To the Editor:
The Finger Lakes Times quoted John Nabinger, a public defender, saying there was a “kernel of truth” to the potential conflicts of interest the Seneca County DA’s office would face if he were elected. Despite Mr. Nabinger’s attempt to minimize the issue, taxpayers need to know this can result in huge expenses.
I have been an attorney for 41 years, including six as a public defender in Trenton, NJ’s (pop. 90,000) municipal court. In that capacity, clients divulged to me circumstances regarding the criminal activity charged, personal confidential information, and their defense. Such information is protected by the attorney-client privilege and would never reach the prosecutor. If the prosecutor obtains such information, a conflict of interest exists. Courts have ruled that even if an actual conflict of interest does not exist, lawyers must withdraw, even if there is only the “appearance of impropriety.”
Recently, the Court of Appeals ruled that when a defense attorney becomes employed by the DA’s Office that is prosecuting his former client, there is an unmistakable appearance of impropriety. Further, it held that even if the risk of a conflict is slight, it requires disqualification of the DA, as well as the entire DA's staff. This conflict cannot be waived by the client. Even If waived, any resolution of the case would be subject to question by either the public suspicious of special treatment or the defendant who feared improper use of prior confidences. The only way to avoid that appearance of impropriety, and endless appeals, would be to appoint special prosecutors to handle these cases. A very small number of conflicts might be absorbed by neighboring DA Offices but none have enough staff to absorb all such potential conflicts.
Mr. Nabinger potentially has many such conflicts. The excess will need to be assigned to private attorneys who must be compensated appropriately for their services. In 2016, Broome County faced this very issue and appointed special prosecutors for over 75% of the conflict cases who charged up to $300 per hour to prosecute conflicts. Seneca County has few attorneys available to take such cases. Thus, attorneys with the requisite legal skills required will be difficult to find.
This will undoubtedly increase the expense. The election of Mr. Nabinger as DA will make prosecuting crime in Seneca County much more expensive to taxpayers.