Generic Letterhead for SFDA

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE DISTRICT ATTORNEY

CHESA BOUDIN

DISTRICT ATTORNEY

350 RHODE ISLAND STREET ∙ SAN FRANCISCO, CALIFORNIA 94103

ECEPTION: (628) 652-4000 ∙ FACSIMILE: (628) 652-4001

Policy Directive

San Francisco District Attorney’s Office

Conflicts of Interest

February 24, 2020

I. INTRODUCTION

Prosecutors must perform official duties with absolute impartiality and fairness. A variety of

circumstances may present conflicts of interest for prosecutors. Conflicts of interest affect the

appearance of neutrality and may improperly expose prosecutors to privileged information. To

ensure the public confidence and the highest ethical standards, all employees of the District

Attorney’s Office shall abide by the policies and procedures set forth here to recuse prosecutors

with a conflict of interest, establish an ethical wall, provide notice of the conflict of interest, and

create an alternative chain of command when a supervisor is affected by the conflict of interest.

II. LEGAL STANDARD

The California Rules of Professional Conduct has left the conflict imputation and screening rules

for lawyers moving from private practice into government service to case law and its development.

(See California Rules of Professional Conduct, Rule 1.11, Special Conflicts of Interest for Former

and Current Government Officials and Employees, Comment [10].)

Penal Code Section 1424(a)(1) defines the legal standard for a conflict of interest to disqualify a

district attorney from performing an authorized duty. The motion to disqualify may not be granted

unless the evidence shows that a conflict of interest exists that would render it unlikely that the

defendant would receive a fair trial. The statute articulates a two-part test: “(i) is there a conflict of

interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting?”

(People v. Eubanks (1996) 14 Cal. 4th 580, 594.) Thus, while a conflict exists whenever there is a

reasonable possibility that a district attorney’s office may not exercise its discretionary function in

an evenhanded manner, the conflict is disabling only if it is so grave as to render it unlikely that

defendant will receive fair treatment. (People v. Conner (1983) 34 Cal. 3d 141, 148.)

Represented defendants informed of the considerations that influence a waiver decision may

validly waive a conflict of interest. (People v. Mai (2013) 57 Cal. 4th 986, 1010-1011.) Courts

have acknowledged that the California Rules of Professional Conduct allow attorneys to accept

employment adverse to a former client with informed written consent. (See California Rules of

Professional Conduct, Rule 1.7, Conflict of Interest: Current Clients.) Therefore, a district attorney

may prosecute a former client for a crime relating to a matter to which he has obtained confidential

information in the course of his former employment, with that client’s consent. (People v. Lepe

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(1985) 164 Cal. App. 3d 685, 688.) The consent and waiver must be a knowing and intelligent act

done with sufficient awareness of the relevant circumstances and likely consequences, and it must

be informed, written consent. (CA RPC 1.7.) The court must assure itself that the defendant

understands the potential drawbacks, dangers, adverse consequences, and disadvantages of waiving

the conflict, after having thoroughly discussed it with counsel sufficient for consent, and

voluntarily wishes to waive. If the court finds the waiver inadequate, it may reject the waiver.

(People v. Baylis (2006) 139 Cal. App. 4

1054, 1067-1068.) Considerations for an informed

waiver shall include the District Attorney’s commitment that recusal, ethical walls, and the

protection of confidential information (See infra) pursuant to this policy shall apply to all

prosecutions where a defendant waives the conflict of interest.

Even in the absence of a waiver, courts have long considered the recusal of an entire prosecutorial

office a disfavored remedy that should not be applied unless justified by a substantial reason

related to the proper administration of justice. (People v. Hernandez (1991) 235 Cal. App. 3d 674,

679; Millsap v. Superior Court (1999) 70 Cal. App. 4

196, 201.) Recusal of the entire district

attorney’s office was error and an abuse of discretion when less drastic alternatives such as walling

off the conflicted employee would suffice under the circumstances to prevent any actual conflict of

interest that would rise to the level of being so grave as to render it unlikely that defendant would

receive fair treatment. (People v. Cannedy (2009) 176 Cal. App. 4

1474, 1491.)

In most circumstances, the fact that one or two employees of a large district attorney’s office have

a personal interest in a case would not warrant disqualifying the entire office. (People v. Vasquez

(2006) 39 Cal. 4th 47, 57.) In denying the recusal of the office where an assistant district attorney

was the victim and witness to assault and escape charges, the court recognized that the San

Francisco District Attorney’s Office was a large office that had minimal communications about the

event. (Trujillo v. Superior Court (1983) 148 Cal. App. 3d 368, 373.)

Where the conflict of interest exists because a prosecutor learned confidential information during

the representation of former clients, recusal of the individual prosecutor is required. (People v.

Lopez (1984) 155 Cal. App. 3d 813, 819-828.) It is undisputed that the presumption of imputed

knowledge is uniformly rebuttable and may be overcome by a proper ethical screen when the issue

arises in the context of government attorneys. (Kirk v. First American Title Insurance Company

(2010) 183 Cal. App. 4

776, 805-806.) The specific elements of an effective screen or ethical wall

will vary from case to case, but two elements are necessary: first, the screen must be timely

imposed when the conflict first arises or is discovered; and second, an effective wall involves

imposition of preventive measures to guarantee that information will not be conveyed. Other

relevant elements of an ethical wall include physical, geographic, and departmental separation of

attorneys; prohibitions against and sanctions for discussing confidential matters; established rules

and procedures preventing access to confidential information and files; and continuing education in

professional responsibility. (Id. at 810-811.) The case-by-case inquiry focuses not on whether all

the prescribed elements have been established but on whether the court is satisfied that the tainted

attorney has not had and will not have any improper communication with others at the firm

concerning the litigation. (Id. at 811.) Isolation of a prosecutor from the prosecution of his former

clients was sufficient protection for the defendants and the imputed knowledge theory did not

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apply to government practice. (Chadwick v. Superior Court (1980) 106 Cal. App. 3d 108, 116-

118.) But when the ethical wall failed, the court recused the San Francisco District Attorney’s

Office. (People v. Choi (2000) 80 Cal. App. 4th 476, 483-484.)

While it recognized that California courts have upheld the ethical screening of attorneys within

government offices to protect confidences the attorney obtained from prior representation, the

Supreme Court affirmed the vicarious disqualification of an entire government office when the

opposing party sought disqualification based on a conflict of interest affecting the head of that

office. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th 839, 853-

854.) Because Penal Code Section 1424 was inapplicable to a civil action, the Court applied the

considerations from Younger v. Superior Court (1978) 77 Cal. App 3d 892, to disqualify the office

despite the city attorney’s efforts to screen himself from the case. The court reasoned that the head

of a government law office sets policy, has the power to review, hire, and fire employees, and

elevates the public perception on a case. (Id. at 853-854.) The opinion noted that the 1980

enactment of Penal Code Section 1424 abrogated the Younger disqualification standard in criminal

prosecutions. (Id. at 850.) Following the same logic, the Court of Appeal denied the recusal of a

district attorney’s office for the alleged conflict affecting the head of that office, holding that the

Cobra Solutions standard for vicarious disqualification did not apply to a prosecuting agency in a

criminal matter. (Spaccia v. Superior Court (2012) 209 Cal. App. 4th 93, 102-106.) Even when the

head of a prosecutorial office had a conflict of interest because her spouse was the victim in an

assault prosecution, recusal and an ethical wall was sufficient to insulate the conflict of interest and

denial of the defendant’s motion to recuse the district attorney’s office was proper. (Melcher v.

Superior Court (2017) 10 Cal. App. 5th 160, 166-171.)

III. PROCEDURE

A. Identification of Conflicts

All employees shall be responsible for identifying cases and situations that present a potential

conflict of interest for themselves and the Office. Potential conflicts of interest include but are not

limited to:

1) Assistant District Attorneys (ADAs) who previously represented the subject of an Office

investigation or prosecution. The duty to preserve confidences and secrets learned while

representing former clients is a continuing obligation that cannot, except in very specific

circumstances, be breached by a prosecutor or any lawyer (Business and Professions Code

Section 6068(e)(1). See also California Rules of Professional Conduct, Rule 1.9, Duties to

Former Clients, and ABA Standards Relating to the Prosecution Function, Standard 3-

1.7(d), Conflicts of Interest.)

2) Employees who are closely related to or have a close relationship with the subject of an

Office investigation or prosecution.

3) Employees who are victims or witnesses in an Office investigation or prosecution.

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4) Employees who are closely related to or have a close relationship with a victim or witness

in an Office investigation or prosecution.

5) ADAs who are closely related to a lawyer who represents the subject of an Office

investigation or prosecution. This close relationship includes familial and financial

relationships. (See California Rules of Professional Conduct, Rule 1.7, Conflict of Interest:

Current Clients, and ABA Standards Relating to the Prosecution Function, Standard 3-

1.7(h), Conflicts of Interest.)

6) Any circumstance where an ADA feels that a personal interest in the outcome of a case

conflicts with or calls into question the ADA’s neutrality or judgment about the case. (See

ABA Standards Relating to the Prosecution Function, Standard 3-1.7(f), Conflicts of

Interest.)

B. Maintaining a Conflicts List

Upon learning that any potential conflict exists:

1) The employee affected by the conflict shall immediately notify the employee’s Unit

Managing Attorney to determine whether the conflict warrants an ethical wall between the

employee and the case and whether other action is appropriate.

2) When the Managing Attorney determines that an ethical wall is appropriate, the employee

shall notify the Trial Integrity Unit (TIU) of the conflict with the subject’s name, other

identifying information as applicable (incident report number, court number, SF Number),

and a short summary of the conflict.

3) ADAs shall also provide TIU with a list of former clients and cases in which the ADA

received privileged and confidential information in the course of prior representation.

4) TIU will maintain a list of conflicts and affected employees. Employees and managers shall

refer to this list to avoid assignments and improper communications where conflicts exist.

C. Ethical Wall

An employee with a conflict of interest shall be walled off from the case. An “ethical wall”

between the employee and a case shall mean:

1) The employee with the conflict of interest is barred from having any official role in the case.

2) The employee shall not divulge or reveal any confidential information learned from a prior

representation.

3) The employee shall not use any channel afforded by his or her employment:

a. To access information about the case;

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b. To affect or influence the handling or outcome of the case; or

c. To communicate about the case in an official capacity.

4) Managers shall not assign any responsibility for a subject on the list to an employee with a

conflict of interest for that subject.

5) ADAs and employees assigned to the investigation or prosecution shall not seek or solicit

any information from the ADA with a conflict of interest about matters that may be

privileged.

The Office’s Information Technology (IT) Unit shall establish a system for preventing an

employee with a conflict of interest from accessing case materials on Office systems with Office

issued login credentials. The Office case management system will be configured to provide

notifications about which employee is walled off from a case due to a conflict of interest.

D. Notification

The Office shall disclose all conflicts of interest to the court and affected defendant(s) in order to

provide the defendant and counsel with the opportunity to determine whether to pursue any motion

based on the conflict of interest. (See ABA Standards Relating to the Prosecution Function,

Standard 3-1.7(g), Conflicts of Interest.) The Office shall also inform the defense that it will recuse

and wall off the affected employee pursuant to this policy.

If a defendant moves to recuse the Office, Penal Code Section 1424(a)(1) requires 10 court day

notice to the District Attorney and Attorney General.

Alternatively, upon full disclosure, the assistance of counsel, and informed written consent a

defendant may waive the conflict of interest.

E. Chain of Command

Where a conflict of interest affects the District Attorney or a supervisor in the chain of command

for an investigation or prosecution and the defense has waived the conflict of interest in writing,

the District Attorney or affected supervisor shall be walled off from the investigation or

prosecution. If the conflict of interest applies to the District Attorney, all supervisorial

responsibilities shall pass to the Chief of Staff. For other supervisors, supervisorial responsibilities

shall pass to a Division Chief unaffected by the conflict of interest.