IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2018 Session

STATE OF TENNESSEE v. STEPHEN BERLINE ORRICK

Appeal from the Circuit Court for Warren County

No. 15-CR-725 Larry B. Stanley, Jr., Judge

 

No. M2017-01856-CCA-R9-CD

This interlocutory appeal concerns the Warren County Circuit Court’s order granting the 

Defendant’s motion to disqualify the Office of the District Attorney General for the 

Thirty-First Judicial District based upon an imputed conflict of interests of an assistant 

district attorney general. On appeal, the State contends that the trial court abused its 

discretion by granting the motion. We reverse the order of the trial court and remand the 

case for further proceedings. 

Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Order of the Circuit Court 

Reversed; Case Remanded 

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., J., and JOHN EVERETT WILLIAMS, P.J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price and James E. 

Gaylord, Assistant Attorneys General; Lisa S. Zavogiannis, District Attorney General; 

and Tom Miner, Assistant District Attorney General, for the appellant, State of 

Tennessee.

Billy K. Tollison, McMinnville, Tennessee, for the appellee, Stephen Berline Orrick. 

OPINION

On October 2, 2015, the Defendant was indicted on four counts of rape of a child 

and four counts of aggravated sexual battery. Initially, the District Public Defender’s 

Office represented the Defendant but was permitted to withdraw due to a conflict of 

interests involving the alleged victim’s sibling. On November 10, 2015, Felicia Walkup 

was appointed to represent the Defendant. On December 2, 2015, Ms. Walkup filed a 

motion to reduce the Defendant’s bond, and the trial court denied the motion on 

December 18, 2015. On January 6, 2016, Ms. Walkup sought permission to withdraw as 

10/15/2018
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counsel because she had accepted a position as an Assistant District Attorney General for

the Seventeenth Judicial District. Ms. Walkup was permitted to withdraw, and the 

Defendant’s present counsel was appointed on January 13, 2016.

On April 5, 2017, the Defendant filed a motion to disqualify the Office of the 

District Attorney General for the Thirty-first Judicial District due to a conflict of 

interests. The defense alleged that Ms. Walkup was an Assistant District Attorney 

General for the Thirty-First Judicial District and argued that the district attorney general’s 

office should be vicariously disqualified from prosecuting the Defendant because Ms. 

Walkup had been substantially involved in the Defendant’s representation. 

At the motion hearing, the defense relied upon Rule of Professional Conduct 

1.10(d), the general rule regarding imputation of conflicts of interests, as the basis for 

disqualifying the district attorney general’s office. The defense argued that Ms. Walkup 

was substantially involved in the Defendant’s representation until she “left for public 

office,” that her representation was related to a proceeding in which the State’s and the 

Defendant’s interests were adverse, and that the proceeding remained pending. The 

defense argued that Rule of Professional Conduct 1.11, the special rule regarding 

conflicts of interests for former and current government officers and employees, did not 

apply in this case because this Rule protected the government’s confidential information, 

not the Defendant’s confidential information. 

The prosecutor conceded that Ms. Walkup could not participate in the 

prosecution based upon an actual conflict of interests. The prosecutor argued that Rule 

1.11, pursuant to Comment [2], allowed for screening mechanisms to avoid imputation of 

conflicts of interests based upon an attorney’s entering or leaving the public sector. The 

prosecutor stated that Comment [9] supported the proposition that Ms. Walkup’s conflict 

of interests could not be imputed to other members of the district attorney general’s office 

unless the other members had been tainted by Ms. Walkup’s conflict. The prosecutor 

stated that as long as other assistant district attorneys general had not acquired relevant 

information from Ms. Walkup, those assistant district attorneys general were not 

prohibited from prosecuting this case. 

The Defendant testified that he and Felicia Walkup had private, confidential 

conversations about the facts of this case and that he wrote her letters containing private 

information during her representation. On cross-examination, the Defendant stated that 

Ms. Walkup represented him from November 4, 2015, to January 11, 2016, and that the 

only court proceeding held during this time was related to a motion to reduce his bond. 

Felicia Walkup testified that she obtained her license to practice law in 2001 and 

that she previously worked for the Coffee County District Attorney’s Office before 

entering private practice in Warren County. She agreed with the Defendant’s testimony 

relative to the dates of her representation and said that her only court appearance in this 
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case was the hearing on the motion to reduce his bond. She said that she began working 

for the District Attorney General for the Seventeenth Judicial District on January 11, that 

she worked there for six months, and that she transferred to the Office of the District 

Attorney General for the Thirty-First Judicial District, which included Warren County. 

Ms. Walkup testified that when she began working for the Warren County 

District Attorney’s Office, she spoke with District Attorney General Zavogiannis about 

conflicts of interests stemming from pending cases in which she had previously served as 

defense counsel. Ms. Walkup denied that they discussed the cases with specificity and 

noted that she did not know which of her previous cases had been resolved or remained

pending. She said that based upon their discussion, she would have no involvement with 

her previous cases. 

Ms. Walkup testified that the only discussion she had about the present case 

involved the prosecutor’s asking whether she previously represented the Defendant and 

the prosecutor’s telling her that the motion to disqualify had been filed. She said that she

did not know where the State’s file was maintained in the office, although she assumed it 

was in the prosecutor’s office, and that she did not have access to it. She said that she did 

not receive any discovery materials during her representation of the Defendant. She 

denied participating in or overhearing conversations relative to the evidence against the 

Defendant and meeting any of the witnesses. She did not recall the name of the 

prosecuting law enforcement officer in this case and said that if she had spoken to the 

officer, their discussions would have been about other cases. On cross-examination, Ms. 

Walkup stated that she did not discuss any screening procedures relative to any particular 

case. 

The trial court determined that Rule of Professional Conduct 1.11(a) addressed 

an attorney who had previously served as a public officer or employee but that Rule 

1.11(a) did not address whom the former public officer presently served. The court stated 

that Rule 1.11(d) did not address the issue in the present case because it discussed 

obtaining governmental agency approval relative to conflicts of interests. The court 

noted that Comment [2] to Rule 1.11(b) permitted screening procedures and notice to 

avoid imputation of conflicts of interests for attorneys moving in and out of government 

employment in the same manner as permitted in Rule 1.10. The court noted, though, that 

the language of Rule 1.11(b) did not mention screening as a remedy for a conflict of 

interests. The court relied, at least in part, on State v. Jason Clinard, No. M2007-00406-

CCA-R3-CD, 2008 WL 4170272, (Tenn. Crim. App. Sept 9, 2008), no perm. app. filed,

in determining that Rule 1.10 applied in the present case because the Jason Clinard court 

analyzed a similar scenario pursuant to Rule 1.10. The trial court stated that the Jason 

Clinard court determined that “imputed disqualification” could not be avoided when the 

disqualified attorney was substantially involved in the representation of the former client. 

The trial judge then stated,
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The representation was in connection to an adjudicated proceeding that is 

directly adverse to the interest of the current client of the firm. True. And . 

. . the proceeding between the firm’s current client and the lawyer’s former 

client is still pending at the time the lawyer changes firms. True.

So what I have is a rule that while it claims to – in Rule 1.11 – claims to 

deal with government employees who could use 1.10 to get out of a conflict 

by doing what you all have done[,] it doesn’t specifically do that. And 

quite frankly, I have to take the rule over the comment and I have to take 

the Court of Appeals ruling over the comments as well. 

The trial court determined that the State followed the procedure outlined in Rule 

1.10(c), which allowed another attorney in the district attorney’s office to represent the 

State. The court found that Ms. Walkup had no involvement in the case and had not 

spoken to the prosecutor about the facts of the case and that the State had instituted 

screening procedures to ensure that Ms. Walkup “will not do that.” The court 

determined, though, that imputation of the conflict of interests upon the entire district 

attorney general’s office could not be avoided pursuant to Rule 1.10(d), which required 

vicarious disqualification of the district attorney’s office. 

In its written order granting the motion to disqualify, the trial court found that 

Ms. Walkup was substantially involved in the Defendant’s representation, that her 

previous representation was in connection with an adjudicative proceeding that was 

directly adverse to the interests of the district attorney’s office, and that the case remained 

pending at the time Ms. Walkup began her employment with the district attorney’s office. 

As a result, the court determined that Ms. Walkup’s conflict of interests was imputed 

upon the district attorney’s office. The court disagreed with the State’s assertion that 

Rule 1.11(d) and Comment [2] were controlling authority and found that Rule 1.11(d) 

was inapplicable to this case, although the court recognized a “conflict” between the 

language of Rule 1.11(d) and Comment [2]. 

The State filed a motion requesting that the trial court reconsider its 

determinations and, alternatively, sought permission to seek an interlocutory appeal. The 

court denied the motion to reconsider but granted the request for permission to seek an 

interlocutory appeal in this court. See T.R.A.P. 9. This court granted the State’s request 

for an interlocutory appeal. See State v. Stephen Berline Orrick, No. M2017-01856-

CCA-R9-CD (Tenn. Crim. App. Nov. 8, 2017) (order). 

On appeal, the State argues that offices of district attorneys general are not 

subject to a per se rule of disqualification based upon an imputed conflict of interests. In 

relying on State v. Coulter, 67 S.W.3d 3 (Tenn. Crim. App. 2001), abrogated on other 

grounds by State v. Merriman, 410 S.W.3d 779 (Tenn. 2013), the State argues that the 

trial court erred by applying Rule of Professional Conduct 1.10 and that Rule 1.11 applies 
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to assistant district attorneys general. The Defendant responds that the trial court did not 

abuse its discretion by applying Rule 1.10 and by disqualifying the Office of the District 

Attorney General for the Thirty-First Judicial District. 

A trial court’s decision to disqualify an attorney for a conflict of interests and to 

impute an attorney’s conflict of interests upon the attorney’s firm is reviewed for an 

abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); see State 

v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). A court abuses its discretion by 

“apply[ing] an incorrect legal standard, or reach[ing] a decision which is against logic or 

reasoning that caused an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 

243, 247 (Tenn. 1999); see Clinard, 46 S.W.3d at 182. 

Our supreme court has “original and exclusive jurisdiction to promulgate” rules 

governing the professional and ethical conduct of attorneys. Petition of Tenn. Bar Ass’n, 

539 S.W.2d 805, 807 (Tenn. 1976). Before the Rules of Professional Conduct became 

effective on March 1, 2003, the then-existing Code of Professional Responsibility 

addressed imputed conflicts of interests and vicarious disqualification. See Tenn. Sup. 

Ct. R. 8, Tenn. Code of Prof’l Resp. DR 5-105(D), EC 9-101 (replaced 2003); see also In 

Re: Tenn. Rules of Prof’l Conduct, No. M2000-02416-SC-RL-RL (Tenn. Sept. 17, 2002) 

(order). In Clinard v. Blackwood, a private attorney representing a client in a pending 

civil matter resigned from the attorney’s firm to begin employment with a new private 

firm, which represented the attorney’s client’s adversary in the pending civil matter. 46 

S.W.3d at 181-82. Although the parties did not dispute that the attorney was disqualified 

from representing a former client’s adversary at the new firm, our supreme court 

determined that the then-disciplinary rules of the Code of Professional Responsibility 

presumed the attorney had shared the former client’s confidences with the new firm, 

resulting in the vicarious disqualification of the new firm in the pending civil matter. Id.

at 183; see Tenn. Sup. Ct. R. 8, Tenn. Code of Prof’l Resp. DR 5-105(D) (replaced 2003). 

The court determined that this presumption could be rebutted, though, by instituting 

adequate screening procedures at the new firm. Clinard, 46 S.W.3d at 184. The court 

determined that the new firm in Clinard instituted adequate screening procedures to rebut

the presumption of shared confidences, but the court concluded, as an independent basis 

for disqualification, that the “appearance of impropriety” required vicarious 

disqualification of the new firm. Id. at 186; see Tenn. Sup. Ct. R. 8, Tenn. Code of Prof’l 

Resp. DR 9-6 (replaced 2003) (“Every lawyer owes a solemn duty . . . to avoid not only 

processional impropriety but also the appearance of impropriety.”). 

In applying Clinard in the context of a criminal defense attorney who resigned

as counsel to accept employment with the district attorney’s office, also before the 

adoption of the 2003 Rules of Professional Conduct, this court determined that an

attorney’s actual conflict of interests created the presumption that the attorney had shared 

the defendant’s confidences with members of the district attorney’s office but that the 

district attorney’s office had instituted adequate screening procedures rebutting this
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presumption. Coulter, 67 S.W.3d at 28-31. Relative to whether an appearance of 

impropriety independently required vicarious disqualification of the district attorney’s 

office, the Coulter court noted that the supreme court’s analysis in Clinard was in the 

context of a civil proceeding and involved a private attorney moving between private law 

firms. Id. at 31. The Coulter court explained that 

[p]rivate and public practice have significant distinctions, such that 

screening procedures for attorneys in government service are generally 

viewed with less skepticism: “The relationships among lawyers within a 

government agency are different from those among partners and associates 

of a law firm. The salaried government employee does not have the 

financial interest in the success of departmental representation that is 

inherent in private practice.” 

Id. at 32 (internal citations omitted); see State v. Tate, 925 S.W.2d 548, 556-57 (Tenn. 

Crim. App. 1995) (concluding that a prosecutor’s actual conflict of interests and 

disqualification does not require vicarious disqualification of the “entire district attorney 

general’s office . . . so long as the attorney at issue does not disclose confidences or 

otherwise participate in the prosecution”); Mattress v. State, 564 S.W.2d 678, 680 (Tenn. 

Crim. App. 1977) (determining that the trial court did not abuse its discretion by 

determining that an appearance of impropriety was not created by disqualifying the 

assistant district attorney with an actual conflict of interests but allowing another assistant 

attorney general to prosecute the case). The court determined that when a prosecutor has 

an actual conflict of interests creating an appearance of impropriety, “‘[e]arly and 

adequate screening . . . should resolve [the] problem.’” Coulter, 67 S.W.3d at 32 

(quoting Tate, 925 S.W.2d at 556); see Tenn. Bd. Prof. Resp., Formal Op. No. 87-F-111, 

1987 WL 1446637, at *2 (Sept. 16, 1987) (stating that a “per se rule” of disqualification

for a district attorney’s office when an assistant district attorney general has a conflict of 

interests is inappropriate). The court reasoned that in the context of a defense attorney 

joining a district attorney’s office, “the appearance of impropriety is not the central 

concern” but rather that a disclosure of confidential information would violate a criminal 

defendant’s constitutional rights, including the privilege against self-incrimination, the 

effective assistance of counsel, a fair and impartial trial, and due process of law. Coulter, 

67 S.W.3d at 32-33 (emphasis added). 

Since Clinard and Coulter, the Rules of Professional Conduct were adopted by 

our supreme court, replacing the Code of Professional Responsibility provisions

discussed in Clinard and Coulter. See Tenn. Sup. Ct. R. 8, RPC (2003) (amended 2011) 

(“The ethical standards relating to the practice of law and to the administration of law in 

the courts of this State shall be as hereinafter set out.”). In this case, the parties do not 

dispute that Ms. Walkup had an actual conflict of interests, disqualifying her as a 

prosecutor in the Defendant’s case. See Tenn. Sup. Ct. R. 8, RPC 1.9(a) (2017) (Duties 

to Former Clients). The issue before this court is whether Ms. Walkup’s disqualification 
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should be vicariously imputed upon the district attorney general’s office, which requires 

an examination of Rules of Professional Conduct 1.10 and 1.11.

Rule of Professional Conduct 1.10(c) states that 

if a lawyer is personally disqualified from representing a person with 

interests adverse to a client of a law firm with which the lawyer was 

formerly associated, other lawyers currently associated in a firm with the 

personally disqualified lawyer may represent the person, . . . if both the 

personally disqualified lawyer and the lawyers who will represent the 

person on behalf of the firm act reasonably to:

(1) identify that the personally disqualified lawyer is prohibited from 

participating in the representation of the current client; and

(2) determine that no lawyer representing the current client has acquired 

any information from the personally disqualified lawyer that is material to 

the current matter and is protected by RPC 1.9(c);

(3) promptly implement screening procedures to effectively prevent the 

flow of information about the matter between the personally disqualified 

lawyer and the other lawyers in the firm; and

(4) advise the former client in writing of the circumstances that warranted 

the implementation of the screening procedures required by this Rule and 

of the actions that have been taken to comply with this Rule. 

Tenn. Sup. Ct. Rule 8, RPC 1.10(c) (2017). However, these procedures cannot 

avoid imputed disqualification of the firm, if: (1) the disqualified lawyer 

was substantially involved in the representation of a former client; and (2) 

the lawyer’s representation of the former client was in connection with an 

adjudicative proceeding that is directly adverse to the interests of a current 

client of the firm; and (3) the proceedings between the firm’s current client 

and the lawyer’s former client is still pending at the time the lawyer 

changes firms. 

Tenn. Sup. Ct. Rule 8, RPC 1.10(d)(1)-(3) (2017). “The disqualification of lawyers 

associated in a firm with former or current government lawyers is governed by RPC 

1.11.” Tenn. Sup. Ct. Rule 8, RPC 1.10(f) (2017). 
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Although Rule 1.10(d) does not specifically utilize the “appearance of 

impropriety” language from Clinard, the principles of the standard are contained in Rule 

1.10(d) because “disqualification of a law firm [is required] when a lawyer [is] perceived 

as ‘switching teams’ in the course of pending litigation” regardless of adequate screening 

procedures. Tenn. Sup. Ct. Rule 8, RPC 1.10(d), Cmt. [9] (2017); see Tenn. Sup. Ct. 

Rule 8, RPC 1.10(d), Commentary [9] (2003) (stating paragraph (d) restates the rule of 

law established by Clinard v. Blackwood”). However, “[u]nder [Rule] 1.11(d), where a 

lawyer represents the government after having served clients in private practice . . . 

imputation is governed by [Rule] 1.11(c)(1).” Tenn. Sup. Ct. Rule 8, RPC 1.10(d), Cmt. 

[11] (2017); see Tenn. Sup. Ct. Rule 8, RPC 1.10(d), Commentary [10] (2003); see also

Tenn. Sup. Ct. Rule 8, RPC 1.10(f) (2017). 

On January 1, 2011, the amended Rules of Professional Conduct became 

effective. Tenn. Sup. Ct. Rule 8, RPC, Complier’s Notes (2011). The 2011 amendment

adopted subsection (f) to Rule 1.10, requiring the application of Rule 1.11 relative to the 

disqualification of attorneys associated in a firm with former or current government 

attorneys. However, even before the adoption of subsection (f), this court determined 

that Rule 1.10 addresses imputed conflicts of interests and vicarious disqualification 

when a private attorney “moves from one private law firm or corporate legal office to 

another.” State v. Frankie E. Casteel, No. E2003-01563-CCA-R3-CD, 2004 WL 

2138334, at *15 (Tenn. Crim. App. Sept. 24, 2004) (declining to analyze whether the 

disqualification of a district attorney’s office was proper pursuant to Rule 1.10), perm. 

app. denied (Tenn. Dec. 28, 2004). 

When the Rules of Professional Conduct were adopted in 2003, Rule 1.11(c)(1), 

Successive Government and Private Employment, stated the following:

Except as law may otherwise expressly permit, a lawyer serving as a public 

officer or employee shall not:

(1) Participate in a matter in which the lawyer participated personally and 

substantially while in private practice or nongovernmental employment, 

unless under applicable law no one is, or by lawful delegation may be, 

authorized to act in the lawyer’s stead in the matter. 

. . . .

Tenn. Sup. Ct. Rule 8, RPC 1.11(c)(1) (2003) (emphasis added). Rule 1.11(c) “does not 

disqualify other lawyers in the agency with which the lawyer in question has become 

associated.” Id., Commentary [8] (2003). This court determined that the 2003 version of 

Rule 1.11(c) “governs situations arising when a lawyer leaves private practice to 

represent the government.” Frankie E. Casteel, 2004 WL 2138334, at *16 (applying 
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Rule 1.11 in determining whether an assistant district attorney general’s actual conflict of 

interests vicariously disqualified the district attorney general’s office). 

The amended version of Rule 1.11, Special Conflicts of Interest for Former and 

Current Government Officers and Employees, effective at the time the Defendant filed 

his motion to disqualify the district attorney’s office states, in relevant part, that an 

attorney employed as a public officer or employee 

shall not:

(i) participate in a matter in which the lawyer participated personally and 

substantially while in private practice or nongovernmental employment, 

unless the appropriate government agency gives its informed consent, 

confirmed in writing, or under applicable law no one is, or by lawful 

delegation may be, authorized to act in the lawyer’s stead in the matter[.]

Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(2)(i) (2017) (emphasis added). Rule 1.10 “is not 

applicable to the conflicts of interest[s] addressed by [Rule 1.11],” but Rule 1.10(b)

“permits screening and notice to avoid imputation for lawyers moving into . . . positions 

as government officers or employees in the same manner as set forth for other lawyers in 

[Rule] 1.10(c).” Id., Cmt. [2] (2017). Likewise, “[b]ecause of the problems raised by 

imputation within a government agency, paragraph (d) does not impute the conflicts of a 

lawyer currently serving as an officer or employee of the government to other associated 

government officers or employees, although ordinarily it will be prudent to screen such 

lawyers.” Id. Rule 1.11 is designed, at least in part, “to protect the former client,” 

preventing an attorney “who has pursued a claim on behalf of a private client [from] 

pursu[ing] the claim on behalf of the government[.]” Id., Cmt. [3] (2017). Rule 1.11(d) 

“does not disqualify other lawyers in the agency with which the lawyer in question has 

become associated.” Id., Cmt. [9]. 

Our supreme court, pursuant to its inherent constitutional authority, “has original 

and exclusive jurisdiction to promulgate its own Rules,” and this “authority embraces the 

. . . supervision of” the practice of law. Petition of Tenn. Bar Ass’n, 539 S.W.2d at 807; 

see Clinard, 46 S.W.3d at 182. Commentary and comments to the Rules are likewise 

adopted by our supreme court and are intended to “explain[] and illustrate[] the meaning 

and purpose of the Rule” and to be “guides to interpretation” in order to maintain 

compliance with the Rules. Tenn. Sup. Ct. Rule 8, Scope [15], [23] (2017). The 

interpretation of rules adopted by our supreme court is a question of law and is reviewed 

de novo. Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 25 (Tenn. 2012); see 

Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009). “When interpreting the Rules of 

the Tennessee Supreme Court, [appellate courts] apply the traditional rules of statutory 

construction.” Lockett, 380 S.W.3d at 25; see Keough v. State, 356 S.W.3d 366, 370-71 

(Tenn. 2011) (applying the rules of statutory construction to interpret Tennessee Supreme 
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Court Rule 28 and Tennessee Rule of Evidence 611); Thomas, 279 S.W.3d at 261 

(applying the rules of statutory construction to interpret the Tennessee Rules of Civil 

Procedure); see Doe v. Board of Prof’l Responsibility, 104 S.W.3d 465, 469 (Tenn. 2003)

(applying the rules of statutory construction to interpret Tennessee Supreme Court Rule 

9). 

Appellate review of court rules attempts to “ascertain and give effect to the . . . 

intent without unduly restricting or expanding a [rule’s] coverage beyond its intended 

scope.” Doe, 104 S.W.3d at 469 (internal quotations and citations omitted). Intent is 

determined “from the natural and ordinary meaning of the . . . language within the 

context of the entire [rule] without any forced or subtle construction that would extend or 

limit the . . . meaning.” Id. (internal quotations and citations omitted). “[A]ll sections are 

to be construed together in light of the general purpose and plan.” Id. (internal quotation 

and citation omitted). “[T]he rules of . . . construction direct us not to apply a particular 

interpretation of a [rule] if that interpretation would yield an absurd result.” Id. (internal 

quotation and citation omitted). Likewise, “[u]nder the generally accepted rules of . . . 

construction, a special [rule], or a special provision of a particular [rule], will prevail over 

a general provision in another [rule] or a general provision in the same [rule].” Keough, 

356 S.W.3d at 371. 

Rule 1.10 recites the general rule governing imputed conflicts of interests of an 

attorney upon a firm. Tenn. Sup. Ct. Rule 8, RPC 1.10 (2017). Rule 1.10(b) addresses 

the scenario in which an attorney at a current firm is prohibited from representing a client 

at the current firm whose interests are adverse to the attorney’s former client at a former 

firm. However, subsection (c) permits other attorneys at the current firm to represent the 

current client if the attorney with the conflict of interests is disqualified from representing 

the current client, the other attorneys in the current firm have not obtained material 

information about the representation from the disqualified attorney, adequate screening 

procedures are implemented to prevent the flow of information between the disqualified 

attorney and the other attorneys in the current firm, and the disqualified attorney’s former 

client is advised in writing of the circumstances requiring the screening procedures and of 

the procedures implemented. See Tenn. Sup. Ct. Rule 8, RPC 1.10(c)(1)-(4) (2017). 

However, the Rule states that vicarious disqualification is required, regardless of 

compliance with subsection (c), if the disqualified attorney was substantially involved in 

the representation of the former client, the representation of the former client was related 

to an adjudicative proceeding that is directly adverse to the current client’s interests, and 

the proceeding is pending at the time the attorney changes firms. Tenn. Sup. Ct. Rule 8, 

RPC 1.10(d)(1)-(3) (2017). 

The language of Rule 1.10(c)(1)-(4) is analogous to and incorporates the 

screening procedures discussed in Clinard that were implemented in an effort to prevent 

the disclosure of confidential client information and to prevent a current firm’s 

disqualification from representing a current client. See Clinard, 46 S.W.3d at 184. 
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Although Rule 1.10 does not include the “appearance of impropriety” language from 

Clinard, which served as an independent basis for the vicarious disqualification of a firm

pursuant to the Code of Professional Responsibility, subsection (d) “restates the rule of 

law established by Clinard,” which “continues under the present Rules.” Tenn. Sup. Ct. 

Rule 8, RPC 1.10(d), Cmt. [9]. But c.f. Frankie E. Casteel, 2004 WL 2138334, at *16 

(stating that “[n]either Rule 1.10 or 1.11 adopts an appearance of impropriety standard”). 

Rule 1.10(d) creates a per se rule of disqualification, consistent with the appearance of 

impropriety standard in Clinard, to the extent that a current firm’s adequate screening 

procedures will not prevent vicarious disqualification when the disqualified attorney’s 

representation was substantial and was related to a pending adjudicative proceeding in 

which the interests of the former and current clients are directly adverse. 

However, Rule 1.10(f) provides that “[t]he disqualification of lawyers associated 

in a firm with former or current government lawyers is governed by RPC 1.11.” Tenn. 

Sup. Ct. Rule 8, RPC 1.10(f) (2017); see Tenn. Sup. Ct. Rule 8, RPC 1.10, Cmt. [11] 

(“[W]here a lawyer represents the government after having served clients in private 

practice . . . imputation is governed by RPC 1.11(c)(1).”). The amended version of Rule 

1.10, effective January 1, 2011, adopted subsection (f), and the language mandates the 

application of Rule 1.11 when the disqualified attorney is a current or former government 

attorney, which includes assistant district attorneys general. Subsection (f) incorporates 

the determinations in Coulter that (1) Clinard applies in the context of civil proceedings 

in which an attorney moves between private law firms and (2) when a private attorney 

leaves criminal defense practice to join a district attorney general’s office, the primary 

concern is not the appearance of impropriety, as in Clinard, but rather that the disclosure 

of confidential information could violate a criminal defendant’s constitutional rights. See 

Coulter, 67 S.W.3d at 32-33. 

After the adoption of the 2003 Rules of Professional Conduct but before the 

2011 amendment adopting Rule 1.10(f), this court relied on Coulter for the proposition 

that vicarious disqualification based upon Clinard was not applicable to scenarios in 

which a criminal defense attorney becomes an assistant district attorney general. See 

State v. Michelle Tipton, No. E2004-01278-CCA-R3-CD, 2005 WL 2008178, at *5-6 

(Tenn. Crim. App. Aug. 22, 2005) (stating, without reference to the Rules of Professional 

Conduct, that the “disqualification doctrine” in Clinard “does not apply identically when 

an attorney transfers to the district attorney general’s office as it does when an attorney 

transfers to a private law firm” and determining that the district attorney general’s 

screening procedures adequately rebutted the “central concern” regarding the disclosure 

of confidential information and its potential impact on a criminal defendant’s 

constitutional rights), perm. app. denied (Tenn. Jan. 30, 2006); Frankie E. Casteel, 2004 

WL 2138334, at *16 (stating, after discussing Clinard and Coulter, that Rule 1.10 

governs vicarious disqualification when an attorney “moves from one private law firm or 

corporate legal office to another” and that Rule 1.11(c) applies when an attorney “leaves 

private practice to represent the government”); see also State v. Davis, 141 S.W.3d 600, 
-12-

612-615 (Tenn. 2004) (applying principles expressed in Coulter, without reference to the 

Rules of Professional Conduct, to a motion to disqualify the district attorney general’s 

office because the prosecutor had worked previously as a judicial law clerk to the trial 

court judge). 

By contrast, Rule 1.11 recites the special rule regarding conflicts of interests for 

current and former government officers and employees. See Tenn. Sup. Ct. Rule 8, RPC 

1.11 (2017). The majority of the Rule addresses scenarios not relevant to this appeal. 

See Tenn. Sup. Ct. Rule 8, RPC 1.11(a) (relevant to attorneys who are former public 

officers or government employees); 1.11(b) (relevant to screening procedures to avoid 

vicarious disqualification of a firm because an attorney employed by the firm is a former 

public officer or government employee subject to disqualification pursuant to subsection 

(a)); 1.11(c) (relevant to attorneys who are former government employees or public 

officers and the need to protect “confidential government information”). The provision 

containing language relevant to an attorney who leaves private practice for government 

service is subsection (d)(2)(i), which prohibits an attorney from “participat[ing] in a 

matter in which the lawyer participated personally and substantially while in private 

practice[.]” See Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(2)(i). 

Although the trial court determined, and the Defendant argues on appeal, that 

Rule 1.11(d)(2)(i) is not applicable in the present case because its focus is protecting the 

confidentiality of the government, subsection (d)(2) applies “regardless of whether a 

lawyer is adverse to a former client and [is] thus designed not only to protect the former 

client, but also to prevent a lawyer from exploiting public office[.]” Tenn. Sup. Ct. Rule 

8, RPC 1.11(d)(2), Cmt. [3] (2017). The language of (d)(2)(i) shows that a government 

attorney is prohibited from participating in a matter in which the attorney personally and 

substantially participated before becoming a government attorney. Therefore, (d)(2)(i) 

prevents an attorney from representing a client in private practice in a matter involving 

the government and, before the matter is resolved, representing the government in the 

same matter. Rule 1.11(d)(1) reiterates that a public attorney remains bound by the rules 

governing not only conflicts of interests involving a current client, which includes the 

government entity for which the attorney works, but also conflicts of interests involving 

former clients, which includes clients the attorney represented before becoming a 

government attorney. See Tenn. Sup. Ct. Rule 8, RPC 1.11(d)(1), 1.7, 1.9 (2017). 

Furthermore, the remaining language of Rule 1.11(d)(2)(i) provides three 

scenarios in which a government attorney might be permitted to participate in a matter in 

which the attorney participated personally and substantially before becoming a public 

attorney. However, these are inapplicable and irrelevant for purposes of this case

because in a criminal case, the concern is preventing the disclosure of a defendant’s 

confidential information to members of a district attorney general’s office, and a public 

attorney remains bound by the rules related to duties to former clients. See Tenn. Sup. 

Ct. Rule 8, RPC 1.11(d)(1), 1.9 (2017). Rule 1.11 attempts to balance the interests 
-13-

between a private client and the government, and an attorney “who . . . pursued a claim 

on behalf of a private client may not pursue the claim on behalf of the government, 

except [as] authorized” by subsection (d). Tenn. Sup. Ct. Rule 8, RPC, 1.11, Cmts. [3], 

[4] (2017). Although subsection (b) encompasses former government employees, it 

allows for screening and notice to avoid vicarious imputation of attorneys who “mov[e] 

into . . . positions as government officers or employees in the same manner as set forth by 

other lawyers in [Rule] 1.10(c).” Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [1] (2017). 

Therefore, adequate screening procedures protect a criminal defendant’s confidential 

information. See Tenn. Sup. Ct. Rule 8, RPC 1.11(b), (c) (2017); Coulter, 67 S.W.3d at 

32-33. Likewise, the language of Rule 1.11(d) “does not impute the conflicts of a lawyer 

currently serving as an officer or employee of the government to other associated 

government officers or employees[.]” Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmts. [2], [9]. 

As a result, district attorneys general’s offices are not subject to the Clinard per se 

disqualification rule based upon the appearance of impropriety. 

The practical implications of applying the per se rule of disqualification in Rule 

1.10(d) and Clinard highlight the need for a special rule regarding a public attorney’s 

conflicts of interests and vicarious disqualification of the entities for which the attorney 

works. Application of the per se disqualification in these cases would create an “absurd 

result,” significantly impacting efficiency of the administration of the criminal justice 

system. See Doe, 104 S.W.3d at 469. If vicarious disqualification of district attorneys

general’s offices were required each time a district attorney general employed a former 

criminal defense attorney, assuming the criterion of Rule 1.10(d)(1)-(3) are satisfied, the 

law enforcement function of prosecuting individuals accused of committing criminal 

offenses would become disrupted, routinely requiring the appointment of special 

prosecutors. Application of the per se rule of disqualification would also deter competent 

attorneys from entering public service as assistant district attorneys general, impeding a 

district attorney general’s ability to hire competent attorneys while simultaneously 

complying with ethical standards. See Tenn. Sup. Ct. Rule 8, RPC 1.11, Cmt. [4] (2017). 

The provisions related to screening “are necessary to prevent the disqualification rule 

from imposing too severe a deterrent against entering public service.” See Tenn. Sup. Ct. 

Rule 8, RPC 1.11, Cmt. [4]. Likewise, application of the per se disqualification rule fails 

to consider the primary concern in criminal cases of preventing the disclosure of a 

defendant’s confidential information for the protection of constitutional rights. See

Coulter, 67 S.W.3d at 32. Rule 1.10 is a general rule regarding the vicarious imputation 

of conflicts of interests, whereas Rule 1.11 is the specialized rule regarding the conflicts 

of interests of former and current government attorneys, and the principles of 

construction require the specialized rule to prevail over the general rule. See Keough, 

356 S.W.3d at 371. 

Based upon the foregoing, we conclude that Rule of Professional Conduct 1.11 

is the applicable ethical authority when considering whether the conflict of interests of a 

disqualified assistant district attorney general should be vicariously imputed upon a
-14-

district attorney general’s office. In making this determination, we have not overlooked 

the trial court’s and the defense’s reliance on Jason Clinard, in which a panel of this 

court cited Rule 1.10 in determining that vicarious imputation of a prosecutor’s actual 

conflict of interests upon the district attorney’s office was not required. 2008 WL 

4170272, at *4-5. 

In Jason Clinard, the defense sought disqualification of the district attorney 

general’s office on the basis that an appearance of impropriety was created when an 

assistant public defender, who did not represent the defendant personally, obtained 

employment with the district attorney general’s office and the defendant was represented 

by the public defender’s office. Id. This court determined that the district attorney 

general’s office instituted adequate screening procedures of the disqualified attorney 

pursuant to Rule 1.10(c) and that the defendant failed to show vicarious disqualification 

could not “be avoided by the implementation of screening procedures.” Id. at *5. Jason 

Clinard predates the 2011 amendment to the Rules of Professional Conduct that adopted 

subsection (f) to Rule 1.10, requiring the application of Rule 1.11 in cases involving the 

disqualification of attorneys associated in a firm with former or current government 

attorneys. In any event, this court’s reliance on whether the State complied with the 

procedures outlined in Rule 1.10(c) to avoid vicarious disqualification of the district 

attorney general’s office was based upon State v. Davis, in which our supreme court 

considered the principles expressed in Coulter, distinguishing Davis from Clinard v. 

Blackwood, without reference to the 2003 Rules of Professional Conduct. See Davis, 141

S.W.3d at 612-615. 

In Davis, the supreme court applied the principles of Coulter to the scenario in 

which a judicial law clerk to the trial court judge obtained employment with the district 

attorney general’s office. Id. at 614. The supreme court noted that the disqualified 

attorney’s involvement as a judicial law clerk was de minimus and that the attorney did 

not participate in the prosecution, did not discuss or share information about the case with 

any assistant district attorney general, did not have access to the prosecution’s case file, 

and understood that he would have no involvement in the prosecution. Id. The court 

determined that the attorney was effectively screened from the prosecution and that, as a 

result, the trial court did not abuse its discretion by denying the motion to disqualify. Id. 

at 615. 

As a result, this court’s analysis in Jason Clinard was indirectly based upon the 

central concern in Coulter, which we have concluded is analogous to Rule 1.11, that 

when a prosecutor has an actual conflict of interests, adequate screening procedures will 

prevent the disclosure of a defendant’s confidential information. See Jason Clinard, 

2008 WL 4170272, at *4-5. Furthermore, the same screening and notice procedures 

provided in Rule 1.10(c) are permitted in Rule 1.11 to prevent the vicarious 

disqualification of a firm in which a disqualified public attorney is employed, and this 

court’s reliance on the procedures stated in Rule 1.10(c) was not improper. See Tenn. 
-15-

Sup. Ct. Rule 8, RPC 1.11(b), Cmt. [2]. Therefore, Jason Clinard implicitly rejected the 

per se disqualification rule in Clinard v. Blackwood and Rule 1.10(d). See Jason Clinard, 

2008 WL 4170272, at *4-5; Coulter, 67 S.W.3d at 32. We note that in State v. Perry 

Lewis Sisco, No. M2017-01202-CCA-R3-CD, 2018 WL 1019870, at *8-10 (Tenn. Crim. 

App. Feb. 21, 2018), perm. app. denied (Tenn. May 17, 2018), this court relied 

significantly upon Jason Clinard and its reference to Rule 1.10 in determining that a 

district attorney general’s screening procedures were adequate to prevent vicarious 

disqualification and that the defendant failed to establish the criterion of Rule 1.10(d), 

requiring vicarious disqualification regardless of adequate screening procedures. 

However, the court in Perry Lewis Sisco did not acknowledge the adoption of subsection 

(f) to Rule 1.10 required application of Rule 1.11. See id. 

In Klein Adlei Rawlins v. State, No. M2010-02105-CCA-R3-PC, 2012 WL 

4470650, at *12-14 (Tenn. Crim. App. Sept. 27, 2012), perm. app. denied (Tenn. Feb. 25, 

2013), this court again considered the standard for determining whether a district attorney 

general’s office should be disqualified from a prosecution when an assistant district 

attorney is disqualified based upon a conflict of interests. This court, without reference to 

the Rules of Professional Conduct, determined, pursuant to Coulter, that the district 

attorney general’s screening mechanisms were sufficient to prevent the disclosure of the 

defendant’s confidential information and that vicarious disqualification was not required. 

Id., at *13-14. Likewise, in State v. Thomas Paul Odum, No. E2017-00062-CCA-R3-

CD, 2017 WL 5565629, at *6-8 (Tenn. Crim. App. Nov. 20, 2017), perm. app. denied

(Tenn. Feb. 15, 2018), this court determined, without reference to the Rules of 

Professional Conduct, that the per se disqualification rule based upon the appearance of 

impropriety expressed in Clinard was “more applicable to civil cases” and private 

attorneys than to criminal cases involving prosecutors. Id. at *8 (citing Davis, 141 

S.W.3d at 613; Coulter, 67 S.W.3d at 32). The Thomas Paul Odum court determined that 

the district attorney general’s office instituted adequate screening procedures preventing 

the disclosure of the defendant’s confidential information to the prosecuting attorneys 

and that disqualification of the district attorney general’s office was not warranted. Id. 

As a result, Klein Adlei Rawlins and Thomas Paul Odum reflect the view consistent with 

Rule 1.11 that it is inappropriate to apply a per se disqualification rule, based upon the 

appearance of impropriety, to a district attorney general’s office when an assistant district 

attorney general has a disqualifying conflict of interests. 

We conclude that Tennessee Supreme Court Rule 8, Rule of Professional 

Conduct 1.10 is the general rule governing the imputation of conflicts of interests but that 

Rule 1.11, the specialized rule regarding public service attorneys, applies to whether a 

disqualified prosecutor’s conflict of interests should be imputed upon a district attorney 

general’s office. The record reflects that the trial court rejected Rule 1.11 as the 

applicable authority and that the court determined vicarious disqualification was required 

pursuant to Rule 1.10(d), although it also determined that the State had complied

adequately with the screening procedures provided in Rule 1.10(c). 
-16-

The parties do not dispute that Ms. Walkup has an actual conflict of interests 

disqualifying her from participating in the Defendant’s prosecution. See Tenn. Sup. Ct. 

Rule 8, RPC 1.11(d)(2)(i), 1.9(a) (2017). She testified at the motion hearing that she 

represented the Defendant between November 4, 2015, and January 11, 2016, that she 

prepared and filed a motion to reduce the Defendant’s bond, and that her only court 

appearance in this case was related to the bond motion. She stated that she and the 

District Attorney General discussed her conflicts of interests stemming from pending 

cases in which she previously served as defense counsel. They did not discuss the cases 

with specificity, and Ms. Walkup understood after the discussion that she would not have 

any involvement in any of her previous cases. Ms. Walkup did not know which of her 

previous cases remained pending. 

Ms. Walkup’s only discussion about this case with the prosecutor related to the 

prosecutor’s asking if she previously represented the Defendant and the prosecutor’s 

telling her that the motion to disqualify had been filed by the defense. She did not know 

where the prosecution’s file was maintained in the district attorney’s office, and she did 

not have access to the case file. She did not receive discovery material during her 

representation of the Defendant and did not recall the name of the prosecuting law 

enforcement officer. She said that if she had spoken to the officer, their discussions 

would have been about other cases. She denied participating in and overhearing 

conversations with colleagues relative to the State’s evidence against the Defendant. 

The State submitted the prosecutor’s affidavit, which stated that the District 

Attorney General reminded office personnel that Ms. Walkup had previously represented 

criminal defendants who might have pending cases and that those cases were not to be 

discussed with Ms. Walkup. The prosecutor stated that he and Ms. Walkup had never 

discussed the factual or legal merits of the Defendant’s case, although the prosecutor 

spoke to Ms. Walkup to determine the extent of her representation in this case after he 

received the motion to disqualify. 

The prosecutor stated that given the sensitive nature of sexual crimes, his files 

were maintained in his office filing cabinets, except when his administrative assistant 

needed temporary access. The prosecutor stated that his assistant was aware of the 

sensitive nature of the evidence contained in the files and that the assistant did not make 

the files available to other office personnel. The prosecutor stated that he and Ms. 

Walkup did not share an assistant and that he locked his office when he left each day. 

The prosecutor stated that Ms. Walkup did not prosecute offenses involving child abuse 

and that, as a result, did not interact with those who investigated the Defendant’s case. 

The prosecutor stated that any meetings held relative to the Defendant’s case would have 

been held in a conference room located on a different floor from Ms. Walkup’s office. 
-17-

The prosecutor stated that when he learned Ms. Walkup had previously 

represented the Defendant, the prosecutor sent a March 23, 2017 letter to the Defendant’s 

attorney, the victim’s mother, and the trial court notifying them of Ms. Walkup’s conflict 

of interests and disqualification from the Defendant’s case. The prosecutor stated that the 

victim’s mother had no objection to the District Attorney’s Office continuing to prosecute 

this case. 

The record reflects that Ms. Walkup was prohibited from participating in the 

prosecution of the Defendant and that she did not provide anyone working in the district 

attorney’s office with information related to the Defendant’s case. Ms. Walkup and the 

prosecutor did not communicate about this case, and any meetings about this case were 

held on a different floor from Ms. Walkup’s office. The District Attorney General and 

Ms. Walkup discussed generally her conflicts of interests related to cases in which she 

previously served as defense counsel, and they decided she would have no involvement 

with those cases. The prosecutor’s affidavit reflects that the District Attorney General 

instructed personnel not to communicate with Ms. Walkup about any pending case in 

which Ms. Walkup had served as defense counsel. The record does not reflect any 

improper communications occurred relative to the Defendant’s case. Likewise, the 

Defendant’s attorney and the victim’s mother were notified in writing of Ms. Walkup’s 

conflict of interests. Therefore, the record supports the trial court’s determinations that 

Ms. Walkup had not participated in the prosecution, that she had not spoken to the 

prosecutor about the facts of the case, that Ms. Walkup had not disclosed the Defendant’s 

confidential information, and that adequate screening procedures had been instituted 

preventing the disclosure of confidential information. See Tenn. Sup. Ct. Rule 8, RPC 

1.11(b)(1)-(4) (2017) (permitting screening and notice to avoid imputation for attorneys 

moving into government service in the same manner as provided for “other” attorneys in 

RPC 1.10(c)); see id. 1.10(c)(1)-(4). As a result, the adequate screening procedures 

prevented the disclosure of the Defendant’s confidential information, which is the 

primary concern in criminal cases. See Coulter, 67 S.W.3d at 32-33. Therefore, Ms. 

Walkup’s disqualifying conflict of interests did not warrant vicarious disqualification of 

the District Attorney General’s Office. 

In consideration of the foregoing and the record as a whole, we conclude that the 

trial court abused its discretion by granting the motion to disqualify the Office of the 

District Attorney General for the Thirty-First Judicial District. The order of the trial 

court is reversed, and the case is remanded to the trial court for further proceedings 

consistent with this opinion. 

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE