As Corrected April 1, 2014.
Original petition for a writ of mandamus challenging a district court order that granted the defendant's motion to disqualify the Clark County District Attorney's Office.
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.
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. 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 probably
talked 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 ...