Hello all:
Quick question. We have a case here in Hays. Lead lawyer is from Dallas and hired local counsel to assist him on the case. Local counsel received money but did limited work on the case. Local counsel is now employed by the DA's office as a prosecutor. Now lead lawyer is attempting to have the DA's Office removed from the case and a special counsel appointed.

Is the District Attorney's Office disqualified in this situation?

Any case law etc you'd care to pass on would be appreciated.

Marbut v. State, 76 S.W.3d 742, 749 (Tex.App.-Waco 2002, pet. ref'd) ("if only an assistant is disqualified, the entire staff is not. Scarborough, 54 S.W.3d at 424-25.").


In re Goodman, --- S.W.3d ----, 2006 WL 3740784 *8
(Tex.App.-Texarkana December 21, 2006, orig. proc.)("There are no adequate safeguards short of Young's disqualification that will protect this interest. And finally, the Government (as represented by the Lamar County district attorney's office) will, at best, suffer a minimal fiscal or administrative burden due to Young's disqualification because all that is required is the substitution of another attorney to handle Goodman's prosecution. See Tex. Comm. on Prof'l Ethics, Op. 538 (discussing solutions of appointing special prosecutor under Tex.Code Crim. Proc. Ann. art. 2.07 (Vernon 2005), or screening the elected from other lawyers in prosecutor's office)."); but see Canady v. State
100 S.W.3d 28, 32 (Tex.App.-Waco 2002, no pet.)("If an elected district attorney is lawfully disqualified from prosecution of a certain cause, his assistants will also be disqualified.")

Curl is absolutely correct. Don't be surprised if a District Judge sees otherwise, though. In 1999-2001, I was appointed special prosecutor in a county near Houston. A former defense attorney was hired and over the DA's objections, recused the whole office on every case that attorney had handled whilst he was a defense attorney.

Hope all is well with you, James.

Comment 9 to Rule 1.10 should eliminate any ethics problem and Eidson, 793 S.W.2d 1 tells us "appearance of impropriety" is not enough in the criminal case context. But, the Supreme Court of Texas has refused to accept the concept of a screening of a conflicted lawyer from other lawyers in a law firm (sometimes referred to as a "Chinese Wall") in order to allow representation by the law firm. That refusal is based upon the conclusive presumption that confidential information is shared among all lawyers in a firm. See Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994). The same court noted the presumption may not carry the same weight in your situation. Tesco American, No. 04-0269 (3-17-06), fn. 14.