conviction for arson. After an evidentiary hearing, the district court
denied the motion. Collins also filed a motion to disqualify the Clark
County District Attorney's (CCDA) Office because his two former
attorneys who represented him in his arson case currently work for the
CCDA's Office, creating a conflict of interest that will preclude him from
receiving a fair trial in the murder prosecution unless the CCDA's Office is
disqualified. The district court denied the motion. This original writ
petition followed.
A writ of mandamus is available to compel the performance of
an act which the law requires as a duty resulting from an office, trust or
station, NRS 34.160, or to control an arbitrary or capricious exercise of
discretion, Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601,
603-04, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue,
however, if petitioner has a plain, speedy and adequate remedy in the
ordinary course of law. NRS 34.170. Further, mandamus is an
extraordinary remedy, and it is within the discretion of this court to
determine if a petition will be considered. 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).
As to Collins' challenge regarding the admission of prior bad
act evidence, he has an adequate remedy at law by way of an appeal
should he be convicted, see NRS 177.015(3); NRS 177.045, and therefore
writ relief is not appropriate. NRS 34.170. Accordingly, our intervention
is not warranted on this ground.
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As to Collins' challenge to the district court's denial of his
motion for disqualification, this court has held that "mandamus is the
appropriate vehicle for challenging attorney disqualification rulings."
State v. Eighth Judicial Dist. Court (Zogheib), 130 Nev. , 321 P.3d
882, 884 (2014). "The disqualification of a prosecutor's office rests with
the sound discretion of the district court," Collier v. Legakes, 98 Nev. 307,
309, 646 P.2d 1219, 1220 (1982), overruled on, other grounds by Zogheib,
130 Nev. at , 321 P.2d at 886, but "where the district court has
exercised its discretion, mandamus is available only to control an
arbitrary or capricious exercise of discretion," Zogheib, 130 Nev. at ,
321 P.3d at 884. See State v. Eighth Judicial Dist. Court (Armstrong), 127
Nev. „ 267 P.3d 777, 780 (2011) (defining arbitrary or capricious
exercise of discretion). We conclude that extraordinary relief is not
warranted.
Collins argues that his former attorneys' representation of him
in his arson case creates a conflict of interest due to their employment
with the CCDA's Office and that conflict of interest must be imputed to
the CCDA's Office. The core of his argument is that his former attorneys
will likely participate in post-conviction proceedings related to his arson
conviction that are currently pending in district court—namely by
testifying at an evidentiary hearing—and that their employment with the
CCDA's Office calls into question their credibility and bias because their
testimony might be influenced by pressure to protect their jobs and career
advancement given the CCDA's desire to secure a conviction at Collins'
murder trial and efforts to ensure that his arson conviction is upheld.
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We must first consider whether Collins has established that
his former attorneys' employment with the CCDA's Office created a
conflict of interest due to their prior representation of him in his arson
case. We conclude that he has not. RPC 1.9(a) provides: "A lawyer who
has formerly represented a client in a matter shall not thereafter
represent another person in the same or substantially related matter in
which that person's interests are materially adverse to the interests of the
former client unless the former client gives informed consent, confirmed in
writing." Collins has presented nothing establishing that the arson
conviction is the "same or substantially related" to the murder
prosecution. That the State intends to present evidence concerning his
arson conviction is not a sufficient link to establish a conflict of interest
under the rules. See Waid v. Eighth Judicial Dist. Court, 121 Nev. 605,
610, 119 P.3d 1219, 1223 (2005) ("A superficial similarity between the two
matters is not sufficient to warrant disqualification."). Because Collins
has not satisfied his burden of establishing that his arson case is the
"same or substantially related" to the murder prosecution, he cannot show
that a conflict of interest and therefore disqualification of the CCDA's
Office is unwarranted. See Robbins v. Gillock, 109 Nev. 1015, 1017, 862
P.2d 1195, 1197 (1993) (observing that burden of proving two matters are
"same or substantially related" rests on party seeking disqualification and
"that party must have evidence to buttress the claim that a conflict
exists").
Even assuming that a conflict of interest exists, extraordinary
relief is not warranted. As Zogheib instructs, "an individual prosecutor's
conflict of interest may be imputed to the prosecutor's entire office in
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extreme cases," but "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." 130
Nev. at , 321 P.3d at 886. Collins has not made this showing. Again,
the arson and murder prosecutions are unrelated and no argument he
advances suggests that it is unlikely that he will receive a fair trial in his
murder case simply because his former attorneys in his arson case are
employed by the CCDA's Office and he has a pending post-conviction
proceeding in which former counsel might participate as witnesses.
Moreover, the impetus behind his disqualification motion—his former
attorneys' credibility and bias relative to the post-conviction proceedings
in his arson case—will exist even if the CCDA's Office is disqualified in
this case. Disqualifying the CCDA's Office in this case will not remedy
those concerns. 2 Issues of bias and credibility concerning his former
2 Collins argues that the district court erred by denying his
disqualification motion without conducting an evidentiary hearing. We
conclude that he failed to show that the district court manifestly abused
its discretion in this regard, as he failed to make an adequate showing
that disqualification was necessary such that an evidentiary hearing was
warranted. He also argues that the CCDA's Office has not complied with
the screening and notice requirements mandated by RPC 1.11. Because
we conclude that Collins failed to show that his former attorneys had a
conflict of interest, the screening and notice requirements under RPC 1.11,
are irrelevant, assuming that provision applies here. We note that the
record indicates that the CCDA's Office has undertaken screening
measures and Collins' former attorneys have not communicated with the
prosecutors involved in the murder prosecution about the murder case.
We further reject Collins' contention that the district court manifestly
continued on next page . . .
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attorneys are irrelevant to his murder prosecution and may be
appropriately vetted in post-conviction proceedings related to his arson
case.
Because we conclude that Collins has an adequate remedy at
law to challenge the district court's evidentiary ruling and he has not
demonstrated that the district court manifestly abused its discretion by
denying his disqualification motion, we
ORDER the petition DENIED. 3
It
Hardesty
Douglas Cherry
continued
abused its discretion by orally denying his disqualification motion before
receiving affidavits confirming what it believed was true from the
pleadings—that Collins' former attorneys had no contact with the
prosecutors involved in the murder prosecution. Nothing in the district
court's comments suggest that it would not have reconsidered its oral
ruling had the affidavits revealed contact between former counsel and the
prosecuting attorneys or some violation of the screening measures.
3 We lift the stay of the trial imposed on August 29, 2014.
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cc: Hon. Kathleen E. Delaney, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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