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Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Generally

State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan

Issue/Holding: A claim that the prosecutor represented the defendant in a prior case may be raised in a pretrial motion to disqualify the prosecutor, which requires a showing that “the subject matter of the two representations are ‘substantially related,’” ¶15, quoting State v. Tkacz, 2002 WI App 281, ¶13, 258 Wis. 2d 611, 654 N.W.2d 37. The “substantial relationship” test is based on SCR 20:1.9 (ethical rule: “Conflict of interest: former client”), ¶16, rather than the 6th amendment, ¶19 n. 5. The test is based on an irrebuttable presumption that a client discloses confidential information to counsel, and the aim is therefore to avoid a potential conflict before it actualizes, ¶17. However, such a disqualification is subject to waiver bar, including a requirement of timeliness, and where the motion is waived the defendant must then show an actual conflict of interest by clear and convincing evidence, ¶¶19-20, citing State v. Love, 227 Wis. 2d 60, 63, 594 N.W.2d 806 (1999).

The court proceeds to clarify the test:

¶37      While we see why there may be some confusion based on our summary in Tkacz of the circuit court’s findings, those findings do not define the substantial relationship standard. Medina is correct that under this standard a substantial relationship may exist even if there is no evidence that confidential information relevant to the later case was communicated to the attorney. We clearly say this in Tkacz when we state that the standard is whether “‘the lawyercould have obtained [relevant] confidential information.’” Id., ¶13 (citation omitted, emphasis added). And our more thorough discussion of the standard in Berg makes this even clearer: the point of the substantial relationship standard is to prevent the need for an attorney’s former client to have to disclose confidential information in order to have the attorney disqualified from representing an adverse party in the present case. See Berg, 141 Wis. 2d at 889-91 and n.5. That is why the existence of a substantial relationship depends on whether “the factual contexts of the two representations are similar or related.” Id. at 889 (citations omitted). By comparing the factual contexts of the two cases, we can determine whether there could have been confidential disclosures in the former case that are relevant to the later, without inquiring into the actual disclosures.

But compare, State ex rel. Burns v. Richards, 248 SW 3d 603 (MO. SCt No. 2008) (presumptively prejudicial for prosecutor to have recently represented defendant in prior similar matter). Also see discussion in People v. Davenport, 760 N.W.2d 743 (MI App 2008) (albeit where prosecutor’s move is during the criminal case at issue: “The trial court should be promptly informed of a defense attorney’s move to the prosecutor’s office, and it should inquire into the matter and order an appropriate safeguard, such as disqualifying the individual attorney affected by the conflict of interest, or the entire prosecutor’s office, if necessary.”)

More exotically: Hollywood v. Superior Court, 182 P.3d 590 (Cal 2008) (prosecutor had hand in making film about pending case, court finds no disqualifying conflict after “considering the extent to which prosecutorial involvement in cinematic and literary endeavors may give rise to conflicts requiring recusal”) and companion case, Haraguchi v. Superior Court, 182 P.3d 579 (same, where lead prosecutor authored self-published book drawing on facts of pending case).

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