STATE V. MARTINEZ, 1983-NMCA-138, 100
N.M. 532, 673 P.2d 509 (Ct. App. 1983)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
FRANK "PAX" MARTINEZ, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1983-NMCA-138, 100 N.M. 532, 673 P.2d 509
Appeal from the District Court of San
Miguel County, Frost, Judge
PAUL BARDACKE, Attorney General,
ELIZABETH MAJOR, Assistant Attorney General, Santa Fe, New Mexico, Attorneys
for Plaintiff-Appellee.
JANET CLOW, Chief Public Defender, MARY
ANN LUNDERMAN, Assistant Appellate Defender, Santa Fe, New Mexico, Attorneys
for Defendant-Appellant.
Walters, C.J., wrote the opinion. WE
CONCUR: Ramon Lopez, J., C. Fincher Neal, J.
{*533} WALTERS, Chief Judge.
{1} The question presented by
this appeal is the extent to which disqualification under the Code of
Professional Responsibility,
{*534} NMSA
1978, Code of Professional Responsibility, Rules 1-101 through 9-102 (Repl.
Pamp.1982 and Cum. Supp.1982), reaches. Defendant appeals his conviction as an
habitual offender. Issues other than the one stated are abandoned because they
have not been briefed.
State v. Vogenthaler, 89 N.M. 150,
548 P.2d 112
(Ct. App.1976).
{2} Vaughn prosecuted
defendant on one of his prior convictions. Vaughn then entered a partnership
with Hunt. Hunt thereafter represented defendant briefly on the habitual
charges, but that representation terminated and Mathis was appointed as
defendant's counsel. In the meantime, Hunt moved and commenced sharing office
space with Mathis. Mathis thereupon moved to withdraw as counsel, alleging the
appearance of impropriety or potential conflict of interest in continued
representation of defendant. Defendant concurred in the motion as being in his best
interests. The court denied the motion.
{3} The State assumes the
court was not required to disqualify Mathis:
The state is unable to find any provision in the Code of
Professional Responsibility which would even suggest that Mr. Mathis, through
Mr. Hunt, might have a conflict or give an appearance of impropriety stemming
from Mr. Vaughn's earlier prosecution of the defendant. The fact that Mr. Hunt
once associated with Mr. Vaughn and at a later time was sharing office space
with Mr. Mathis, simply does not establish an overlap of interest leading to a
conflict or an impropriety.
(From the Answer Brief.) No authority is cited for this
argument by the State. It does concede, however, that Mr. Vaughn would be
disqualified from representing defendant. See NMSA 1978, Code of
Professional Responsibility, Rule 9-101(B) (Repl. Pamp.1982). Rule 5-105(D) of
the Code (Cum. Supp.1983), provides:
If a lawyer is required to decline employment or to withdraw
from employment under Rule 5-105, no partner or associate of his or his firm
may accept or continue such employment.
The State also concedes that Hunt, while associated with
Vaughn, may have been disqualified under Rule 5-105(D).
{4} According to the case
law, however, Hunt's disqualification would extend beyond the date of the
dissolution of the Vaughn and Hunt partnership. In
Laskey Bros. of W.Va.,
Inc. v. Warner Bros. Pictures, Inc., 224 F.2d 824, 826-27 (2d Cir.1955),
cert.
denied, 350 U.S. 932, 76 S. Ct. 300, 100 L. Ed. 814 (1956), it was said:
And once a partner is thus vicariously disqualified for a
particular case, the subsequent dissolution of the partnership cannot cure his
ineligibility to act as counsel in that case.
Thus, under Laskey, whether or not Hunt remained with
Vaughn, he would be disqualified from acting as defendant's counsel.
{5} The question is whether
Hunt's taint infected Mathis once Hunt and Mathis began to share office space.
Some authorities treat office-sharing as the type of association contemplated
by Rule 5-105(D). ABA Formal Opinion 104 (1934); ABA Informal Opinion 995
(1967). See also the Missouri and Wisconsin opinions reported in Maru, 1980
Supplement to the Digest of Bar Association Ethics Opinions, Nos. 11,784 and
13,222. We do not purpose to express New Mexico's position on office-sharing,
but note that the literal wording of Rule 5-105(D) could be interpreted to say
that Mathis is so infected. If Hunt be required to withdraw under
Laskey,
then Mathis, as his associate, would also be required to withdraw.
{6} We have been unable to
find and we are not cited to any cases requiring vicarious disqualification
twice-removed from the original source of disqualification. In
Laskey,
the harsh rule of disqualification was only applied to the first level of
removal. At the second level, associates would only be disqualified to the
extent that there was proof that they actually received confidential
information. In other words, receipt of such information would not be imputed
to them, "lest the chain of disqualification become endless."
Laskey
at 827.
American Can Co. v. Citrus Feed Co., {*535}
436 F.2d 1125, 1129 (5th Cir.1971), says:
[N]ew partners of a vicariously disqualified partner, to whom
knowledge has been imputed during a former partnership, are not necessarily
disqualified: they need show only that the vicariously disqualified partner's
knowledge was imputed, not actual. [Citing Laskey.]
[R]esort to so drastic a measure [as automatic
disqualification] would not only be unwise, but would also set disturbing
precedent. * * * [I]mputation and consequent disqualification could continue ad
infinitum. It is not surprising, then, that the courts have carefully
limited their travels in this area.
Carriage of this imputation-on-an-imputation to its logical
terminus could lead to extreme results in no way required to maintain public
confidence in the bar.
{7} These cases establish
that the burden is on the lawyer seeking to remain in the case to show that
knowledge was merely imputed, not actual. Here, there was no showing one way or
the other. Defendant contends that the case must be reversed and remanded for a
new trial.
{8} The need for
disqualification arises from two concepts: the first deals with confidences and
possible disclosure thereof, with which Canon 4 is concerned; the second deals
with loyalty and exercising independent judgment, and relates to Canon 5.
Additionally, Canon 9 encouraging lawyers to avoid even the appearance of
impropriety must be considered. All of these concepts are for the benefit of the
former or first client -- in this case, the State, by whom Vaughn was employed.
Any breach of confidence by Vaughn should redound to defendant's benefit. Thus,
breach of confidence would not appear to be the concern in the instant case.
{9} Undivided loyalty is owed
to current clients.
See United Nuclear Corp. v. General Atomic Co., 96
N.M. 155, 243,
629 P.2d 231, 319 (1980). Once a client becomes a former client,
however, a lawyer is not barred forevermore from taking positions adverse to
that client. If this were not so, a prosecutor could never enter private
practice as a defense attorney. Thus, neither is loyalty to the current client
the issue here.
{10} Substantial relationship
is the test under Canon 4 relating to confidences.
Id. No such similar test
is applied under Canon 5; rather, the disciplinary rules under Canon 5, and
particularly Rule 5-105 on which defendant relies, seem to cover only current
multiple employment.
See Rules 5-105(A) and (B);
Kadish v. Commodity
Futures Trading Comm'n, 548 F. Supp. 1030, 1034 (N.D. Ill.1982);
City of
Hoquiam v. Public Employment Relations Comm'n of the State of Washington,
97 Wash.2d 481, 646 P.2d 129 (1982). Duties, of course, are owed to former
clients. But they are not the sort that automatically mandate disqualification
under Rule 5-105(D).
{11} While not binding as
authority, we note that nothing in the Model Rules of Professional Conduct as
adopted by the American Bar Association on August 3, 1983, would serve to
disqualify Mathis. The model rules, as they may apply to this case, provide:
Rule 1.9 Conflict of Interest: Former Client
A lawyer who has formerly represented a client in a matter
shall not thereafter:
(a) represent another person in the same or a substantially
related matter in which that person's interests are materially adverse to the
interests of the former client unless the former client consents after
consultation; or
(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 would permit with respect
to a client or when the information has become generally known.
Rule 1.10 Imputed Disqualification: General Rule
(a) While lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them practicing {*536} alone would be prohibited from doing so
by Rules 1.7, 1.8(c), 1.9 or 2.2
(b) When a lawyer becomes associated with a firm, the firm
may not knowingly represent a person in the same or a substantially related
matter in which that lawyer, or a firm with which the lawyer was associated,
had previously represented a client whose interests are materially adverse to
that person and about whom the lawyer had acquired information protected by
Rules 1.6 and 1.9(b) that is material to the matter.
(c) When a lawyer has terminated an association with a firm,
the firm is not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly associated
lawyer unless:
(1) The matter is the same or substantially related to that
in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information
protected by Rules 1.6 and 1.9(b) that is material to the matter.
(d) A disqualification prescribed by this Rule may be waived
by the affected client under the conditions stated in Rule 1.7.
Rule 1.11 Successive Government and Private Employment
(a) Except as law may otherwise expressly permit, a lawyer
shall not represent a private client in connection with a matter in which the
lawyer participated personally and substantially as a public officer or
employee, unless the appropriate government agency consents after consultation.
* * *
These rules support the view in this case that (1) the
confidence concern is for the benefit of the former client and was waived by
the State here, and (2) the requirement of loyalty vicariously disqualifies
counsel only in the situation of a simultaneous representation.
{12} Specifically, Rule 1.9
is satisfied because the State, as the former client, did not care "one
way or the other," and thus consented to Mathis's representation. Rule
1.10(a) is satisfied because that rule only applies to lawyers who continue to
be associated in a firm. Rule 1.10(b) (which refers to the precise situation
before us) is satisfied because here, the State having consented, there can be
no question of a breach of confidence. Rule 1.11(a) is satisfied for the same
reasons.
{13} It should be noted that
courts treat disqualification matters not as purely legal concerns, but as
equitable matters.
United Nuclear Corp. v. General Atomic Co., 96 N.M.
at 244, 629 P.2d at 320. If it is not the party intended to be protected by the
canons and disciplinary rules who raises the matter, a different standard is
applied.
See United States v. Kitchin, 592 F.2d 900 (5th Cir.),
cert.
denied, 444 U.S. 843, 100 S. Ct. 86, 62 L. Ed. 2d 56 (1979). As we have
noted, the party intended to be protected here is the State, but the State
adopted a neutral policy in the trial court. It expressly stated on the record
that it did not care whether counsel was allowed to withdraw or not.
{14} Because the State was
unconcerned with breaches of its confidences or divided loyalties, this case
must be viewed not as an ethical matter but instead, simply as a case in which
defendant wants to change counsel.
See State v. Salazar, 81 N.M. 512,
469 P.2d 157 (Ct. App.1970). In such a situation, a defendant must show good
cause for the change.
See State v. Bell, 90 N.M. 134,
560 P.2d 925
(1977). Good cause may be shown when defendant's counsel or a member of his
firm is currently representing a conflicting interest.
State v. Hernandez,
22 SBB 952 (Ct. App.1983),
cert. granted, 22 SBB 999. But there was no
such allegation in this case of an actual conflict; the motion stated only that
there was a "potential conflict of interest or, at least appearance of
impropriety." That conclusion by defendant or Mathis, as movants was not
further explained.
{15} At least one court has
held that the district attorney's move to the public defender's office was not
good cause for a change of counsel.
People v. Sawyer, 83 A.D.2d 205, 443
N.Y.S.2d 926 (1981),
aff'd. (expressly
{*537}
not deciding the issue), 57 N.Y.2d 12, 453 N.Y.S.2d 418, 438 N.E.2d 1133
(1982),
cert. denied, ... U.S. ..., 103 S. Ct. 830, 77 L. Ed. 2d (1983).
The situation in
Sawyer was distinguished from its converse, where the
defender moves to the prosecutor's office.
See State v. Chambers, 86
N.M. 383,
524 P.2d 999 (Ct. App.1974). In the converse, or
Chambers,
situation, there is a real danger of breach of
defendant's confidences
or at least a substantial appearance of impropriety from defendant's
perspective. In the
Sawyer situation, which is the situation in this
case, there is no perceptible prejudice to defendant and the State was
unconcerned regarding any such possible prejudice to the State.
{16} Under these
circumstances and because of the foregoing reasons, it becomes defendant's
burden to show some actual reason why Mathis should have been disqualified.
Secondly, it is manifest that vicarious disqualification does not apply in this
case. Defendant's argument relies on Canon 4 cases addressed to confidences,
but confidences are not the issue here: (1) the State waived any breach of its
confidences, and (2) any such breach should only benefit defendant. Finally,
the rule appears to be that vicarious disqualification only applies to current
associates of the disqualified lawyer.
{17} For all the above
reasons, defendant's conviction and sentence as an habitual criminal are
affirmed.
WE CONCUR: Ramon Lopez, J., C. Fincher Neal, J.