The disqualification case of the week comes from the Supreme Court of Missouri and centers on the resilient appearance of impropriety standard.  The personally disqualified lawyer used to be a state public defender, and in that capacity, had represented the defendant against the state’s molestation charges.  While the prosecution was still pending, the lawyer took a job with the prosecutor’s office.  Unsurprisingly, the defendant filed a motion to disqualify the office.  The office had, however, timely (and apparently effectively) screened the defendant’s former lawyer from the prosecution.

In addressing the disqualification question, the court first turned to the ethical rules.  Because the relevant conflict rule was Rule 1.11 (addressing government lawyer conflicts), not Rule 1.10 (the general imputation rule), the lawyer’s conflict was not imputed to the rest of the prosecutor’s office.  Both the Model and Missouri Rules of Professional Conduct contain this official comment:

Rule 1.10 [which generally requires imputation of conflicts of interest to lawyers within the same firm] is not applicable to the conflicts of interest addressed by this Rule [1.11]. 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.

Model Rules of Prof’l Conduct R. 1.11 cmt. 2.  (Although the above comment states that screening is merely “prudent,” screening is typically required in these situations; and here the prosecutor’s office properly screened the lawyer.)  The court accordingly concluded that the ethical rules did not compel disqualification.

The court went on to consider — and simultaneously validate and narrow — the appearance of impropriety standard.  First, the court explicitly rejected the court of appeals’ conclusion that the appearance of impropriety standard had not survived the adoption of the Model Rules.  (By way of background, the drafters of the Model Rules of Professional Conduct, and most state rules, deleted references to the “appearance of impropriety.”)  Thus, the appearance of impropriety remains a viable disqualification standard in Missouri (and elsewhere).  Second, the court decided to define “appearance of impropriety” in lawyer disqualification analysis almost identically to “appearance of impropriety” in judicial disqualification analysis: “even if an assistant prosecutor’s conflict is not imputed to the remainder of the office under the Rules of Professional Conduct, the remainder of the prosecutor’s office must be disqualified if a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial.”  Finally, noting that this standard uses the perspective of the “reasonable person” (not the perspective of the “defendant”), the court concluded that the standard had not been met in this case for the following reasons: the conflict involved a former representation (not a concurrent one), screening was in place (and the court assumed that a reasonable person would be assured by timely screening and by the lawyer’s avowal that she had not divulged the defendant’s confidential or privileged information to other members of the prosecutor’s office), and as other courts have considered, the personally disqualified lawyer was an assistant prosecutor, not “the boss.” 

Here is the full opinion for possible reference: State v. Lemasters, No. SC 94295, __ S.W.3d __, 2015 WL 778400 (Mo. Feb. 24, 2015).