Turbin v. Superior Court In and For County of Navajo
| Decision Date | 30 August 1990 |
| Docket Number | No. 1,CA-SA,1 |
| Citation | 165 Ariz. 195,797 P.2d 734 |
| Parties | Michael TURBIN, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF NAVAJO, The Honorable J.M. Abbey, a judge thereof, Respondent Judge, STATE of Arizona, Real Party in Interest. 90-044. |
| Court | Arizona Court of Appeals |
This special action challenges the trial court's refusal to disqualify the Navajo County Attorney's Office from prosecuting petitioner Michael Turbin. We previously accepted jurisdiction and granted petitioner his requested relief, adding that our opinion would follow. The issue is whether a prosecutor's office must be disqualified from prosecuting an accused when the accused's counsel leaves the role of defense attorney to join the office that is conducting the prosecution.
The Navajo County Grand Jury indicted petitioner on charges of attempted first-degree murder, aggravated assault, endangerment and criminal damage. On May 1, 1989, the trial court appointed attorney Ralph Hatch to represent petitioner. Hatch withdrew as petitioner's attorney of record on October 23, 1989, in order to rejoin the Navajo County Attorney's office. He is presently one of its prosecutors.
Petitioner's new attorney, Sanford Edelman, moved to disqualify the entire Navajo County Attorney's office from prosecuting petitioner on the grounds that Hatch's prior representation of petitioner in the very case for which he was being prosecuted, disqualified the entire prosecutor's office.
The trial court denied the motion to disqualify, ruling that, absent evidence of any communication and discussion by Hatch with other members of the county attorney's office about the pending prosecution, there was no conflict of interest. The court concluded that Hatch had not discussed the case with anyone in the county attorney's office and, accordingly, refused to disqualify the entire office. The court further concluded that, because of the small size of Navajo County and because the movement of attorneys between offices had become commonplace, a finding of conflict of interest in this case would "paralyze" the county's entire judicial system. Petitioner then filed this special action challenging the trial court's decision.
The state admitted that Hatch "actively interviewed witnesses, discussed the case with Mr. Turbin and negotiated with the Navajo County Attorney." Hatch alone represented petitioner throughout discovery and had pretrial discussions and negotiations with the prosecutor up until the time he assumed his position with the county attorney's office. The record is clear that once Hatch became a deputy county attorney, he discussed the case with no one, did not review the state's file and had no contact in any way with the prosecution of the case against petitioner. At the time the motion was filed, the Navajo County Attorney's office was composed of the elected county attorney and six or seven deputies.
The foundation of petitioner's argument is the appearance of impropriety. He contends that the appearance of impropriety is so great that disqualification of the entire office (vicarious disqualification) is required. The state's response is that the appearance of impropriety is no longer the standard used to decide a motion to disqualify an entire office, but that petitioner is required to show prejudice before disqualification can be granted.
Our supreme court established the standard by which to decide a motion to disqualify a prosecutor's office in State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972). There, the court held that the appearance of impropriety was enough to preclude the entire Maricopa County Attorney's office from prosecuting the defendant. Id. at 523, 502 P.2d at 1342. The facts involved a deputy public defender, who had acted as the defendant's co-counsel, accepting a position as the chief deputy county attorney while the defendant's prosecution was pending. Id. at 522, 502 P.2d at 1341. While representing the defendant, the chief deputy had acquired confidential information and had access to all records and information pertaining to the defense. Id. Although the chief deputy took no part in the prosecution, the court concluded that disqualification of the entire prosecutor's office was required. Id. at 523, 502 P.2d at 1342.
One of the factors considered by the Latigue court was the former defense counsel's position in the prosecutor's office. Id. As chief deputy, the attorney had supervisory powers and duties over the assistant county attorney who was prosecuting the defendant. Id. Moreover, said the court, "if the County Attorney's Office is functioning efficiently, its staff has frequent meetings to discuss cases, and even without meetings, staff members often talk about their cases with one another." Id.
However, the court did not rest its decision solely on the former defense counsel's position at the county attorney's office. Even if the attorney were not the chief deputy, the "office would have to divorce itself from the prosecution ... because even the appearance of unfairness cannot be permitted." Id.
Petitioner relies heavily on Latigue as support for his position that the appearance of impropriety is the appropriate standard to use when deciding a motion to disqualify. The state responds by correctly pointing out that our ethical rules have changed since then. Prior to Latigue, vicarious disqualification was governed by DR 5-105(D) and Canon 9 of the Code of Professional Responsibility. The former provided that "if a lawyer is required to decline or withdraw from employment ... no partner, or associate, or affiliate ... may accept or continue such employment," while the latter provided that "a lawyer should avoid even the appearance of impropriety."
In 1979, Arizona recognized that disqualification of an entire office is not justified in all cases. In State v. Smith, 123 Ariz. 231, 599 P.2d 187 (1979), a deputy Maricopa County attorney had worked at the public defender's office when that office represented the defendant on an unrelated criminal charge. The defendant moved to disqualify the county attorney's office on the ground that the deputy's former employment with the public defender's office created a conflict of interest. Id. at 234, 599 P.2d at 190. The court concluded that disqualification was not necessary because the deputy county attorney "did not himself represent [the] defendant in the prior case ..." and because the charges on which the prosecution was based were different from those in the prior criminal proceeding. Id. at 235, 599 P.2d at 191.
Today, our ethical rules distinguish between private law firms and government law offices for purposes of vicarious disqualification. Private law firms are guided by ER 1.10, which provides that when a lawyer becomes associated with a firm, the firm may not knowingly represent a client in the same or a substantially related matter in which the lawyer previously participated when doing so involves a material risk of violating the rules against disclosure of a former client's confidential information. 17A A.R.S. Sup.Ct. Rules, Rules of Professional Conduct, Rule 42, ER 1.10(b). Government attorneys, on the other hand, are guided by ER 1.11(c), which prohibits a government lawyer from participating in a matter in which the lawyer participated personally and substantially while in private practice. 17A A.R.S. Sup.Ct. Rules, Rules of Professional Conduct, Rule 42, ER 1.11(c). Unlike ER 1.10, ER 1.11(c) does not disqualify the remaining attorneys in a government office when one of its members is prevented from participating in the matter. 17A A.R.S. Sup.Ct. Rules, Rules of Professional Conduct, Rule 42, ER 1.11(c), comment.
The ABA Committee on Ethics and Professional Responsibility explained the reason for treating private...
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