State v. ROMAN (Nine Cases)

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

SUPREME COURT OF GEORGIA
Case Nos. S25C0587, S25C0588, S25C0589, S25C0590,
S25C0591, S25C0592, S25C0593, S25C0594, S25C0595.

September 16, 2025

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

THE STATE v. MICHAEL A. ROMAN.
THE STATE v. DAVID J. SHAFER.
THE STATE v. ROBERT DAVID CHEELEY.
THE STATE v. MARK RANDALL MEADOWS.
THE STATE v. DONALD JOHN TRUMP.
THE STATE v. CATHLEEN LATHAM.
THE STATE v. RUDOLPH WILLIAM LOUIS GUILIANI.
THE STATE v. JEFFREY BOSSERT CLARK.
THE STATE v. HARRISON FLOYD.

The Supreme Court today denied the petition for certiorari in
these cases.

All the Justices concur, except, Ellington, McMillian, and Colvin,
JJ., who dissent. Peterson, C.J., not participating, and Land, J.,
disqualified.

Court of Appeals Case No. A24A1595, A24A1596, A24A1597, A24A1598,
A24A1599, A24A1600, A24A1601, A24A1602, A24A1603.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk's Office, Atlanta

I certify that the above is a true extract from the minutes
of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto
affixed the day and year last above written.

, Clerk

2
PINSON, Justice, concurring in the denial of certiorari.

I agree with the Court’s decision to deny these petitions for

certiorari. Here’s why.

1. This Court’s power to review cases that the Court of Appeals

has already reviewed — what we call review by “certiorari” — is set

by our state constitution. The Georgia Constitution grants our Court

the authority to review by certiorari only “cases in the Court of

Appeals which are of gravity or great public importance.” Ga. Const.

of 1983, Art. VI, Sec. VI, Par. V. This means that we generally do

not grant certiorari review just because the Court of Appeals or the

trial court may have gotten something wrong — that is, for “mere

error correction.” See Ga. SCt R. 40 (“Certiorari generally will not

be granted merely to correct an asserted error….”); Satcher v.

Columbia County, 319 Ga. 633, 639–40, 640 n.4 (2024); Mobuary v.

State, 312 Ga. 337, 340–41 (2021) (Nahmias, CJ, dissenting). Nor do

we typically grant review just because a case or its subject matter

happens to have found its way into the public spotlight. Instead, our

focus in assessing whether a case warrants the exercise of our

3
certiorari jurisdiction is supposed to be its potential impact on the

law of Georgia.

To gauge that impact, we ask whether the case presents a legal

question of “gravity or great importance to the public.” See Ga.

Const. of 1983, Art. VI, Sec. VI, Par. V; Ga. SCt R. 40(1) (“Review on

certiorari is not a right. A petition for the writ will be granted only

in cases of great concern, gravity, or importance to the public.”). We

typically assess whether a given legal question has sufficient gravity

by asking, for example, whether the Court of Appeals has decided

the question in a way that conflicts with other decisions of the Court

of Appeals or of this Court; answered a legal question by applying

precedent of this Court that should be reconsidered; or decided an

“important question of state law that is likely to recur and has not

been, but should be, settled by this Court.” Ga. SCt R. 40(1). These

nonexclusive examples reflect the aim of certiorari review: ensuring

that our courts’ interpretation of the law of Georgia is correct,

settled, and ultimately uniform with respect to important legal

issues that courts and litigants are likely to see in the future.

4
But identifying a legal question of sufficient gravity is not

enough on its own to warrant certiorari review — that question must

also be presented by the case when it arrives at this Court. Although

our Constitution entrusts this Court with the responsibility to settle

important legal questions, we are still a court, and courts are not

“vehicles for engaging in merely academic debates or deciding purely

theoretical questions.” Sons of Confederate Veterans v. Henry County

Bd. of Commissioners, 315 Ga. 39, 39 (2022). Instead, we “‘say what

the law is’ only as needed to resolve an actual controversy.” Id. Thus,

even if a party has identified a question of gravity in a given case,

before granting review, we still must ask whether answering that

question of gravity is necessary in some way to resolving the case. If

not — for example, if answering that question wouldn’t matter to

the outcome of the underlying case, or if that question was not even

squarely presented to or decided by the courts below — then

reaching out to decide that question anyway would exceed our

limited judicial role. In other words, before granting certiorari

review, we must ensure not only that the petition identifies a

5
question of gravity, but also that the question is actually presented

by the case, and that answering it would help resolve the case.

2. Here, the State asks us to grant review to answer the

question whether a prosecutor may be disqualified “based solely

upon on appearance of impropriety and absent a finding of an actual

conflict of interest or forensic misconduct.” In an appropriate case,

that question might warrant our review. The legal basis for a rule

that prosecutors may be subject to disqualification based only on

conduct that creates the appearance of impropriety is not clear: I’m

not aware of a specific constitutional or statutory basis for such a

rule; this Court only suggested that basis for disqualification as a

possibility (arguably in dicta) for attorneys generally in Blumenfeld

v. Borenstein, 247 Ga. 406, 409 (1981); and that decision relied in

part on a since-scuttled rule of professional responsibility

addressing the appearance of impropriety, see id. (citing Canon 9 of

the former Code of Professional Responsibility, removed effective

January 1, 2002, which stated that “[a] lawyer should avoid even the

appearance of professional impropriety”); Ga. Rule of Prof’l Conduct

6
3.5, cmt. 2. On the other hand, the idea that public prosecutors

should be held to a higher standard than private attorneys for

purposes of disqualification is not without force, and it finds some

support in the language of some of our earlier decisions. See Gaulden

v. State, 11 Ga. 47, 50 (1852) (explaining that “[t]he administration

of the law should be free from all temptation and suspicion … and

… public policy most emphatically demands” that a prosecutor

should not later appear as counsel for someone he prosecuted,

because “[s]uch a practice will have a tendency to greatly embarrass

the administration of the Criminal Law”); Conley v. Arnold, 93 Ga.

823, 825 (1894) (stating that although “[w]e have not the slightest

idea that anything intentionally wrong or unbecoming on his part

was intended,” it was not “lawful or consistent with public policy or

with sound professional ethics” for a lawyer to defend the

perpetrator of a battery in a civil case when the lawyer had

prosecuted the battery criminally). See also Davenport v. State, 157

Ga. App. 704, 705 (1981) (holding that “public policy prohibits a

district attorney from prosecuting a case, … while representing the

7
victim of the alleged criminal act in a divorce proceeding involving

the accused” because “[u]nder such circumstances there is at least

the appearance of impropriety”). If this question — whether conduct

creating an appearance of impropriety alone is grounds for

disqualifying a prosecutor — is presented by future cases, we may

well need to take it up in one of them.

But, in my view, that possibly cert-worthy question is not

presented by this case, at least not as it appears before this Court.

The root of the problem is the State’s approach to litigating this issue

on appeal. In the Court of Appeals, the defendants here appealed

the trial court’s disqualification order, which (1) found that the

conduct of the district attorney and special prosecutor created a

“significant appearance of impropriety,” and (2) as a remedy,

determined that one of those two prosecutors would have to

withdraw from the case.1 In doing so, the defendants did not contest

1 The trial court also concluded that certain of the district attorney’s
public comments were “legally improper” under a section of the order entitled
“forensic misconduct,” but the court went on to deny the defendants’ motions
for disqualification and dismissal based on forensic misconduct.
8
the appearance-of-impropriety finding, but they contended that the

trial court’s “one of you has to go” version of disqualification was

error, and that it should have instead simply disqualified the district

attorney. And critically, the State did not cross-appeal the trial

court’s ruling. Indeed, as the Court of Appeals explained, the State

asked the Court of Appeals “to affirm the trial court’s order in its

totality, including the imposition of [its] alternative remedy.” So,

taken together, the parties’ positions in the Court of Appeals posed

a narrow and case-specific question for the Court of Appeals to

answer: taking as an unchallenged given both the trial court’s

finding of a significant appearance of impropriety and that some

kind of disqualification remedy was required to cure the harm

caused by the prosecutors’ conduct, was the trial court’s chosen

remedy an abuse of discretion? And indeed, that was how the parties

argued the issue to the Court of Appeals.

And importantly, the Court of Appeals’ legal analysis appears

to have stayed within that narrow framing. 2 In its opinion, the court

2 The State’s failure to cross-appeal may not have bound the Court of

9
explained that because the State failed to cross-appeal, “our

consideration of the appearance of impropriety is limited to the

remedy fashioned by the trial court.” Roman v. State, 373 Ga. App.

863, 871 (2024). The court went on to say that it had to “address the

remedy in the context of a significant appearance of impropriety

caused by the conduct of a public prosecutor,” which distinguished

this case from private-counsel disqualification cases. Id. at 872

(emphasis added) (distinguishing Blumenfeld, 247 Ga. at 409–10).

And the court framed its key holding as one about the choice of

remedy, too, concluding that the trial court erred by not

disqualifying the district attorney because “[t]he remedy crafted by

the trial court to prevent an ongoing appearance of impropriety” did

not fully cure the harm, and “no other remedy will suffice to restore

public confidence in the integrity of these proceedings.” Id. at 873.

In short, rather than deciding any broader question about whether

Appeals to take its narrow analytical path, see Georgia Soc. of Plastic
Surgeons, Inc. v. Anderson, 257 Ga. 710, 711 (1987) (explaining that “a ruling
that becomes material to an enumeration of error urged by an appellant may
be considered by the appellate court without the necessity of a cross-appeal”),
but neither was the court required to reach beyond the parties’ framing.
10
an appearance of impropriety can serve as an independent ground

for disqualification of public prosecutors, the Court of Appeals’

decision appears to have resolved a narrow, case-specific dispute

about the trial court’s choice of disqualification remedy.

If that’s the best reading of the Court of Appeals’ decision —

and I think it is — that decision does not raise a question of gravity

that warrants our further review. The question whether a trial court

abused its discretion in choosing a particular disqualification

remedy under the specific and unusual circumstances of this case is

not a question of Georgia law at all likely to arise in future cases.

Nor does the Court of Appeals’ fact-bound decision that the trial

court abused its discretion create any apparent conflict with

decisions of the Court of Appeals or this Court. Thus, even if one

believes that the Court of Appeals erred in reaching that decision,

granting review to answer that question would be mere error

correction, and this Court generally does not exercise our certiorari

jurisdiction merely to correct errors that do not have some broader

impact on Georgia law. See Ga. SCt R. 40(1)(c).

11
To be sure, it is plausible to read the Court of Appeals’ decision

as holding more broadly that, as a general matter, conduct that

creates an appearance of impropriety can be grounds for

disqualifying a prosecutor. At bottom, the Court of Appeals

concluded that the district attorney had to be disqualified to address

the appearance of impropriety found by the trial court, explaining

that “this is the rare case in which disqualification is mandated.”

Roman, 373 Ga. App. at 873. One might argue that such a decision

rests on a necessary premise that conduct creating an appearance of

impropriety is a sufficient ground for disqualification, and in turn

treat that premise as a holding. See State v. Wierson, 321 Ga. 597,

606 (2025) (“[T]he holding of a judicial decision is more than just its

result on a given set of facts — it includes, to some degree, the

reasoning or principles that were necessary to that decision.”). I

disagree with that view in light of the posture of this case as it was

presented to the Court of Appeals and the court’s express and

repeated focus on the choice of remedy alone. See Roman, 373 Ga.

App. at 871–73. But I acknowledge that drawing the line between

12
holding and dicta is not always easy, and “[o]ne judge’s holding may

be another’s dicta.” Wierson, 321 Ga. at 605.

Even under that alternative reading of the Court of Appeals’

decision, however, I am not persuaded that this case would warrant

our review at this time. For one thing, as discussed above, it is not

so clear (as the State suggests) that there is no conceivable legal

basis for holding a public prosecutor to a higher standard than a

private lawyer for purposes of disqualification, at least as a general

matter. See State v. Wooten, 273 Ga. 529, 531 (2001) (explaining that

a public prosecutor’s responsibility “differs from that of the usual

advocate” because the prosecutor represents the people and has a

“duty . . . to seek justice”). Cf., e.g., Gaulden, 11 Ga. at 50 (explaining

that “[t]he administration of the law should be free from all

temptation and suspicion” and citing “public policy” as the basis for

disqualifying a former prosecutor from serving as defense counsel

based on a conflict of interest). For another, even assuming the

Court of Appeals held as much, such a public-prosecutor-specific

holding would not appear to conflict, at least not squarely, with any

13
decisions of our appellate courts. And perhaps most important, it is

not clear (at least not at this time) that this legal question will recur

with any frequency. Appellate decisions addressing attempts to

disqualify prosecutors are few and far between, and only a handful

of those addressed a claim that a prosecutor must be disqualified

based even in part on conduct that created an appearance of

impropriety. See, e.g., Neuman v. State, 311 Ga. 83, 88–89 (2021);

Lyons v. State, 271 Ga. 639, 640 (1999); Pruitt v. State, 270 Ga. 745,

753–54 (1999); Ventura v. State, 346 Ga. App. 309, 309–11 (2018);

Whitworth v. State, 275 Ga. App. 790, 791–97 (2005). Could this case

change that? Perhaps. But it seems more likely to me that the

circumstances of this case are unique, and I am not convinced that

parties will rely on it for anything broader than the Court of Appeals’

stated conclusion that, based on the specific findings in this case, the

trial court chose the wrong remedy. And of course, if this prediction

turns out to be wrong, we will have the opportunity to address the

legal question about the appearance of impropriety standard for

public prosecutors when it is properly presented in a case without

14
the unusual procedural limitations and other circumstances that

make this case a poor vehicle for reaching that question.

*

Members of the public may well be interested in the case

underlying this petition for certiorari. But our focus in assessing

whether to grant review under our certiorari jurisdiction is on the

law of Georgia. Given the parties’ positions, the corresponding

narrow question before the Court of Appeals, and that court’s

limited resolution of that question, the decision below does not raise

the kind of legal question that warrants further review by this Court

under our certiorari jurisdiction.

I am authorized to state that Presiding Justice Warren and

Justice Bethel join in this concurrence.

15
MCMILLIAN, Justice, dissenting.

I would grant certiorari because the legal issue necessarily

presented here – whether an attorney can be disqualified based on

the appearance of impropriety alone – affects every single active

lawyer in the State of Georgia, the Court of Appeals’s decisions are

in conflict on this point, our Court’s precedent warrants

reconsideration, and the issue is likely to recur.

Some background is required to understand the gravity of this

issue. In 2023, the State, through the Atlanta Judicial Circuit

District Attorney Fani Willis (“DA Willis”), charged Respondents in

a 97-page indictment with RICO violations and other crimes in

connection with an alleged conspiracy to unlawfully change the

outcome of the 2020 presidential election. Respondent Roman moved

to dismiss the indictment and to disqualify DA Willis, her office, and

Special Assistant District Attorney Nathan Wade (“SADA Wade”)

from further prosecution based on an alleged conflict of interest and

an appearance of impropriety, asserting that DA Willis and SADA

Wade were engaged in a romantic relationship and that DA Willis

16
had a personal financial interest in the case. The other Respondents

later filed motions to dismiss and for disqualification on the same

grounds.3

After a multiple-day evidentiary hearing, the trial court found:

the [Respondents] failed to meet their burden of proving
that the District Attorney acquired an actual conflict of
interest in this case through her personal relationship
and recurring travels with her lead prosecutor. The other
alleged grounds for disqualification, including forensic
misconduct, are also denied. However, the established
record now highlights a significant appearance of
impropriety that infects the current structure of the
prosecution team . . . .

In addition, the trial court noted that “an odor of mendacity”

remained with respect to the testimony of certain witnesses and that

“reasonable questions about whether the District Attorney and her

hand-selected lead SADA testified untruthfully about the timing of

their relationship further underpin the finding of an appearance of

impropriety and the need to make proportional efforts to cure it.” As

a remedy for the “financial cloud of impropriety and potential

3 The other Respondents also asserted “forensic misconduct” by DA
Willis based on statements she made at a church service and other
extrajudicial statements.
17
untruthfulness,” the trial court provided two options: DA Willis and

her office could step aside or SADA Wade could withdraw from the

prosecution team. The trial court also denied the Respondents’

motions to dismiss the indictment. The Respondents appealed.

On appeal, the Court of Appeals affirmed in part and reversed

in part in a divided opinion. See Roman v. State, 373 Ga. App. 863

(2024). Relying on a leading case from this Court, Blumenfeld v.

Borenstein, 247 Ga. 406, 409 (1981), the majority opinion explained

that in Blumenfeld, this Court held that a trial court’s

disqualification based on the appearance of impropriety due to

status was improper and that the appearance of impropriety based

on conduct was also generally insufficient to justify disqualification.

But this Court left open the possibility that the appearance of

impropriety based on conduct could justify disqualification when the

interest of the public at large outweighs the client’s interest in choice

of counsel. See id. at 409.4 The majority opinion explained that the

4 We explained:

It is perhaps helpful to view the issue of attorney disqualification
18
district attorney’s important role in the administration of justice

justified disqualification because there was no countervailing

client’s interest in choice of counsel. Roman, 373 Ga. App. at 873 (1).

Relying on this reasoning and the trial court’s finding of a

“significant appearance of impropriety,” the majority opinion thus

concluded that “this is the rare case in which disqualification is

mandated and no other remedy will suffice to restore public

confidence in the integrity of these proceedings.” Id. By this holding,

as a continuum. At one end of the scale where disqualification is
always justified and indeed mandated, even when balanced
against a client’s right to an attorney of choice, is the appearance
of impropriety coupled with a conflict of interest or jeopardy to a
client’s confidences. In these instances, it is clear that the
disqualification is necessary for the protection of the client.
Somewhere in the middle of the continuum is the appearance of
impropriety based on conduct on the part of the attorney. As
discussed above, this generally has been found insufficient to
outweigh the client’s interest in counsel of choice. This is probably
so because absent danger to the client, the nebulous interest of the
public at large in the propriety of the Bar is not weighty enough to
justify disqualification. Finally, at the opposite end of the
continuum is the appearance of impropriety based not on conduct
but on status alone. This is an insufficient ground for
disqualification. This is particularly clear in this case in light of
the trial court’s specific finding that there was no actual
impropriety on the part of any of the parties.

Blumenfeld, 247 Ga. at 409.

19
the Court of Appeals extended Blumenfeld, ruling that an

appearance of impropriety alone was not only sufficient grounds for

disqualification, but actually required disqualification under these

circumstances.

On certiorari, the parties focus their arguments on whether the

Court of Appeals erred in the remedy that it ordered based on the

appearance of impropriety by DA Willis, assuming as did the lower

courts, that Blumenfeld, its progeny, and other case law relying

upon the appearance of impropriety factor in the context of attorney

disqualification remain good law. I question that assumption, which

is the linchpin of the Court of Appeals’s decision and therefore part

of its holding. See State v. Wierson, 321 Ga. 597, 606 (2025) (“[T]he

holding of a judicial decision is more than just its result on a given

set of facts—it includes, to some degree, the reasoning or principles

that were necessary to that decision.”).5

5 The concurring opinion concludes that the issue of whether the
appearance of impropriety alone can warrant disqualification is not a holding
given the procedural posture where the State did not appeal and the parties
did not raise the argument. However, I fail to see how a party’s decision on
whether to appeal or the parties’ briefing affects how one reads an appellate
opinion to determine its reasoning and holding. Here, the Court of Appeals
20
Blumenfeld relied on Canon 9 of the then-existing Code of

Professional Responsibility, which provided: “A lawyer should avoid

even the appearance of professional impropriety.” However,

effective January 1, 2002, this Court revised Georgia’s Rules of

Professional Conduct, removing Canon 9 and any mention of

“appearance of impropriety,” outside a comment to the rule

concerning lawyer’s direct dealings with a tribunal. See Rule of

Professional Conduct 3.5, comment 2. Indeed, the United States

Court of Appeals for the Eleventh Circuit has called the “appearance

of impropriety” standard from former Georgia Canon 9 “no longer

recognized by the State Bar of Georgia in its Rules of Professional

Conduct” and “outdated,” in opining that a district court properly

chose not to apply it. Herrmann v. GutterGuard, Inc., 199 FApp’x

745, 753-54 (11th Cir. 2006). See also Waters v. Kemp, 845 F2d 260,

265 (11th Cir. 1988) (“The Model Code has been replaced by the

Model Rules, and thus does not govern the professional conduct of

could not have held that disqualification was required without accepting, at
least implicitly, that there was a “significant appearance of impropriety” that
could justify disqualification.
21
attorneys in the Southern District of Georgia. Under the Model

Rules, the appearance of impropriety is not a ground for

disqualifying a lawyer from representing a party to a lawsuit.”). No

other cases from our Court or the Court of Appeals have recognized

this change in the rules or considered how it affects whether an

attorney may be disqualified solely based on the appearance of

impropriety.6

6 It appears that all of the cases in which this Court has addressed the

appearance of impropriety in attorney disqualifications since Blumenfeld
involved circumstances where there was also a conflict of interest, disclosure
of privileged information, or some other misconduct. See Neuman v. State, 311
Ga. 83, 89 (2021) (“Disqualification of the prosecuting attorneys might be
appropriate . . . where the privileged information disclosed to the prosecution
was so voluminous that it would cast doubt on the fairness of the trial absent
disqualification of the prosecuting attorneys who had reviewed the files.”);
Battle v. State, 301 Ga. 694, 698 (2017) (“Certainly, a conflict of interest or the
appearance of impropriety from a close personal relationship with the victim
may be grounds for disqualification of a prosecutor.”); Chapel v. State, 264 Ga.
267, 269 (1994) (concluding that “both the conflict of interest and the
appearance of impropriety presented by the circumstances . . . render[ed]
[attorney’s] representation of [client] impermissible”); Crawford W. Long
Mem’l Hosp. of Emory Univ. v. Yerby, 258 Ga. 720, 721 (1988) (stating—in case
where attorney who represented a hospital and then represented the widow of
a patient who had been injured while attorney was representing the hospital
[i.e., an actual conflict under current Ga. R. Prof. Conduct 1.9]—that motion to
disqualify the attorney should have been granted solely because of “an
impermissible appearance of impropriety”). Cf. Pruitt v. State, 270 Ga. 745,
753 (1999) (“In order to prevail on this claim [that the criminal defendant’s
counsel must be disqualified], [client] must show the existence of an actual
conflict of interest that adversely affected his lawyer’s performance.”).
22
The Court of Appeals’s case law complicates the issue in that it

appears to have repeatedly read Blumenfeld to require an actual

impropriety or conflict of interest to accompany the appearance of

impropriety to warrant disqualification, though that rule—whether

right or wrong—has never actually been announced in our cases.

See Ga. Trails and Rentals, Inc. v. Rogers, 359 Ga. App. 207, 214

(2021) (“[O]ur Supreme Court has held that absent an actual conflict

of interest or actual impropriety, the trial court does not abuse its

discretion in denying a motion to disqualify counsel.”); Kamara v.

Henson, 340 Ga. App. 111, 116 (2017) (“Absent an actual conflict of

interest or actual impropriety, we cannot say that the trial court

abused its discretion in denying [plaintiff’s] motion to disqualify

Defense Counsel.”); Cohen v. Rogers, 338 Ga. App. 156, 164 (2016)

(“[T]here must be proof of an actual impropriety to disqualify an

attorney from representing a client.”). Although then-Judge Land’s

dissenting opinion cited Georgia Trails and Kamara for the

proposition that a conflict of interest or actual impropriety is

required for disqualification, the Roman majority inexplicably did

23
not cite or address any of these cases even though they are binding

on that court. 7 See White v. State, 305 Ga. 111, 121 (2019) (“[T]he

Court of Appeals was obligated to continue to rely on the older

precedent from that court until such time as the older law was

properly overruled by that court or reversed or overruled by this

Court.”).

The issues of whether Blumenfeld remains good law and

whether the appearance of impropriety alone can support the

disqualification of an attorney is a question of gravity. Supreme

7 In addition, although the Roman majority properly recited that an
appellate court reviews a ruling on a motion to disqualify a prosecutor for an
abuse of discretion, see Neuman, 311 Ga. at 296, it is not clear that the Court
of Appeals correctly applied that standard in rejecting the trial court’s remedy,
as the Court of Appeals did not appear to acknowledge that the trial court was
in the best position to determine when the appearance of impropriety arose
and what remedy was adequate; it is difficult to see how the trial court’s
remedy was not within the range of reasonable remedies. See Roman, 373 Ga.
App. at 873 (“The remedy crafted by the trial court to prevent an ongoing
appearance of impropriety did nothing to address the appearance of
impropriety that existed at times when DA Willis was exercising her broad
pretrial discretion about who to prosecute and what charges to bring.”). See
generally Premier Pediatric Providers, LLC v. Kennesaw Pediatrics, P.C., 318
Ga. 350, 355 (2024) (explaining that under the abuse of discretion standard,
“the trial court’s conclusions [generally] will be affirmed so long as they are in
conformity with the governing legal principles, based on correct facts that are
relevant to determining whether any legal requirements are satisfied, and
within the range of possible outcomes in which there could be room for
reasonable and experienced minds to differ.”) (cleaned up).
24
Court Rule 40 (1) provides:

A petition for the writ [of certiorari] will be granted only
in cases of great concern, gravity, or importance to the
public. . . . such cases may include those in which:

(a) A decision of the Court of Appeals on an important
matter is in conflict with other decisions of the Court of
Appeals or decisions of this Court; or

(b) A decision of the Court of Appeals on an important
matter faithfully applies a decision of this Court, but this
Court’s precedent warrants reconsideration; or

(c) The Court of Appeals has decided an important
question of state law that is likely to recur and has not
been, but should be, settled by this Court.

These petitions meet the definitions of gravity under subsections (a),

(b), and (c). To begin, the issue of whether the appearance of

impropriety alone can justify disqualification of an attorney affects

every single active lawyer in this State. This qualifies as an

“important matter” under Rule 40. And as explained above, the

Court of Appeals’s decisions on this issue are in conflict. See

Supreme Court Rule 40 (1) (a). Likewise, the Roman majority

purports to apply and extend Blumenfeld, but Blumenfeld warrants

reconsideration given the removal of the appearance-of-impropriety

25
standard from our Code of Professional Responsibility over 20 years

ago. See Supreme Court Rule 40 (1) (b).

Finally, the question of whether the appearance of impropriety

alone can justify disqualification of an attorney is “important

question of state law that is likely to recur and has not been, but

should be, settled by this Court.” Supreme Court Rule 40 (1) (c).

Most states, like Georgia, have patterned their lawyer ethics rules

on the Model Rules of Professional Conduct, including its deletion of

the “appearance of impropriety” standard. Many of those states

have subsequently rejected the standard and do not apply it in

disqualification cases. See, e.g., O Builders & Assocs., Inc. v. Yuna

Corp. of NJ, 19 A3d 966, 981 (Stern, J., dissenting) (N.J. 2011);

Jacob N. Printing Co., Inc. v. Mosley, 779 NW2d 596, 600-01 (Neb.

2010); Ark. Valley State Bank v. Phillips, 171 P3d 899, 909 (Okla.

2007); State v. Bell, 646 SE2d 888, 891 (S.C. Ct. App. 2007); Wade v.

Nationwide Mut. Fire Ins. Co., 225 F. Supp. 2d 1323, 1331 (B) (S.D.

Ala. 2002); State v. Dimaplas, 978 P2d 891 (Kan. 1999); Schwartz v.

Cortelloni, 685 NE2d 871 (Ill. 1997). Most states, however, continue

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to apply the standard as a factor that may be considered in deciding

disqualification but that is alone insufficient to warrant

disqualification. See, e.g., State v. Goldsberry, 18 A3d 836, 850 (II)

(A) (Md. 2011); Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n, Inc.,

797 NW2d 789, 810 (Wis. 2011); Sisk v. Transylvania Cmty. Hosp.,

Inc., 695 SE2d 429, 435-37 (N.C. 2010); State v. Baker, 934 A2d 820,

822, 824 (Vt. 2007); Town of Johnston v. Santilli, 892 A2d 123, 132

(R.I. 2006); Bottoms v. Stapleton, 706 NW2d 411, 416 (Iowa 2005);

People v. Ortega, 808 NE2d 496, 502 (Ill. 2004); Kala v. Aluminum

Smelting & Ref. Co., Inc., 688 NE2d 258, 268 (Ohio 1998); Bergeron

v. Mackler, 623 A2d 489, 494 (Conn. 1993). Other states have

concluded that an appearance of impropriety can be sufficient, by

itself, to justify disqualification. State ex rel. Bluestone Coal Corp. v.

Mazzone, 697 SE2d 740, 750 (W. Va. 2010); State v. Robinson, 179

P3d 1254, 1261 (N.M. 2008); Foster v. Traul, 175 P3d 186, 194 (Idaho

2007); State v. Tensley, 955 So2d 227, 242 writ denied, 969 So. 2d

629 (La. Ct. App. 2007); Sturdivant v. Sturdivant, 241 SW3d 740,

745, 747 (Ark. 2006); State v. Davis, 141 SW3d 600, 613 (Tenn.

27
2004); United States v. Dyess, 231 FSupp2d 493, 498 (S.D. W. Va.

2002) (disqualifying entire prosecutor’s office); Altman v. Rumbolz,

648 NW2d 823, 827-28 (S.D. 2002); City of County of Denver v.

County Court of City and County of Denver, 37 P3d 453 (Colo. App.

2001); Lovell v. Winchester, 941 SW2d 466, 468 (Ky. 1997); Griffith

v. Taylor, 937 P2d 297, 302 (Alaska 1997); People v. Mayhew, 600

NW2d 370 (Mich. App. 1999); Adam v. Macdonald Page & Co., 644

A2d 461, 463 n.6, 464 (Me. 1994); In re Estate of Pedrick, 482 A2d

215, 218 n.3 (Pa. 1984); see also Gomez v. Superior Court, 717 P2d

902, 904 (Ariz. 1986) (noting that the appearance of impropriety

“survives as a part of conflict of interest” analysis in disqualification

proceedings, but it “is ‘simply too slender a reed on which to rest a

disqualification order except in the rarest of cases”’). And even this

rough grouping of case law from different jurisdictions remains

questionable in several instances, with the state of the law on the

issue in various jurisdictions being confusing and even inconsistent,

much like the state of our own law on the issue. I note, too, that

several states treat the issue differently depending on whether it

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arises in the civil or the criminal context. This survey of other states

demonstrates that this issue is an important one that is likely to

recur and, given the wide variety of approaches, should be settled by

this Court.

Adding even more gravity, this is also an issue that is likely to

recur with respect to prosecutors across the State in particular

because of the recent passage of OCGA § 17-11-6, which provides:

(a) In the event that:

(1) The prosecuting attorney in a felony or
misdemeanor criminal case is disqualified
due to improper conduct on the part of such
prosecuting attorney; and

(2) Such criminal case is dismissed by the court
or a subsequent prosecutor tasked with
prosecuting such case following such
disqualification;

any defendant against whom such charges are
dismissed shall be entitled to an award of all
reasonable attorney’s fees and costs incurred by
the defendant in defending the case.

As such, there is now a financial incentive to move to disqualify

prosecutors. Indeed, a review of the legislative history of that bill

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shows that although opponents’ primary concern centered on the

partisan politics surrounding the bill and the prosecution

underlying the specific cases on certiorari review here, one of the

concerns expressed was that the law would be abused in future

cases, having a chilling effect on criminal prosecutions. See House

Session Day 39 (Apr. 2, 2025).

And the Court of Appeals’s opinion adds to that incentive to

assert an appearance of impropriety to disqualify prosecutors

because that standard is amorphous and likely easiest to meet. See,

e.g., Ark. Valley State Bank, 171 P3d at 909 n.45 (quoting in part

John W. Castles III & Laurie E. Foster, Conflicts and Lawyer

Disqualification, Nat’l L.J., Feb. 6, 1984, at 16, col. 3, in noting that

some courts have dropped the appearance of impropriety as a basis

for disqualification “largely due to the fact that when the American

Bar Association proposed the Model Rules of Professional Conduct,

Rule 1.7 was drafted specifically to remove the appearance of

impropriety test because the test was deemed ‘too vague’ and

presented ‘severe problems”’); Adoption of Erica, 686 NE2d 967, 973

30
n.10 (Mass. 1997) (quoting in part 1 G.C. Hazard & W.W. Hodes,

The Law of Lawyering § 1.9:105, at 294-95 (2d ed. 1990), in

describing the “appearance of impropriety” standard as “nebulous”

and “rejected by most courts as a sole basis for disqualification”); see

also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 436 (III) (A),

440 (IV) (105 SCt 2757, 86 LE2d 340) (1985) (“We acknowledge that

an order disqualifying counsel may impose significant hardship on

litigants,” and “[we] share the Court of Appeals’ concern about

‘tactical use of disqualification motions’ to harass opposing

counsel.”); id. at 441 (Brennan, J., concurring) (“[T]he tactical use of

attorney-misconduct disqualification motions is a deeply disturbing

phenomenon in modern civil litigation.”).

No doubt, the facts of these cases are unusual and the cases are

politically-charged due to the subject matter and the parties

involved, including the current President of the United States. But

neither the unusual underlying facts nor the identities of the parties

deprive these cases of gravity. This is because the legal principles

underlying the Court of Appeals’s ruling—in particular, the

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proposition that an appearance of impropriety alone can warrant

and even require disqualification—are not bound to this specific

factual scenario or to these specific parties but will instead apply to

a wide variety of situations in which a litigant can show only an

appearance of impropriety—and those situations are likely to recur

with some frequency. 8

In short, this case requires the resolution of a novel issue of

gravity about which the state of the law is confused and conflicted—

both in Georgia and across the country—and thus warrants

consideration (or reconsideration) by this Court. Moreover, the issue

affects the bench and bar across the board and will likely recur such

that guidance from this Court is desirable. Therefore, I would grant

certiorari to resolve the issue of attorney disqualification based

solely on the appearance of impropriety and would propose the

following questions: 9

8 In other words, I would have granted certiorari no matter who the
parties were or the underlying facts of these cases. Because I believe that these
issues are likely to recur soon, I encourage the Court to use the next available
opportunity to resolve these questions.

9 In proposing these questions, I express no opinion about the ultimate

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(1) To the extent Georgia appellate case law permits

disqualification of an attorney solely on the basis of an appearance

of impropriety, see Blumenfeld v. Borenstein, 247 Ga. 406 (1981),

does that remain good law following the adoption of the 2001

Georgia Rules of Professional Conduct?

(2) If not, what is the legal basis for disqualification of an

attorney solely on the basis of an appearance of impropriety?

(3) Did the superior court abuse its discretion by denying the

motion to disqualify even though the court found a “significant

appearance of impropriety”?

I am authorized to state that Justices Ellington and Colvin join

in this dissent.

outcome. As noted above, some states with similar rules of professional conduct
have concluded that the appearance of impropriety alone can be the basis for
disqualification of an attorney while other states have reached the opposite
conclusion and still other states have adopted a standard somewhere in
between.
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