Motion to disqualify the Office of the Prosecuting Attorney (OPA); People v Mayhew; Conflict of interest rule; Necessary witness; People v Tesen; Inapplicability of Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, & 3.7(b); MCPC 3.7(a); Motion for reconsideration

The court held that no conflict of interest existed and thus, the trial court should not have disqualified the entire OPA. The issue concerned whether the county’s elected prosecuting attorney (P), “who might be called to serve as a rebuttal witness, has a conflict of interest that requires disqualification of the entire OPA from” the case. The trial court “made no factual findings and did not apply any legal standards when it decided to disqualify the entire OPA. Instead, it relied on avoiding an appearance of impropriety or unfairness. In doing so, the trial court clearly erred and reached the wrong conclusion.” The court held that MRPC 1.7, 1.9, and 3.7(b) did not apply. This left “MCPC 3.7(a), which provides that, except in circumstances not found in this case, ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.’” To the extent that P “would be called as a witness at defendant’s trial, her testimony would only serve as rebuttal testimony in regard to a challenge to” Deputy C’s credibility. P was “not a necessary witness because two persons other than [P] were involved in the follow-up conversation with defendant’s mother. Either person could be called to testify” about the facts of that conversation, which confirmed an attorney for defendant “instructed her not to answer [Deputy C’s] questions which in turn confirmed [Deputy C’s] recitation of the facts of the interview” included in his supplemental report. Defendant did not argue that P “has special skills or special knowledge of the relevant potential rebuttal testimony that the other participants in the conversation” did not. Thus, P was “not a necessary witness because the substance of her testimony can be elicited from other witnesses.” As a result, defendant could not meet his burden to establish a ground for disqualifying P or the entire OPA, and the trial court erred when it did so. It “incorrectly decided the matter on the ground of an appearance of impropriety.” Close analysis revealed that the appearance of impropriety ethics standard appeared “to have been founded on the existence of a conflict of interest.” Defendant failed to establish that a conflict of interest existed for P, or an assistant prosecutor, “or any other OPA lawyers. Mayhew structures the crucial consideration as an ‘if-then’ proposition that requires first the determination that a conflict of interest exists for the prosecuting attorney with supervisory authority of the attorneys in the office before deciding that recusal of the entire office is necessary[.]” Reversed and remanded.