Corbin v. Broadman

• Decision Date: 10 November 1967
• Docket Number: CA-CR,No. 1,1
• Citation: 433 P.2d 289,6 Ariz.App. 436
• Parties: , 31 A.L.R.3d 943 Robert K. CORBIN, County Attorney, County of Maricopa, the State of Arizona, Appellant, v. Ira BROADMAN, Wade Church, Arthur Danlels, Irving Fogel, and James Mack, Individually and/or severally, Appellees. 109.
• Court: Arizona Court of Appeals

Page 289

433 P.2d 289

6 Ariz.App. 436, 31 A.L.R.3d 943

Robert K. CORBIN, County Attorney, County of Maricopa, the State of Arizona, Appellant, v. Ira BROADMAN, Wade Church, Arthur Danlels, Irving Fogel, and James Mack, Individually and/or severally, Appellees.

No. 1 CA-CR 109.

Court of Appeals of Arizona.

Nov. 10, 1967.

Rehearing Denied Dec. 12, 1967.

Review Denied Jan. 23, 1968.

John P. Frank, Phoenix, Sp. Counsel for County Atty., for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by James H. O'Connor, John H. Lyons and Thomas A. McGuire, Jr., Phoenix, for appellee Ira Broadman.

Cavness, DeRose, Senner & Foster, by Jack C. Cavness, Phoenix, for appellee Wade Church.

Kanne & Bickart, by Allen B. Bickart, Phoenix, for appellee Arthur Daniels.

Chandler, Tullar, Udall & Richmond, by Thomas Chandler Tucson, Pain & Julian, by Fred J. Pain, Jr., Phoenix, for appellee Irving Fogel.

Johnson & Shaw, by Marvin Johnson and Joseph P. Shaw, Phoenix, for appellee James Mack.

DONOFRIO, Judge.

This is an appeal by the State, represented by special counsel on behalf of the County Attorney of Maricopa County, from an order quashing a grand jury indictment. The indictment alleging some 28 counts was returned against the appellees and others, charging various crimes, including theft by false pretenses, embezzlement and perjury. These charges arose from the collapse of the Union Title Company. The facts leading to this appeal can be stated rather simply. An attorney was admitted to the practice of law in Arizona in April 1963. For a short time thereafter he worked in the law office of Ira Broadman who shared offices with two other attorneys. His period of employment there was from two to three weeks, after which time he left to take employment with the County Attorney's office. During the time he was employed by Mr. Broadman, two of the defendants in this case, Daniels and Fogel, were clients of Mr. Broadman. The evidence indicates that during this time the attorney had occasion to look at the files of these clients, to sit in on a conference discussing these clients' cases and to do some research on a case involving at least one of these clients.

Three years later while employed as a deputy county attorney in the County Attorney's office, this attorney was assigned by his superiors to work on a case involving his former employer, Mr. Broadman, and the two previously mentioned clients. The young attorney discussed the matter in January of 1966 with his superior, the County Attorney, and they resolved that he had no reason not to undertake the presentation before the grand jury. On June 9, 1966, the grand jury returned an indictment containing some 17 counts against Broadman, Fogel, Daniels and two other defendants. On August 26, 1966, a motion to quash the indictment was filed and was granted on September 12, 1966. The motion was directed to the entire indictment, and although made by only one of the defendants, it was stipulated that the ruling should govern the other four defendants as well.

The principal question involved is whether the granting of the motion to quash was proper on the basis of the showing of a possible conflict of interest on the part of the deputy county attorney who acted as prosecutor in the grand jury investigation. To sustain the trial court's action we first must find there existed a confidential relationship between the two clients of Mr. Broadman and the attorney who worked in his office. Secondly, we must find that this relationship disqualified the attorney from prosecuting the clients before the grand jury, and third, that the prosecution by a disqualified attorney gives ground for quashing the indictment.

With reference to the first question, the conduct of an attorney in regard to his clients' confidential communications is rigidly regulated by the Canons of Professional Ethics of the American Bar Association which have been adopted in this state by Supreme Court Rule 29(a), 17 A.R.S. Canon 6 prohibits an attorney from representing conflicting interests unless full consent has been expressed by all concerned. It further forbids the subsequent acceptance of employment from others in matters adversely affecting any interest about which the client has disclosed information to the attorney. Canon 37, in setting out the duty of the lawyer to preserve his client's confidences, provides in part as follows:

'* * * This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. * * *'

It is clear that the County Attorney's office, in passing over the potential conflict of interest problem after it had been brought to their attention, took the Canons of Professional Ethics too lightly.

A fine example of what an attorney should do when faced with a conflict of interest problem is contained in the case of State v. Garaygordobil, 89 Ariz. 161, 359 P.2d 753 (1961). In that case when a city attorney for Nogales was faced with a conflict of interest problem he discussed the matter with other attorneys in the area; he informed the mayor and council of the problem, and sought the opinion of the Ethics Committee of the State Bar of Arizona. Although we do not set these out as mandatory steps, we feel they are examples of the exercise of good professional judgment.

In the instant case the deputy county attorney consulted only his superiors and they, without outside opinions, incorrectly decided that no harm would come in allowing the deputy to prosecute the case. Even if there were no real danger of prejudice to the principals involved, the jeopardy to the standing of the Bar should have dictated a more cautious course. We agree with the trial court's findings that the deputy county attorney's acts and conduct were in good faith and without intent to harm the former client or employer, however we likewise believe that even though there might not have appeared to them a real danger of prejudice to the defendants, it was nonetheless inappropriate.

The State Bar of Arizona, through its Committee on Ethics, has stated that the mere appearance of a possible conflict is to be condemned. See Opinion No. 190, Arizona State Bar Committee on Rules of Professional Conduct. In State v. Leigh, 178 Kan. 549, 289 P.2d 774 (1955), the Court was confronted with a similar situation. The nominee for County Attorney was contacted by a defendant involved in criminal charges. He consulted with the defendant on two occasions and then after being elected County Attorney undertook to prosecute the defendant in a case involving the matter which he had discussed previously with defendant. The Court therein stated:

'* * * The inviolate rule has long been firmly established both in the Canons of Professional Ethics and by judicial opinions that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been retained and received the confidence of a client, he cannot enter the services of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as, in effect, to be a part thereof. The rule is a rigid one, and it is well that it is so. It is designed not only to prevent the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from placing himself in a position where he may be required to choose between two conflicting duties. He should undertake no adverse employment, no matter how honest may be his motives and intentions. He owes to his client fidelity, secrecy, diligence and skill, and cannot take a reward from the other side. He is not, as a general rule, allowed to divulge information and secrets imparted to him by his clients or acquired during their professional relation unless authorized to do so by the client himself.

'It is the honor of the legal profession that its fidelity to its clients can be depended upon, that a person may safely go to a lawyer and counsel with him upon personal and confidential matters with the absolute assurance that the lawyer's tongue is tied from ever divulging it, and a strict enforcement of this rule requires that an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to the client's disadvantage in the subsequent, adverse employment, and this rule applies not only to civil, but criminal cases. An attorney cannot be a permitted to participate in the prosecution of a criminal case if, by reason of his professional relations with the accused, he has acquired knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.

'The mentioned rules of law, together with many others, were enunciated in the following similar cases: Peirce v. Palmer, 31 R.I. 432, 77 A. 201, Ann Cas. 1912B, 181; People v. Gerold, 265 Ill. 448, 107 N.E. 165, Ann.Cas.1916A, 636; Steeley v. State, 17 Okl.Cr. 252, 187 P. 821; Hall v. State, 24 Okl.Cr. 197, 217 P. 229; Thoreson v. State, 69 Okl.Cr. 128, 100 P.2d 896; State v. Rocker, 130 Iowa 239, 106 N.W. 645; State v. Halstead, 73 Iowa 376, 35 N.W. 457; Hosford v. Eno, 41 S.D. 65, 168 N.W. 764, L.R.A.1918F, 831; In re Michal, 415 Ill. 150, 112 N.E.2d 603; T. C. Theatre Corp. v. Warner Bros. Pictures, D.C., 113 F.Supp. 265. See, also, 18 C.J. 1312; 27 C.J.S. District and Prosecuting Attorneys § 12(3) e, p. 398; 5 Am.Jur. 296, § 64, and 298, § 66.'

In the matter before us it appears that while employed by the...