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Final Copy 287 Ga. 542 S10A0533, S10A0534, S10A0535. REGISTE v. THE STATE (three cases).

NAHMIAS, Justice. The trial court granted the State's motion to disqualify former assistant district attorney (ADA) Stacey S. Jackson from representing the defendant, Michael Jason Registe, in a murder case in which Jackson had signed search warrant applications to secure evidence against Registe, as well as in two other criminal cases against Registe the facts of which the State intends to introduce as similar transaction evidence in the murder trial. We granted Registe's application for interlocutory appeal of the three cases. As explained below, the record is not clear on the extent of the confidential information about the murder case to which Jackson was exposed while he was an ADA, which might require disqualification even if Jackson took no court-related action in the case. In any event, however, disqualification was clearly appropriate based on the ethical rules that prohibit an attorney from participating on both sides of the same case. Accordingly, the trial court did not abuse its discretion in disqualifying Jackson from representing Registe in these cases.

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In August 2000, Jackson was hired as an ADA by the District

Attorney for the Chattahoochee Judicial Circuit. He worked in the Muscogee County office. On September 5, 2005, Registe allegedly committed a car theft and seven related crimes (the car theft case). On November 23, 2005, Registe allegedly committed aggravated assault by shooting a man several times, as well as other crimes involving illegal drugs and firearms (the aggravated assault case). Three months later, on February 27, 2006, the State charged Registe by accusation in the car theft case. By 2007, Jackson had been promoted to Senior ADA and was in charge of the six or so attorneys on the DA's Division I trial team. On July 20, 2007, two people were shot and killed in connection with an armed robbery and an attempted armed robbery. Registe was suspected to be the perpetrator. The Columbus police were unable to locate him, and it was eventually determined that he had fled the country on the day after the murders, possibly with his sister's assistance. Jackson appears to have had no court-related participation in Registe's car theft and aggravated assault cases. However, in January 2008, Jackson met twice with officials from the United States Marshals Service regarding federal 2

assistance in locating Registe for prosecution in the murder case. As a result of these discussions, Jackson signed three substantially identical search warrant applications for presentation to the Muscogee County Superior Court to obtain records related to three telephone numbers linked to Registe and his sister. The applications, which were signed by Jackson alone in his capacity as an ADA, stated as follows: Applicant certifies that the information sought is relevant and material to an ongoing criminal investigation to locate fugitive Michael Registe who is wanted by the Columbus Police Department in Muscogee County, Georgia for Murder (two counts) in Violation of 16-5-1 Ga. Code. It is believed that the requested telephone records pertaining to telephone number(s) 706-[xxx-xxxx] will provide leads which will aid in locating and apprehending the fugitive. (Telephone numbers redacted.) The United States Marshals presented the applications to the Superior Court, and the search warrants were issued, leading to the seizure of telephone records. Several months later, at the end of July, Jackson left the DA's office for private practice. About a month after that, on August 26, 2008, the Muscogee County grand jury indicted Registe for the 2007 double homicide and related crimes. The following day, on August 27, 2008, Registe was arrested in St. 3

Maarten, Netherlands Antilles. Two weeks later, on September 9, 2008, the grand jury indicted Registe in the 2005 aggravated assault case. ADAs from the small team that Jackson had recently supervised handled both indictments. About a week after the second indictment, Jackson spoke with Chris Samra, an investigator for the DA's office whom Jackson had also supervised when he worked there. They discussed Registe's arrest, and Samra asked Jackson if he would be representing Registe as defense counsel. Samra testified at the hearing on the motion to disqualify that Jackson responded "no" and said "he couldn't because he had done some work on the case." Ten months later, in July 2009, Registe was returned to Muscogee County to face trial in the double murder and two other cases against him. On August 4, 2009, Jackson filed a notice of appearance as defense counsel for Registe. The State promptly filed a motion to disqualify Jackson from representing Registe in the murder case because of his work on the case while in the DA's office. The State later sought to disqualify Jackson in the car theft and aggravated assault cases as well, because it intended to offer them as similar transaction evidence in the murder case.

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After holding an evidentiary hearing, the trial court entered an order on September 25, 2009, disqualifying Jackson in all three cases (which have different case numbers, as their appeals do in this Court). The court based its ruling on the Georgia Rules of Professional Conduct for lawyers, as well as case law from this Court and others regarding the ethical obligations of an attorney who leaves public service and enters private practice. The trial court concluded that Registe's constitutional right to the retained counsel of his choice did not allow him to retain Jackson, due to Jackson's conflict of interest, the appearance of impropriety from his involvement on both sides of the murder case, and the need to protect public confidence in the integrity of the judicial system. The court acknowledged that Jackson's direct participation was limited to the murder case but reasoned that disqualification was proper in the other two cases because the State was seeking to introduce their evidence as similar transactions in the murder case. The trial court granted Registe's motion for a certificate of immediate review, and this Court then granted his application to appeal. 2. One element of the right to counsel in criminal prosecutions, as

guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section I, Paragraph XIV of the Georgia Constitution of 1983, is the 5

right of a defendant who does not require appointed counsel to choose who will represent him. See United States v. Gonzalez-Lopez, 548 U. S. 140, 144 (126 SC 2557, 165 LE2d 409) (2006); Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983). The right to choose one's counsel is not unqualified, however. As relevant to this case, it is well-established that a defendant does not have a right to be represented by an attorney who is ethically prohibited from doing so, most commonly due to a conflict of interest. See Gonzalez-Lopez, 548 U. S. at 151152; Lynd v. State, 262 Ga. 58, 62-63 (414 SE2d 5) (1992). The trial court's decision on whether an ethical requirement bars a lawyer from representing a defendant is reviewed on appeal for abuse of discretion. See Redd v. State, 264 Ga. 399, 400 (444 SE2d 776) (1994). See also Cardinal Robotics, Inc. v. Moody, 287 Ga. 18 (694 SE2d 346) (2010) (reviewing for abuse of discretion a trial court's ruling declining to disqualify retained counsel in a civil case). The defendant's waiver of his attorney's conflict of interest does not always cure the problem, because "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U. S. 153, 160 (108 SC 1692, 100 LE2d 140) (1988). 6

3.

The Georgia Rules of Professional Conduct set out the minimum

ethical standards that attorneys practicing in Georgia must follow. See generally Bar Rules 4-101 and 4-102. At least four Rules are implicated in this appeal. Rule 1.6 requires a lawyer to maintain in confidence all information gained in the professional relationship with a client and specifies the limited circumstances under which that information may or must be revealed. Rule 1.7 sets out the general rule applicable to conflicts of interest. Rule 1.9 provides specific direction on the application of Rule 1.7 in the context of a conflict of interest between present and former clients. And Rule 1.11 codifies the ethical obligations of an attorney in successive government and private practice. To be ethically appropriate, Jackson's representation of Registe must comply with all of these rules. See Rule 1.11 cmt. [2] (confirming that Rule 1.11 does not displace the requirements of Rules 1.7 and 1.9 in the context of successive government and private practice). While the application of some of these rules may not be dispositive on the current record, other provisions are, and together the rules clearly support the trial court's disqualification order. We address each rule in turn.

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(a)

Rule 1.6

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