dissenting.
I must respectfully dissent from the conclusions of the majority opinion in regard to the question of disqualification of the office of the Commonwealth’s Attorney. The opinion is not a modification of Summit v. Mudd, Ky., 679 S.W.2d 225 (1984), because it establishes an entirely new standard in such situations. The opinion states that the focus of an evidentiary hearing is different from that set forth in Mudd, supra, and that the rule is that the relationship between lawyer and client must be examined for conflicts by the trial court.
Mudd has been the settled law since 1984 as a result of a unanimous opinion. The standard has been that actual prejudice must be shown before disqualification is required. There is nothing in this record that indicates that the assistant prosecutor communicated any confidential information about this client to the prosecuting attorney. Mudd stated:
“The mere possibility of the appearance of impropriety is not sufficient to disqualify the entire staff of the Commonwealth Attorney’s office_ It is wrong to automatically assume that a lawyer who represents a client as a public defender will violate the very strong ethical considerations of attorney/client confidentiality.” pp. 225-26.
In this case the most that Whitaker is able to allege on appeal is the appearance of impropriety. The question could be raised as to whether the prosecution must insure that even the appearance of impropriety does not result.
My review of the record indicates that the Commonwealth’s Attorney stated that the assistant and he had not discussed this matter directly or indirectly and she had performed no work or taken no part in the prosecution. I do not see how a further evidentiary hearing could expand on this statement unless we are to assume that the Commonwealth’s Attorney was not stating the truth. The trial judge accepted this answer.
The opinion makes reference to SCR 3.130, Kentucky Rules of Professional Conduct Rule 1.11, which speaks of successive government and private employment. However, this case does not involve successive government and private employment. Rather, the situation here is successive governmental employment because the public defender’s office, in some cases, is a full-time assignment, and in any event, it is supported by government funds.
The extension of such a standard could have a chilling effect on many young lawyers in the criminal law area because it would paralyze professional development and inhibit movement from the defense to the prosecution side or vice versa.
In regard to the penalty phase analysis, I believe the last sentence is somewhat incomplete because unintentional misstatements can produce reversible error, but such error may be nonprejudicial in the light of circumstances or overwhelming evidence. See RCr 9.24 and Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969).
The extension required by the majority opinion is not necessary because in the absence of prejudice the attorney-client relationship is irrelevant. The majority opinion is not a useful modification, it only muddles Mudd.
REYNOLDS and SPAIN, JJ., join in this dissent.