dissenting.
In a fundamental way, the principal opinion damages the integrity of the legal profession. There is no dispute that the prosecutor in this case had represented Smith in two previous criminal cases as his defense attorney. Moreover, the prosecutor — Smith’s erstwhile defender — used one of those convictions in persuading the jury to impose the death penalty on his former client.
If this were simply a case where the prosecutor is using the prior conviction, a matter of public record equally available to all prosecutors, I could be tempted to join in the principal opinion.
But in this case, this prosecutor’s job was to determine whether to seek the death penalty. The prosecutor is the first line of decision-making on this point, and without his affirmative decision, no death penalty is possible. The determination of whether to seek the death penalty is based not just on the facts of the crime, the law, and the circumstances of the defendant’s life that are matters of public record. It is in essence a judgment on the over-all character of the defendant, who happens in this case to have been the prosecutor’s former client.
When an attorney is put in the position of defending a person accused of a crime, the system offers an inviolable attorney-client privilege. Rule 4-1.6(a); Arkansas v. Dean Foods Products Co., Inc., 605 F.2d 380, 384-85 (8th Cir.1979); People v. Curry, 1 Ill.App.3d 87, 272 N.E.2d 669, 672-73 (App.Ct.1971). The point is that the client *560should feel free to disclose to the attorney not only the facts and circumstances of the particular criminal activity that he or she has been charged with, but all other facts and circumstances about that person’s, life that may have a bearing on the crime that the person is charged with or may affect the sentence to be imposed. Wilkins v. Bowersox, 933 F.Supp. 1496, 1524 (D.Mo.1996); Curry, 272 N.E.2d at 672-73.
It is no answer for the prosecutor to say that he does not remember anything about the former representation or any of the client’s secrets that might have been confided to him during that representation. Reaves v. State, 574 So.2d 105, 107 (Fl.1991); State v. Stenger, 111 Wash.2d 516, 760 P.2d 357, 360 (banc 1988). The fact is that he had a confidential relationship with Smith in which Smith was encouraged to disclose to the attorney the darkest secrets of his life. This fact, along with the fact that the death penalty was sought, makes such a dual representation unacceptable. As the principal opinion acknowledges, a defendant’s previous criminal and antisocial conduct, along with the defendant’s background, come into play in the prosecutor’s decision as to whether to seek the death penalty. Stenger, 760 P.2d at 360.
Even if the prosecutor says he cannot remember any such secrets, that is no comfort to defendants who depend upon attorneys to present their interests zealously and loyally. Wilkins, 933 F.Supp. at 1524; Reaves, 574 So.2d at 107; Stenger, 760 P.2d at 360; Curry, 272 N.E.2d at 672.
There is no shortage of attorneys for the prosecution side in this state ready, willing, and able to try this case. The prosecutor had a duty to disqualify himself under Rule 4-1.91 unless the cases are not “substantially related.” However, the earlier representation and the current case are substantially related because “when the death penalty is sought, knowledge about the defendant’s background disclosed in the earlier representation becomes ‘closely interwoven’ with the capital case Wilkins, 933 F.Supp. at 1523, relying on State v. Stenger, 760 P.2d at 360; Dean Foods Products Co., Inc., 605 F.2d at 384-85. The prosecutor in fact used one of the earlier cases in the penalty phase of this case to urge the imposition of the death penalty on his former client. The conclusion is inescapable that these cases are “substantially related.”
The prosecutor’s failure to disqualify himself from representing the state against his former client poses a serious question, in a death penalty case, as to the integrity of the system under which Smith was tried.
I would grant a new .trial.
. Rule 4-1.9 states:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.