State ex rel. Romley v. Superior Court In and For County of Maricopa

• Decision Date: 28 February 1995
• Docket Number: No. 1,CA-SA,1
• Citation: 181 Ariz. 378,891 P.2d 246
• Parties: STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Michael O. Wilkinson, a judge thereof, Respondent Judge, Jesse Andres FLORES and Manuel D. Gongora, Real Parties in Interest. 94-0265.
• Court: Arizona Court of Appeals

Page 246

891 P.2d 246

181 Ariz. 378

STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Michael O. Wilkinson, a judge thereof, Respondent Judge Jesse Andres FLORES and Manuel D. Gongora, Real Parties in Interest.

No. 1 CA-SA 94-0265.

Court of Appeals of Arizona Division 1, Department C.

Feb. 28, 1995.

[181 Ariz. 379] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals, and Richard M. Romley, Maricopa County Atty. by Gerald R. Grant, Deputy County Atty., Phoenix, for petitioner.

Law Office of James W. Hazel by James W. Hazel, Mesa, for real party in interest Flores.

Dean W. Trebesch, Maricopa County Public Defender by Robert C. Billar, Deputy Public Defender, Phoenix, for real party in interest Gongora.

OPINION

JACOBSON, Judge.

The Maricopa County Attorney seeks special action review of the trial court's order directing the County Attorney to withdraw from prosecution of one of two criminal cases. The issue we address is whether the prosecutor in a criminal matter has a conflict of interest that requires withdrawal or disqualification when his office is also prosecuting criminal charges against the victim in a separate and unrelated criminal matter. Because we hold that no conflict of interest arises under these circumstances, we vacate the trial court's order requiring the prosecutor to withdraw.

Factual and Procedural Background

Real parties in interest Jesse Andres Flores and Manual D. Gongora (defendants) were indicted on multiple counts of endangerment and misconduct involving weapons, all dangerous felonies, arising out of a drive-by shooting at J.M. (the victim) and his family members. The victim and the defendants are allegedly members of rival gangs. The victim was previously indicted on multiple counts of attempted murder and aggravated assault, all dangerous felonies, arising out of circumstances that did not involve defendants. The Maricopa County Attorney's Office (prosecutor) is involved in the prosecution of both cases.

On August 19, 1994, defendant Gongora filed a Motion for Determination of Counsel, alleging that the prosecutor had a conflict of interest in the prosecution of this case because the County Attorney was also prosecuting the victim in another case; additionally, defendant alleged that this dual prosecution created "an appearance of impropriety." At the hearing on the motion, ¹ defendant Flores joined in the motion. The court ordered "that the State withdraw from one of the two cases in which there is a conflict." The state filed its petition for special action from that order, and this court stayed all further proceedings in the trial court pending this resolution. On October 18, 1994, we entered an order accepting jurisdiction and granting relief, with this opinion to follow.

Special Action Jurisdiction

An order granting a motion to disqualify counsel prior to trial is an interlocutory order for which the state has no adequate remedy by appeal pursuant to A.R.S. § 13-4032. For that reason, and because this case involves an issue of law that is likely to reoccur, special action review is appropriate. See, e.g., Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986); Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (App.1990); see also Rules 1 and 3, Arizona Rules of Procedure for Special Actions. In the exercise of our discretion, we accept special action jurisdiction.

Standing of Real Parties in Interest

As a preliminary matter, we address the prosecutor's contention that the real parties in interest in this case have no standing to assert a conflict of interest because the person subject to any potential conflict under these facts is the victim, who has not moved to disqualify the prosecutor on that basis.

Generally, only a client or a former client has standing to challenge legal representation on grounds of conflict of interest. In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir.1976). In Yarn Processing, the court explained:

To allow an unauthorized surrogate to champion the rights of the former client would allow that surrogate to use the conflict rules for his own purposes where a genuine conflict might not really exist. It would place in the hands of the unauthorized surrogate powerful presumptions which are inappropriate in his hands. Courts do not generally examine the motives of a moving party in a disqualification motion. Once the preliminary showing is made by the former client, the motion must be granted regardless of whether the former client gains an advantage at the expense of his adversary.... We are reluctant to extend this where the party receiving such an advantage has no right of his own which is invaded.

Id. at 90 (citation omitted).

Other courts have interpreted the last sentence of Yarn Processing to allow an exception to the general rule:

[W]here the rights of a particular party may be compromised by representation in which opposing counsel is engaged, then that party has standing to bring a motion to disqualify, regardless of whether the party is a client or former client of the attorney or firm whose representation the party challenges.

Davis v. Southern Bell Tel. & Tel. Co., 149 F.R.D. 666, 673 (S.D.Fla.1993); see also Kessenich v. Commodity Futures Trading Comm'n, 684 F.2d 88, 94 (D.C.Cir.1982) (granting motion to disqualify filed by party who was not client or former client and who was unaffected by the challenged representation). Arizona courts have also recognized that a party may challenge representation of his opponent, but only "in extreme circumstances." Alexander v. Superior Court, 141 Ariz. 157, 161, 685 P.2d 1309, 1313 (1984).

In this case, defendants contend that the County Attorney's subsequent criminal prosecution of the victim in this case may cause that victim to "feel it is necessary to please the County Attorney's Office" in this case "in hopes they will show some sort of mercy" in the victim's prosecution. In his response to the petition for special action, defendant Gongora argues, "the standing comes in [defendants'] desire to have a fair trial and the avoidance of having alleged victim witnesses['] testimony tainted by a belief that they are helping a family member and friend." Because defendants have alleged a possible harm to their own cases that could potentially affect their own due process rights to a fair trial, we find that they have standing to raise the disqualification issue in this context. However, we note that Arizona courts "view with suspicion motions by opposing counsel to disqualify a party's attorney based upon conflict of interest or appearance of impropriety...." Gomez, 149 Ariz. at 226, 717 P.2d at 905; see also Alexander, 141 Ariz. at 165, 685 P.2d at 1317.

Role of a Criminal Prosecutor

Defendants' allegation of a conflict is based on the prohibition against litigating adversely to a former client in a subsequent matter. See generally ER 1.9, Rules of Professional Conduct, Rule 42, Rules of the Arizona Supreme Court. ² In their motion in the trial court, defendants argued:

Since the adoption of the Victims' Rights legislation, the duty of a prosecutor to a victim has increased. The increase is almost that of an attorney client. As a result, the prosecution is compelled to represent the victims' rights in terms of notifying of a plea agreement and issues regarding restitution.

In their responding pleading in this court, defendants argue:

In essence, since the adoption of the Victims['] Bill of Rights by Arizona, the prosecuting agencies have become quasi representatives of alleged victims.

Inherent in defendants' allegation of conflict of interest is the contention that the prosecutor cannot "represent" the victim as his "client" in this case and then, through the prosecutor's office, prosecute that "client" in another case. This premise is based on a faulty interpretation of the prosecutor's role in a criminal case as well as a misunderstanding of the prosecutor's relationship to the victim.

It is true that, since passage of the Victims' Bill of Rights, the statutory duties imposed on prosecutors towards victims have increased. See generally A.R.S. §§ 13-4401 to -4438 ("Crime Victims' Rights"); see also Ariz. Const. art. 2, § 2.1 ("Victims' Bill of Rights"); Rule 39, Arizona Rules of Criminal Procedure. The prosecutor's office must give the victim notice of certain proceedings and notice of the defendant's status, §§ 13-4408 to -4416, and the victim has a right to confer with the prosecuting attorney regarding the disposition of an offense, § 13-4419. Additionally, the defendant's attorney may initiate contact with the victim only through the prosecutor's office, § 13-4433(B). Furthermore, the prosecutor "has standing at the request of the victim to protect the victim from harassment, intimidation or abuse and, pursuant to that standing, may seek any appropriate protective court order." A.R.S. § 13-4433(C). However, even given these additional rights, victims have no "authority to direct the prosecution of the case," A.R.S § 13-4419(C), which is normally inherent in an attorney-client relationship. Indeed, in some cases the wishes of the victim may be adverse to those of the prosecution. See, e.g., S.A. v. Superior Court, 171 Ariz. 529, 529-30, 831 P.2d 1297, 1297-98 (App.1992) (victim attempted to avoid testifying despite subpoena issued at direction of prosecutor).

Although not specifically stated in a published opinion in this jurisdiction, the rule is well established that a prosecutor does not "represent" the victim in a criminal trial; therefore, the victim is not a "client" of the prosecutor. See Hawkins v. Auto-Owners (Mut.) Ins. Co., 579 N.E.2d 118, 123 (Ind.App.1991), vacated in part on other grounds, 608 N.E.2d 1358 (1993) ("A deputy prosecutor does not represent the victims or witnesses in...