An assistant district attorney’s prior representation of a criminal defendant did not warrant disqualification of the entire district attorney’s office, the Pennsylvania Superior Court ruled in Com. v. Ford, __ A.3d __ (No. 1235 MDA 2014, filed September 2, 2015). In 2014, Appellee Louis Ford was charged with numerous crimes related to alleged deliveries of heroin. The prosecutor, Assistant District Attorney Paul Ryan, had represented Ford in 2009 in unrelated cases when he was a public defender. Believing that ADA Ryan’s participation in the current prosecution created a conflict of interest, Ford moved to recuse the Clinton County District Attorney’s Office. More specifically, Ford averred that he disclosed relevant confidential information to Ryan in 2009 that could be used against him in the current prosecution, which relied heavily on the credibility of Ford and a confidential informant. The trial court granted Ford’s motion and removed the District Attorney’s Office.
On the Commonwealth’s appeal, the Superior Court reversed and remanded for further proceedings. Writing for the unanimous panel, Judge Shogan observed that ADA Ryan’s prior representation of Ford as a public defender, including once in a drug case, “present[ed] a substantial risk that he obtained confidential factual information which would materially advance the Commonwealth’s position in the current matter.” Under Pa. R.P.C. 1.9 (Duties to Former Clients), ADA Ryan was properly disqualified. The Court emphasized, however, that “individual rather than vicarious disqualification is the general rule,” and concluded that the record before the trial court did not support an exception to that general rule, i.e., disqualification of the entire District Attorney’s Office. Accordingly, the Court remanded for a hearing to determine whether ADA Ryan disclosed any confidential information to his colleagues and whether any measures are in place or could be implemented to prevent such a disclosure.