re: Fani wins

quote:

---

This opinion?

---

quote:

---

One final observation can be gleaned from a careful study of our appellate decisions applying this standard: the remedy can vary. Unlike an actual conflict, the finding of an appearance of impropriety does not automatically demand disqualification. Our Supreme Court has previously analyzed disqualification under an appearance standard in a civil case using a continuum, recognizing that disqualification is not always the appropriate outcome:

quote:

---

At one end of the scale where disqualification is always justified and indeed mandated, even when balanced against a client’s right to an attorney of choice, is the appearance of impropriety coupled with a conflict of interest or jeopardy to a client’s confidences. In these instances, it is clear that the disqualification is necessary for the protection of the client. Somewhere in the middle of the continuum is the appearance of impropriety based on conduct on the part of the attorney. As discussed above, this generally has been found insufficient to outweigh the client’s interest in counsel of choice. This is probably so because absent danger to the client, the nebulous interest of the public at large in the propriety of the Bar is not weighty enough to justify disqualification. Finally, at the opposite end of the continuum is the appearance of impropriety based not on conduct but on status alone. This is an insufficient ground for disqualification.

---

Blumenfeld v. Borenstein, 247 Ga. 406, 409-10 (1981); Stinson v. State, 210 Ga. App. 570, 571 (1993) (applying Blumenfield to criminal defense counsel). The Supreme Court further noted that disqualification due to an appearance of impropriety should rarely occur where there is no danger that the actual trial of the case will be tainted. Blumenfeld, 247 Ga. at 407-08; see also Board of Education v. Nyquist, 590 F2d 1241, 1247 (2nd Cir. 1979) (“when there is no claim that the trial will be tainted, appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases”). Similarly, in Billings v. State, 212 Ga. App. 125, 129 (1994), although the Court of Appeals found the existence of an appearance of impropriety, it noted that the appearance could be cured through screening the affected prosecutor from participation or discussion of the affected case. See also Head, 253 Ga. App. at 758 (“Moreover, to insure that no conflict of interest or the appearance of one might develop, the district attorney took the prudent step of ordering the investigator to take no part in the investigation or prosecution of the case.”). These cases indicate that a trial court can consider alternative solutions to cure the appearance of impropriety.

Nor would the finding of an appearance of impropriety on the part of the District Attorney herself, in contrast to an actual conflict, necessarily result in the disqualification of the entire Fulton County District Attorney’s Office. The district attorney in McLaughlin was “absolutely disqualified” due to a personal interest in the prosecution. McLaughlin v. Payne, 295 Ga. 609, 614 (2014). As a result, assistant district attorneys appointed by the district attorney lacked any authority to proceed. Id. at 613. McLaughlin did not address an appearance standard and made a point to limit the total disqualification to instances of “absolute disqualification.” When the appearance of a conflict exists, only the affected prosecutor, be they elected or appointed, is affected. Head, 253 Ga. App. at 758 (“the individual prosecutor who has the conflict [based on at least the appearance of impropriety] may be disqualified from participation in the case, but not all the other prosecutors who work with him”); Frazier v. State, 257 Ga. 690, 694 (1987) (distinguishing Davenport, 157 Ga. App. 704, an appearance of impropriety case, by noting that the district attorney’s disqualification did not require disqualification of the entire office).

---