State v. Dist. Ct. (Singleton) ( 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 Singleton's motion to disqualify the Clark
County District Attorney's Office. Petitioner argues that the district court
erred in determining that the conflict between Singleton 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 "Mlle 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 Singleton would create an appearance of impropriety that
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cannot be cured by screening. As the head of the office, the district
attorney's 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. Singleton argues that the district court did not act arbitrarily or
capriciously because the screening procedures in place were inadequate
and untimely. Specifically, Singleton 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) Wnstructions 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. Therefore, the district attorney was adequately screened from the
case and the district court acted arbitrarily or capriciously in determining
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that the screening procedures could not cure the conflict between
Singleton 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.
Gibbons
cT-
LC/ (Pg
Douglas
r
Saitta
cc: Hon. Doug Smith, District Judge
Attorney General/Carson City
Clark County District Attorney
McDonald Adras LLC
Eighth District Court Clerk
2 Further, we deny the petitioner's motion for stay.
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