State v. Dist. Ct. (Ghani) ( 2013 )

 Mandamus is an extraordinary remedy, and the decision to
entertain a petition for a writ of mandamus rests within our discretion.
See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982);
see also State ex rel. Dep't 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 "Mlle
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. Imp.
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. Dist. Ct. (Armstrong), 127 Nev. „
267 P.3d 777, 780 (2011) (citations omitted).
Petitioner contends that the district court acted arbitrarily or
capriciously when it granted Ghani's motion to disqualify the Clark
County District Attorney's Office. Petitioner argues that the district court
erred in determining that the conflict between Ghani and the district
attorney should be imputed to the entire district attorney's office, that the
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conflict would create an appearance of impropriety, and that screening
would not cure the appearance of impropriety.
We conclude that the district court acted arbitrarily or
capriciously because the district court did not base its decision on
established law. In Collier, we held that vicarious disqualification of an
entire prosecutor's office based on an individual lawyer's former-client
conflict is required only "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." 98 Nev. at 310, 646 P.2d at 1221; accord State v. Pennington, 851
P.2d 494, 498 (N.M. Ct. App. 1993) (observing that "[Ole great majority of
jurisdictions have refused to apply a per se rule disqualifying the entire
prosecutor's staff solely on the basis that one member of the staff had been
involved in the representation of the defendant in a related matter" so
long as the disqualified staff member "is isolated from any participation in
the prosecution"); Model Rules of Profl Conduct R. 1.11 cmt. 2 ("Rule 1.10
is not applicable to the conflicts of interest addressed by this Rule . . .
Because of the special problems raised by imputation within a government
agency, paragraph (d) 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.").
The district court concluded that this case was different than
the situation presented in Collier. The district court stated that because
the district attorney is the head of the office, to allow his office to continue
to prosecute Ghani would create an appearance of impropriety that cannot
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be cured by screening. As the head of the office, his name is on every
pleading and he is in charge of policy making for the office. See NRS
173.045; NRS 252.070(1). We disagree with the district court that this
case is different than the situation presented in Collier. The chief deputy
involved in Collier had much more hands-on responsibility for the cases
handled by the office than the district attorney in this case does. While it
is true that the district attorney is responsible for deciding the overall
policy of the office, consistent with NRS 252.070(1), the deputies appointed
by the district attorney handle the day-to-day operations of the divisions of
the office and make decisions regarding specific cases. Further, even
though the district attorney's name appears on every document filed with
the court, it is clear that the district attorney is not personally handling
all of the cases filed by the district attorney's office, and that these cases
are instead being handled by the deputy who is also listed on every
document. Therefore, the district court acted arbitrarily and capriciously
because no appearance of impropriety existed to such an extent that it
would undermine the public trust and confidence in the criminal justice
system.
Next, petitioner argues that the district court acted arbitrarily
and capriciously when it determined that screening could not cure the
conflict. Ghani argues that the district court did not act arbitrarily or
capriciously because the screening procedures in place were inadequate
and untimely. Specifically, Ghani claims that the district attorney's office
waited over thirty days before circulating a memorandum regarding which
cases the district attorney was being screened from and the memorandum
did not include every case, including the instant case.
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This court has recently considered what screening procedures
are appropriate in the context of screening a judicial officer pursuant to
Nevada Rules of Professional Conduct 1.12. These guidelines consist of
five factors:
(1) [I]nstructions given to ban the exchange of
information between the disqualified attorney and
other members of the firm; (2) restricted access to
files and other information about the case; (3) the
size of the law firm and its structural divisions; (4)
the likelihood of contact between the quarantined
lawyer and other members of the firm; and (5) the
timing of the screening.
Ryan's Express v. Amador Stage Lines, 128 Nev. „ 279 P.3d 166,
172 (2012).
Applying the test from Ryan's Express, the screening
procedures at the Clark County District Attorney's Office were adequate
and timely in place. Instructions were given the day the district attorney
took office to ban the exchange of information and this was communicated
to the office via the assistant district attorney. Later it was memorialized
in two memoranda. The district attorney's access to the files was
restricted and the files were marked as screened files. Further, the size of
the Clark County District Attorney's Office makes the district attorney's
participation in any screened case unlikely. Given the size and structure
of the district attorney's office, it is highly unlikely that there would be
contact between the quarantined lawyer and the other members of the
office.
Finally, while Ghani's name does not appear on the list
accompanying the memorandum, the fifth protocol outlined in the
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screening memorandum ensures that the district attorney does not
participate in the case. Therefore, the district attorney was adequately
screened from the case and the district court acted arbitrarily or
capriciously in determining that the screening procedures could not cure
the conflict between Ghani and the district attorney. 2 Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order granting the motion to disqualify.
J.
Gibbons Hardesty
J.
Douglas
(
J.
Saitta
2 We further deny the petitioner's "motion to strike portion of fast
track reply," which sought to strike the district court's supplemental order
filed on June 29, 2012. However, because the district court's order at issue
was rescinded, we decline to consider that order.
6
tifatig
cc: Chief Judge, Eighth Judicial District Court
Hon. J. Charles Thompson, Senior Judge
Attorney General/Carson City
Clark County District Attorney
Gabriel L. Grasso, P.C.
Eighth District Court Clerk
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