People ex rel. Peters v. District Court In and For County of Arapahoe

• Decision Date: 20 January 1998
• Docket Number: No. 97SA328,97SA328
• Citation: 951 P.2d 926
• Parties: 98 CJ C.A.R. 340 The PEOPLE of the State of Colorado ex rel. James J. PETERS, District Attorney In and For the EIGHTEENTH JUDICIAL DISTRICT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, State of Colorado, and the Honorable Jack F. Smith, One of the Judges Thereof, Respondent.
• Court: Colorado Supreme Court

Page 926

951 P.2d 926

98 CJ C.A.R. 340

The PEOPLE of the State of Colorado ex rel. James J. PETERS District Attorney In and For the EIGHTEENTH JUDICIAL DISTRICT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, State of Colorado, and the Honorable Jack F. Smith, One of the Judges Thereof, Respondent.

No. 97SA328.

Supreme Court of Colorado En Banc.

Jan. 20, 1998.

James J. Peters, District Attorney, Eighteenth Judicial District, Brian K. McHugh, Deputy District Attorney, Eva E. Wilson, Chief Deputy District Attorney, Stephen M. Lee, Chief Deputy District Attorney, Englewood, for Petitioner.

Forrest W. Lewis, P.C., Forrest W. Lewis, Denver, for Respondents.

Justice BENDER delivered the Opinion of the Court.

The People brought this original proceeding under C.A.R. 21 seeking relief in the nature of mandamus to correct an order issued by the Arapahoe County District Court ("the district court") holding that the attorneys for a defendant in a first-degree murder case should not be disqualified on the basis of a conflict of interest. The district court held that no conflict of interest exists where the defendant's attorneys are members of a firm that includes an attorney who currently represents a prosecution witness and formerly represented in a separate matter a person identified by the defense as an alternate suspect. We issued a rule to show cause why the relief requested should not be granted. We hold that Rule 1.10(a) of the Colorado Rules of Professional Conduct, when read in conjunction with Rules 1.7(a) and 1.9(a), prohibits the defense attorneys' representation of the defendant in this case, and that the district court abused its discretion when it held that a conflict of interest did not exist. Accordingly, we make the rule absolute.

I.

Ruben Aragon is charged with the first-degree murder of Norma Lopez. Shortly before her death, Lopez, acting as a government informant, successfully arranged a monitored purchase of heroin from Eugene Velarde. As a result, Velarde was arrested under a federal indictment for the distribution of a controlled substance. Lopez was killed several days after Velarde's arrest. Aragon's defense attorneys intend to present evidence at trial that Velarde, not Aragon, killed Lopez. The prosecution intends to present evidence that Aragon admitted to a fellow inmate, Patrick Hawkinson, that he killed Lopez. The prosecution obtained Hawkinson's promise to testify at Aragon's trial as a condition of Hawkinson's plea bargain in a separate criminal case.

In October of 1996, the district court appointed Michael Root, then a sole practitioner, to represent Aragon. Four months later, the district court appointed James Castle as co-counsel. At the time of this appointment, Castle was a partner in a three-member law firm not associated with Root.

On June 20, 1997, Root and Castle advised the district court of potential conflicts of interest concerning their continued representation of Aragon. The district court set the matter for hearing and appointed independent counsel to evaluate the potential conflicts, discuss these conflicts with Aragon, and report his findings to the court.

Testimony at the hearing revealed that on April 1, 1997, Root, Castle, and other attorneys formed the law firm of Castle, Gaass, Joyce, Root & Scherer, L.L.C. ("the firm"). Christopher Beasley, who previously had been "of-counsel" to Castle's former three-person firm since December of 1995, became a partner in the firm. Beasley formerly represented the alternate suspect, Velarde, and currently represents prosecution witness Hawkinson. ¹ Beasley testified that he had not disclosed any client confidences of either Velarde or Hawkinson to Root or Castle, and that neither Root nor Castle had disclosed any client confidences of Aragon to him. Velarde took the stand at the hearing but invoked his privilege against self-incrimination and chose to stand mute, refusing to answer any questions including the prosecution's inquiry as to whether he was willing to waive the attorney-client privilege between himself and Beasley. Velarde's attorney was present at the hearing and indicated that Velarde "will not waive any privilege." Hawkinson was not present at the hearing.

Independent counsel advised the court that a conflict of interest existed between Aragon, on the one hand, and Root and Castle, on the other, but that the conflict was waivable upon Aragon's consent. ² However, independent counsel reported that Aragon chose not to waive his right to conflict-free counsel. Root and Castle expressed no opinion as to whether a conflict existed but emphasized to the court that they wished to remain on the case and that they were certain that they could provide Aragon with zealous representation. The prosecution argued that the case presented a conflict of interest requiring disqualification of Root and Castle absent a waiver of conflict-free counsel by Aragon. The prosecution reasoned that Beasley was prohibited from representing Aragon and that this prohibition must be imputed to Root and Castle as members of Beasley's firm.

The district court determined that Root and Castle's representation of Aragon was consistent with the Colorado Rules of Professional Conduct and that Root and Castle could remain on the case without violating any ethical standards. Relying upon Chief Justice Directive 89-3, ³ the district court ruled that Root and Castle represent Aragon in their individual capacities and that the firm does not represent Aragon. The district court stated:

Where a private attorney is appointed to represent a defendant ... the appointed attorney, not his or her law firm, is appointed. In the instant case, Mr. Root and Mr. Castle represent the defendant, not Mr. Beasley or the law firm of which the lawyers are now all partners.

The district court reasoned that because Root, Castle, and Beasley were not a "firm" for purposes of Castle and Root's appointment to Aragon's case, they were not a "firm" for purposes of imputed disqualification and any conflict between Beasley and Aragon could not be imputed to Root and Castle.

The district court emphasized that there was no evidence that an improper exchange of confidences had occurred between Root, Castle, and Hawkinson, ⁴ and that the "ethics of the legal profession" acted as a natural "ethical wall" of silence to prevent such disclosure in the future. ⁵ The district court concluded that Root and Castle would remain on the case.

The prosecution petitioned this court for review pursuant to C.A.R. 21, arguing that the district court abused its discretion by disregarding principles of professional responsibility law that require disqualification of other members of Beasley's firm from representing Aragon absent a waiver of conflict-free counsel. We issued a rule to show cause, and we now make the rule absolute.

II.

A.

"Loyalty is an essential element in the lawyer's relationship to a client." Colo RPC 1.7 cmt. To provide effective legal assistance, an attorney is obligated to maintain a paramount duty of loyalty to the client. See Hutchinson v. People, 742 P.2d 875, 881 (Colo.1987). "The need for defense counsel to be completely free from a conflict of interest is of great importance and has a direct bearing on the quality of our criminal justice system." Allen v. District Court, 184 Colo. 202, 205, 519 P.2d 351, 352-53 (1973); see also People v. Castro, 657 P.2d 932, 943-45 (Colo.1983).

"If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation." Colo. RPC 1.7 cmt. Even after ending the attorney-client relationship, an attorney may not represent another client if the interests of the present and former client are adverse. See Colo. RPC 1.9.

When an attorney associates with a law firm, the principle of loyalty to the client extends beyond the individual attorney and applies with equal force to the other attorneys practicing in the firm. This principle, known as the "rule of imputed disqualification," appears in Rule 1.10(a) of the Colorado Rules of Professional Conduct and requires disqualification of all members of a law firm when any one of them practicing alone would be disqualified because of a conflict of interest. Rule 1.10(a) provides:

Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9, or 2.2.

See generally ABA/BNA Lawyer's Manual on Professional Conduct §§ 51:2001-14 (1995); 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.10 (1997). The rule of imputed disqualification applies to both private firms and public law firms such as a district attorney's office or the office of the state public defender. See McCall v. District Court, 783 P.2d 1223, 1227 (Colo.1989).

The purpose of the rule is to acknowledge the close personal and financial relationships that exist between an attorney and other members of a law firm. See Wright v. District Court, 731 P.2d 661, 663 (Colo.1987); see generally ABA Standards for Criminal Justice, Prosecution and Defense Function § 4-3.5(a) (3d ed. 1993) ("Defense Counsel should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.").

The rule of imputed disqualification "can be considered from the premise that a firm of attorneys is essentially one attorney for purposes of the rules governing loyalty to the client, or from the premise that each attorney is vicariously bound by the obligation of loyalty owed by each lawyer" in the firm. Colo. RPC 1.10 cmt. The treatment of attorneys in a firm as one attorney for purposes of loyalty and confidentiality is based on the presumption that those...