State v. Eighth Judicial Dist. Court of State

• Decision Date: 30 May 2014
• Docket Number: No. 62615.,62615.
• Citation: 130 Nev. Adv. Op. 18,321 P.3d 882
• Parties: The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Stefany Miley, District Judge, Respondents, and Jihad Anthony ZOGHEIB, Real Party in Interest.
• Court: Nevada Supreme Court

321 P.3d 882

130 Nev. Adv. Op. 18

The STATE of Nevada, Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Stefany Miley, District Judge, Respondents,andJihad Anthony ZOGHEIB, Real Party in Interest.

No. 62615.

Supreme Court of Nevada.

March 27, 2014.

As Modified April 1, 2014.

Rehearing Denied May 30, 2014.

Catherine Cortez Masto, Attorney General, Carson City; Ryan J. MacDonald, Deputy District Attorney, Clark County, for Petitioner.

Lucherini Law and Robert G. Lucherini, Las Vegas, for Real Party in Interest.

BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

OPINION¹

By the Court, HARDESTY, J,:

Clark County District Attorney Steven Wolfson was a criminal defense attorney before being appointed to the elective office he currently holds. The transition from defense counsel to head of a prosecutor's office results in a conflict of interest under Nevada Rule of Professional Conduct 1.9 that, depending on the circumstances, disqualifies Wolfson from prosecuting his former clients. The question presented in this original proceeding is whether that conflict of interest was properly imputed to all of the lawyers in his office, requiring the disqualification of the Clark County District Attorney's Office. In answering that question, we consider whether the appearance-of-impropriety standard used by this court in Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982), to determine when an individual prosecutor's conflict should be imputed to all of the lawyers in the prosecutor's office has been undermined by our subsequent adoption of the Model Rules of Professional Conduct. We conclude that the appearance-of-impropriety standard is not the correct standard because it was based on an ethical rule that this court never adopted. The more appropriate standard is whether the individual lawyer's conflict would render it unlikely that the defendant would receive a fair trial unless the conflict is imputed to the prosecutor's office. For the reasons discussed in this opinion, regardless of which standard is applied, the district court acted arbitrarily or capriciously in granting the motion to disqualify the Clark County District Attorney's Office. We therefore grant the petition.

FACTS AND PROCEDURAL HISTORY

The State charged real party in interest Jihad Anthony Zogheib with conspiracy to commit a crime, passing a bad check with intent to defraud, forgery, and two counts of theft. After Steven Wolfson was appointed District Attorney, Zogheib moved to disqualify the Clark County District Attorney's Office based on a conflict of interest: an attorney in Wolfson's former law firm, Patrick McDonald, represented Zogheib in the instant case.

The district court held several evidentiary hearings regarding the motion to disqualify.² According to the district court's order, the evidentiary hearing showed that while Wolfson was not Zogheib's attorney, he was involved in discussions regarding the case. McDonald testified that he spoke frequently with Wolfson regarding Zogheib's case because Wolfson had successfully litigated multiple check and marker fraud cases in his career. Wolfson testified that he remembered Zogheib's case and that he had probablytalked with McDonald and Zogheib in the past. He also testified that after accepting the appointment as district attorney, he never made an appearance on this case, never obtained or reviewed discovery on this case, and never discussed this case with the deputy district attorney appointed to prosecute the case.

After hearing the testimony at the evidentiary hearing, the district court determined that the Clark County District Attorney's Office should be disqualified. The district court concluded that there was a conflict of interest between Wolfson and Zogheib and that the conflict should be imputed to the office because there was an appearance of impropriety that was so great as to make this an extreme case that warranted vicarious disqualification even though Wolfson had been effectively screened from participating in the case. This original petition for a writ of mandamus followed.

DISCUSSION

Mandamus is an extraordinary remedy, and the decision to entertain a petition for a writ of mandamus rests within our discretion. See Poulos v. Eighth Judicial Dist., Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). We have indicated that mandamus is the appropriate vehicle for challenging attorney disqualification rulings. See generally Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982). But “[t]he disqualification of a prosecutor's office rests with the sound discretion of the district court,” id. at 309, 646 P.2d at 1220, and “while mandamus lies to enforce ministerial acts or duties and to require the exercise of discretion, it will not serve to control the proper exercise of that discretion or to substitute the judgment of this court for that of the lower tribunal,” id. at 310, 646 P.2d at 1221. Accordingly, where the district court has exercised its discretion, a writ of mandamus is available only to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603–04, 637 P.2d 534, 536 (1981). “An arbitrary or capricious exercise of discretion is one founded on prejudice or preference rather than on reason, or contrary to the evidence or established rules of law.” State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. ––––, ––––, 267 P.3d 777, 780 (2011) (internal citation and quotation marks omitted).

The State conceded that Wolfson has a conflict of interest that disqualifies him from representing the State against Zogheib in the underlying criminal prosecution. RPC 1.9. Generally one attorney's conflict of interest under Nevada Rule of Professional Conduct 1.9 is imputed to all other attorneys in the disqualified attorney's law firm. RPC 1.10. But that general rule does not apply to lawyers working in government offices. The disqualification of lawyers who are government officers and employees based on a conflict of interest is governed by Nevada Rule of Professional Conduct 1.11, not Rule 1.10. Paragraph (d) of Rule 1.11 addresses lawyers who are current government officers and employees and “does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” Model Rules of Prof'l Conduct R. 1.11 cmt. 2 (2012).³

Our primary decision addressing the disqualification of government lawyers was issued several years before we adopted the Nevada Rules of Professional Conduct. In Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982), we held that “[t]he disqualification of a prosecutor's office rests with the sound discretion of the district court” and that when exercising its discretion, the district court “should consider all the facts and circumstances and determine whether the prosecutorial function could be carried out impartially and without breach of any privileged communication.” Id. at 309–10, 646 P.2d at 1220. The State conceded that a conflict exists between Wolfson and Zogheib because Wolfson received confidential information during his firm's representation of Zogheib. In Collier, this court cited authorities indicating that vicarious-disqualification rules at the time were not strictly applied to government offices and held that vicarious disqualification of a prosecutor's office may be required “in extreme cases where the appearance of unfairness or impropriety is so great that the public trust and confidence in our criminal justice system could not be maintained without such action.” Id. at 310, 646 P.2d at 1221.

The overarching question is whether Wolfson's conflict should be imputed to all of the lawyers in the district attorney's office. However, before answering that question, we must address a threshold issue raised by the State: whether the appearance-of-impropriety standard espoused in Collier should be reconsidered in light of our adoption of the Model Rules of Professional Conduct and our more recent decisions in Liapis v. Second Judicial Dist. Court, 128 Nev. ––––, ––––, 282 P.3d 733, 736–37 (2012), and Brown v. Eighth Judicial Dist. Court, 116 Nev. 1200, 1204 n. 4, 14 P.3d 1266, 1269 n. 4 (2000).

This court, in applying the appearance-of-impropriety standard in Collier, relied on State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind.1982), which cited Canon 9 of the ABA Model Code of Professional Responsibility. Collier, 98 Nev. at 310, 646 P.2d at 1220–21. Canon 9 required attorneys to avoid even the appearance of impropriety. Liapis, 128 Nev. at ––––, 282 P.3d at 736. In 1983, the ABA Model Code of Professional Responsibility was replaced by the Model Rules of Professional Conduct, which did not include Canon 9. Id. In 1986, four years after Collier, this court adopted the Model Rules of Professional Conduct with only slight variations as SCR 150–203.5, which were later renumbered to track the ABA Model Rules numbering scheme. Id.; In the Matter of Amendments to the Supreme Court Rules of Prof'l Conduct,SCR 150–203.5, ADKT 370 (Order Repealing Rules 150–203.5 of the Supreme Court Rules and Adopting the Nevada Rules of Professional Conduct, February 6, 2006). Despite these changes and our refusal to adopt Canon 9, our recent decisions in Liapis and Brown identify the rule set forth in Collier as the only limited circumstance in which an appearance of impropriety may form a basis for attorney disqualification. Liapis, 128 Nev. at ––––, 282 P.3d at 737;Brown, 116 Nev. at 1204 n. 4, 14 P.3d at 1269 n. 4. With Collier noted as the exception, Liapis states a general rule that an appearance of impropriety by itself does not support a lawyer's disqualification. 128...