927 P.2d 822 (Ariz.App. Div. 1 1996), Maricopa County Public Defender's Office v. Superior Court In and For County of Maricopa

Citation:927 P.2d 822, 187 Ariz. 162
Opinion Judge:[11] The opinion of the court was delivered by: Noyes
Party Name:MARICOPA COUNTY PUBLIC DEFENDER'S OFFICE, Attorneys Christopher Johns and Diane Enos, Maricopa County Public Defenders, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Alfred J. Rogers, a judge thereof, Respondent Judge, Clarence Charles Nelson and former client, Shawna Debus, Real Parties in
Attorney:[8] Dean W. Trebesch, Maricopa County Public Defender, by Christopher Johns, Diane Enos, and Chelli Wallace, Deputy Public Defenders, Attorneys for Petitioners, Phoenix. [9] Grant Woods, Arizona Attorney General, by Paul J. McMurdie, Chief Counsel - Criminal Appeals Section, Diane M. Ramsey, Assi...
Case Date:July 11, 1996
Court:Court of Appeals of Arizona
 
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Page 822

927 P.2d 822 (Ariz.App. Div. 1 1996)

187 Ariz. 162

MARICOPA COUNTY PUBLIC DEFENDER'S OFFICE, Attorneys Christopher Johns and Diane Enos, Maricopa County Public Defenders, Petitioners,

v.

SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Alfred J. Rogers, a judge thereof, Respondent Judge,

Clarence Charles Nelson and former client, Shawna Debus, Real Parties in Interest.

MARICOPA COUNTY PUBLIC DEFENDER'S OFFICE; Attorney Chelli Wallace, Maricopa County Public Defender, Petitioners,

v.

SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable John H. Seidel, a judge thereof, Respondent Judge,

Frank Rangel, and former client, Juan Salas, Real Parties in Interest.

Nos. 1 CA-SA 96-0102,

1 CA-SA 96-0118.

Court of Appeals of Arizona, First Division, Department B

July 11, 1996

As Corrected July 15, 1996. Review Denied Nov. 19, 1996.

Page 823

[187 Ariz. 163] Dean W. Trebesch, Maricopa County Public Defender by Christopher Johns, Diane Enos and Chelli Wallace, Deputy Public Defenders, Phoenix, for Petitioners.

Grant Woods, Arizona Attorney General by Paul J. McMurdie, Chief Counsel--Criminal Appeals Section, Diane M. Ramsey, Assistant Attorney General, Phoenix, for Respondent Judge.

OPINION

NOYES, Judge.

These special actions arise from two unrelated cases in which the Maricopa County Public Defender's Office ("the public defender") moved to withdraw on grounds that an ethical conflict existed between its duty to zealously represent a current client (the defendant) and its duty of loyalty to a former client (an adverse witness). In each case, the trial court denied the motion because counsel failed to disclose confidential information about the former client. The public defender

Page 824

[187 Ariz. 164] then filed petitions for special action, arguing that the trial court abused its discretion and that we should accept jurisdiction and remand with directions to grant the motion to withdraw. We consolidated the actions, accepted jurisdiction, and granted the requested relief.

I

An order denying counsel's motion to withdraw is the proper subject of a petition for special action. Okeani v. Superior Court, 178 Ariz. 180, 181, 871 P.2d 727, 728 (App.1993). The issue presented in these special actions may be unique to Maricopa County, but because it appears to be a recurring problem there, we accepted jurisdiction to address it. See State ex rel. Romley v. Superior Court, 184 Ariz. 223, 225, 908 P.2d 37, 39 (App.1995).

II

On November 27, 1995, the superior court appointed the public defender to represent Clarence Charles Nelson on a burglary charge. The case was assigned to Deputy Public Defender Diane Enos, who soon interviewed Shawna Debus, who had been arrested with Nelson, and determined that she was a potential unindicted coconspirator and had given the police inculpatory statements about Nelson.

On December 7, Enos learned from her conflicts check that the public defender represented Debus on charges "similar" to Nelson's, and that Debus was to be sentenced on December 15. Enos filed a "Motion to Determine Counsel" and requested a hearing. At the ex parte hearing, Deputy Public Defender Christopher Johns appeared with Enos and, after stating the facts, avowed that an ethical conflict existed requiring withdrawal as Nelson's counsel because the public defender's file on Debus contained confidential information that should be used to impeach her.

Judge Rogers advised that avowals were not sufficient; that counsel needed to show "something that another--that an attorney wouldn't come across, or to put it another way, that you learned because of looking through the client's file.... [Y]ou're going to have to give me what I'll call some meat rather than just talking in these broad generalities as to why I should allow you to withdraw." The court advised that it would seal any confidential information counsel disclosed and would recuse itself if the information affected its impartiality. Counsel declined to disclose any confidential information and the court denied the motion to withdraw.

Also on November 27, 1995, the public defender was appointed to represent Frank Rangel on a burglary charge. The case was assigned to Deputy Public Defender Chelli Wallace, who conducted a...

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