130 Nev., Advance Opinion 16
IN THE SUPREME COURT OF THE STATE OF NEVADA
C)
THE STATE OF NEVADA, No. 62615
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILED
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE MAR 27 2014
STEFANY MILEY, DISTRICT JUDGE, T 1E K. LINDEMAN
CL Pb
Respondents, BY 14 ig .0
and HI '
. EA- -.- CLERK
JIHAD ANTHONY ZOGHEIB,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
00 court order that granted the defendant's motion to disqualify the Clark
County District Attorney's Office.
Petition granted.
-4
1
Catherine Cortez Masto, Attorney General, Carson City; Ryan J.
MacDonald, Deputy District Attorney, Clark County,
(%)
for Petitioner.
b.() Lucherini Law and Robert G. Lucherini, Las Vegas,
for Real Party in Interest.
t
ri
;.q cf)
c)
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
OPINION
By the Court, HARDESTY, J.:
Clark County District Attorney Steven Wolfson was a criminal
defense attorney before being appointed to the elective office he currently
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4/1J4: O1tYDrt nueli-6441 13+ arAde. czr
holds. The transition from defense counsel to head of a prosecutor's office
results in a conflict of interest under Nevada Rule of Professional Conduct
1.9 that, depending on the circumstances, disqualifies Wolfson from
prosecuting his former clients. The question presented in this original
proceeding is whether that conflict of interest was properly imputed to all
of the lawyers in his office, requiring the disqualification of the Clark
County District Attorney's Office. In answering that question, we consider
whether the appearance-of-impropriety standard used by this court in
Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982), to determine when
an individual prosecutor's conflict should be imputed to all of the lawyers
in the prosecutor's office has been undermined by our subsequent adoption
of the Model Rules of Professional Conduct. We conclude that the
appearance-of-impropriety standard is not the correct standard because it
was based on an ethical rule that this court never adopted. The more
appropriate standard is whether the individual lawyer's conflict would
render it unlikely that the defendant would receive a fair trial unless the
conflict is imputed to the prosecutor's office. For the reasons discussed in
this opinion, regardless of which standard is applied, the district court
acted arbitrarily or capriciously in granting the motion to disqualify the
Clark County District Attorney's Office. We therefore grant the petition.
FACTS AND PROCEDURAL HISTORY
The State charged real party in interest Jihad Anthony
Zogheib with conspiracy to commit a crime, passing a bad check with
intent to defraud, forgery, and two counts of theft. After Steven Wolfson
was appointed District Attorney, Zogheib moved to disqualify the Clark
County District Attorney's Office based on a conflict of interest: an
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attorney in Wolfson's former law firm, Patrick McDonald, represented
Zogheib in the instant case.
The district court held several evidentiary hearings regarding
the motion to disqualify According to the district court's order, the
evidentiary hearing showed that while Wolfson was not Zogheib's
attorney, he was involved in discussions regarding the case. McDonald
testified that he spoke frequently with Wolfson regarding Zogheib's case
because Wolfson had successfully litigated multiple check and marker
fraud cases in his career. Wolfson testified that he remembered Zogheib's
case and that he had probably talked with McDonald and Zogheib in the
past. He also testified that after accepting the appointment as district
attorney, he never made an appearance on this case, never obtained or
reviewed discovery on this case, and never discussed this case with the
deputy district attorney appointed to prosecute the case.
After hearing the testimony at the evidentiary hearing, the
district court determined that the Clark County District Attorney's Office
should be disqualified. The district court concluded that there was a
conflict of interest between Wolfson and Zogheib and that the conflict
\a/thhe hearings were sealed because they involved attorney-client
.
privilege. Neither party has asked to file an appendix under seal
containing the transcripts, to have the hearings unsealed, or to have the
district court transmit a transcript of the hearings under seal for this
court to consider. The statements in this opinion regarding the content of
the testimony presented at those hearings are based on the findings set
forth in the district court's written order.
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should be imputed to the office because there was an appearance of
impropriety that was so great as to make this an extreme case that
warranted vicarious disqualification even though Wolfson had been
effectively screened from participating in the case. This original petition
for a writ of mandamus followed.
DISCUSSION
Mandamus is an extraordinary remedy, and the decision to
entertain a petition for a writ of mandamus rests within our discretion.
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. Improvement 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.
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Court (Armstrong), 127 Nev. „ 267 P.3d 777, 780 (2011) (internal
citation and quotation marks omitted).
The State conceded that Wolfson has a conflict of interest that
disqualifies him from representing the State against Zogheib in the
underlying criminal prosecution. RPC 1.9. Generally one attorney's
conflict of interest under Nevada Rule of Professional Conduct 1.9 is
imputed to all other attorneys in the disqualified attorney's law firm. RPC
1.10. But that general rule does not apply to lawyers working in
government offices. The disqualification of lawyers who are government
officers and employees based on a conflict of interest is governed by
Nevada Rule of Professional Conduct 1.11, not Rule 1.10. Paragraph (d) of
Rule 1.11 addresses lawyers who are current government officers and
employees and "does not impute the conflicts of a lawyer currently serving
as an officer or employee of the government to other associated
government officers or employees, although ordinarily it will be prudent to
screen such lawyers." Model Rules of Profl Conduct R. 1.11 cmt. 2 (2012):6\ s
/
Our primary decision addressing the disqualification of
government lawyers was issued several years before we adopted the
Nevada Rules of Professional Conduct. In Collier v. Legakes, 98 Nev. 307,
3 ,er.
V witUie 1.11 is based on the identically numbered ABA Model Rule.
As provided in Nevada Rule of Professional Conduct 1.0A, the "comments
to the ABA Model Rules of Professional Conduct. . . may be consulted for
guidance in interpreting and applying the Nevada Rules of Professional
Conduct, unless there is a conflict between the Nevada Rules and
the . . . comments."
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646 P.2d 1219 (1982), we held that "[t]he disqualification of a prosecutor's
office rests with the sound discretion of the district court" and that when
exercising its discretion, 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." Id. at 309-10, 646 P.2d at 1220. The State conceded that
a conflict exists between Wolfson and Zogheib because Wolfson received
confidential information during his firm's representation of Zogheib. In
Collier, this court cited authorities indicating that vicarious-
disqualification rules at the time were not strictly applied to government
offices and held that vicarious disqualification of a prosecutor's office may
be required "in extreme cases where the appearance of unfairness or
impropriety is so great that the public trust and confidence in our criminal
justice system could not be maintained without such action." Id. at 310,
646 P.2d at 1221.
The overarching question is whether Wolfson's conflict should
be imputed to all of the lawyers in the district attorney's office. However,
before answering that question, we must address a threshold issue raised
by the State: whether the appearance-of-impropriety standard espoused in
Collier should be reconsidered in light of our adoption of the Model Rules
of Professional Conduct and our more recent decisions in Liapis v. Second
Judicial Dist. Court, 128 Nev. „ 282 P.3d 733, 736-37 (2012), and
Brown v. Eighth Judicial Dist. Court, 116 Nev. 1200, 1204 n.4, 14 P.3d
1266, 1269 n.4 (2000).
This court, in applying the appearance-of-impropriety
standard in Collier, relied on State v. Tippecanoe County Court, 432
6
N.E.2d 1377, 1379 (Ind. 1982), which cited Canon 9 of the ABA Model
Code of Professional Responsibility. Collier, 98 Nev. at 310, 646 P.2d at
1220-21. Canon 9 required attorneys to avoid even the appearance of
impropriety. Liapis, 128 Nev. at , 282 P.3d at 736. In 1983, the ABA
Model Code of Professional Responsibility was replaced by the Model
Rules of Professional Conduct, which did not include Canon 9. Id. In
1986, four years after Collier, this court adopted the Model Rules of
Professional Conduct with only slight variations as SCR 150-203.5, which
were later renumbered to track the ABA Model Rules numbering scheme.
Id.; In the Matter of Amendments to the Supreme Court Rules of Profl
Conduct, SCR 150-203.5, ADKT 370 (Order Repealing Rules 150-203.5 of
the Supreme Court Rules and Adopting the Nevada Rules of Professional
Conduct, February 6, 2006). Despite these changes and our refusal to
adopt Canon 9, our recent decisions in Liapis and Brown identify the rule
set forth in Collier as the only limited circumstance in which an
appearance of impropriety may form a basis for attorney disqualification.
Liapis, 128 Nev. at , 282 P.3d at 737; Brown, 116 Nev. at 1204 n.4, 14
P.3d at 1269 n.4. With Collier noted as the exception, Liapis states a
general rule that an appearance of impropriety by itself does not support a
lawyer's disqualification. 128 Nev. at , 282 P.3d at 737. The carve-out
of Collier from that general rule understandably creates some confusion.
Some courts have continued to apply the appearance-of-
impropriety standard while noting that the American Bar Association and
the Model Rules no longer recognize it. State v. Retzlaff, 490 N.W.2d 750,
752 (Wis. Ct. App. 1992) (explaining that "[Ole obligation to avoid
appearances of impropriety is nonetheless implicit in the new Wisconsin
7
Rules of Professional Conduct" and "[w]hile the appearance of impropriety
is not a basis for automatic disqualification, it is an element that the trial
court may consider in making disqualification determinations" and may be
the basis for disqualifying counsel "if the conduct is sufficiently
aggravated"); Gomez v. Superior Court, 717 P.2d 902, 904 (Ariz. 1986)
(explaining that even though recently adopted Arizona Rules of
Professional Conduct omitted "appearance of impropriety," lilt would
appear. . . that 'appearance of impropriety' nonetheless "survives as a
part of conflict of interest and an appearance of impropriety should be
enough to cause an attorney to closely scrutinize his conduct" even if litt
does not necessarily follow that it must disqualify him in every case").
Other courts and some legislatures have rejected the appearance-of-
impropriety standard. In some instances, recusal is required only if the
conflict would render it unlikely that the defendant would receive a fair
trial. Cal. Penal Code § 1424(a)(1) (West 2011); State v. Cope, 50 P.3d 513,
515-16 (Kan. Ct. App. 2002); People v. C.V., 64 P.3d 272, 275 (Colo. 2003)
(finding that while the appearance of impropriety may be used to
disqualify a prosecutor's office, a trial court "should focus on whether
disqualification appears reasonably necessary to ensure the integrity of
the fact-finding process, the fairness or appearance of fairness of trial, the
orderly or efficient administration of justice, or public trust or confidence
in the criminal justice system' (quoting People v. Garcia, 698 P.2d 801,
806 (Colo. 1985))). Other courts have gone further, finding that a mere
appearance of impropriety is not enough and that a showing of actual
prejudice to the defendant is required. Schumer v. Holtzman, 454 N.E.2d
522, 526 (N.Y. 1983); Wilkey v. State, 953 P.2d 347, 348-49 (Okla. Crim.
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App. 1998); Haywood v. State, 344 S.W.3d 454, 462-63 (Tex. Crim. App.
2011).
We are not convinced that appearance of impropriety is the
appropriate standard for determining whether an individual prosecutor's
conflict should be imputed to an entire office. First, that standard is not
implicit in the current Nevada Rules of Professional Conduct. Second,
there are several policy arguments in favor of a test that limits the
disqualification of an entire district attorney's office: there is a large cost
to the county in paying for a special prosecutor to prosecute the case; an
attorney is presumed to perform his ethical duties, including keeping the
confidences of a former client; State v. Pennington, 851 P.2d 494, 498
(N.M. Ct. App. 1993); State v. Cline, 405 A.2d 1192, 1206 (R.I. 1979); and
the courts should not unnecessarily interfere with the performance of a
prosecutor's duties, State v. Camacho, 406 S.E.2d 868, 872 (N.C. 1991).
These are the same policy considerations that informed the decision to
exempt government offices from imputed conflicts. Model Rules of Prof I
Conduct R. 1.11 cmt. 2 (2012) ("Rule 1.10 is not applicable to the conflicts
of interest addressed by this Rule . . . [13] ecause of the special problems
raised by imputation within a government agency."); Model Rules of Prof I
Conduct R. 1.11 cmt. 4 (2012) ("[T]he rules governing lawyers presently or
formerly employed by a government agency should not be so restrictive as
to inhibit transfer of employment to and from the government. The
government has a legitimate need to attract qualified lawyers as well as to
maintain high ethical standards."). Using a standard that is as
ambiguous as the appearance-of-impropriety standard, see MJK Family
L.L.C. v. Corporate Eagle Mgmt. Servs., Inc., 676 F. Supp. 2d 584,
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593 (E.D. Mich. 2009) (noting that while the "former Code of
Professional Responsibility. . . expressly prohibited the 'appearance of
impropriety[J' . . . . [t]hat ambiguous standard has long been abandoned"),
could result in many unnecessary disqualifications, limit mobility from
private practice, and restrict the assignment of counsel when no breach of
confidences has occurred. Camacho, 406 S.E.2d at 874; United States v.
Goot, 894 F.2d 231, 236 (7th Cir. 1990) (concerned with the government's
ability to attract good attorneys). For these reasons, we overrule Collier to
the extent that it relies on appearance of impropriety to determine when
vicarious disqualification of a prosecutor's office is warranted.
There is, however, a broader concern in criminal cases that
cannot be overlooked: the defendant's right to a fair trial. Based on that
concern we agree with Collier that an individual prosecutor's conflict of
interest may be imputed to the prosecutor's entire office in extreme cases.
But rather than making that determination based on an appearance of
impropriety, we conclude that the appropriate inquiry is whether the
conflict would render it unlikely that the defendant would receive a fair
trial unless the entire prosecutor's office is disqualified from prosecuting
the case. See, e.g., Cope, 50 P.3d at 515-16. This approach strikes the
correct balance between the competing concerns of the State and the right
of the defendant to a fair trial.
Regardless of the standard applied in this case, we conclude
that the district court acted arbitrarily or capriciously in granting the
motion to disqualify. The district court concluded that because the district
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attorney is the one who has the conflict and is the head of the office, the
entire office must be disqualified. 6t% The district court made this finding
despite also finding that the screening procedures in place at the Clark
County District Attorney's Office were sufficient to ensure that Wolfson
had no involvement in the prosecutiont
& r. he district court relied on a California case, City and County of
San Francisco v. Cobra Solutions, Inc., 135 P.3d 20 (Cal. 2006), to find
that when the conflict is with the head of the office, the entire office must
be disqualified regardless of whether there were proper screening
procedures in place. There are several reasons that the district court's
reliance on this case was problematic. First, Cobra Solutions is a civil
case, and California has a criminal penal code section in place that applies
in criminal cases that is different than the standard set forth for civil
cases. Cal. Pen. Code § 1424 (West 2011). California courts have
specifically stated that the reasoning used in Cobra Solutions does not
apply in criminal cases. Spaccia v. Superior Court, 146 Cal. Rptr. 3d 742,
753 (Ct. App. 2012). Second, California has not adopted the ABA Model
Rules of Professional Conduct, which specifically allows the screening of
conflicted attorneys who serve as public officers or employees. Cobra
Solutions, 135 P.3d at 29; Model Rules of Profl Conduct R. 1.11 (2012).
While California does allow for the screening of employees of a
government agency, it does not allow for the screening of the head public
officer of the agency. Cobra Solutions, 135 P.3d at 29. This is in contrast
to the rules of professional conduct adopted in Nevada, which do allow for
the screening of a public officer. RPC 1.11. Therefore, the district court's
reliance on this case was misplaced.
5
v ErWe note that the district court concluded that Wolfson had not
acted unethically in this matter. Within this conclusion, the district court
indicated that it considered the screening procedures, thereby
demonstrating that the district court believed the screening procedures
were adequate to ensure that Wolfson would have no involvement in the
prosecution.
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The district court erred when it concluded that this case was
different than the situation presented in Collier. The district court
focused on the district attorney's role as the head of the office: his name is
on every pleading, and he is in charge of policymaking for the office. See
NRS 173.045; NRS 252.070(1). But the chief deputy involved in Collier
had much more hands-on responsibility for the cases handled by the office
than the district attorney in this case does. While it is true that the
district attorney is responsible for deciding the overall policy of the office,
consistent with NRS 252.070(1), the deputies appointed by the district
attorney handle the day-to-day operations of the divisions of the office and
make decisions regarding specific cases. And even though the district
attorney's name appears on every document filed with the court, it is clear
that the district attorney is not personally handling all of the cases filed by
his office, and that the individual cases are instead handled by the deputy
who is also listed on every document. In these circumstances and
considering the screening procedures in place at the district attorney's
office, the district court acted arbitrarily or capriciously because, applying
the Collier standard, no appearance of impropriety existed to such an
extent that it would undermine the public trust and confidence in the
criminal justice system and, applying the standard adopted in this
opinion, there has been no demonstration that the Clark County District
Attorney's Office's continued participation in the prosecution of Zogheib
would render it unlikely that Zogheib would receive a fair trial.
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We grant the petition. The clerk of this court shall issue a
writ of mandamus directing the district court to vacate its order
disqualifying the Clark County District Attorney's Office.At
J.
Hardesty
We concur:
ess
V k.,
6, e previously stayed the proceedings in district court pending our
resolution of this original proceeding. Given our resolution of the original
proceeding in this opinion, we deny the State's motion to dissolve the stay
as moot. To the extent that Zogheib's opposition to the State's motion
raises factual allegations that were not presented to the district court
regarding the merits of the motion to disqualify the district attorney's
office, we have not considered them.
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