Alleged Conflict Not Imputed

The New Hampshire Supreme Court rejected a criminal appeal based in part on the defendant’s contention that the entire county attorney’s office be disqualified

We conclude that the alleged conflict of interest in this case cannot be imputed to the entire county attorney’s office and that the trial court’s finding that the measures taken by the SCAO were sufficient to avoid any appearance of conflict was a sustainable exercise of its discretion.

The alleged conflict

The defendant was subsequently indicted on one count of dispensing a controlled substance – death resulting. See RSA 318-B:26, IX. At the first arraignment, the parties conferred about a potential conflict of interest involving the legal assistant to the Strafford County Attorney and the defendant. The defendant previously had a romantic relationship with the legal assistant, and although they had not been in a relationship since 2003, the former couple share a child. When the defendant’s indictment became public, the legal assistant obtained a favorable ex parte order modifying her parental rights and responsibilities with respect to their child. The county attorney assured the defense that the legal assistant would be “walled off” and would have no internal access to the defendant’s case information. Specifically, the
county attorney represented that the legal assistant had no access to the case file, members of the SCAO were instructed not to speak with the legal assistant about the case, and the county attorney recused himself from the case, delegating the prosecution to the deputy county attorney and an assistant county attorney. The defendant did not object to these measures.

Defendant offered an alibi 

During the defendant’s first trial in March 2019, the State attempted to call the legal assistant as a fact witness. The defendant objected on discovery grounds. Based on the untimely disclosure, the trial court limited the legal assistant’s potential testimony, and the State did not call her as a witness. The March 2019 trial resulted in a mistrial due to a deadlocked jury.

He then claimed prosecutorial misconduct and

Further, the defendant argued that the legal assistant benefited by the SCAO’s decision to prosecute the defendant because she gained sole custody of the child as a result of the defendant’s indictment.

The trial court considered Rule 1.7 and the appearence of impropriety

The trial court reasoned that the legal assistant’s status as a coworker of the prosecutors, standing alone, was insufficient to establish the appearance of a conflict of interest because “the question is not whether [the legal assistant] has an interest in this litigation, but whether the prosecutors on the case do.” The trial court also rejected the defendant’s argument that the SCAO’s efforts to wall the legal assistant off from the matter were insufficient because she obtained a favorable ex parte parenting order before the defendant learned of the indictment. Instead, the trial court noted that, even if true, the legal assistant obtained the ex parte order only after the indictment became publicly available. For these reasons, the trial court found that “a fully informed, disinterested observer would not conclude that there is sufficient doubt as to the [SCAO’s] ability to prosecute this case in an impartial manner.” The State did not call the legal assistant as a witness at the defendant’s second trial.

On appeal here

any conflict of interest arising from the relationship between the defendant and the county attorney’s legal assistant cannot be imputed to the rest of the SCAO. The general rule of imputation of conflicts of interest set forth in New Hampshire Rule of Professional Conduct 1.10 does not apply to the regulation of conflicts of public officers and employees set forth in Rule 1.11. See N.H. R. Prof. Conduct 1.11, 2004 ABA Model Code Comment [2] (“Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. . . . Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.”). Thus, to the extent that the circumstances of this case presented a material, concurrent conflict of interest for the county attorney or his assistant, see N.H. R. Prof. Conduct 1.7(a), any such conflict is not imputed to the entire office.

(Mike Frisch)