Saturday, April 26, 2008
The defendant in a methamphetamine possession case from Buffalo County requested a special prosecutor because an associate attorney with his defense counsel's law firm moved to the prosecuting attorney's office. The former associate was not involved with the defendant's case while working for either office. Nebraska Supreme Court rejects the defendant's per se rule for disqualification, instead interpreting Model Rule 1.11 to allow the judge discretion to require proper screening procedures to ensure client confidentiality. State v. Kinkennon, S-07-654, 275 Neb. 570 "A per se rule would result in the unnecessary disqualification of prosecutors where the risk of a breach of confidentiality is slight, thus needlessly interfering with the prosecutor’s performance of his or her constitutional and statutory duties. Furthermore, a per se rule would unnecessarily limit mobility in the legal profession and inhibit the ability of prosecuting attorney’s offices to hire the best possible employees because of the potential for absolute disqualification in certain instances. Whether the apparent conflict of interest justifies the disqualification of other members of the office is a matter committed to the discretion of the trial court. What constitutes an effective screening procedure will depend on the particular circumstances of each case. However, at a minimum, the disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the office with respect to the matter. S imilarly, the other lawyers in the office who are involved with the matter should be informed that the screening is in place and that they are not to discuss the matter with the disqualified lawyer.