O.C.G.A.
O.C.G.A.

O.C.G.A. § 15-18-65 (2019)

Disqualification; solicitor-general pro tempore

✓ O.C.G.A. (archive.org 2024 item): print volumes of 2004-2024, per-volume vintage; older volumes partly replaced by 2019 Release 73 text; no 2025 or 2026 Acts
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) When a solicitor-general's office is disqualified from interest or relationship to engage in the prosecution of a particular case or cases, such solicitor-general shall notify the Attorney General of the disqualification. Upon receipt of such notification, the Attorney General shall request the services of and thereafter appoint a solicitor-general, a district attorney, a retired prosecuting attorney as provided in Code Section 15-18-30, or other competent attorney to act in place of the solicitor-general, or may designate an attorney from the Department of Law. The appointment of the solicitor-general pro tempore shall specify in writing the name of the case or cases to which such appointment shall apply.

(b) A private attorney acting as solicitor-general pro tempore pursuant to subsection (a) of this Code section shall be duly sworn and subject to all laws governing prosecuting attorneys. Such solicitor-general pro tempore shall be compensated in the same manner as appointed counsel in the county.

(c) A solicitor-general of another county or a district attorney who is designated as a solicitor-general pro tempore, any assistant designated by such solicitor-general pro tempore to prosecute such case or cases, or employee of the Department of Law shall not receive any additional compensation for such services; provided, however, that the actual expenses incurred by the solicitor-general pro tempore or members of the solicitor-general pro tempore's staff shall be reimbursed by the county in which said solicitor-general or district attorney is acting as solicitor-general pro tempore at the same rate as provided in Code Section 15-18-12 for district attorneys.

(d) Any order entered by a court disqualifying a solicitor-general's office from engaging in the prosecution shall specify the legal basis of such order. The solicitor-general may, on behalf of the state and prior to the defendant in a criminal case being put in jeopardy, apply for a certificate of immediate review as provided in Code Section 5-7-2, and such order shall be subject to appellate review as provided by Chapter 7 of Title 5.

History

(Code 1981, § 15-18-65, enacted by Ga. L. 1996, p. 748, § 2; Ga. L. 2002, p. 1211, § 4.)

Annotations

JUDICIAL DECISIONS

Recusal of prosecutor. - Trial court's order vacating the recusal of the prosecutor was reversed because the defendant had no standing to challenge the recusal and the trial court lacked authority to vacate the Georgia Attorney General's appointment of a prosecuting attorney pro tempore under O.C.G.A. § 15-18-65(d) following the voluntary recusal of the prosecutor's office pursuant to § 15-18-65(a). State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016).

Georgia Court of Appeals believes the determination of whether screening measures would be sufficient in this case or whether recusal of the entire office is necessary is best left to the individual prosecuting attorney; counsel is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial. State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016).

Although O.C.G.A. § 15-18-65(d) recognizes that trial courts retain the inherent authority to disqualify an attorney who is legally disqualified, trial courts no longer have the same discretion to do so and must specify the legal basis of such order which is then subject to interlocutory appellate review. State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016).

Georgia Court of Appeals has specifically held that a defendant does not have a substantive right to have their case tried by a specific prosecutor so as to make notice necessary in order to oppose the solicitor-general's disqualification. State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016).

Disclosure of conflict not required. - There is nothing in O.C.G.A. § 15-18-65 that requires that when a prosecutor seeks disqualification or appointment of a special prosecutor based upon a conflict of interest on the part of the prosecutor, that the prosecutor's conflict of interest must be disclosed to the defendant. Nel v. State, 252 Ga. App. 761, 557 S.E.2d 44 (2001).

Notes of Decisions
Cited in 2 cases, 2001–2016 · leading case: State v. Mantooth, 788 S.E.2d 584 (Ga. Ct. App. 2016).
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State v. Mantooth, 788 S.E.2d 584 (Ga. Ct. App. 2016). · cites it 16× “Because of Mantooth’s relationship to a member of the Cobb County Solicitor-General’s staff, the Cobb County Solicitor-General (the “Solicitor-General”) recused himself and notified the Attorney General of Georgia, pursuant to OCGA § 15-18-65, of his office’s conflict of…”
Nel v. State, 557 S.E.2d 44 (Ga. Ct. App. 2001). · cites it 4× “OCGA § 15-18-65. Indeed, it appears from the context of the arguments contained in the instant enumeration of error that Nel supposes success would have been more likely if he had tried the case against the SG instead of Hardy.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.