Rodriguez v. State

• Decision Date: 11 May 1981
• Docket Number: No. 15057,15057
• Citation: 129 Ariz. 67,628 P.2d 950
• Parties: Louis Anthony RODRIGUEZ and the Maricopa County Public Defender's Office, Petitioners, v. STATE of Arizona, through its representative the Maricopa County Attorney, real party in interest, and the Superior Court of the State of Arizona, the Hon. David L. Grounds, Respondents.
• Court: Arizona Supreme Court

Page 950

628 P.2d 950

129 Ariz. 67

Louis Anthony RODRIGUEZ and the Maricopa County Public Defender's Office, Petitioners, v. STATE of Arizona, through its representative the Maricopa County Attorney, real party in interest, and the Superior Court of the State of Arizona, the Hon. David L. Grounds, Respondents.

No. 15057.

Supreme Court of Arizona, In Banc.

May 11, 1981.

Ross P. Lee, Maricopa County Public Defender by John Foreman, Deputy Public Defender, Phoenix, for petitioners.

Charles F. Hyder, Maricopa County Atty. by Michael D. Ryan, Deputy County Atty., Phoenix, for respondents. STRUCKMEYER, Chief Justice.

This special action challenges the trial court's refusal to permit John Foreman, a member of the Maricopa County Public Defender's Office, to withdraw as criminal defense attorney for Louis Anthony Rodriguez. This Court accepted jurisdiction and, believing that the defendant's right to effective assistance of counsel would be damaged while a written opinion was prepared, we ordered the trial court to allow the Maricopa County Public Defender's Office to withdraw and to appoint new counsel. We further suspended the time limits of Rule 8.2, Rules of Criminal Procedure, and directed that our written decision would follow.

Rodriguez, at the time of filing this petition, was under indictment for fifteen counts of sexual assault, sexual abuse, kidnapping, and first and second degree burglary. Since Rodriguez was indigent, the Superior Court appointed the Marciopa County Public Defender to represent him. One member of that office, John Foreman, was assigned the case. A defense to the charges against Rodriguez was his identification as a participant in the offenses.

In August 1980, another member of the Public Defender's Office was assigned to represent a person by the name of Frank Silva, who was also charged with numerous counts of sexual assault. Silva is not charged with any of the crimes for which Rodriguez was indicted and there is absolutely no indication that Silva has any information about the crimes for which Rodriguez stands accused or that any information concerning Rodriguez's activities was given by Silva to the Public Defender's Office. Rodriguez's counsel, Foreman, became aware that his office represented Silva in early September. He approached counsel representing Silva and inquired of Silva's physical appearance and the charges against Silva. Foreman states that this conversation was purposefully kept general and that it did not involve any privileged or confidential information. Foreman determined that Silva's appearance was similar to Rodriguez's. He therefore decided to call Silva as a defense witness and subpoenaed him for Rodriguez's trial. Foreman's purpose in calling Silva as a witness was to show the jury the similar appearance between the two men in order to impeach the witnesses' identifications of Rodriguez. Foreman advised Silva's counsel to withdraw from Silva's case. This was done, and the trial court appointed Silva counsel from other than the Public Defender's Office.

Thereafter, a hearing was held to determine if Silva could be required to appear at Rodriguez's trial. During this hearing, Foreman indicated that he might have to withdraw as counsel for Rodriguez because of his office's past representation of Silva. The next day, the Maricopa County Attorney moved to disqualify the entire Public Defender's Office from the representation of Rodriguez. After obtaining an informal ethics opinion from the State Bar that continued representation of Rodriguez would involve an appearance of impropriety, Foreman moved the court to be permitted to withdraw. Rodriguez opposed the withdrawal, objecting to any more delays in his trial and, additionally, for the reason he believed Foreman was an effective lawyer. Rodriguez told the court that if Foreman was allowed to withdraw, he would go to trial without counsel.

The trial court denied Foreman's motion. Instead, it appointed another attorney, stating:

" * * * to investigate only that aspect of the defense as it concerns Mr. Silva, and if he finds, as a result of that investigation, that there is something which may be admissible during the course of this trial, then (he) will handle that aspect of the case * * *.

* * * if he finds there may be something relevant or material, he is to present that evidence on behalf of Mr. Rodriguez, and also do any cross-examination in that regard."

Rodriguez objected to this arrangement, arguing that he wished Foreman to handle his entire defense and indicated that he would not cooperate with new counsel. Foreman also objected to this solution and filed this special action.

It should be first stated that the State did not have standing to disqualify the Public Defender's Office from participating in the defense of Rodriguez.

We said in Knapp v. Hardy, 111 Ariz. 107, 112, 523 P.2d 1308 (1974):

"That the county attorney has standing to object to a determination of indigency there can be no doubt, but once that indigency is determined the county attorney has no standing to object as to who will or will not represent the defendant or be associated as counsel. Not only does this strike at the very heart of the adversary system, but as we have previously stated:

' * * * for the prosecution to participate in the selection or rejection of its opposing counsel is unseemly if for no other reason than the distasteful impression which could be conveyed.' State v. Madrid, 105 Ariz. 534, 535, 468 P.2d 561, 562 (1970)."

No ethical duty was owed to the prosecution by either Foreman or the Public Defender's Office. See State v. Garaygordobil, 89 Ariz. 161, 164, 359 P.2d 753 (1961).

If the State believed an ethical violation was occurring, it should have followed the guidelines of the Code of Professional Responsibility:

"A lawyer possessing unprivileged knowledge of a violation of DR 1-102 should report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." Rule 29(a), DR 1-103(A), Rules of the Supreme Court, 17A A.R.S.

Foreman, however, orally joined in the State's motion to disqualify the Public Defender's Office from any representation of Rodriguez, thus solving any standing problem. Defense counsel may move the court to withdraw if he believes his continued representation of a defendant will or is likely to result in a violation of a Disciplinary Rule. ¹ Rule 29(a), DR 2-110(B)(2), (C)(2), Rules of the Supreme Court, 17A A.R.S. He must reveal any potential conflicts of interest to the defendant even though the conflict is not one which is likely to result in a violation of a Disciplinary Rule. See Rule 29(a), DR 5-101(A), DR 5-105, Rules of the Supreme Court, 17A A.R.S.; Standard 4-3.5, ABA Standards for Criminal Justice. If counsel believes an actual conflict exists, he must also promptly reveal it to the court. State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025 (1973).

Foreman's position is that he was faced with an incurable conflict of interest which compels him to withdraw. He urges that this conflict arose from the fact that he must zealously represent Rodriguez, but that in so doing might incriminate Silva, a former client of the Public Defender's Office.

An attorney owes a defendant representation which is both loyal and zealous. Rule 29(a), DR 5-101(A), DR 5-105, DR 7-101, Rules of the Supreme Court, 17A A.R.S.; Standards 4-1.1(b), 4-1.6 and 4-4.1, ABA Standards for Criminal Justice. This loyalty is superior to the lawyer's personal and other professional interests. It rises above the interests of third persons, including other clients, both past and present. EC 5-1, Code of Professional Responsibility. Zealous representation requires that an attorney do everything legally and ethically possible to gain an acquittal for a defendant. Rule 29(a), DR 7-101, Rules of the Supreme Court, 17A A.R.S.; see Standard 4-4.1, ABA Standards for Criminal Justice.

Here, Foreman owed both loyal and zealous representation to Rodriguez. So, if guilt could be shifted to someone other than Rodriguez, Foreman was under an ethical and moral obligation to do so. Yet, it would be unethical to shift Rodriguez's guilt to Silva while Silva was represented by the Public Defender's Office, because the Public Defender's Office also had a duty of loyalty to Silva. Rule 29(a), DR 5-105(B), Rules of the Supreme Court, 17A A.R.S.; EC 5-14, Code of Professional Responsibility; see ABA Informal Opinion 1418 (1978); cf. State v. Davis, supra (requiring a court-appointed counsel to represent a defendant and a codefendant after attempting to withdraw on ground of conflict of interest denied the defendant effective assistance of counsel). See Allen v. District Court in and for Tenth Jud. Dist., 184 Colo. 202, 519 P.2d 351 (1974) (where public defender's office represents both defendant and prosecution witness, the office must be allowed to withdraw from representation of witness; no mention that office must also withdraw from defendant's case).

As stated, Silva is not charged with any of the crimes of which Rodriguez stands accused and there is no indication that Silva has any information about those crimes or that Silva gave any information concerning Rodriguez's activities to his public defender attorney. Foreman, in his memorandum accompanying his petition filed in this Court, says that he did not receive confidential information from sources within the Public Defender's Office. He also says that he scrupulously avoided examining Silva's file. Since Foreman did not obtain any confidential information about Silva's defense, his brief investigation of Silva on Rodriguez's behalf did not violate DR 4-101 requiring the preservation of confidences and secrets of a past or present client. Any subsequent investigation of Silva by Foreman would violate DR 4-101 only if Foreman thereafter used confidential information received by the Public Defender's Office as a result of its...