Maricopa County Public Defender's Office v. Superior Court In and For County of Maricopa
| Decision Date | 11 July 1996 |
| Docket Number | CA-SA,Nos. 1,s. 1 |
| Citation | 187 Ariz. 162,927 P.2d 822 |
| Parties | 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. 96-0102, 1 96-0118. |
| Court | Arizona Court of Appeals |
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 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.
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).
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 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 conflicts check and learned that two people with Rangel at relevant times were former clients of the public defender. Wallace reviewed the office files and discovered confidential information to impeach Juan Salas, whom the public defender had represented in various juvenile court proceedings, one of which was a burglary charge.
Rangel's defense was that he was sitting in the car, unaware that Salas was committing a burglary. Salas did not support this defense, but the victim arguably did: the victim identified Salas as the one who came out of the backyard and shot him, and he identified Rangel as the one sitting in the car. Salas, however, had told police that he, Salas, was not in the backyard, and he did not shoot the victim; he was sitting in the back seat of the car when the victim was shot. Salas also stated to police that he had told Rangel not to do a burglary because he, Salas, did not want to get in trouble. (The other former client told police that he, himself, was sitting in the car and knew nothing about a burglary, but he did honk the horn to alert Rangel, who was in the backyard.)
Wallace filed a motion to withdraw, supported by a confidential memorandum containing the above-related facts. Judge Seidel denied the motion, explaining in a minute entry that:
[T]here is nothing in the confidential memorandum which sets forth or describes what, if any, confidential information was obtained from either witness in the course of the prior representation which could be used in this case if the person was called as a witness and if counsel had to cross-examine the person. This Court is therefore unable to find a conflict, and accordingly, the motion to withdraw is denied.
After Wallace received a telephonic, informal ethics opinion from the State Bar advising that continued representation of Rangel would be an ethical violation, she moved for reconsideration of the motion to withdraw. At the ensuing open-court hearing, the court said it assumed that the public defender's file on Salas contained information that would benefit Rangel, but "my understanding is that you [Wallace] have to make a showing that you have got some kind of information that you can use to cross-examine [Salas] ... that nobody else can get at, such as an attorney/client conversation." The court stated its presumption that what Wallace knew about Salas was available in the juvenile court file, and that new counsel could access that file with a court order. Wallace did not disclose any confidential information to overcome the court's presumption, and the court denied the motion for reconsideration.
The guarantees of the Sixth Amendment include the right to an attorney with undivided loyalty. See Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 1177-78, 55 L.Ed.2d 426 (1978); State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025, 1027 (1973). Counsel must be free to zealously defend the accused in a conflict-free environment. See Johnson v. Hopper, 639 F.2d 236, 238 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S.Ct. 548, 70 L.Ed.2d 412 (1981).
Attorney conflicts of interest are addressed in the Ethical Rules incorporated into Rule 42 of the Arizona Rules of the Supreme Court. We have appended to this opinion the text of the rules most relevant to these actions: Ethical Rules ("ER") 1.6, 1.7, 1.9, and 1.10.
The Maricopa County Public Defender's Office has adopted "Conflict of Interest Guidelines" which we will refer to as its "conflicts policy." The current version of this policy became effective on January 4, 1994, and was followed by the deputy public defenders assigned to represent Nelson and Rangel. The public defender's conflicts policy provides, in part, as follows:
IV. FORMER CLIENTS AS WITNESSES
Former representation of a potential witness against a present client is not, in itself, grounds for disqualification. If representation of the former client has resulted in information that is 1) substantially related to the present case, 2) materially adverse to the interests of the former client, and 3) not contained in easily accessible public records, the office should move to withdraw.
....
VI. PROCEDURES FOR DETERMINING CONFLICT
As soon as possible after assignment, the attorney should review all charging documents, police reports, and other available records for potential conflicts of interest....
If a former client is identified [by an office records check], the attorney should examine the case file to determine whether confidential information exists.... If the attorney who previously represented the former client is still with the office, the attorney should be contacted to determine whether the attorney is aware of confidential information.
VII. SUPERIOR COURT CONFLICTS OF INTEREST
When an attorney identifies a conflict of interest in superior court, the attorney must complete the potential conflict of interest portion of the Conflict Check and Supervisor Review Form and submit it to the attorney's supervisor for approval before moving to withdraw. If the supervisor does not approve the request, the attorney may request a review by the Chief Trial Deputy or Juvenile Division Supervisor.
If the request is approved, the attorney should immediately move to withdraw. The motion to withdraw must thoroughly state the reasons for withdrawal while protecting confidential client information.
Some may question why the public defender's conflicts policy requires defendant's counsel to talk with the former client's counsel and review the former client's file rather than to "screen" herself from both, but we find this action a prudent exercise of professional responsibility. It is certain that a percentage of cases assigned...
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