The Missouri Supreme Court, reminded opposing counsel that it is unethical for an attorney to contact our clients when they are in an adversarial role. Having a club in hand, to remind attorneys who are in an adversarial position that ex parte contacts can violate the rules of ethics will be helpful in stopping this practice. In addition, we will need to keep our eyes on Calzone v. Missouri Ethics Commission, which hopefully, will give us more guidance as whether or not being paid is required in order to be a lobbyist. Also, I thought the comments by the Missouri Supreme Court, that prosecuting attorneys enjoy a “discretionary privilege unmatched in the world,” was a wake-up call that prosecuting attorneys may be elected for a purpose. Like clean up the mess. The Court ruled that disqualifying the whole Prosecuting Attorney’s office will be allowed only in extreme cases.
Ex Parte Communications With Adversary Client
- The June 10, 2019 edition of Missouri Lawyers Weekly, reported that the Missouri Supreme Court issued a reprimand to Jerome Dobson for violating Rule 4–2.2 of the Rules of Professional Conduct for his ex parte communications with officials from Washington University. See In Re: Dobson, SC97683.
- Also, see the May edition of the MMAA newsletter and the discussion of the complaint filed with the Missouri Supreme Court.
No Exemption For Unpaid Person Who Engages In Lobbying Activities
- The 8th Circuit held in Calzone v. Missouri Ethics Commission, that there was no exemption from registration as a lobbyist for persons who are unpaid, if there are other factors, which show that the person is otherwise engaged in lobbying. Calzone v. Missouri Ethics Commission.
- The 8th Circuit vacated the opinion of the panel. This case has now been argued before the full 8th Circuit. Stay tuned.
Potential Conflict Does Not Support Disqualifying Prosecutor’s Office
- Whenever a prosecution involves the use of force by a victim (including police officer victims, such as Officer A.F.) it is the policy of the City of St. Louis Circuit Attorney’s Office (“CAO”) to conduct an independent investigation of the victim’s use of force to determine whether the victim was justified in using force and whether criminal charges should be filed against the victim.
- Prior to a preliminary hearing for the victim, counsel for Officer A.F., filed a motion to disqualify the CAO. In his motion to disqualify, Officer A.F. argued that the independent investigation by the CAO created an appearance of impropriety that would prejudice him unfairly because the CAO might become privy to information that could be used against Officer A.F. in the criminal investigation of his conduct.
- The Missouri Supreme Court held that “…absent the existence of an individual conflict, a court need not proceed to determine whether that conflict should be imputed to the entire CAO. State ex rel. Kimberly M. Gardner, Circuit Attorney of The City of St. Louis, v. The Honorable Timothy J. Boyer.
- Furthermore, “…only in rare circumstances should a circuit court interfere with the democratic process and override the voters’ choice as to who is best suited to represent the interests of the people as prosecuting attorney is a “discretionary privilege unmatched in the world.” Clearly, at times we elect prosecuting attorneys to clean up a mess.
For a more detailed analysis of this case click here.
Actual Conflict Not Imputed to Prosecutor’s Office
- Jeanette Wolpink, of the Missouri Public Defender System (“MPDS”), was appointed to represent Tyrone Skinner. Wolpink represented Skinner throughout his direct appeal, which affirmed his convictions and sentences. After Skinner’s appeal was resolved, but before his amended post-conviction motion was filed, Wolpink left the MPDS and was hired by the Jackson County Prosecuting Attorney’s Office (PAO).
- Skinner’s new counsel then filed a motion seeking to disqualify the entire PAO, alleging that Wolpink was “privy to attorney/client confidences and matters of trial strategy” because she represented him in his direct appeal. Skinner’s motion did not claim that the PAO’s screening process was insufficient or that anyone at the PAO failed to comply with the screening process with respect to Skinner’s case. The trial court sustained Skinner’s motion, disqualified the entire PAO, and appointed the Missouri Attorney General’s Office (“AGO”) to act in its place.
- The Missouri Supreme Court stated that under the Rules, Wolpink, a former and a current public officer or employee of the PAO, was prohibited from participating in the state’s representation in Skinner’s post-conviction case under Rule 4-1.11(a); however, her disqualification was not imputed to the entire office because, the PAO is not a “firm” under Rule 4-1.11(b).
- The Missouri Supreme Court stated that disqualifying the entire PAO will cause Relator to suffer “absolute irreparable harm” because it prevented Relator from exercising her statutorily authorized duties as the elected prosecuting attorney of Jackson County, which was no small matter, considering the history of the unique relationship elected prosecuting attorneys enjoy in our system of government, which was described by the Court as a “discretionary privilege unmatched in the world.” State ex rel. Jean Peters-Baker, v. The Honorable Bryan E. Round.
For a more detailed analysis of this case click here.
Howard Wright © 2019