See Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177,
1178 (1982); see also State ex rel. Dep't of Transp. v. Thompson, 99 Nev.
358, 360, 662 P.2d 1338, 1339 (1983). We have indicated that mandamus
is the appropriate vehicle for challenging attorney disqualification rulings.
See generally Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982). But
"Mlle disqualification of a prosecutor's office rests with the sound
discretion of the district court," id. at 309, 646 P.2d at 1220, and "while
mandamus lies to enforce ministerial acts or duties and to require the
exercise of discretion, it will not serve to control the proper exercise of that
discretion or to substitute the judgment of this court for that of the lower
tribunal," id. at 310, 646 P.2d at 1221. Accordingly, where the district
court has exercised its discretion, a writ of mandamus is available only to
control an arbitrary or capricious exercise of discretion. See Round Hill
Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).
"An arbitrary or capricious exercise of discretion is one founded on
prejudice or preference rather than on reason, or contrary to the evidence
or established rules of law." State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. , 267 P.3d 777, 780 (2011) (citations
omitted).
Gonzales contends that the district court acted arbitrarily and
capriciously when it denied his motion to disqualify without holding an
evidentiary hearing. Gonzales argues that it is a conflict of interest for the
Clark County District Attorney's Office to continue participating in the
post-conviction proceedings because petitioner's former trial attorney, who
now works for the district attorney's office, will be a witness at the
evidentiary hearing on Gonzales' post-conviction petition for a writ of
habeas corpus. Specifically, Gonzales claims that, pursuant to Rule 3.7(b)
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of the Nevada Rules of Professional Conduct, his former attorney cannot
be a witness for the State at the evidentiary hearing because she would
violate Rule 1.9, her duty to her former client.
Gonzales fails to demonstrate that the district court acted
arbitrarily or capriciously because he fails to show that there is a conflict
of interest. In Collier, we held that when exercising its discretion on
whether to disqualify a district attorney's office due to a conflict of
interest, the district court "should consider all the facts and circumstances
and determine whether the prosecutorial function could be carried out
impartially and without breach of any privileged communication." 98 Nev.
at 310, 646 P.2d at 1220. Gonzales fails to show that the prosecutorial
function could not be carried out impartially. He argues that the district
attorney's impartiality will be affected because the district attorney's office
"will undoubtedly stand up for its own and argue that certainly its
employee or co-worker was competent." This argument does not
demonstrate that the district attorney cannot carry out the prosecutorial
function impartially because the district attorney's position in a post-
conviction proceeding generally will be that the trial attorney was
competent regardless of whether the attorney now works for the district
attorney's office. In a post-conviction proceeding, the district attorney's
office is defending the conviction, and to do that, the district attorney's
office must argue that counsel was effective and competent. Therefore,
Gonzales fails to demonstrate that the district attorney's office cannot be
impartial.
Further, Gonzales fails to demonstrate that there would be an
unethical breach of privileged information. While Gonzales is correct that
RPC 1.9(c) states that a lawyer who formerly represented a client in a
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matter cannot use information gained during that representation to the
disadvantage of the former client, the rule has an exception that allows
use of the information if other rules of professional conduct allow it. RPC
1.6(b)(5) allows a lawyer to reveal confidential information in order to
respond to allegations in a proceeding regarding the lawyer's
representation of the client. Moreover, Gonzales filed the form petition
contained in NRS 34.735 and claimed ineffective assistance counsel. The
form petition makes it clear that by filing the petition the petitioner is
waiving the attorney-client privilege if he made claims of ineffective
assistance of counsel.
Because Gonzales fails to demonstrate that there was a
conflict of interest, he fails to demonstrate that the district court acted
arbitrarily and capriciously in denying the motion to disqualify without an
evidentiary hearing. Accordingly, we
ORDER the petition DENIED.
tkA,t.t.1
Hardesty
J.
cc: Hon. Stefany Miley, District Judge
Bush & Levy, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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