THE STATE OF NEW HAMPSHIRE SUPREME COURT

STATE OF NEW HAMPSHIRE

v. MICHAEL ADDISON

2008-0945

DEFENDANT’S MOTION TO DISQUALIFY

THE ATTORNEY GENERAL’S OFFICE AND

FOR ALTERNATIVE RELIEF (Oral Argument Requested)

I. PREFACE On December 19, 2012 this court granted a motion for partial remand for the limited

purpose of considering a discovery motion filed by defendant Michael Addison. Discovery was

sought because one of Addison’s defense attorneys joined the very office that is prosecuting him.

Because Addison’s attorney (a) joined the Attorney General’s criminal appeals unit while

Addison’s criminal appeal was pending, (b) brought with her at least one confidential document

related to his appeal which she installed on the prosecution’s computer network and (c) was not

effectively “screened” from the Addison prosecution team for two months, Addison certainly

had grounds to immediately seek disqualification of the entire Attorney General’s office from his

case. See e.g., People v. Shinkle, 415 N.E.2d 909, 910 (N.Y. 1980) (all attorneys in a

prosecutor’s office are per se disqualified from prosecuting a defendant when the defendant’s

attorney leaves his case and joins the prosecutor’s office); People v. Stevens, 642 P.2d 39 (Colo.

Ct. App. 1981) (overruled by statute in 2005) (following Shinkle and adopting a per se rule of

office-wide disqualification when a criminal defendant’s lawyer joins the office that is

prosecuting him for the same offense); State v. Croka, 646 S.W.2d 389, 393 (Mo. Ct. App. 1983)

(same); Whitaker v. Commonwealth, 895 S.W.2d 953 (Ky. 1995) (requiring office-wide

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disqualification based on Sixth Amendment concerns if a prosecutor had substantial and personal

involvement in the defense of the same case). See also, N.H.R. Prof. Conduct 1.10(a) and (c)(3)

(requiring vicarious disqualification of all lawyers in a “firm” from an ongoing matter if a newly

hired lawyer previously represented an adverse party in the same matter and had “substantial

involvement in, or received substantial material information” about the matter).

Addison instead proceeded with caution and sought rudimentary discovery relating to the

steps that were taken to screen his former attorney and her work product from the office that is

prosecuting him for capital murder and seeking his death. That discovery has been provided and

Addison now seeks substantive relief.

II. RELIEF REQUESTED

A. Addison first seeks disqualification of the Attorney General’s office from this point

forward in connection with any aspect of his case on direct appeal, on remand or on collateral

review. This would require the appointment of a special prosecutor. Such vicarious

disqualification would be required if this court adopts the per se rule typified by Stevens,

Shinkle, Croka, Whitaker and N.H.R. Prof. Conduct 1.10(c)(3).

Indeed, this court could stop short of adopting a per se rule for all criminal cases, yet

apply one here when (a) the prosecutor’s office that the defendant’s lawyer joined is trying to put

the defendant to death, (b) the former defense lawyer joined the prosecutor’s criminal appeal unit

at the very time this case was on appeal, (c) the former defense lawyer was deeply involved in

developing appellate strategies and (d) the former defense lawyer uploaded to the prosecutor’s

computer network a document containing confidential attorney work product relating to an

important issue that has not yet been fully briefed in the appeal. Under these circumstances, the

appearance of impropriety and the resulting harm to the perceived integrity of the criminal

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justice process are compelling grounds for per se disqualification of the Attorney General’s

office. See e.g., State v. Kinkennon, 747 N.W.2d 437, 444 (Neb. 2008) (“…[C]omplete

disqualification of a prosecutor's office may be warranted in cases where the appearance of

unfairness or impropriety is so great that the public trust and confidence in our judicial system

simply could not be maintained otherwise.”); State v. Pennington, 851 P.2d 494, 501 (N.M. Ct.

App. 1993) (same); Collier v. Legakes, 646 P.2d 1219, 1221 (Nev. 1982) (same). Cf: State v.

Johnson, 134 N.H. 570, 576-577 (1991) (“When a defendant's life is measured as an appropriate

punishment, a court must be particularly sensitive to insure that every safeguard is observed.”).

But the court need not go even this far: Vicarious office-wide disqualification would still

be required even if this court follows a line of cases designed to avoid that result through the

expediency of timely and effective screening. See e.g., State v. McClellan, 216 P.2d 956 (Utah

2009) (presumption that the entire prosecutor’s office is disqualified may be rebutted by proof of

effective measures to screen the prosecution team from the disqualified lawyer); Lux v

Commonwealth, 484 S.E. 2d 145, 152 (Va. Ct. App. 1997) (requiring per se vicarious

disqualification of the entire prosecutor’s office unless the government proves that the

defendant's former counsel was effectively screened); Pennington, 851 P.2d at 501 (N.M. Ct.

App. 1993) (“[T[he state has the burden to establish that staff members working on the

prosecution have been effectively screened from contact with the disqualified staff member

concerning the case. … If the state does not meet this burden, the entire district attorney's office

must be disqualified.”); United States v. Goot, 894 F.2d 231, 235 (7th Cir. 1990) (Presumption

requiring vicarious disqualification of prosecutor’s office may be overcome by “objective and

verifiable evidence" that "specific institutional mechanisms" have effectively screened the

"infected" attorney.); People v. Davenport, 760 N.W.2d 743, 749 (Mich. Ct. App. 2008)

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(“…[O]nce a defendant has shown that a member of the prosecutor's office counseled him or

represented him in the same or related matter, a presumption arises that members of the

prosecutor's office have conferred about the matter….To rebut the presumption of shared

confidences, the prosecutor must show that effective screening procedures have been used to

isolate the defendant's former counsel from the prosecution of the substantially related criminal

charges.” (internal quotation marks omitted)); In Re R.B., 583 N.W.2d 838, 841 (S.D. 1998)

(The analysis for “determining the necessity of a vicarious disqualification of an entire

prosecutor's office on its employment of a defendant's attorney” is “largely focused on the

screening mechanisms utilized in the prosecutor's office to protect against impropriety and

inadvertent disclosure of confidential information that would compromise the defendant's

interests.”)

Allowing a timely and effective screening policy to serve as a presumptive safe harbor

from office-wide disqualification would be consonant with N.H.R. Prof. Conduct 1.10(a) and

(c)(1) and (2). This approach would also be in harmony with this court’s recent decisions in

State v. Etienne, 163 N.H. 57, 89-91 (2011) (applying the principal of imputed knowledge to all

prosecutors in the Attorney General’s office with respect to exculpatory evidence) and State v.

Veale, 154 N.H. 730 (2007) (holding that the public defender and appellate defender are one

“firm” for the purpose of conflict of interest analysis).

B. In the alternative, Addison seeks disqualification of all members of the Attorney

General’s office who were employed or associated with that office from July 6, 2012 (when

Addison’s former attorney commenced employment as a prosecutor) to September 8, 2012

(when screening procedures were put in place). This narrower degree of disqualification would

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allow the present Attorney General to prosecute the case along with any assistant attorneys

general who were not associated with his office during a two month time frame.

C. In the further alternative, Addison requests additional discovery and fact finding

under the supervision of a specially appointed master, as described on page 34, below. However,

such alternative relief would only be required if this court first rejects: (i) The per se approach,

(ii) A narrower per se rule of vicarious disqualification that applies only in special circumstances

when the appearance of propriety and the perception of integrity in the criminal justice system

are paramount considerations (and this case is the Platonic ideal of such circumstances); and (iii)

The “safe harbor”/Rule 1.10(c)(1) and (2) approach under which vicarious disqualification may

be avoided through timely and effective screening.

If this court rejects those approaches and instead requires Addison to prove actual

prejudice or the actual disclosure of confidential information, with no evidentiary presumptions

or safe harbors, it will be necessary to explore by deposition precisely what took place when

Addison’s death penalty defense lawyer was recruited, hired and employed by his prosecutors.

III. GROUNDING

This motion is grounded first and foremost on this court’s constitutional, statutory and

inherent authority to (a) regulate the legal profession, (b) control its own proceedings and (c)

supervise the lower courts. See N.H. Constitution Part 2, Article 72-a; RSA 490:4. See also,

Rogowicz v. O'Connell, 147 N.H. 270, 275 ( 2001) (disqualifying civil plaintiff’s attorney from

prosecuting civil defendant for criminal contempt due to “appearance of impropriety and the

potential for conflicts of interest are inherent in such a situation”); Franklin v. Callum, 146 N.H.

779 (2001) (disqualifying counsel due to conflicts of interest); Sullivan County Regional Refuse

Disposal Dist. v. Town of Acworth, 141 N.H. 479 (1996) (adopting a per se rule of

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disqualification that forbids, in all cases, counsel from representing a client with interests adverse

to a former client in a substantially related proceeding, absent the former client’s consent); State

ex rel. Brown v. Knowlton, 102 N.H. 221, 152 (1959) (Disqualifying the Attorney General from

entering a nol pros on a private criminal complaint brought against a State trooper because the

the Attorney General previously appeared for the trooper/defendant in the same case).

This motion is also grounded on the due process, fair trial and right to counsel clauses of

the State and Federal Constitutions. N.H. Constitution, Part 1, Article 15; U.S. Constitution

Amendments VI and XIV. “The absence of an impartial and disinterested prosecutor has been

held to violate a criminal defendant's [federal] due process right to a fundamentally fair trial.”

New Jersey v. Imperiale, 773 F. Supp. 747, 750 (D.N.J. 1991). See also, Young v. United States

ex rel. Vuitton Et Fils S. A., 481 U.S. 787, 814-815 (1987) (Blackmun, J, concurring);

Brotherhood of Locomotive Firemen & Enginemen v. United States, 411 F.2d 312, 319 (5th Cir

1969) (appointment of civil plaintiff’s counsel to prosecute criminal contempt was a due process

violation); Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967).

Indeed, many of the courts that have addressed the question of vicarious disqualification

of a prosecutor’s office when the defendant’s attorney ‘switches sides,’ have cast the issue in

Constitutional terms. See e.g., Whitaker, 895 S.W.2d at 956 (citing the Sixth Amendment as

grounds for vicarious disqualification of a prosecutor’s office); Lux, 448 S.E.2d at 151 (“…[A]

criminal defendant is denied due process…when his former counsel joins a Commonwealth's

Attorney's office and is not effectively screened from contact with the Commonwealth's

attorneys who are handling the defendant's case.” (emphasis added)); McClellan, 216 P.2d at 962

(failure to disqualify counsel may deny a defendant a “fair trial”); Goot, 894 F.2d at 236 (in

deciding whether to disqualify a prosecutor’s office the court must consider the “fundamental

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interest in [the defendant’s] fifth amendment right not to be deprived of liberty without due

process of law and in his sixth amendment right to counsel.”). Cf: Wilkins v. Bowersox, 933 F.

Supp. 1496 (W.D. Mo. 1996), aff'd, 145 F.3d 1006 (8th Cir. 1998), cert. denied, 525 U.S. 1094

(1999) (due process violation requiring grant of habeas corpus in death penalty case when

prosecutor previously represented defendant in a juvenile matter and learned facts about

defendant that were relevant to capital sentencing).

IV. FACTS1

A. Public Defender Lisa Wolford’s Role In Developing And Implementing Michael Addison’s Post-Conviction Litigation Strategy

Defendant Michael Addison was charged with capital murder in 2006. R,¶2. He was

convicted of capital murder and sentenced to death in 2008. R,¶3. His direct appeal has been

divided into three phases: (1) Determination of the scope of proportionality review under RSA

630:5,XI; (2) Determination of the issues raised in his Rule 7 appeal and (3) Proportionality

review. Phase 1 has been completed. Phase 2—i.e. the Rule 7 appeal—has been briefed, argued

and submitted. Phase 3 has not begun (and will not be necessary if Addison prevails in Phase 2).

Addison’s defense strategy transcends the three stages of his direct appeal. Due to the

unique nature of the case, the defense team has spent a great deal of time developing and

brainstorming an appellate strategy that involves not only Addison’s direct appeal, but also

1The facts set forth below are taken from the following sources, which have been cited in

the following manner and reproduced in the Appendix to this motion as follows:

Tab Document Cited As

A State’s Answer’s To Interrogatories SATI B Exhibits To State’s Answers To Interrogatories SATI, Ex. C Affidavit of David Rothstein, Esq. R D Affidavit of Richard Guerriero, Esq. G E Correspondence To Attorney General Michael Delaney Corr.

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possible federal post-conviction proceedings and possible proceedings after a remand at any

stage. This is to say that Addison’s appellate case is different not only in degree but in kind from

the typical two stage criminal prosecution in which a few issues are preserved at trial and then

litigated on appeal based on a static record.

In August, 2009, while Addison’s appeal was pending, public defender Lisa Wolford

joined his appellate defense team. R,¶5. Attorney Wolford had at least one direct, face to face

meeting with Addison at the prison. R,¶5. She spoke to him as one of his death penalty defense

attorneys, i.e. as an individual who was working zealously to save his life and to resist the efforts

of the Attorney General’s office to end it. R,¶6.

For approximately six months Attorney Wolford devoted half of her full time job to the

development and implementation of Addison’s appellate and post-conviction strategy. R,¶5.

She appeared in this court as Addison’s counsel of record (and has never filed her formal

withdrawal). Her signature on Addison’s Phase 1 Brief is reproduced below:

Attorney Wolford worked extensively and cooperatively with the other members of

Addison’s defense team in researching, brainstorming and drafting legal arguments related to the

proportionality of the death sentence and the sufficiency of the aggravating factors militating in

favor of death. R,¶7-9; G,¶12. The factual and legal issues related to proportionality and

aggravating factors are likely to be at least indirectly in play during all phases of Addison’s

direct and collateral appeals. More generally, at every juncture of the appeal and post-conviction

proceedings, the courts will be faced with the question of whether and why Addison should be

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put to death when (a) no other individual has been executed in New Hampshire in 74 years (i.e.

since before any present member of the New Hampshire judiciary was born) and (b) during the

intervening seven and a half decades quite a number of individuals committed brutal,

premeditated and grotesque murders in the state.

The precise issues that Attorney Wolford researched and discussed during defense team

brainstorming sessions (i.e. proportionality and aggravating factors) will be revisited by this

court in Phase 3 of the appeal. R,¶14; G¶13. Thus, Attorney Wolford knows not only what

arguments the defense will make in Phase 3 (and beyond), but what responses from the State the

defense fears most. She knows what the defense believes to be the prosecution’s strongest

points. She knows how the defense believes specific members of this court will respond to

specific arguments. In poker terms, she not only knows the defense team’s hand, but how the

defense intends to play it. In chess terms, she knows how many moves ahead the defense has

thought and how it is likely to react to the prosecution’s moves and the court’s rulings. In

football terms she has her old team’s playbook. In our profession’s terms, she has confidential

and privileged information including not only privileged client communications but also attorney

work product consisting of the mental impressions of the defense team.

After approximately six months of working on the Addison appeal, Attorney Wolford left

the case and took on a regular appellate defender caseload. R,¶4,5,15. She did not participate

directly in the second phase of the appeal, i.e. the Rule 7 appeal that has been briefed and argued.

B. The Recruitment Of Public Defender Wolford By The Attorney General’s Criminal Bureau

In March, 2012, Attorney Wolford was recruited by Senior Assistant Attorney General

James Boffetti to apply for an open position in the Criminal Bureau appeals unit. SATI, 3 and

Ex, A,1. The discovery provided by the State does not disclose whether Attorney Boffetti, who

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is a homicide prosecutor, acted alone or was part of a group or office effort to recruit Attorney

Wolford.

At the time, Attorney Wolford was still a public defender and Addison’s counsel of

record. However, as explained above, she had not been formally assigned to work on the

Addison case for approximately two years. R,¶15-16; G,¶17-18. Nonetheless, during that time

she had informal discussions with Addison defense team members regarding the appellate issues

in the case. G,¶17-18.

In response to Attorney Boffetti’s recruitment efforts, Attorney Wolford sent a resume to

Associate Attorney General Jane Young, the Chief of the Criminal Bureau. SATI-Ex,A, 1-2.

Attorney Wolford’s resume, which was updated for the purpose of obtaining a job with the office

that was prosecuting Addison, noted that she “contributed to…the defendant’s brief in the

capital appeal in State v. Addison[.]” Thus, Attorney Wolford marketed her experience as a

member of the Addison appellate defense team to the office that was still actively seeking his

death in the same case.

Attorney Wolford was then interviewed by several prosecutors at the Attorney General’s

office. SATI, No. 3. One of these, Senior Assistant Attorney General Jeffrey Strelzin is counsel

of record for the State in Addison’s appeal. Two others—Senior Assistant Attorney General

Stephen Fuller (Chief of the Criminal Appeals Unit) and former Attorney General Michael

Delaney were presumably consulted concerning the State’s appellate briefs in the Addison case

given their positions and the singular importance of this case.

The discovery provided by the State does not indicate to what extent Attorney Wolford’s

role in the Addison case was addressed during her hiring interviews. In response to an

interrogatory asking whether Attorney Wolford ever spoke with anybody at the Attorney

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General’s office concerning the Addison case (except for the purpose of screening), the State

responded tersely by stating, “To the State’s knowledge there have been no such discussions.”

SATI, No. 14. In response to another interrogatory the State indicated that no prosecutor who

was assigned to the Addison case had a direct conversation with Attorney Wolford about the

case. SATI, No. 15. What is not clear from these short responses is whether and to what extent

Attorney Wolford discussed her specific duties in the case.

Attorney Wolford did not inform either N.H. Public Defender Program management or

the Addison defense team that she had applied for a job with the office that was prosecuting

Addison. See, G,¶19. During the several months between her application and her acceptance,

Attorney Wolford continued to participate in homicide case reviews at the Public Defender’s

office.

The State has recently provided the defense with all documents that relate to the

recruitment and hiring of Attorney Wolford. SATI, Ex. A. Those documents discussed a

number of issues including: (a) salary, (b) a requested four year commitment, (c) the

requirement of avoiding partisan politics (presumably to ensure the appearance of propriety), (d)

the need for a background check, (e) a request for a credit report and copies of various

documents, and (e) typical first day of work paperwork. However, not a single sentence of any

pre-hiring written communication to Attorney Wolford discussed the issue of screening her from

the Addison prosecution team. Likewise, there were no emails, memoranda or other documents

circulated internally that discussed the need to screen Attorney Wolford.

By Interrogatory, the defense asked the State to detail the substance of all conversations

between the Attorney General’s office and Attorney Wolford during the hiring process that

related to how she would be screened and isolated from her former client’s cases. SATI, No. 10.

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The Attorney General’s office responded that “this was a general topic of conversation during

the second interview of Attorney Wolford with Ann Rice and Michael Delaney.” SATI, No. 10.

From this, and the Attorney General’s other discovery responses, it may reasonably be inferred

that (a) nobody at the Attorney General’s office has a more detailed memory concerning the

conversation, (b) nobody who was present at the interview kept any notes concerning this

“general topic of conversation,” and (c) no specific protocols, policies or practices to implement

screening were discussed.

Following two interviews with several members of the Attorney General’s office,

Attorney Wolford was hired to work as an appellate prosecutor. A conditional job offer was

made on May 9, 2012. SATI, Ex. A. p. 16. Thereafter, in late June, 2012 Attorney Wolford’s

hiring was approved by Governor and Council. SATI, Ex. A, p. 14. She started employment on

July 6, 2012. SATI, Ex. A, p. 10.

C. The Attorney General Failed To Implement An Adequate Screening Procedure When Public Defender Wolford Became Prosecutor Wolford

On May 10, 2012, Senior Assistant Attorney General Jane Young sent an email to the

entire Criminal Bureau stating that Attorney Wolford would be joining the criminal appeals unit

effective July 6. SATI, Ex. A. Neither that email nor any written communication to the

Criminal Bureau (prior to September, 2012) discussed the fact that Attorney Wolford had

personally worked on pending cases that other members of the Criminal Bureau were still

prosecuting.

In July, 2012, when Attorney Wolford started work an appellate prosecutor, she had an

oral conversation with Senior Assistant Attorney General Stephen Fuller concerning her need to

avoid speaking with other prosecutors about any matter she was involved in as a public defender

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including the Addison case. SATI, Ex. C., p. 4. However, nobody made any contemporaneous

notes of this conversation, no written policy was put in place at the time of her hire, and nothing

was communicated to her new colleagues regarding these issues.

More particularly, nothing in the discovery provided by the Attorney General suggests

that any oral or written instructions were given (prior to September, 2012) to (a) any of the other

attorneys working in the Criminal Bureau, (b) any support staff and (c) pertinent law

enforcement officers concerning the need to isolate Attorney Wolford from the Addison case and

the other cases she worked on while a defense attorney.

This occurred because the Attorney General has no regularized screening policy. To

quote the Attorney General’s Answers To Interrogatories:

The Office Of The Attorney General does not have standard procedures or procedure manuals relating to the screening of lawyers or others for conflicts of interest.

SATI, No. 7. See also, SATI, No. 6 (The Attorney General’s Office does not have a written

policy concerning the screening of lawyers or others[.]”). Instead, the Attorney General’s office

occasionally issued written screening memoranda on a case by case basis to “the individuals

involved, not to the Office as a whole.” SATI, No. 6. Had this practice been followed in

Attorney Wolford’s case, she would have received a contemporaneous screening memorandum,

but the entire criminal bureau would have received nothing either orally or in writing. However,

not even this ad hoc approach was used in Attorney Wolford’s case. SATI, No. 9; See also,

SATI, Ex. C, p. 4.

When Attorney Wolford was hired she was given a physical office on the second floor of

the Attorney General’s office, in the Criminal Bureau and literally within shouting distance of

the offices of the Addison prosecution team. SATI, Ex. C, p. 3. By inference from the lack of

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interrogatory responses discussing these issues, it appears that no consideration was given to

screening when Attorney Wolford was assigned to (a) a particular office, (b) a default printer

where, one presumes, a number of prosecutors print out their work product and (c) support staff.

Thus, while the facts are not known, it is entirely possible that Attorney Wolford shared support

staff and/or a printer with members of the Addison prosecution team.

At the time Attorney Wolford was hired, there were no electronic restrictions on her

ability to access most of the electronic Addison files. See, SATI, Ex. C., p. 2 (noting that

Attorney Wolford was “locked out” of these files seven weeks after she began working for the

Attorney General’s office). Likewise, no notices were placed in Addison paper files indicating

that she was screened from the case. See, SATI, Ex. C. p. 2 (noting that such notices were added

to the paper files two months after Attorney Wolford joined the office).

Finally, as the foregoing makes clear, no instructions were given to the Criminal

Bureau’s paralegals, secretaries, investigators and visitors to avoid discussing the Addison case

in Attorney Wolford’s presence. Indeed, while the prosecutors themselves should have known

of Attorney Wolford’s role in Addison, due to the fact that her name was on the Phase I defense

briefs, it is not clear whether support staff and visitors were even aware of this fact.

D. Untimely And After-The-Fact Efforts To Give The Illusion Of Effective Before-The-Fact Screening

On June 11, 2012 (approximately one month before Attorney Wolford joined the

Criminal Bureau), Christopher Keating, then the Executive Director of the Public Defender

Program, wrote to former Attorney General Delaney to underscore the fact that Attorney

Wolford “worked on appeals in the Michael Addison capital case, and had ongoing access to

confidential and privileged information and defense strategies relating to that case.” See, Corr.

(Keating Letter).

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Attorney General Delaney responded personally to Attorney Keating’s letter. SATI, Ex.

C., p. 1. He stated that he would “ensure that Lisa [Wolford] is screened from any matter in

which she had involvement as a public defender.” SATI, Ex. C., p. 1. Thus, Attorney General

Delaney represented that he would implement an effective screening regime. Attorney General

Delaney’s letter also referenced the fact that five public defenders had joined the Attorney

General’s Criminal Bureau in recent years. SATI, Ex. C., p. 1. Anybody reading the letter

would almost necessarily assume that the Attorney General’s office had developed an effective

screening policy to deal with the fact that it regularly hires attorneys who possess confidential

information regarding pending criminal cases.

However, as detailed above with specificity, Attorney General Delaney failed to follow

through on the representations he made: (a) There was in fact no regular screening policy in

place when Attorney Wolford was hired; (b) There were no screening communications (written

or oral) to the Criminal Bureau or to the Attorney General’s office as a while; (d) There was no

effort made to limit Attorney Wolford’s ability to access the paper or electronic files; and (e) The

only effort made to “screen” Attorney Wolford was an undocumented oral admonishment given

by Attorney Fuller to Attorney Wolford.

In August, 2012 (a month into Attorney Wolford’s employment with the Attorney

General’s office), the Public Defender Program retained Attorney Peter Beeson and Professor

Mitchell Simon, Esq. to review the adequacy of the screening that had been promised by

Attorney General Delaney. See, Corr. (Beeson Letters). On August 27, 2012, Attorney Beeson

wrote to Attorney General Delaney to inquire into “the steps that are now being taken within

your office to protect confidential client information about Mr. Addison’s case.” Id. Attorney

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Beeson specifically asked for information concerning “the nature of the screening procedures

[Delaney] mentioned in [his] earlier letter.” Id.

The Attorney General’s office did not respond to Attorney Beeson’s letter of August 27,

2102. Id. Therefore, Attorney Beeson followed up with additional correspondence on

September 20, 2012. Id. By the time of his second follow up letter, Attorney Beeson bluntly

stated that his interest had by then become “to confirm, expeditiously, that the [Attorney

General’s] office has satisfied its ethical and other responsibilities to this former client of Ms.

Wolford.” Id.

Finally, on October 2, 2012, Attorney General Delaney responded to Attorney Beeson’s

requests for information. SATI, Ex. C, p. 2. His letter referenced several actions that had been

taken after Attorney Beeson’s letter of August 27, 2012. SATI, Ex. C., p. 2. Because these

actions had not been taken earlier, the fair inference is that they were taken because of Attorney

Beeson’s letter. More particularly:

(a) On September 6, 2012, a full two months after Attorney Wolford began employment,

she was given a written memoranda regarding screening. SATI, Ex. C. p. 2.

(b) Also on September 6, 2012, the prosecutors assigned to the Addison case were given

written memoranda concerning Attorney Wolford’s screening and isolation from the Addison

case. SATI, Ex. C. p. 2. The memoranda were addressed solely to the attorneys assigned to

Addison and not to either (a) their support staff or (b) other members of the Criminal Bureau or

the Attorney General’s office. SATI, Ex. C. p. 24.

(c) On September 7, 2012, notices were placed in each of the paper Addison files

indicating that Attorney Wolford was screened from the case.

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(d) On August 30, 2012, approximately six weeks after Attorney Wolford began working

for the Criminal Bureau, she was “locked out” of all electronic files related to the Addison case.

An IT audit (presumably conducted solely in response to Attorney Beeson’s letter) showed that

Attorney Wolford’s user ID was not used to access those files at any point since she joined the

Attorney General’s office.

The Attorney General’s letter suggested that these steps, taken six to eight weeks into

Attorney Wolford’s employment, documented a pre-existing shared (but never discussed)

awareness on the part of Attorney Wolford and the attorneys in the Criminal Bureau that

Attorney Wolford could not reveal confidential information relating to the Addison case. SATI,

Ex. C, p. 3. Thus, the Attorney General all but conceded that the documentation was performed

for appearance rather than for substance.

V. Attorney Wolford Installed Confidential Defense Work Product On The Attorney General’s Computer Network

Attorney General Delaney’s letter of October 2, 2012 to Attorney Beeson indicated that

Attorney Wolford had installed “some electronic research files” from the Public Defender’s

office on the Attorney General’s computer network. SATI, Ex. C. These were placed in a

directory that other prosecutors did not have electronic rights to access. SATI, Ex. C., p. 3.

Nonetheless, they were placed on a network drive. SATI, Ex. C.

In particular, Attorney Wolford uploaded to the prosecutor’s network a document entitled

“aggravating factors.” SATI, Ex. C., p. 26; SATI, No. 4(B). That document was copied from

her Addison files on the Public Defender’s computer system. SATI, No. 4(A). Attorney

Wolford believes that the “aggravating factors” document “concerned…research for Michael

Addison’s sentencing-related brief.” SATI, Ex. C., p. 2; SATI, No. 4(B). In this context, the

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term “aggravating factors” means only one thing, i.e. facts or circumstances that militate in favor

of a sentence of death.

Such aggravating factors are likely to play a central role in Phase 3 of Addison’s direct

appeal. The balance of aggravating and mitigating factors may also play a substantial role in

collateral appeals.

Attorney Wolford uploaded the “aggravating factors” but before formalized screening

procedures were put in place. SATI, Ex C., p. 26. As part of the formalized screening process,

Attorney Wolford was asked by Senior Assistant Attorney General Young to copy all of the

Public Defender research files that she had installed on the Attorney General’s network to a

clean flash drive. SATI, Ex. C, p. 26. The flash drive containing public defender work product

was then transferred from Prosecutor Wolford to Prosecutor Young to Prosecutor Ann Rice.

SATI, Ex. C., p. 26 and SATI, No. 11. Apparently, Deputy Attorney General Rice is keeping the

flash drive “in a safe location” and has neither accessed it nor allowed anyone else to access it.

SATI, No. 11.

After copying her research files to the flash drive, Attorney Wolford deleted them from

the Attorney General’s computer network. SATI, Ex. C. 26. Attorney Wolford has stated that

she did not look at the “aggravating factors” file after she arrived at the Attorney General’s

office. SATI, Ex. C. 26. The Attorney General’s Answers To Interrogatories state that no other

prosecutor was aware of the document and that nobody at the office has ever looked at its

contents. SATI, No. 4(B), SATI, Ex. B. The Attorney General has provided documentation

from their IT professionals suggesting that no prosecutor, no support staff and no IT professional

ever accessed the “aggravating factors” file while it was on their directory. SATI, Ex. B.

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V. LEGAL ARGUMENT

A. The Etienne And Veale Decisions

This court has never addressed the extent to which prosecutors may be vicariously

disqualified from appearing in a criminal case. One reason this issue has evaded review may be

that most New Hampshire prosecutors recuse their offices to avoid not only actual conflicts of

interest but even the appearance of a conflict. See e.g., State v. Gubitosi, 157 N.H. 720, 722

(2008) (noting that the Merrimack County Attorney’s office recused itself “to avoid the

appearance of a conflict of interest.”). A number of other recent examples of office-wide recusal

are noted in the footnote below.2

However, vicarious office-wide disqualification—at least in the absence of a timely and

effective screening policy—is necessarily implied from the rule of imputed office-wide

knowledge that this court adopted in State v. Etienne, 163 N.H. 57, 89-91 (2011). Etienne was a

first degree murder case that was prosecuted by the Attorney General’s Criminal Bureau.

Neither of the two Assistant Attorney Generals who represented the State in that case were aware

of an exculpatory proffer letter that a third Assistant Attorney General provided to a witness.

The defendant first learned of the letter after his conviction and moved for a new trial, claiming

2See e.g., Local Therapist Pleads Guilty To Assaulting Patient, Sentinel Source Online

(June 14, 2013) (Hillsborough County Attorney prosecuted a Cheshire County case because the defendant had appeared as an expert witness in prior Cheshire County cases); N.H. Detective Arrested In Bedford Hit-and-Run Crash, Concord Monitor (March 26, 2013) (Hillsborough County Attorney stating that a different prosecutor’s office would handle a case against a former Manchester Police Officer “to avoid any appearance of a conflict of interest.”); Former Epsom State Rep Makes Variety Of Claims In Court, Union Leader (February 4, 2013) ( Hillsborough County Attorney prosecuted a Merrimack County case “to avoid any possible conflict of interest”); DesRoschers Pleads Guilty To Stealing From Elderly, New Hampshire Lakes And Mountains.com (December 30, 2009) (Grafton County Attorney’s office handled a Coös County case “to avoid any appearance of a conflict of interest.”); Case Against Lawyer Returned To Attorney’s Office That Admits Conflict Of Interest, Seacoast Online (6/12/2008) (Rockingham County Attorney referred a case to the Hillsborough County Attorney because the defendant was an attorney who had interactions with various prosecutors in the office).

20

that he had been denied exculpatory evidence. See, Brady v. Maryland, 373 U.S. 83 (1963);

State v. Laurie, 139 N.H. 325 (1995). The Attorney General objected, arguing that the

prosecutors did not act knowingly. This court rejected that argument and imputed the knowledge

of all of the prosecutors in the Attorney General’s office to the State. Etienne, 163 N.H. at 90.

Etienne held that the Attorney General’s Criminal Bureau must be treated like any other

law firm for the purpose of imputing knowledge of exculpatory evidence:

…[F]or purposes of conflicts of interest, we impute knowledge among attorneys in the same firm. See N.H. R. Prof. Conduct 1.10(a); ABA Model Code of Prof'l Conduct R. 1.0 cmt. [3] (2004). We consider the public defender and the appellate defender to be attorneys in the same “firm.”…[citations omitted]. The criminal division of the Attorney General's Office likewise would constitute a firm. See ABA Model Code of Prof'l Conduct R. 1.0 cmt. [3] (2004); … Accordingly, we conclude that the knowledge of any attorney in the criminal bureau of the Attorney General's Office should be imputed to the State for purposes of determining whether the State “knowingly withheld” exculpatory evidence here.

Etienne, 163 N.H. at 90. The quoted portion of the Etienne cites to N.H.Prof. Conduct 1.10(a). Subject to certain

exceptions discussed below, that Rule vicariously disqualifies all of the attorneys in a “firm”

from appearing in a case if any attorney in the firm could not appear due to a conflict of interest

with a present or former client:

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Thus, Etienne stands for the proposition that the Attorney General’s office must be

treated as a “firm” with respect to the principal of imputed knowledge that informs Rule 1.10(a).

Although Etienne involved imputed knowledge of exculpatory evidence, the same logic would

21

apply to imputed knowledge of former client confidences and work product. There is no

distance to travel from that point to requiring office-wide disqualification based on imputed

knowledge, at least in the absence of a timely and effective screening protocol.

Indeed, this court has already held that vicarious office-wide disqualification applies to

the Attorney General’s counterparts in the public defender’s office. In State v. Veale, 154 N.H.

730, 732 (2007) a public defender client raised a claim of ineffective assistance on appeal. This

court held that no attorney associated with the public defender or appellate defender could

litigate that claim. The same holding also requires office-wide vicarious disqualification based

on former client conflicts absent timely and effective screening:

Some jurisdictions have concluded that the conflict of interest rules do not apply to public defender organizations in the same way, or to the same degree, as they do to private firms. [citations omitted]. Having reviewed these decisions, we believe the better rule is not to exempt the public defender and appellate defender from the operation of the conflict of interest rules for claims of ineffective assistance of counsel. Courts that do not apply the rules to public defender organizations in the same way as to private firms often conclude that because there is no financial interest at stake, a public defender or appellate defender will not be influenced in the same way as a private attorney, and thus the conflict rules need not be applied equally. [citation omitted]. Alternatively, those courts find that disqualifying a public defender or appellate defender under the same rules as private attorneys could deprive litigants of access to the most competent counsel. [Citation Omitted]. We do not find either rationale persuasive. As to the first concern, financial interests are not the only interests that could influence an attorney, and, arguably, are not the most powerful influences. … …Thus, although financial benefits might not be at stake, the relations between the offices and the individual attorneys would be strained and public confidence in the lawyers of the public defender and the appellate defender would be undermined. … Regarding the second concern, we do not agree that applying the conflict rules to the appellate defender in situations such as this will deprive indigent defendants of competent counsel.

Veale, 154 N.H. at 733-734.

22

There is no meaningful distinction between a prosecutor’s office and a public defender’s

office with respect to the whether the doctrines of imputed knowledge and imputed

disqualification should apply. Veale did not mention, let alone turn on the fact that this state’s

public defender is a nominally private entity rather than an arm of the State government.

Therefore, the governmental status of the county attorneys and Attorney General is a distinction

without a difference. More important:

-Prosecutors, no less than public defenders, have non-financial interests—based

friendships, collegiality, ego, self-advancement and the competitiveness of the adversary

system—that warrant a presumption of imputed knowledge and imputed disqualification.

Notwithstanding the noble rhetoric that the government prevails whenever justice is done (and

not only when it obtains a conviction) it is beyond cavil that in most trials and appeals a

prosecutor, no less than a defense lawyer, hopes to win.

-Special prosecutors, no less than assigned indigent defense conflict counsel, are capable

of providing competent, and indeed, excellent representation;

-Office-wide disqualification would be no more disruptive to a prosecutor’s office than to

a public defender’s office;

-Just as our statutes provide for the appointment of alternative criminal defense counsel,

there is statutory authority for the appointment of special county attorneys and special assistant

attorney generals. See RSA 604-A:2-b (authorizing the Judicial Council to contract with private

counsel when the public defender is not available); RSA 7:33-g (authorizing “special assistant

county attorneys”) and RSA 7:12 (authorizing the Attorney General to employ and pay

“assistants” and “counsel” “in case of reasonable necessity”).

23

The American Law Institute supports extending the doctrine of imputed knowledge of

client confidences and a concomitant rule of vicarious, office-wide disqualification to

prosecutor’s offices. See, Restatement (Third) of The Law Governing Lawyers (“Restatement”),

§123(3), comment d(iii), Illustration 4:

Assistant Prosecutor A, who has recently joined a county prosecutor's office, represented Defendant at a preliminary hearing in a pending criminal case while in private practice. Because A would be prohibited from prosecuting Defendant at trial in the same matter…under the rule of imputation described in this Section, ordinarily no other member of the same county prosecutor's office could conduct the prosecution. A special prosecutor or a prosecutor from an adjoining but jurisdictionally distinct county ordinarily could act. If state law does not permit appointment of such other prosecutors, however, screening measures such as those described in § 124(2) can suffice to permit the prosecution to proceed.

For the foregoing reasons, the first step in this case is an easy one. This court should now

hold that the entire Attorney General’s office must be considered as a single “firm” for the

purposes of (a) imputing knowledge of former client confidences and attorney work product and

(b) requiring vicarious disqualification under one of the approaches described below.

B. The New Hampshire Approach To Vicarious Disqualification Of Private Law Firms

This court could treat the Attorney General’s office exactly the same as any other firm for

the purpose of vicarious disqualification. Under this approach, the entire Attorney General’s

office would be disqualified from further involvement in the Addison case because (a) it failed to

implement a timely and effective screening policy and (b) Attorney Wolford had substantial

involvement in, and received substantial material information about the Addison case while she

was a member of his defense team.

As noted above, N.H.R. Prof. Conduct 1.10(a) requires office-wide vicarious

disqualification from a matter when one attorney in a “firm” previously represented an adverse

party in the same or a substantially related matter. There are only two exceptions to this rule.

24

The first, now codified as Rule 1.10(d), allows the former client to waive the conflict in writing.

The second exception, added in 2012 and codified as Rule 1.10(c), applies when a newly hired

lawyer joins a firm and the firm implements immediate, contemporaneously documented and

effective institutional screening. Rule 1.10(c) provides as follows:

When a lawyer becomes associated with a firm, no lawyer in that firm shall knowingly represent a person in a matter in which the newly-associated lawyer is disqualified under Rule 1.9, unless the personally disqualified lawyer is timely screened from any form of participation in the matter. For purposes of this rule, screening requires that: (1) The personally disqualified lawyer shall provide the former client or the former client's counsel with an affidavit attesting that the personally disqualified lawyer will not participate in the matter and will not discuss the matter with any other firm member or employee. Promptly upon final disposition of the matter, if requested by the former client or former client's counsel, the personally disqualified lawyer shall provide a further affidavit describing the lawyer's compliance with these undertakings. (2) At least one partner, officer or shareholder of the firm shall provide the former client or former client's counsel with an affidavit attesting that all firm members and employees are aware of the requirement that the personally disqualified lawyer be screened from participation in and discussions about the matter, and describing the procedures being followed to screen the personally disqualified lawyer; and an agreement to respond promptly to any written inquiries or objections on behalf of the former client about the screening procedures adopted by the firm. Promptly upon termination of the matter, if requested by the former client or former client's counsel, a partner, officer or shareholder of the firm shall provide an additional affidavit describing the firm's compliance with procedures established for screening of the personally disqualified lawyer. (3) Notwithstanding the foregoing, a personally disqualified lawyer can not be screened under the provisions of this rule if that lawyer had substantial involvement in, or received substantial material information about, a matter that is ongoing at the time of the firm transfer and that would be the focus of the screening procedures.

(emphasis added).

25

Timeliness: Although Rule 1.10(c) allows a firm to avoid disqualification by screening a

new lateral hire, such screening is only effective when it is accomplished before the new lawyer

actually commences employment. See, N.H.R.P. Conduct 1.10, Ethics Committee Comment

[T]o ensure attention to the establishment of effective screening procedures, the new provisions require that separate affidavits be prepared by the personally disqualified attorney and by a partner, officer or shareholder of the new firm. These affidavits would be prepared at the time of the attorney’s transfer and implementation of screening procedure.

(emphasis added). Further, because the officer’s affidavit must (a) attest that all attorneys and

support staff were made aware of the disqualified lawyer’s conflict and (b) detail the institutional

procedures that were followed, see, Rule 1.10(c)(2), these steps must necessarily occur before

the lateral hire starts working. See also, New Hampshire Bar News, Ethics Corner: Timely

Screening For Lateral Hire Conflicts (November 12, 2012), in which the Bar Ethics Committee

answered the following question:

Q: I am moving as a lateral hire to a new law firm whose clients are adverse to some of the existing clients in the old firm. The new firm is establishing a screening process that would allow me to join the firm without creating a disqualifying conflict of interest for its existing clients who are adverse to my old firm’s clients. The new firm plans to finalize all of the screening procedures as soon as I start working there, but do you think that would be too late?

A: Yes, that would too late. The screening process must be in place before you

start your new employment. . . .

Unless the screening procedures are in place and the required affidavits are provided before you start working in the new firm, you would risk violation of both conflicts and confidentiality rules and the new law firm would risk the possibility of mandatory withdrawal from ongoing matters.

(emphasis added). Other states that allow lateral hires to be screened (as opposed to requiring per se

vicarious disqualification of the entire firm) do so only when the screening is complete at the

26

time the new lawyer commences employment. See e.g., Ryan's Express Transportation Services.

v. Amador Stage Lines, Inc., 279 P.3d 166, 172 (Nev. 2012) (“…[T]he screen must be in place

when the attorney joins the firm.” (emphasis added)); Martin v. AtlantiCare, 2011 U.S. Dist.

LEXIS 122987, 33, 2011 WL 5080255 (D.N.J. 2011) (“If the purpose of a screening procedure is

to protect information the isolated lawyer is required to protect, written procedures should be in

place before a disqualified lawyer starts work. At a minimum, the procedures should be in place

when the employment starts…”); State v. Kinkennon, 747 N.W.2d 437, 445 (Neb. 2008)

(“…[S]creening procedures” in a prosecutor’s office “must be implemented as soon as practical

after a lawyer or government office knows or reasonably should know that screening is needed.”

(emphasis added)); Mitchell v. Metropolitan Life Insurance Company, 2002 U.S. Dist. LEXIS

4675, 27, 2002 WL 441194 (S.D.N.Y. 2002) (“…the screening measures must have been

established from the first moment the conflicted attorney transferred to the firm or, at a

minimum, when the firm first received actual notice of the conflict.” (emphasis added)); Kala v.

Aluminum Smelting & Refing Co., 688 N.E.2d 258, 267 (Ohio 1998) (“…[A]ll cases agree that

the screens must be in place when the attorney joins the firm.” (emphasis added)); Marshall v.

State of New York Div. of State Police, 952 F. Supp. 103, 111 (N.D.N.Y. 1997) ("a screening

device implemented only after a disqualified lawyer has been with a firm will not provide

adequate protection of confidences"); Handtool Corp. v. Dresser Indus., Inc., 619 N.E.2d 1282,

1294 (Ill. App. Ct. 1993) (screening was not timely when implemented five weeks after actual

notice of conflict of interest); EZ Paintr Corp. v. Padco, Inc., 746 F.2d 1459, 1462 (Fed. Cir.

1984) (screening had to take place when lateral attorneys began employment); LaSalle National

Bank v. County of Lake., 703 F.2d 252, 259 (7th Cir. 1983) (disqualifying entire firm when

formalized screen took place several months after start of employment, notwithstanding

27

affidavits stating that the attorney never discussed his former client’s matter); Current

Developments 2008-2009: A Discussion Of Non-Consensual Screens As The ABA Votes To

Amend Model Rule 1.10, 22 Geo J. Legal Ethics 1211, 1225 (Summer 2009) (screening is

“timely” only when it is occurs “either before the lateral attorney commences work at her new

firm, or immediately upon the acceptance of new business that conflicts with a lateral attorney's

former work,” and “[a] court should automatically disqualify the law firm should a screen's

implementation not occur immediately.”); But See, Intelli-Check, Inc. v. TriCom Card

Technologies, Inc., 2008 U.S. Dist. LEXIS 84435, 2008 WL 4682433 (E.D.N.Y. 2008)

(screening was timely when implemented within a few days of law firm learning of the conflict);

Papyrus Technology Corporation v. New York Stock Exchange, 325 F.Supp. 270, 281 (S.D.N.Y.

2004) (screening was timely when implemented as soon as the firm learned that the lateral hire

had been privy to confidential client information relating to a matter in which he had extremely

limited involvement at his prior firm).

In this case the Attorney General’s office was well aware that Attorney Wolford was

Addison’s attorney at the time she was hired. This fact was highlighted on her resume and on

the front cover of the Phase 1 Briefs. It was the subject of a letter sent by the Executive Director

of the Public Defender Program to the Attorney General a full month before Attorney Wolford

commenced employment. Indeed, the Attorney General personally promised that he would

screen Attorney Wolford. Yet, for reasons that are incomprehensible, nothing approaching an

effective screening procedure was put into place for approximately two months.

Effectiveness: The private, undocumented, one-on-one conversation between Attorneys

Fuller and Wolford was not an effective institutional screening policy. It was not communicated

to any other attorney in the office. It was not communicated to support staff or pertinent law

28

enforcement personnel. There were no efforts made to lock Attorney Wolford out of electronic

and paper files. Nothing was communicated to relevant law enforcement officials. None of the

affidavits required by Rule 1.10(c) were provided. What occurred when Attorney Wolford

arrived was an ad hoc and casual acknowledgment of her ethical obligations, not “screening”

within the meaning of Rule 1.10(a). Compare e.g., State ex rel. Romley v. Superior Court, 908

P.2d 37, 43 (Ariz. Ct. App. 1995) (that there must be “a genuine appearance of a security wall

around the subject attorney” designed to eliminate even “inadvertent disclosure” and notice of

the screening must be provided to the entire prosecutor’s office as “required reading.”); In re

R.B., T.Y. and K.S., 583 N.W.2d 838 (S.D. 1998) (notice given to the entire prosecutor’s office,

notice placed in each affected file and notice provided to each affected defendant); State ex rel.

Horn, 138 S.W.3d 729, 733 (Mo. Ct. App. 2002) (notice given to the entire prosecutor’s office,

files color coded so disqualified attorney would not have access); State v. Kinkennon, 747

N.W.2d 437, 445 (Neb. 2008) (notice must be given to other prosecutors involved with the case

and, depending on the circumstances, to the entire office and affected government personnel, and

the disqualified lawyer should be denied access to affected files); Martin, 2011 U.S. Dist. LEXIS

122987 at 33-35 (screening must be in writing, communicated to all personnel and the

disqualified lawyer should be unable to access paper and electronic files).

Although Rule 1.10(c) does not proscribe the particular procedures that are necessary for

effective screening in different contexts, all of the relevant factors militate in favor of a strict

screening regime in the particular context of this case:

-Courts have considered the physical proximity of the disqualified attorney to the lawyers

handling the case as well as the size of the firm and the lines of communication. See e.g., Intelli-

Check (inadvertent disclosure unlikely when disqualified lawyer worked in a 420 lawyer firm

29

hundreds of miles away from the attorneys involved in the case and the computer systems from

the two offices were not merged); Reilly v. Computer Associates Long-Term Disability Plan,

423 F. Supp. 2d 5, 11 (E.D.N.Y. 2006) ("[P]hysical separation . . . substantially reduces the

chances of inadvertent disclosure . . . ."); Yaretsky v. Blum, 525 F. Supp. 24, 29-30 (S.D.N.Y.

1981) (implied disqualification not rebutted by screening procedures because conflicted attorney

joined a 30 lawyer office and worked in the department handling the case); Mitchell v.

Metropolitan Life Insurance Company, Inc., 2002 U.S. Dist LEXIS 4675, 2002 WL 441194

(S.D.N.Y. 2002) (“more is required in a small collegial office with a single location than in a

large, national firm where the disqualified attorney may be separated by thousands of miles from

the group that is handling the matter in question.”); SK Handtool Corp. v. Dresser Indus., 619

N.E.2d 1282, 1294 (Ill. Ct. App. Ct. 1993) (the size of the firm and whether the lateral hire is on

a different floor from the lawyers involved in the matter “may well be relevant to a determination

of the propriety of a disqualification order.”). See also, Restatement §123, comment d(iii). In

this case, the Attorney General’s Criminal Bureau consists of a small, collegial group of

attorneys who are located on the same floor in close quarters.

-Less rigorous screening procedures may be appropriate when the disqualified attorney

was on the far periphery of the case at issue. See e.g., Papyrus Technology Corp (no firm-wide

disqualification when screened attorney did not actually represent the client but received a small

amount of privileged information via emails to his entire practice group). In this case, Attorney

Wolford worked many hours each week on the Addison case for roughly six months and played

an integral role in both drafting his Phase 1 Briefs and developing his appellate and post-

conviction strategy.

30

-Less rigorous screening might be justified if a great deal of time elapsed between the

disqualified attorney’s departure from her former firm and her employment at her present firm.

In this case, Attorney Wolford was recruited by the Attorney General’s office while she was still

at the Public Defender Program.

Thus, for all of the foregoing reasons, if this court applies Rule 1.10(a) and (c)(1) and (2),

it must disqualify the Attorney General’s office because it failed to implement a timely and

effective screening policy.

Substantial Involvment: As noted above, Rule 1.10(c)(3) requires firm wide

disqualification, and does not allow screening when the personally disqualified lawyer “had

substantial involvement in, or received substantial material information” about a matter that was

ongoing at the time of the lawyer’s transfer to the new firm. In this respect, the New Hampshire

Rule is “more restrictive” than the ABA Model Rule. N.H. R. Prof. Conduct 1.10, Ethics

Committee Comment. Compare, ABA Model Rule 1.10. As detailed above, in this case

Attorney Wolford was substantially involved in, and received substantial material information

about the Addison case. Thus, if this court applies Rule 1.10(c)(3), it must disqualify the

Attorney General’s office for this reason as well. Cf: Whitaker, 895 S.W.2d at 956

(prosecutor’s office should be disqualified if a laterally hired attorney had “substantial and

personal involvement” in the defense of the case).

C. The Safe Harbor Approach

Many jurisdictions follow what might be called a “safe harbor” approach similar to that

discussed above in connection with Rule 1.10(c)(1) and (2). Under this approach when a

defendant’s attorney joins the prosecutor’s office, the entire office is presumptively disqualified

from the case but the State may rebut this presumption through proof of timely and effective

31

screening. See e.g., State v. McClellan, 216 P.2d 956 (Utah 2009); State ex rel. Horn, 138

S.W.3d 729, 733 (Mo. Ct. App. 2002); Lux v Commonwealth, 484 S.E. 2d 145, 152 (Va. Ct.

App. 1997); State v. Pennington, 851 P.2d 494, 501 (N.M. Ct. App. 1993); United States v.

Goot, 894 F.2d 231, 235 (7th Cir. 1990); People v. Davenport, 760 N.W.2d 743, 749 (Mich. Ct.

App. 2008); In Re R.B.,583 N.W.2d 838, 841 (S.D. 1998). If the prosecutor’s office proves this

safe harbor, the burden then shifts back to the defendant to prove an actual misuse of privileged

information. If this court adopts the safe harbor approach it would have to disqualify the

Attorney General’s office because it cannot prove timely and effective screening.

D. The Per Se Approaches

This court could reject the Rule 1.10(c)(1) and (2)/safe harbor approach and instead

follow a line of cases that requires per se disqualification of an entire prosecutor’s office from a

defendant’s case when (a) the defendant’s attorney switches sides and joins the prosecutor’s

office in the middle of the case and (b) the defendant does not waive the conflict. These cases

hold that no amount of screening can remedy the perception of impropriety that inheres in such

cases. See e.g., People v. Shinkle, 415 N.E.2d 909, 910-911 (N.Y. 1980):

The fact that the attorney who had initially represented defendant and participated actively in the preparation of his defense was chief assistant in the office of the prosecutor in the months preceding and during defendant's trial inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant. It is no answer that defendant offers no evidentiary proof of actual prejudice. In the circumstances such proof would most likely be out of defendant's reach. Nor does it serve to protect the interests of defendant that procedures were devised and scrupulously followed to insulate [the attorney] from the prosecution of this case. The inherent impropriety of the situation is further demonstrated in this instance when, in an attempt to show that the insulation was practically effective, the People circuitously resorted to an affirmation from [the attorney] himself. In defendant's perception it was his former attorney who was personally championing the People's cause against him.

32

Defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight[.] …We recognize that the rule applied in this case may impede the transfer of attorneys between offices of Legal Aid or Public Defender and of District Attorney. This circumstance, however, affords no basis to deny defendants the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them.

See also, State v. Latigue, 108 Ariz. 521, 523, 502 P.2d 1340, 1342 (1972) (requiring office wide

disqualification, but later overruled by court rule permitting timely and effective screening in

most cases, see, Romley, 908 P.2d at 42 ); People v. Stevens, 642 P.2d 39, 41 (Colo. Ct. App.

1981) (later overruled by statute but holding that “The most compelling rationale for requiring

appointment of a special prosecutor is avoidance of the appearance of impropriety”); State v.

Croka, 646 S.W.2d 389, 393 (Mo. Ct. App. 1983).

Other jurisdictions enforce a per se rule when the appearance of propriety is a particularly

weighty concern but allow for timely and effective screening in other cases. Thus, for example,

in Pennington, 851 P.2d at 501, the New Mexico Court of Appeals overruled earlier precedent

requiring per se disqualification in all cases3 bur recognized that there may still be “special

circumstances” where an appearance of impropriety requires disqualification of the entire

office” despite timely and rigorous screening. In Romley, 908 P.2d at 42, the Arizona Court of

Appeals followed Pennington and explained what constitutes such a “special circumstance:”

The court must consider such matters as the length of the prior representation, the intensity of the representation, the nature of the crime, and the notoriety the crime may have received. The court should then examine the countervailing considerations including the size of the prosecutor's office, [footnote omitted] the placement of the newly hired attorney in the office, and the screening mechanism, if any, that is put in place to protect against impropriety. [footnote omitted] The court should then apply a "reasonable person" standard to answer the question whether a reasonable person standing in the shoes of the defendant should be satisfied that his or her interests will not be compromised by the hiring.

3State v. Chambers, 524 P.2d 999 (N.M. Ct. App. 1974), cert. den. cert. denied, 524 P.2d

988 (N .M. 1974)

33

In this case, all of the Romley factors weigh heavily in favor of per se disqualification

due to “special circumstances.” Attorney Wolford worked on the Addison case steadily for six

months. The case is one of the most complicated and intense appeals this court has ever seen.

The crime is capital murder. The sentence is death. The notoriety is unprecedented. The size of

the prosecutor’s office is small. The location of the newly hired attorney is in the unit

prosecuting Addison and in close proximity to the prosecution team. The screening mechanism

was a casual, undocumented phone conversation. Finally, the disqualified attorney placed on the

prosecutor’s computer network defense research that discussed “aggravating factors” favoring

the defendant’s execution. See also, Kinkennon, 747 N.W.2d at 444 (“We recognize that

complete disqualification of a prosecutor's office may be warranted in cases where the

appearance of unfairness or impropriety is so great that the public trust and confidence in our

judicial system simply could not be maintained otherwise. Such an extreme case might exist,

even where the State has done all in its power to establish an effective screening procedure

precluding the individual lawyer's direct or indirect participation in the prosecution. “); Collier v.

Legakes, 646 P.2d 1219, 1221 (Nev. 1982) (same); State v. Tippecanoe County Court, 432

N.E.2d 1377, 1379 (Ind. 1982) (per se office wide vicarious disqualification when the chief of a

prosecutorial office previously represented the defendant in the same matter). Thus, for the

foregoing reasons if this court adopts either the per se or the “per se in special circumstances”

approach, it must disqualify the Attorney General’s office.

E. The Prejudice/Disclosure Approach And The Need For Discovery

Some jurisdictions require vicarious disqualification of prosecutor’s offices only in cases

of actual prejudice or proven breaches of confidentiality. See e.g., . State v. Dambrell, 817 P.2d

646, 653 (1991) (upholding trial court discretion to deny motion for vicarious disqualification in

34

the absence of actual prejudice and nothing that screening was accomplished by trial court

order); Young v. State, 465 A.2d 1149, 1155 (Md. 1983) (requiring proof that disqualified

attorney disclosed confidential information or participated in the prosecutor); State v. Cline, 405

A.2d 1192, 1207 (R.I. 1979); Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App. 1977); Pisa

v. Commonwealth,, 393 N.E.2d 386 (1970).

This court should reject that approach because it places a burden of proof on the

defendant regarding facts that are in the exclusive possession of the prosecution. If the State is

not required to document timely and effective screening, then how will a defendant know

whether his confidences were inadvertently or even deliberately betrayed? In the absence of a

presumption arising from the failure to implement such screening, a defendant whose lawyer

switches sides in the middle of a capital murder case must be granted meaningful discovery

consonant with his burden to prove actual prejudice or an actual disclosure of confidential

information. See .e.g., Whitaker v. Commonwealth, 895 S.W.2d 953 (Ky. 1995).

Such discovery is not only burdensome, but distasteful because it requires the defense

probe into the workings of its adversary’s office. The comparative burdens of the alternative

approaches (i.e. the per se approach, the per se in special circumstances approach, the Rule 1.10

approach and the safe harbor approach) are minimal. Indeed, the safe harbor approach in

particular was designed to avoid both extensive factual discovery and vicarious disqualification

in most cases through a procedure that costs nothing and requires only a modicum of diligence

on the part of prosecutors.

If this court nonetheless adopts the actual prejudice/actual disclosure standard, Addison

requests additional discovery and fact finding, to be accomplished by a specially appointed

master. The discovery should include depositions of (a) Attorney Wolford; (b) the attorneys who

35

interviewed her before she was hired; (b) all of the prosecutors who are on the Addison

prosecution team; (c) depositions of the Chief of the criminal appeals unit and the Chief of the

Criminal Bureau; and (d) a deposition of the Attorney General’s information technology

coordinator. Additionally, the “aggravating factors” document should be provided to the master

for an in camera review and simultaneously removed from the Attorney General’s office.

WHEREFORE, defendant Michael Addison requests this court for the following relief:

1. An order disqualifying the Attorney General’s office from prosecuting this matter

from this point forward in any direct or collateral appeal or following any remand;

2. In the alternative, an order disqualifying of all members of the Attorney General’s

office who were employed or associated with that office from July 6, 2012 (when Addison’s

former attorney commenced employment as a prosecutor) to September 8, 2012 (when certain

screening measures were put in place).

3. In the further alternative, the appointment of a special master for the purpose of

supervising discovery and conducting fact finding pursuant to the request made on page 34,

above.

David Rothstein, Esq. N.H. Bar No. 5991 Christopher Johnson, Esq. N.H. Bar No. 15149 N.H. PUBLIC DEFENDER PROGRAM 10 Ferry Street Concord, NH 03301 603-224-1236

Respectfully submitted, MICHAEL ADDISON By his attorneys, ___________________________________ Andrew R. Schulman, Esq. N.H. Bar No. 2276 GETMAN, SCHULTHESS & STEERE, P.A. 1838 Elm Street Manchester, NH 03104 603-634-4300 Counsel of Record on this motion.

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REQUEST FOR ORAL ARGUMENT

Defendant requests a fifteen minute oral argument on this motion. It is understood that oral argument on motions is rare and by invitation only. Supreme Court Rule 21(4). However, this motion raises substantive issue of law and question of first impression that is of substantial importance to the administration of the criminal justice system. If argument is granted, Attorney Andrew R. Schulman will argue.

CERTIFICATE OF SERVICE

I, Andrew R. Schulman, hereby certify that on July 11, 2013 I served copies of this motion and the attached Appendix on counsel for the State by (a) email attachments and (b) first class mail, postage pre-paid to Assistant Attorneys General Susan Morrell, Jeffrey Strelzin, Janice Rundles and Elizabeth Woodcock. _________________________ Andrew R. Schulman