MEMORANDUM OPINION AND ORDER DENYING TARGET'S MOTION TO DISQUALIFY THE LOCAL UNITED STATES ATTORNEY'S OFFICE
Petitioners Michael I. Greer and Patrick R. Frega are targets of a federal grand jury investigation concerning alleged corruption among former state court judges.
Although the grand jury has not indicted them yet, Greer and Frega have moved to disqualify the local United States Attorney's Office from investigating this matter further or prosecuting them. The motion is based on an ethical conflict of interest stemming from the fact that one Assistant U.S. Attorney -- not assigned to this matter -- previously represented Frega during a state investigation of the same allegations.
The Court, having read and considered the moving papers, opposition, reply, declarations and exhibits submitted by counsel, and the declarations of Assistant U.S. Attorneys Phillip Halpern and Charles La Bella, and having concluded that this matter is proper for resolution without the need for oral argument, HEREBY DENIES the motion to disqualify the local U.S. Attorney's Office from further investigation or prosecution of Greer and Frega.
This case arrives before the Court in a highly unusual posture, since no indictment has been filed and therefore no criminal case has been opened. However, the Court has looked to the concept of "anomalous jurisdiction" to determine whether it has jurisdiction to resolve this motion.
A district court has equitable jurisdiction to consider a motion to suppress evidence even in the absence of a filed indictment. Meier v. Keller, 521 F.2d 548, 554 (9th Cir. 1975), cert. denied, 424 U.S. 943, 47 L. Ed. 2d 348, 96 S. Ct. 1410 (1976); Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir. 1979). This jurisdiction -- known as "anomalous jurisdiction" -- stems "from the inherent authority of the court over those who are its officers." Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974), cert. denied, 420 U.S. 927, 43 L. Ed. 2d 397, 95 S. Ct. 1124 (1975).
Anomalous jurisdiction is to be exercised with caution and restraint. Meier, 521 F.2d at 554; Pieper, 604 F.2d at 1133. However, it is also most appropriately exercised in cases in which a criminal indictment is threatened, because "the criminal indictment itself carries a danger of stigmatization which may not be removed by a determination in a criminal trial." Hunsucker, 497 F.2d at 33. This matter, involving alleged judicial corruption, is an appropriate case for the exercise of anomalous jurisdiction.
Moving parties Greer and Frega are targets of a federal grand jury investigation concerning alleged bribery, tax evasion, conspiracy, and racketeering activities of former California Superior Court judges in San Diego. Although the targets have not been indicted, the United States expected to obtain indictments as early as February 15, 1996. Greer and Frega have moved to disqualify the U.S. Attorney's Office for the Southern District of California from investigating or prosecuting them, on ethical conflict of interest grounds.
The alleged conflict stems from Assistant U.S. Attorney Michael Dowd's representation of Frega during a state investigation of the same allegations of bribery in 1992. It is undisputed that Dowd and Frega shared privileged attorney-client conversations during this representation, and all parties agree that Dowd is disqualified from participating in the federal investigation of the targets.
The local United States Attorney's Office was not immediately aware of Dowd's prior representation of Frega. It appears to have come to the Office's attention when Special Agent John Gillies approached Dowd to see if he would be interested in joining the bribery investigation. (Redacted Declaration of Charles La Bella P 10). At that time, Dowd explained that he could not do so due to an ethical conflict of interest.
Although the United States Attorney's Office does not so state explicitly, the primary reason that Dowd's conflict did not surface until he was approached by Gillies is that U.S. Attorney Alan Bersin instructed Assistant U.S. Attorneys Phillip Halpern and Charles La Bella to keep the bribery investigation confidential within the Office. (Declaration of Charles La Bella PP 3, 9).
Throughout the investigation, La Bella and Halpern kept the files on this case segregated from all other files, in a separate building with access restricted to prosecutors working on the investigation. (Declaration of Phillip Halpern P 13).
By May 1995, however, the existence of the investigation had become public knowledge, and Halpern and La Bella implemented a screen specifically for Dowd. On May 12, 1995, Halpern directed that all files and case materials pertaining to the corruption investigation be visibly marked as such, and that all personnel be made aware of the significance of these markings. On May 23, 1995, Halpern sent electronic mail to the other attorneys informing them of Dowd's recusal. (Redacted Declaration of Phillip Halpern PP 15-18).
On January 12, 1996, Frega and Greer sought a temporary restraining order to enjoin the U.S. Attorney's Office from proceeding with the investigation, based on Dowd's recusal. They also filed a motion to disqualify the Office on the same ground. The Honorable Rudi M. Brewster
denied the TRO application and was prepared to hold an evidentiary hearing on the disqualification motion. However, on January 19, 1996, the entire federal bench in San Diego recused itself, and the Ninth Circuit assigned the case to this Court.
The issue before the Court is whether Dowd's disqualification requires recusal of the entire U.S. Attorney's Office for the Southern District of California from investigating or prosecuting Greer and Frega. The answer lies in the applicable rules of professional conduct.
Attorneys admitted to practice in the Southern District of California must adhere to the California Rules of Professional Conduct as well as the American Bar Association Model Rules of Professional Conduct. Local Rule 83.5(e)(2).
Rule 83.5(e)(2) applies to Assistant United States Attorneys. See United States v. Lopez, 4 F.3d 1455, 1459 (9th Cir. 1993) (holding that the California Rules of professional Conduct and state court decisions regarding professional conduct were binding on government attorneys in the Northern District through Local Rule 110-3, the equivalent of Rule 83.5(e)(2) in that district). Therefore, whether the U.S. Attorney's Office should be disqualified is to be determined by analyzing the requirements of the California Rules, the Model Rules, and state and federal cases.
A. Ninth Circuit Authority
The leading disqualification case in the Ninth Circuit is Trone v. Smith, 621 F.2d 994 (9th Cir. 1980), which held that an entire private law firm would be disqualified if one of its attorney's former representation of a client was substantially related to current adverse representation against the former client. Id. at 998-99. Greer and Frega argue that since Dowd's former representation is undisputedly substantially related to the present adverse representation, the entire office must be disqualified from investigating this matter under the imputed disqualification rule.
However, Trone is clearly not applicable to government attorneys. Its holding is based on the ABA Model Code of Professional Conduct,
which has since been replaced by the ABA Model Rules of Professional Conduct. Model Rule 1.11(c)(1) states:
Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not . . . participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in any matter.
Comment  to Model Rule 1.11 states: "Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated."
That Trone does not apply to government attorneys is consistent with Ninth Circuit authority.
In United States v. Weiner, 578 F.2d 757, 767 (9th Cir.), cert. denied, 439 U.S. 981, 58 L. Ed. 2d 651, 99 S. Ct. 568 (1978), the Ninth Circuit concluded that the assumption of free flow of information within private law firms did not hold for large government agencies.
In United States v. Mapelli, 971 F.2d 284 (9th Cir. 1992), the Ninth Circuit disqualified two Assistant U.S. Attorneys who had been exposed to the defendant's immunized testimony. However, the court did not disqualify the entire U.S. Attorney's Office. Id. at 287-88. Although Mapelli concerned a violation of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972),
and not prior representation, the individually disqualified attorneys in that case were tainted for the same reason that Dowd is: each possessed knowledge about the defendant that could not be used against the defendant. If the Ninth Circuit had intended imputed disqualification to apply to government attorneys, the entire U.S. Attorney's Office in Mapelli would have been disqualified, since the assumption of free flow of information would lead to a presumption that the entire Office had acquired knowledge of the contents of the immunized testimony.
Mapelli is analogous with the situation in this case.
Along with Weiner and Model Rule 1.11(c), it demonstrates that Ninth Circuit authority does not support disqualifying the U.S. Attorney's Office.
B. California Authority
There are, of course, no California cases focusing on the disqualification of federal prosecutors. However, California courts have visited the issue of recusing state prosecutors a number of times.
For recusal to be ordered, "the conflict must be of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered." People v. Conner, 34 Cal. 3d 141, 147, 193 Cal. Rptr. 148, 666 P.2d 5 (1983) (citing Calif. Penal Code § 1424).
Conner and § 1424 thus overruled the previous rule of People v. Superior Court (Greer), 19 Cal. 3d 255, 266-69, 137 Cal. Rptr. 476, 561 P.2d 1164 (1977), which required recusal "if the conflict either affects or appears to affect the district attorney's ability to perform the discretionary function of his office." Conner, 34 Cal. 3d at 147.
Greer and Frega argue that California cases regarding recusal of state prosecutors do not apply to federal prosecutors because district attorneys are officials elected by the voters of the districts that they serve. This argument is not wholly devoid of merit, since the fact that district attorneys are elected officials has been a factor leading California courts to conclude that disqualification should require a considerable showing of risk of an unfair trial:
Caution is necessary because "when the entire prosecutorial office of the district attorney is recused and the Attorney General is required to undertake the prosecution or employ a special prosecutor, the district attorney is prevented from carrying out the statutory duties of his elected office and, perhaps even more significantly, the residents of the county are deprived of the services of their elected representative in the prosecution of crime in the county. The Attorney General is, of course, an elected state official, but unlike the district attorney, is not accountable at the ballot box exclusively to the electorate of the county."