State ex rel. Romley v. Superior Court In and For County of Maricopa

• Decision Date: 02 November 1995
• Docket Number: No. 1,CA-SA,1
• Citation: 184 Ariz. 223,908 P.2d 37
• Parties: STATE of Arizona ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Michael D. Ryan, a judge thereof, Respondent Judge, Doll Marie PEARSON; Mike Hill Miller; Susanne M. Schermerhorn; John Joseph Kempsey; Michael Kirk Nicholson; Dwayne A. Blevins; Joseph William Nessinger; Rudy Walker; Roger Tyrone Porter; Carlos Blevins; Herbert Allen Kempf; Robert Rivera Medina; Salvador Heredia; Dennis Owens; Jackie Wayne Epperson, Real Parties in Interest. 95-0185.
• Court: Arizona Court of Appeals

Page 37

908 P.2d 37

184 Ariz. 223

STATE of Arizona ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Michael D. Ryan, a judge thereof, Respondent Judge Doll Marie PEARSON; Mike Hill Miller; Susanne M. Schermerhorn; John Joseph Kempsey; Michael Kirk Nicholson; Dwayne A. Blevins; Joseph William Nessinger; Rudy Walker; Roger Tyrone Porter; Carlos Blevins; Herbert Allen Kempf; Robert Rivera Medina; Salvador Heredia; Dennis Owens; Jackie Wayne Epperson, Real Parties in Interest.

No. 1 CA-SA 95-0185.

Court of Appeals of Arizona,

Division 1,

Department C.

Nov. 2, 1995.

Review Denied Dec. 19, 1995. ^*

[184 Ariz. 225] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Richard M. Romley, Maricopa County Attorney by Richard L. Nothwehr, Deputy County Attorney, Phoenix, for Petitioner.

Dean W. Trebesch, Public Defender by Barbara L. Spencer, Deputy Public Defender, Phoenix, for real party in interest Epperson.

Tonya J. McMath, Phoenix, for real party in interest C. Blevins.

Treasure L. VanDreumel, Phoenix, for remaining real parties in interest.

OPINION

SULT, Judge.

The State of Arizona petitions this court for special action relief from a superior court order disqualifying the entire Maricopa County Attorney's Office ("MCAO") from prosecuting the fifteen defendants involved in this action as real parties in interest. By previous order we accepted jurisdiction because petitioner has no plain, speedy, or adequate remedy by appeal and because the issue raised is of statewide importance and likely to recur. State ex rel. Romley v. Superior Court, 181 Ariz. 378, 380, 891 P.2d 246, 248 (App.1995); see also State ex rel. Collins v. Superior Court, 129 Ariz. 156, 159, 629 P.2d 992, 995 (1981).

From September 1, 1994 until June 12, 1995, Jeff Rueter was an associate for the Law Office of Treasure L. VanDreumel. Rueter's responsibilities included meeting with clients, drafting pre-trial motions, conducting pre-trial witness interviews, and negotiating plea offers with prosecuting agencies, including MCAO. In each of the cases named in this petition, ¹ the trial court found that Rueter was counsel of record, discussed the merits of the case with the defendant, and received confidential information. In many of these cases, he attempted to negotiate a plea agreement; in others, he conducted a preliminary hearing or interviewed witnesses.

On June 12, 1995, MCAO hired Rueter as a deputy county attorney. He completed a five week training program and was assigned to the Pretrial Bureau, becoming responsible for preliminary hearings and misdemeanor vehicular crimes in the centrally located justice courts. He would also cover the arraignment calendar on a limited basis.

MCAO has adopted screening procedures to protect against any compromise of confidential information. Rueter was instructed not to speak to anyone about any previous representation of a criminal defendant, including cases where he personally represented the defendant or may have spoken to the attorney of record. He was reminded of his ethical obligation to maintain the confidences of his former clients and told that if he disclosed such information, he would be disciplined by MCAO and reported to the state bar. Rueter had provided MCAO with a list of 211 criminal cases, including the instant cases, in which he had performed some activity while in private practice and MCAO subsequently directed that a memorandum be permanently attached to each of those files directing that no attorney or staff member discuss that case or any aspect of the prosecution with Rueter.

The trial court determined that notwithstanding the screening mechanism that was put in place, disqualification of the entire prosecutor's office was necessary to ensure the integrity of the prosecution and avoid the appearance of impropriety. We disagree that such vicarious disqualification was necessary. ²

1. An Overview

Prior to Arizona's adoption in 1985 of the Rules of Professional Conduct, the question of vicarious disqualification of a county attorney's office was governed by two ethical principles derived from the Code of Professional Responsibility. First, knowledge of one attorney was equivalent to knowledge of all attorneys, the so-called "imputed knowledge" principle. Second, in light of this imputed knowledge, an appearance of evil undermining public confidence was created when a defendant's attorney changed employment and joined the prosecution. State v. Latigue, 108 Ariz. 521, 523, 502 P.2d 1340, 1342 (1972). The only remedy for this state of affairs was disqualification of the entire prosecutor's office. Id.

The underpinnings of the Latigue decision were apparently removed in 1985 by our supreme court's adoption of the Arizona Rules of Professional Conduct, specifically ER 1.11. This rule provided in pertinent part:

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernment employment

. . . . .

The comment to ER 1.11 is specific that "[p]aragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated."

The initial response to the new rule came in Opinion No. 85-6 of the Arizona State Bar Ethics Committee. On facts almost identical to those of Latigue, the Ethics Committee opined that while the former public defender who joined the prosecutor's office was disqualified from prosecuting the co-defendants of the attorney's former client, ER 1.11(c) clearly precluded vicarious disqualification of the entire prosecutor's office. The committee concluded that Latigue simply no longer applied.

Our supreme court, however, declined to permit the "appearance of evil" feature of the Latigue analysis to perish. In Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986), dealing with direct, not vicarious, disqualification, the court acknowledged that the recently adopted Rules of Professional Conduct had dropped the "appearance of impropriety" prohibition found in the old Code of Professional Responsibility. Nevertheless, the court held that the concept remained an integral part of any conflict-of-interest analysis in Arizona, although the court emphasized that an appearance of impropriety is not per se disqualifying. Id. at 225, 717 P.2d at 904.

The first encounter between appearance of impropriety and ER 1.11(c) came in Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (App.1990). There the defendant's attorney actively represented the defendant for almost six months before withdrawing to join the prosecutor's office. The defendant then sought to disqualify the entire office, consisting of the elected Navajo County Attorney and six or seven deputies, even though no actual impropriety had been alleged or shown. This court acknowledged that the record clearly demonstrated the former attorney had severed himself from contact of any kind regarding defendant's prosecution. Nevertheless, this court required disqualification of the entire office. Relying in part on Gomez, we found that appearance of impropriety remained a vital factor in the vicarious disqualification context and decided that despite the comment to ER 1.11(c), such disqualification can be required on the basis of an appearance of impropriety.

Turbin suggested that formulating a bright line rule for vicarious disqualification was impossible and instead engaged in a fact-specific analysis leading to its result. The same approach was used a few years later in State ex rel. Romley v. Gottsfield, 171 Ariz. 195, 829 P.2d 1241 (App.1992). There the trial court disqualified the Maricopa County Attorney's Office from continuing to prosecute a murder defendant when an attorney who had shared letterhead and office space with defendant's attorney from defendant's first trial joined the prosecutor's office. The trial judge found this associated attorney had gained strategic information about witnesses and mental impressions of defendant's attorney and this created a potential for use of confidential information. The trial court then concluded, without analysis, that the hiring of the associate created an appearance of impropriety sufficient to disqualify the entire office.

This court again examined all the evidence and drew a different interpretation than that of the trial court. We found the defendant had proved, at most, that the associated attorney may have received insignificant information from defendant's attorney and there was no appearance of impropriety sufficient to require vicarious disqualification. Consequently, the disqualification order was vacated.

Despite our attempts in Turbin and Gottsfield to provide a framework for analyzing vicarious disqualification issues, uncertainty still exists as to when such disqualification is necessary. For example, in Turbin the prosecutor argued for the same result that had been reached by the State Bar Ethics Committee in Opinion No. 85-6, namely that the only inquiry is whether actual prejudice has occurred and appearance of impropriety is a non-issue. 165 Ariz. at 197, 797 P.2d at 736. In Gottsfield, on the other hand, the prosecutor apparently was willing to concede that if the associate in question had to be disqualified, vicarious disqualification necessarily followed. 171 Ariz. at 196, 829 P.2d at 1242. This was notwithstanding that under Turbin the associate's disqualification, if necessary, would operate only to prompt an inquiry into appearance of impropriety, not decide the issue. In the instant case, the prosecutor has attempted to persuade us that the activity of Rueter on behalf of these defendants was not substantial and, therefore, would not even require his disqualification,...