed with prosecuting
Nickels creates the appearance of unfairness. Not only is ethical screening a
preferable and practical alternative to office-wide disqualification, erecting a
timely screen preserves the appearance of a just proceeding. Moreover, the use of
screens complements our long-standing principle that we presume our public
officers act in good faith. Accordingly, public policy supports the use of timely
ethical screens in lieu of disqualifying the entire prosecutor's office when the
elected prosecutor has a personal conflict of interest.
1. Timely ethical screening preserves the appearance of a just proceeding
The lead opinion contends that "no amount of screening can be sufficient to
fully wall off[elected prosecutor] Dano from the case," which undermines "the
public's confidence in the impartial administration ofjustice." Lead opinion at 7-
8, 6-7. As support for this proposition, the lead opinion points to State v. Tracer,
which held that a defense attorney was not qualified to serve as a special deputy
12
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
prosecutor because the attorney regularly represented criminal defendants in the
same court. 173 Wash. 2d 708, 720, 272 P.3d 199 (2012). But Tracer is readily
distinguishable.
Tracer's concerns about the appearance of impropriety were supported by
the RPC's rules surrounding concuiTent conflicts of interest, which pointedly
prohibited the defense attorney from representing the State. Id. at 720-21. The
lead opinion's reliance on Tracer is therefore unavailing, as the facts concerned a
direct violation of the RPCs based on a concurrent conflict of interest, which
implicated the appearanee of a fair proceeding. That is not the case here. No party
alleges that any RPCs were violated, and the RPCs plainly disfavor imputing
conflicts in public offices.
Furthermore, the lead opinion's position is inconsistent with this court's
endorsement of ethical screens as mechanisms to effectively ward off and contain
conflicts of interest. Recognizing the disruption and hardship that blanket
disqualification can cause, we amended the RPCs to avoid sweeping imputation of
conflicts in public offices. RPC 1.11 cmt. 2. Moreover, on review before this
court, there is no dispute that Prosecutor Dano was timely screened from this case
or that "[t]he screen was erected before Prosecutor Dano discussed the case with
any members of the Grant County Prosecuting Attorney's Office." Pet. for Review
13
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
at 4. Consequently, the lead opinion's policy argument is not supported by the
facts ofthis case or by our own rules that favor the use of ethical screens.
2. We presume elected prosecutors carry out their duties in good faith
The lead opinion further asserts that "we have no reason to believe that
either the Grant County prosecutor or his office behaved unethically in attempting
to address the present conflict. However, the quality of their character is not
determinative." Lead opinion at 8. This statement is problematic, as it overlooks
the well-established principle that public officers are presumed to act properly.
Bracy v. Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 138 L. Ed. 2d 97(1997)
("Ordinarily, we presume that public officials have 'properly discharged their
official duties.'" (internal quotation marks omitted)(quoting United States v.
Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d 687(1996))); State
V. Terrovonia, 64 Wash. App. 417, 422, 824 P.2d 537(1992)(presuming that
prosecutors act in good faith); Jones v. Halvorson-Berg, 69 Wash. App. 117, 127,
847 P.2d 945 (1993)("A judge is presumed to perform [their] functions 'regularly
and properly and without bias or prejudice.'"(quoting Kay Corp. v. Anderson, 72
Wash. 2d 879, 885, 436 P.2d 459 (1967))). Because we presume that elected
prosecutors act in good faith, I disagree with the lead opinion's concern that the
appearance of fairness is compromised if the elected prosecutor is properly
screened and a deputy prosecuting attorney represents the State.
14
State V. Nickels, No. 96943-4
(Yu, J., concurring in part and dissenting in part)
D. We need not reach the Court of Appeals' extraordinary circumstances test
Because I would hold that the RPCs supersede Stenger and that presumptive
disqualification is improper, I would not reach the question of whether we should
adopt the Court of Appeals' extraordinary circumstances test. However, even if
Stenger remains good law, I agree with the lead opinion that Prosecutor Dano's
involvement in Nickels' defense was not extraordinary. I therefore concur with the
lead opinion's holding that we should reject the extraordinary circumstances test.
CONCLUSION
The lead opinion relies on distinguishable dicta from Stenger that has been
superseded by the 2006 amendments to the RPCs. Further, elected prosecutors'
conflicts of interest are subject to RPC 1.11 because they are government lawyers.
Accordingly, Prosecutor Dano's conflict of interest should not be presumptively
imputed to the entire Grant County Prosecuting Attorney's Office. However, I
agree with the lead opinion that we should reject the Court of Appeals'
extraordinary circumstances test. I therefore respectfully dissent in part and concur
in part.
15
State V. Nickels, No. 96943-4
(Yu,'J.', concurring in part and dissenting in part)
7C
16