Trial did not occur within the [Criminal Rule] 4(C) [one year] period because of a discovery dispute and the resulting interlocutory appeal. On August 22, 2002, the State issued a subpoena duces tecum to the Family & Children’s Center, which provided counseling to the Pelley family in 1988 and 1989. The subpoena directed production of the family’s counseling records but did not provide a specific response date. The Center moved to quash the subpoena on February 26, 2003 on the ground that the counseling records were privileged.
The State and the Center submitted memoranda and lengthy arguments at the hearing on the motion to quash. Pelley submitted no written materials but responded orally and was substantively aligned with the Center, except that Pelley alone objected to the trial court’s in camera examination of the counseling records. Ultimately, the trial court reviewed the records in camera and granted the Center’s motion to quash. The trial court noted that none of the records contained information related “directly to the fact or immediate circumstances” of the murders even under an expansive interpretation of that phrase.
At the State’s request, the trial court certified its order for interlocutory appeal, finding that the order involved a substantial question of law and that the State would have an inadequate remedy without the interlocutory appeal. The Court of Appeals accepted the appeal and stayed proceedings in the trial court pending resolution of the appeal. The issue was ultimately resolved by this Court’s opinion of June 14, 2005, holding in part that the trial court erred in quashing the subpoena. State v. Pelley, 828 N.E.2d 915, 923 (Ind. 2005). Pelley did not participate in the appeal.
The case was remanded to the trial court, and on October 28, 2005, trial was set for July 10, 2006. Pelley did not object to this trial date. On January 4, 2006, Pelley filed a motion to dismiss under Rule 4(C), arguing that the July 10, 2006 trial date was beyond the one-year period provided by Rule 4(C), and Rule 4(C) does not contain an exception for interlocutory appeals. The State responded that the time for the interlocutory appeal should be charged to the defense or court congestion, and the stay prevented the State from acting during the appeal. The trial court denied Pelley’s motion, finding that although Pelley did not cause the delays incident to the in-terlocutory appeal, the Criminal Rule 4(C) period was tolled during the appeal. The trial court also noted that the stay issued by the Court of Appeals “preclud[ed] the trial court from exercising jurisdiction,” and assumed that “the Appellate Court was aware that such stay would, interfere with observance of the Defendant’s C.R. 4(C) Rights.” Pelley requested, and the trial court denied, an interlocutory appeal of this order. Pelley then brought an original action in this Court for writ of prohibition and writ of mandamus. We denied his petition without an opinion.Â [Footnote omitted.]
Pelley’s trial began July 12, 2006. The State did not seek to introduce the counseling records, or anything derived from the records. The jury found Pelley guilty of all four murders. Pelley appealed his convictions and argues that he was entitled to discharge under Rule 4(C).
A majority of the Court of Appeals reversed Pelley’s convictions, holding that discharge was required because Rule 4(C) contains no exception for interlocutory appeals, and Pelley was not responsible for the delay. Pelley v. State, 883 N.E.2d 874, 885 (Ind. Ct. App. 2008). Judge Friedlander dissented, reasoning that the delay for the interlocutory appeal was excluded from the 4(C) period as a form of emergency or court congestion. Id. at 887-88. The only question is whether Rule 4(C) excludes the time for the State’s interlocutory appeal from its one-year limita-tion. This issue is one of law which we review de novo.
. . . .
This Court has previously examined the effect of the State’s interlocutory appeal on the period in which a defendant must be brought to trial. In Martin v. State, 245 Ind. 224, 228, 194 N.E.2d 721, 723 (1963), the State filed a mandamus proceeding following the trial court’s denial of the State’s motion for a change of judge. During the course of the mandamus action, the sta-tutory time limit-then framed in terms of court [footnote omitted ] -expired. The defendant moved for discharge, arguing that the time for the State’s mandamus proceeding could not be attributed to him. We upheld the trial court’s denial of the discharge motion, in part because the defendant was the real party in interest in the change of judge, and his attorneys represented the respondent judge in the original action. Id. at 229, 194 N.E.2d at 724. We also stated that the three-term statute did not apply “where the delay was caused by proceedings in this court.” We explained that neither the prosecutor nor the trial judge could control the time required for an appeal, and most appeals would trigger a dismissal, a result that the legislature could not have intended. Id. Following the adoption of our criminal rules, we quoted Martin with approval in State ex rel. Cox v. Super. Ct. of Madison County, 445 N.E.2d 1367, 1368 (Ind. 1983), in holding that Rule 4(B)’s early trial requirement was tolled pending the State’s interlocutory appeal of the trial court’s ruling on defendant’s motion in limine.
We believe that Martin’s rationale controls here. When trial court proceedings have been stayed pending resolution of the State’s interlocutory appeal, the trial court loses jurisdiction to try the defendant and has no ability to speed the appellate process. As a practical matter, applying the Criminal Rule 4(C) one-year requirement to interlocutory appeals would render an appeal by the State impossible because it would in all likelihood trigger a mandatory discharge of the defendant. Accordingly, we conclude that Rule 4(C)’s one-year limitation does not include the time during which trial proceedings have been stayed pending interlocutory appeal.
We note that the time for an interlocutory appeal is excluded from Rule 4(C)’s limitation only when trial court proceedings have been stayed. The trial court and Court of Appeals have discretion to deny a motion to stay if it appears that the State is seeking a stay for improper purposes, or if the appeal presents issues that are not critical to the case. Indeed the latter seems to have been the case here, as the materials produced were never admitted in evidence. Additional-ly, although Appellate Rule 21(A) provides generally for expedited consideration of interlocutory appeals, in the future the State should alert the appellate court when it pursues an interlocutory appeal not chargeable to the defendant so the appellate court can be sensitive to the defendant’s interest in avoiding delay.
. . . .
Pelley was charged on August 7, 2002 while Christopher Toth was serving as St. Joseph County Prosecutor. In November 2002, Michael Dvorak was elected to that position. Dvorak was sworn in on January 1, 2003 and inherited the Pelley prosecution. On January 3, Dvorak advised the trial court that he had met with Pelley while in private practice. Dvorak disclosed that after the murders, he was visited by Pelley and Pelley’s grandfather. Dvorak believed that Pelley was interviewing several attorneys before choosing counsel, and Pelley did not retain Dvorak. Dvorak stated that he had no independent recollection of what was said in the meeting, but believed he received no confidential information from Pelley. Dvorak had no further contact with Pelley.
On January 7, Pelley petitioned for appointment of a special prosecutor. Pelley’s verified petition states that in May, 1989, at which time he was a practicing attorney in South Bend, Indiana, Michael A. Dvorak interviewed [Pelley] regarding the events surrounding the murder of his family, murders which [Pelley] was then and there suspected of having committed. By reason thereof, Michael A. Dvorak obtained knowledge of facts that directly relate to the charges now pending against [Pelley].
Pelley asserted that a special prosecutor was necessary to avoid a conflict of interest and the appearance of impropriety.
The parties stipulated to the statements made in Dvorak’s disclosure and Pelley’s verified petition. The trial court denied Pelley’s motion, finding that Pelley failed to establish that Dvorak obtained confidential information creating an actual conflict of interest, and that the applicable Indiana statute does not require appointment of a special prosecutor to avoid the appearance of impropriety, if there is no showing that confidential information was shared.
Pelley argues that the trial court erred in denying his petition for a special prosecutor. Appointment of a special prosecutor is prescribed by statute. [Footnote omitted.] Indiana Code section 33-39-1-6(b)(2) provides that the trial court may appoint a special prosecutor if it finds by “clear and convincing evidence” that appointment is necessary to avoid an “actual conflict of interest.” Pelley contends that this section is to be read in conjunction with Indiana Professional Conduct Rule 1.18, which addresses communications by prospective clients.
In effect, Pelley argues for application of a rigid rule that the appearance of impropriety is offended without any showing as to the nature or substance of the communication between the prospective client and the attorney. Pelley contends that a requirement of actual harm would force him to choose between a conflict-free prosecutor and his right to attorney-client confidentiality. In a similar vein, Pelley urges that permitting former defense attorneys to pursue cases against former prospective clients compromises the integrity of the judicial process. A rigid standard has been used by some courts as the test of an impermissible conflict. Restatement (Third) of The Law Governing Lawyers § 121 cmt. c(iv) (1998). But even the more restrictive standard permits a lawyer to “represent a client with interests adverse to those of the prospective client” if the lawyer has not “received from the prospective client information that could be significantly harmful if used in the matter.” Ind. Professional Conduct Rule 1.18 cmt. 6. Moreover, more recent authority relaxes the appearance of impropriety standard, noting that “avoiding conflicts of interest can impose significant costs on lawyers and clients. Prohibition of conflicts of interest should therefore be no broader than necessary.” Restatement (Third) of the Law Governing Lawyers § 121 cmt. b. In the context of prospective clients, a conflict occurs not because of the fact of consultation, but because of the passing of confidential information from the prospective client to the lawyer. Id. § 15 cmt. c (“[P]ersonal disqualification of a lawyer who deals with a prospective client occurs only when the subsequent matter presents the opportunity to use information obtained from the former prospective client that would be ‘significantly harmful.’”).
These general principles are further modified by the specific provision of Indiana law go-verning the need for a special prosecutor. We have long held that appointment of a special pros-ecutor is governed by a standard that differs from that used in the civil context. Kubsch v. State, 866 N.E.2d 726, 732 (Ind. 2007) (citing Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1996)). Specifically, for a prosecutor’s previous involvement with the defendant to merit disqualification, there must be some showing that the prosecutor received confidential information that could assist the prosecution. Id. A more demanding showing is required because our elected prosecutors often possess criminal defense experience. Particularly in smaller communities, the limited pool of lawyers available to represent defendants faced with serious criminal charges overlaps with the pool of candidates for county prosecutor.
Here, we have a prosecutor with no memory of the consultation who believes that he received no confidential information. Pelley states that he discussed some of the facts with Dvorak but provides no further explanation, and does not claim that he communicated any confidential information. The trial court was within its discretion to deny Pelley’s petition for a special prosecutor.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.