June 2021 | District Attorney’s Office Disqualified from Prosecuting Friend Of District Attorney Due to Conflict of Interest

Personal relationships between one part and the adverse party’s attorney can lead to a disqualifying conflict of interest. In Schumb v. Superior Court, No. H048532 (Ct. App. May 28, 2021), the Sixth District California Court of Appeals held that the entire Santa Clara County District Attorney’s Office was disqualified from prosecuting a conspiracy case against a friend of the District Attorney.

Facts of the Case

This case involves Santa Clara County’s criminal indictment of attorney Christopher Schumb, who fundraises for elected officials’ campaigns. Schumb was the treasurer of a committee supporting the reelection of Santa Clara County Sheriff Laurie Smith. He also is friends with Santa Clara County District Attorney Jeff Rosen and Chief Assistant District Attorney Jay Boyarsky. The indictment alleges as follows:

In spring 2018, Martin Nielsen of AS Solution, Inc. (a private executive security company) allegedly contacted Michael Nichols (a local gun parts manufacturer) about obtaining licenses to carry concealed weapons (“CCW licenses”). Nielsen and the AS Solution CEO had lunch with Nichols, Schumb, and another local attorney. At the lunch, Schumb explained his fundraising for Sheriff West and encouraged Nielsen to attend a SWAT competition so he could meet a sheriff’s department captain, James Jensen.

At the competition, Nichols introduced Nielsen to Jensen. They allegedly agreed that AS Solution’s agents would receive CCW licenses in exchange for an AS Solutions donation supporting Sheriff Smith’s reelection. Jensen met with Schumb in fall 2018, and Jensen then instructed Nielsen to make a $45,000 contribution to a fundraiser for Sheriff Smith as part of the donation. Nielsen gave Schumb a check for the $45,000. When AS Solution hadn’t received the CCW licenses in early 2019, Nielsen talked to Schumb, who called Jensen. Jensen signed the paperwork, and Nielsen received a CCW license signed by Smith shortly thereafter.

Based on these allegations, a grand jury indicted Schumb, Jensen, Nichols, and Nahal (the attorney). The indictment charges Schumb with conspiring to bribe an executive officer and bribing an executive officer (Smith). District Attorney Rosen was quoted in a press release accompanying the indictment as saying: “‘CCW licenses should not be given out in exchange for campaign donations. They should not be for sale.’ ”

Schumb filed a motion to disqualify the entire Santa Clara District Attorney’s Office from prosecuting the case against him. He argued that there is a conflict of interest preventing him from obtaining a fair trial because of his relationships with Rosen and his assistant Boyarsky. Schumb described his relationship with Rosen and Boyarsky in an attached declaration, including attendance at fundraising events together and exchanging many emails. He also attached a section from the district attorney office’s policy manual prohibiting attorneys from handling cases involving their friends or relatives.

The Attorney General opposed the motion on behalf of the Santa Clara County DA’s office. In support of the opposition, Rosen declared that Schumb was not his attorney and had minimal impact on fundraising for his reelection. The deputy district attorney in charge of Schumb’s case, John Chase, declared that Rosen forwarded him a tip about the case and that he met with Rosen and Boyarsky about it regularly. Schumb attempted to subpoena more correspondence between Rosen, Boyarsky, and Chase, and argued that Rosen should testify. However, the trial court denied the motion to disqualify without an evidentiary hearing. The court said that “although there was ‘certainly evidence to show a friendship,’ the evidence was insufficient to show a conflict of interest or that Schumb ‘has or likely would not receive fair treatment during all portions of the proceedings.’” Schumb appealed.

Was There a Conflict of Interest That Could Deny Schumb a Fair Trial?

The court of appeal reversed the trial court’s decision and disqualified the DA’s office. A prosecutor such as the Santa Clara County District Attorney may only be disqualified if “the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (Pen. Code, § 1424, subd. (a)(1).) Schumb needed to show that there was a conflict and that the conflict was so grave that it would be unlikely for him to receive fair treatment during trial. (People v. Eubanks (1996) 14 Cal.4th 580, 592.)

First, the Court of Appeal concluded that the trial court erred by finding that no conflict of interest existed. The parties did not dispute that Schumb and Rosen were friends, and evidence showed their numerous meetings and emails, some about non-fundraising topics. Moreover, Rosen knew about Schumb’s alleged involvement in the conspiracy and made no attempt to wall himself off from it.

Further, the Court of Appeal concluded that the trial court erred by not finding that the conflict was grave enough to merit disqualification. The Court detailed the facts that support this conclusion: the basis for the case is that Schumb conspired to bribe a public official while raising money to support her reelection, Schumb also had fundraised for Rosen, Rosen and Schumb’s relationship was close, and Rosen and Boyarsky likely will be called to testify at trial (as both character and fact witnesses). These facts created an incentive for Rosen and his office to aggressively prosecute Schumb. They would want to avoid the appearance of favoritism toward Schumb and distance Rosen from any tainted money that Schumb fundraised.

The Attorney General raised many arguments against disqualification, and the Court’s opinion makes sure to clarify that disqualifying the entire office is unusual. Any of the facts in this case alone might not be enough to merit disqualification (Rosen and Schumb being friends, or Rosen being called as a witness, for example). But the many facts present here make it unlikely that Schumb would be treated fairly at trial.

The Takeaway

In assessing conflicts for a disqualification motion, relationships matter. The Court of Appeal’s opinion emphasizes an important ethical consideration: personal relationships can be a conflict of interest that warrants disqualification. Depending on the specific facts, disqualification of the entire prosecuting unit could be warranted. Certainly the optics of the DA’s office prosecuting a friend of the DA weighed against allowing the same office to prosecute Schumb. The friendships that Schumb had with the District Attorney and Chief Assistant District Attorney, along with their involvement in the case against Schumb, were enough to make it unlikely that Schumb would receive a fair trial in Santa Clara County.