In America's First Credit Union v. America's First Credit Union, 519 So. 2d 1325 (Ala. 1988), the defendant sued for malicious prosecution after a charge of theft was nol-prossed. See id. at 1326.
An assistant prosecutor during the pendency of the criminal action became an associate with the defendant's counsel for both cases and assisted that counsel with the malicious prosecution suit. See id.
On the petitioner's motion to disqualify the prior prosecutor and the firm he joined, the trial court found that the prior assistant prosecutor played an active part in neither the prosecution nor the decision to terminate that prosecution.
Alabama's Code of Professional Responsibility therefore did not require disqualification of the attorney because of any appearance of impropriety. See id.
The trial court denied the motion to disqualify the firm because no basis for imputed disqualification existed.
The Supreme Court of Alabama agreed with the parties' mutual concession that the jurisdiction's "common sense" approach did not mandate "grafting Canon 9 principles onto DR 5-105(D)" for a strict interpretation and application of the imputed disqualification doctrine. See id.
That Court endorsed the defendant's argument that the former prosecutor neither participated in nor possessed actual knowledge of the original prosecution and that any imputed knowledge could not be further imputed to Copeland's coworkers. See id.
Therefore, the Supreme Court refused to extend disqualification to the remainder of the attorneys based on a "presumption upon a presumption." Id.