People ex rel. Woodard v. District Court for Second Judicial Dist. in City and County of Denver
| Citation | 704 P.2d 851 |
| Decision Date | 19 August 1985 |
| Docket Number | No. 84SA534,84SA534 |
| Parties | The PEOPLE of the State of Colorado, ex rel. Duane WOODARD, Attorney General of the State of Colorado, Petitioners, v. The DISTRICT COURT FOR the SECOND JUDICIAL DISTRICT, In the CITY AND COUNTY OF DENVER, State of Colorado; Honorable Raymond Dean Jones, Judge; Valas Stores, Inc., d/b/a Valas TV and Stereo, Respondents. |
| Court | Supreme Court of Colorado |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Garth C. Lucero, First Asst. Atty. Gen., Enforcement Section, Denver, for petitioners.
Shelia H. Meer, P.C., Shelia H. Meer, Denver, for respondents.
We issued a rule to show cause in an original proceeding after the district court disqualified the attorney general's office from prosecuting a claim for injunctive relief under the Colorado Consumer Protection Act. § 6-1-101 to -114, 2 C.R.S. (1973 & 1984 Supp.). The complaint asserts that Valas Stores, Inc., d/b/a Valas TV and Stereo (Valas), violated the Colorado Consumer Protection Act by engaging in numerous and repeated deceptive advertising and sales practices. The district court granted the respondent's motion to disqualify the Attorney General and his staff as legal counsel because attorneys within that office would or should be witnesses, thereby violating the Code of Professional Responsibility, DR 5-102(A). We now make the rule to show cause absolute.
An investigation of Valas for violation of the Consumer Protection Act centered on certain sales practices and advertisements used by Valas. Defense discovery established that a letter (Exhibit 4) asserting "bait and switch" practices carried out by Valas was sent to the attorney general's office and stamped as received by the Office of Consumer Affairs on October 5, 1981. The letter also bore a later date stamp (October 27, 1981) by the Rocky Mountain Better Business Bureau. Exhibit 5 is a letter from the lawyer for Valas to an assistant attorney general answering some of the complaints set forth in Exhibit 4. That letter again was in the possession of the Better Business Bureau and bore another set of date stamps indicating receipt by the attorney general's office and then by the Better Business Bureau.
Section 6-1-111(2), 2 C.R.S. (1984 Supp.), states:
[T]he attorney general ... shall not make public the name of any person alleged to have committed a deceptive trade practice during any investigation conducted by him under this article, nor shall the records of investigations or intelligence information of the attorney general ... obtained under this article be deemed public records available for inspection by the general public....
Based upon the two letter exhibits, the district court concluded that the attorney general's office and the lawyers in charge of the investigation could be impeached at the time of trial with Exhibits 4 and 5. The court relied on DR 5-102(A), which provides that:
If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial....
The district court properly noted that litigation strategy and the witnesses to be called was a matter to be determined by trial counsel, but nevertheless concluded that the attorney general's assistants who conducted the investigation ought to testify to explain the apparent violation of section 6-1-111(2), 2 C.R.S. (1984 Supp.). See United States v. Blackhawk Heating and Plumbing Co., Inc., 423 F.Supp. 486 (S.D.N.Y.1976); Greenebaum-Mountain Mortgage Company v. Pioneer National Title Insurance Co., 421 F.Supp. 1348 (D.Colo.1976). The district court concluded that since some person in the attorney general's office ought to be called as a witness on behalf of the attorney general, the entire attorney general's office should be disqualified under DR 5-102(A). An order disqualifying the attorney general's office was accordingly entered. This original proceeding in the nature of mandamus followed.
Disqualification in this case must arise out of a violation of either DR 5-102(A) or DR 5-102(B). 1 People v. Garcia 698 P.2d 801 (Colo.1985). Counsel cannot be disqualified on the basis of...
To continue reading
Request your trial
-
People v. Hagos, 05CA2296.
...forth specific facts that “point to a clear danger that either prejudices counsel's client or his adversary.” People ex rel. Woodard v. Dist. Court, 704 P.2d 851, 853 (Colo.1985). Rule 3.7 of the Colorado Rules of Professional Conduct requires that a lawyer “shall not act as advocate at a t......
-
Fognani v. Young
...971, 975 (1978). Accordingly, the moving party has the burden to establish grounds for disqualification. See People ex rel. Woodard v. Dist. Court, 704 P.2d 851, 853 (Colo. 1985); Garcia, 698 P.2d at 805. To that end, the opposing counsel cannot be disqualified on the basis of speculation o......
-
People v. Harlan, 01SA356.
...only occur after facts are alleged that demonstrate the potential violation of a rule of professional conduct. People ex rel. Woodard v. Dist. Ct., 704 P.2d 851, 853 (Colo.1985). The burden of establishing that disqualification is proper is on the moving party. That burden is only met when ......
-
In re Matter of Estate of Myers, Case No. 05SA231 (CO 4/3/2006)
...their choice. Fognani v. Young, 115 P.3d 1268 (Colo. 2005); People v. Harlan, 54 P.3d 871, 878 (Colo. 2002); People ex rel. Woodard v. Dist. Ct., 704 P.2d 851, 853 (Colo. 1985); cf. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 441 (1985) (Brennan, J., concurring) ("A fundamental premis......
-
Cba Ethics Opinion No. 78: Disqualification of the Advocate-witness
...to withdraw, unless ordered to do so by the court. See, People ex rel: Woodard v. District Court for the Second Judicial District, 704 P.2d 851, 853 (Colo. 1985) (burden on party seeking disqualification to show specific facts demonstrating that testimony to be elicited from adversary's cou......
-
Four Things to Know About Motions to Disqualify
...clients under Colo. RPC 1.9). [6] People v. Harlan, 54 P.3d 871, 877 (Colo. 2002). [7] Id. (quoting People ex rel. Woodard v. Dist. Ct., 704 P.2d 851, 853 (Colo. 1985)). [8] Myers v. Porter (In re Estate of Myers), 130 P.3d 1023, 1025 (Colo. 2006). [9] Rodriguez v. Dist. Ct., 719 P.2d 699, ......