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APPELLANT RONALD ALVIN SIMMS’ APPENDIX OF LEGAL AUTHORITIES IN SUPPORT OF MEMORANDUM IN RESPONSE TO CLAIMED RECUSAL OF THE OFFICE OF THE ATTORNEY GENERAL AND PROPOSED SUBSTITUTION OF FENNEMORE CRAIG

AS COUNSEL

OHSUSA:761489420.1

KIP M. MICUDA (SBA 011921)(kmmicuda@gmail.com) THE LAW OFFICES OF KIP M. MICUDA P.O. Box 39646 Phoenix, Arizona 85069 Telephone: (480) 231-9520

MARSHALL B. GROSSMAN (Admitted Pro Hac Vice) (mgrossman@orrick.com) STACY W. HARRISON (Admitted Pro Hac Vice) (swharrison@orrick.com) ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 Los Angeles, CA 90017 Telephone: (213) 629-2020 Facsimile: (213) 612-2499 Attorneys for Appellant RONALD A. SIMMS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of An Appeal by: RONALD ALVIN SIMMS A.D.O.R. Denial of License

Case No. 14A-020-RAC

APPELLANT RONALD ALVIN SIMMS’ APPENDIX OF LEGAL AUTHORITIES IN SUPPORT OF

MEMORANDUM IN RESPONSE TO CLAIMED RECUSAL OF THE OFFICE OF THE ATTORNEY GENERAL AND PROPOSED

SUBSTITUTION OF FENNEMORE CRAIG AS COUNSEL

(Assigned to the Honorable M. Douglas)

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- 1 -APPELLANT RONALD ALVIN SIMMS’ APPENDIX OF LEGAL AUTHORITIES IN SUPPORT OF MEMORANDUM IN RESPONSE TO CLAIMED RECUSAL OF THE OFFICE OF THE ATTORNEY GENERAL AND PROPOSED SUBSTITUTION OF FENNEMORE CRAIG

AS COUNSEL

OHSUSA:761489420.1

APPELLANT RONALD A. SIMMS’ APPENDIX OF LEGAL AUTHORITIES IN

SUPPORT OF MEMORANDUM IN RESPONSE TO CLAIMED RECUSAL OF THE

OFFICE OF THE ATTORNEY GENERAL AND PROPOSED SUBSTITUTION OF

FENNEMORE CRAIG AS COUNSEL

Number Document

1 16 A.R.S. Rules of Civil Procedure, Rule 5.1

2 17 A.R.S. Sup. Ct. Rules, Rule 42, Rules of Prof. Conduct, E.R. 1.9

3 17A.R.S. Sup. Ct. Rules, Rule 42, Rules of Prof. Conduct, E.R. 1.10

4 A.A.C. R2-19-102

5 U.S. Dist. Ct. Rules D. Ariz., L.R. Civ. 83.3

6 Bohnert v. Burke, 2010 U.S. Dist. LEXIS 145373 (D. Ariz. Dec. 7, 2010)

7 Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989)

8 Holloway v. Arkansas, 435 U.S. 475 (1978)

9 Maricopa Cnty. Pub. Defenders Office v. Superior Court In & For Cnty. of Maricopa, 187 Ariz. 162, 927 P.2d 822 (App. 1996)

10 Okeani v. Superior Court, 178 Ariz. 180, 871 P.2d 727 (App. 1993)

11 Riley v. Riley, 165 Ariz. 138, 796 P.2d 940 (App. 1990)

12 Rodriguez v. State, 129 Ariz. 67, 628 P.2d 950 (1981)

13 Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929 (D. Ariz. 2011)

14 Rusinow v. Kamara, 920 F. Supp. 69 (D.N.J. 1996)

15 State v. Sustaita, 183 Ariz. 240, 902 P.2d 1344 (App. 1995)

16 United States v. Executive Recycling, Inc., 908 F. Supp. 2d 1156 (D. Colo. 2012)

17 Vachula v. Gen. Elec. Capital Corp., 199 F.R.D. 454 (D. Conn. 2000)

18 Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081 (7th Cir. 1982)

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- 2 -APPELLANT RONALD ALVIN SIMMS’ APPENDIX OF LEGAL AUTHORITIES IN SUPPORT OF MEMORANDUM IN RESPONSE TO CLAIMED RECUSAL OF THE OFFICE OF THE ATTORNEY GENERAL AND PROPOSED SUBSTITUTION OF FENNEMORE CRAIG

AS COUNSEL

OHSUSA:761489420.1

RESPECTFULLY SUBMITTED this 16th day of March, 2015.

KIP M. MICUDATHE LAW OFFICES OF KIP M. MICUDA

MARSHALL B. GROSSMAN STACY W. HARRISON ORRICK, HERRINGTON & SUTCLIFFE LLP

/s/ MARSHALL B. GROSSMAN

STACY W. HARRISON

Attorneys for Appellant ORIGINAL of the foregoing e-filed This 16th day of March, 2015 with:

Office of Administrative Hearings

COPY of the foregoing e-mailed This 16th day of March, 2015 to:

Michael Bailey Chief Deputy Attorney General Mary DeLaat Williams Stephanie Elliot Assistant Attorneys General 1275 W. Washington Phoenix, Arizona 85007-2997 MaryD.Williams@azag.gov Stephanie.Elliot@azag.gov

Kip M. Micuda The Law Offices of Kip M. Micuda P.O. Box 39646 Phoenix, Arizona 85069 kmmicuda@gmail.com

COPY of the foregoing mailed This 16th day of March, 2015 to: Arizona Dept. of Racing 1110 W. Washington Suite 260 Phoenix, Arizona 85007 By: _____ /s/___________ Michelle van Oppen

1

Rule 5.1. Duties of counsel, AZ ST RCP Rule 5.1

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Arizona Revised Statutes AnnotatedRules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)

II. Commencement of Action; Service of Process, Pleadings, Motions and Orders; Duties of Counsel (Refs& Annos)

Rule 5.1. Duties of Counsel

16 A.R.S. Rules of Civil Procedure, Rule 5.1

Rule 5.1. Duties of counsel

Currentness

(a) Attorney of Record: Withdrawal and Substitution of Counsel.

(1) Attorney of Record: Duties of Counsel. No attorney shall appear in any action or file anything in any action without firstappearing as counsel of record. In any matter, even if it has proceeded to judgment, there must be a formal substitution orassociation of counsel before any attorney, who is not an attorney of record, may appear. An attorney of record shall be deemedresponsible as attorney of record in all matters before and after judgment until the time for appeal from a judgment has expiredor a judgment has become final after appeal or until there has been a formal withdrawal from or substitution in the case.

(2) Withdrawal and Substitution. Except where provided otherwise in any local rules pertaining to domestic relations cases, noattorney shall be permitted to withdraw, or be substituted, as attorney of record in any pending action except by formal writtenorder of the court, supported by written application setting forth the reasons therefor together with the name, residence andtelephone number of the client, as follows:

(A) Where such application bears the written approval of the client, it shall be accompanied by a proposed written order andmay be presented to the court ex parte. The withdrawing attorney shall give prompt notice of the entry of such order, togetherwith the name and residence of the client, to all other parties or their attorneys.

(B) Where such application does not bear the written approval of the client, it shall be made by motion and shall be servedupon the client and all other parties or their attorneys. The motion shall be accompanied by a certificate of the attorney makingthe motion that (i) the client has been notified in writing of the status of the case including the dates and times of any courthearings or trial settings, pending compliance with any existing court orders, and the possibility of sanctions, or (ii) the clientcannot be located or for whatever other reason cannot be notified of the pendency of the motion and the status of the case.

(C) No attorney shall be permitted to withdraw as attorney of record after an action has been set for trial, (i) unless there shallbe endorsed upon the application therefor either the signature of a substituting attorney stating that such attorney is advisedof the trial date and will be prepared for trial, or the signature of the client stating that the client is advised of the trial dateand has made suitable arrangements to be prepared for trial, or (ii) unless the court is satisfied for good cause shown thatthe attorney should be permitted to withdraw.

(b) Responsibility to Court. Each attorney shall be responsible for keeping advised of the status of cases in which that attorneyhas appeared, or their positions on the calendars of the court and of any assignments for hearing or argument. Upon relocation,

Rule 5.1. Duties of counsel, AZ ST RCP Rule 5.1

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

each attorney shall advise the clerk of court and court administrator, in each of the counties in which that attorney has casesthat are pending, of the attorney's current office address and telephone number.

(c) Limited Appearance. In accordance with ER 1.2, Arizona Rules of Professional Conduct, an attorney may undertakelimited representation of a person involved in a court proceeding.

(1) An attorney may make a limited appearance by filing and serving a Notice of Limited Scope Representation. The notice shall:

(A) state that the attorney and the party have a written agreement that the attorney will provide limited scope representationto the party for the purpose of representing the party in such an action; and

(B) specify the matters, hearings, or issues with regard to which the attorney will represent the party.

(2) Service on an attorney making a limited appearance on behalf of a party shall constitute effective service on that party underRule 5(c) with respect to all matters in the action, but shall not extend the attorney's responsibility for representing the partybeyond the specific matters, hearings, or issues for which the attorney has appeared.

(3) Upon an attorney's completion of the representation specified in the Notice of Limited Scope Representation, the attorneymay withdraw from the action as follows:

(A) With Consent. If the client consents to withdrawal, the attorney may withdraw from the action by filing a Notice ofWithdrawal with Consent, signed by both the attorney and the client, stating:

(i) the attorney has completed the representation specified in the Notice of Limited Scope Representation and will nolonger be representing the party; and

(ii) the last known address and telephone number of the party who will no longer be represented.

The attorney shall serve a copy of the notice on the party who will no longer be represented and on all other parties. Theattorney's withdrawal from the action shall be effective upon the filing and service of the Notice of Withdrawal with Consent.

(B) Without Consent. If the client does not consent to withdrawal or to sign a Notice of Withdrawal with Consent, the attorneymay file a motion to withdraw, which shall be served upon the client and all other parties, along with a proposed form of order.

(i) If no objection is filed within ten (10) days from the date the motion is served on the client, the court shall sign theorder unless it determines that good cause exists to hold a hearing on whether the attorney has completed the limited scoperepresentation for which the attorney has appeared. If the court signs the order, the withdrawing attorney shall serve a copyof the order on the client. The withdrawing attorney also shall promptly serve a written notice of the entry of such order,together with the name, last known address, and telephone number of the client, on all other parties.

(ii) If an objection is filed within ten (10) days of the service of the motion, the court shall conduct a hearing to determinewhether the attorney has completed the limited scope representation for which the attorney appeared.

Rule 5.1. Duties of counsel, AZ ST RCP Rule 5.1

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

(d) Notice of Settlement. It shall be the duty of counsel, or any party if unrepresented by counsel, to give the judge or thecommissioner assigned the case or matter, the clerk of court and court administrator prompt notice of the settlement of any caseor matter set for trial, hearing or argument before the trial, hearing, argument or matter awaiting court ruling. In the event ofany unreasonable delay in the giving of such notice, the court may impose sanctions against counsel or the parties to insurefuture compliance with this rule. Jury fees may be taxed as costs pursuant to statute and local rule.

CreditsAdded Oct. 10, 2000, effective Dec. 1, 2000. Amended on an emergency basis Dec. 5, 2012, effective Jan. 1, 2013, amendmentadopted on a permanent basis Aug. 28, 2013.

Editors' Notes

STATE BAR COMMITTEE NOTE2000 Amendment

Rule 5.1 was promulgated in 2000 as part of the effort to consolidate formerly separate sets of procedural rules intoeither the Arizona Rules of Civil Procedure or the Rules of the Arizona Supreme Court, and essentially incorporates,in a different order but without substantive change, the provisions of former Rule XII of the Uniform Rules of Practiceof the Superior Court, New Rule 5.1(a) is former Rule XII(c) of the Uniform Rules of Practice: new Rules 5.1(b) and(c) are former Rules XII(a) and (b) of the Uniform Rules of Practice, respectively.

Notes of Decisions (10)

16 A. R. S. Rules Civ. Proc., Rule 5.1, AZ ST RCP Rule 5.1Current with amendments received through 11/1/14

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

2

ER 1.9. Duties to Former Clients, AZ ST S CT RULE 42 RPC ER 1.9

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Arizona Revised Statutes AnnotatedRules of the Supreme Court of Arizona (Refs & Annos)

V. Regulation of the Practice of LawD. Lawyer Obligations

Rule 42. Arizona Rules of Professional ConductClient-Lawyer Relationship

17A A.R.S. Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct, ER 1.9

ER 1.9. Duties to Former Clients

Currentness

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or asubstantially related matter in which that person's interests are materially adverse to the interests of the former client unless theformer client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with whichthe lawyer formerly was associated had previously represented a client:

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by ERs 1.6 and 1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permitor require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

CreditsAmended June 9, 2003, effective Dec. 1, 2003.

Editors' Notes

COMMENT [2003 AMENDMENT][1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect toconfidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule.Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted

ER 1.9. Duties to Former Clients, AZ ST S CT RULE 42 RPC ER 1.9

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent theaccused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer whohas represented multiple clients in a matter represent one of the clients against the others in the same or a substantiallyrelated matter after a dispute arose among the clients, unless all affected clients give informed consent. See Comment[9]. Current and former government lawyers must comply with this Rule to the extent required by ER 1.11.

[2] The scope of a “matter” for purposes of this Rule may depend on the facts of a particular situation or transaction.The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in aspecific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited.On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded fromlater representing another client in a wholly distinct problem of that type even though the subsequent representationinvolves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyersbetween defense and prosecution functions within the same military jurisdictions. The underlying question is whetherthe lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing ofsides in the matter in question.

[3] Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal disputeor if there otherwise is a substantial risk that confidential factual information as would normally have been obtainedin the prior representation would materially advance the client's position in the subsequent matter. For example, alawyer who has represented a businessperson and learned extensive private financial information about that personmay not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously representeda client in securing environmental permits to build a shopping center would be precluded from representing neighborsseeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer wouldnot be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping centerin resisting eviction for nonpayment of rent. Information that has been disclosed to the public ordinarily will notbe disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage oftime, a circumstance that may be relevant in determining whether two representations are substantially related. In thecase of an organizational client, general knowledge of the client's policies and practices ordinarily will not precludea subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that isrelevant to the matter in question ordinarily will preclude such a representation. A former client is not required toreveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer hasconfidential information to use in the subsequent matter. A conclusion about the possession of such information maybe based on the nature of the services the lawyer provided the former client and information that would in ordinarypractice be learned by a lawyer providing such services.

Lawyers Moving Between Firms

[4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyershould undertake representation is more complicated. There are several competing considerations. First, the clientpreviously represented by the former firm must be reasonably assured that the principle of loyalty to the client is notcompromised. Second, the Rule should not be so broadly cast as to preclude other persons from having reasonablechoice of legal counsel. Third, the Rule should not unreasonably hamper lawyers from forming new associations andtaking on new clients after having left a previous association. In this connection, it should be recognized that todaymany lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and thatmany move from one association to another several times in their careers. If the concept of imputation were appliedwith unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practicesetting to another and of the opportunity of clients to change counsel.

ER 1.9. Duties to Former Clients, AZ ST S CT RULE 42 RPC ER 1.9

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of informationprotected by ERs 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relatingto a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor thesecond firm is disqualified from representing another client in the same or a related matter even though the interestsof the two clients conflict. See ER 1.10(b) for the restrictions on a firm once a lawyer has terminated associationwith the firm.

[6] Application of paragraph (b) depends on a situation's particular facts, aided by inferences, deductions or workingpresumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have generalaccess to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should beinferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyermay have access to the files of only a limited number of clients and participate in discussions of the affairs of noother clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privyto information about the clients actually served but not those of other clients. In such an inquiry, the burden of proofshould rest upon the firm whose disqualification is sought.

[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has acontinuing duty to preserve confidentiality of information about a client formerly represented. See ERs 1.6 and 1.9(c).

[8] Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may notsubsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer hasonce served a client does not preclude the lawyer from using generally known information about that client whenlater representing another client.

[9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informedconsent, which consent must be confirmed in writing under paragraphs (a) and (b). See ER 1.0(e). With regard to theeffectiveness of an advance waiver, see ER 1.7. Comment [21]. With regard to disqualification of a firm with whicha lawyer is or was formerly associated, see ER 1.10.

Notes of Decisions (40)

17A A. R. S. Sup. Ct. Rules, Rule 42, Rules of Prof. Conduct, ER 1.9, AZ ST S CT RULE 42 RPC ER 1.9Current with amendments received through 11/1/14

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

3

ER 1.10. Imputation of Conflicts of Interest: General Rule, AZ ST S CT RULE 42 RPC...

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Arizona Revised Statutes AnnotatedRules of the Supreme Court of Arizona (Refs & Annos)

V. Regulation of the Practice of LawD. Lawyer Obligations

Rule 42. Arizona Rules of Professional ConductClient-Lawyer Relationship

17A A.R.S. Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct, ER 1.10

ER 1.10. Imputation of Conflicts of Interest: General Rule

Currentness

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicingalone would be prohibited from doing so by ERs 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibitedlawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyersin the firm.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a personwith interests materially adverse to those of a client represented by the formerly associated lawyer and not currently representedby the firm. 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 ERs 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7.

(d) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in amatter in which that lawyer is disqualified under ER 1.9 unless:

(1) the matter does not involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantialrole;

(2) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part ofthe fee therefrom; and

(3) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisionsof this Rule.

(e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by ER 1.11.

ER 1.10. Imputation of Conflicts of Interest: General Rule, AZ ST S CT RULE 42 RPC...

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

CreditsAmended June 9, 2003, effective Dec. 1, 2003.

Editors' Notes

COMMENT [2003 AMENDMENT]Definition of “Firm”

[1] For purposes of the Rules of Professional Conduct, the term “firm” denotes lawyers in a law partnership,professional corporation, sole proprietorship or other association; or lawyers employed in a legal services organizationor the legal department of a corporation or other organization. See ER 1.0(c). Whether two or more lawyers constitutea firm within this definition can depend on the specific facts. See ER 1.0. Comments [2]--[4].

Principles of Imputed Disqualification

[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the clientas it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firmof lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premisethat each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer isassociated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves fromone firm to another, the situation is governed by ERs 1.9(b) and 1.10(b).

[3] The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protectionof confidential information are presented. Where one lawyer in a firm could not effectively represent a given clientbecause of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefsof the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified.On the other hand, for example, if an opposing party in a case were owned by a lawyer in the law firm, and othersin the firm are reasonably likely to be materially limited in pursuing the matter because of loyalty to that lawyer, thepersonal disqualification of the lawyer would be imputed to all others in the firm. A disqualification arising underER 1.8(1) from a family or cohabiting relationship is personal and ordinarily is not imputed to other lawyers withwhom the lawyers are associated.

[4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibitedfrom involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibitrepresentation if the lawyer is prohibited from acting because of events before the person became a lawyer, forexample, work that the person did while a law student. Such persons, however, ordinarily must be screened from anypersonal participation in the matter to avoid communication to others in the firm of confidential information that boththe nonlawyers and the firm have a legal duty to protect. See ERs 1.0(k) and 5.3.

[5] ER 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directlyadverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule appliesregardless of when the formerly associated lawyer represented the client. However, the law firm may not representa person with interests adverse to those of a present client of the firm, which would violate ER 1.7. Moreover, thefirm may not represent the person where the matter is the same or substantially related to that in which the formerlyassociated lawyer represented the client and any other lawyer currently in the firm has material information protectedby ERs 1.6 and 1.9(c).

ER 1.10. Imputation of Conflicts of Interest: General Rule, AZ ST S CT RULE 42 RPC...

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[6] ER 1.10(c) removes imputation with the informed consent of the affected client or former client under theconditions stated in ER 1.7. The conditions stated in ER 1.7 require the lawyer to determine that the representationis not prohibited by ER 1.7(b) and that each affected client or former client has given informed consent to therepresentation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured byclient consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, seeER 1.7, Comment [21]. For a definition of informed consent, see ER 1.0(e).

[7] Where a lawyer has joined a private firm after having represented the government, imputation is governed byER 1.11(a), not this Rule. Under ER 1.11(c), where a lawyer represents the government after having served clientsin private practice, nongovernmental employment or in another government agency, former-client conflicts are notimputed to government lawyers associated with the individually disqualified lawyer.

[8] Where a lawyer is prohibited from engaging in certain transactions under ER 1.8, paragraph (k) of that Rule,and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with thepersonally prohibited lawyer.

Notes of Decisions (31)

17A A. R. S. Sup. Ct. Rules, Rule 42, Rules of Prof. Conduct, ER 1.10, AZ ST S CT RULE 42 RPC ER 1.10Current with amendments received through 11/1/14

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

4

R2-19-102. Applicability, AZ ADC R2-19-102

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Arizona Administrative Code CurrentnessTitle 2. Administration

Chapter 19. Office of Administrative HearingsArticle 1. Prehearing and Hearing Procedures

A.A.C. R2-19-102

R2-19-102. Applicability

A. These rules apply to any matter heard by the Office of Administrative Hearings.

B. An administrative law judge may waive the application of any of these rules to further administrative convenience,expedition, and economy if:

1. The waiver does not conflict with law, and

2. The waiver does not cause undue prejudice to any party.

C. If a procedure is not provided by statute or these rules, an administrative law judge may issue an order using theArizona Rules of Civil Procedure and related local rules for guidance.

HISTORICAL NOTE

Section adopted by final rulemaking at 5 A.A.R. 563, effective February 3, 1999 (Supp. 99-1).

Current through December 27, 2013.

A.A.C. R2-19-102, AZ ADC R2-19-102

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

5

LRCiv 83.3 Appearance by Attorney or Party; Name and..., AZ R USDCT LRCiv 83.3

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Arizona Federal Court RulesUnited States District Court for the District of Arizona

Local Rules of Civil Procedure 1

Title XI. General ProvisionsF.R.CIV.P. 83. Rules by District Courts; Judge's Directives

U.S.Dist.Ct.Rules D.Ariz., LRCiv 83.3

LRCiv 83.3 Appearance by Attorney or Party; Name and Address Changes; Control of Cause

Currentness

(a) Attorney of Record; Duties of Counsel. Except as provided below, no attorney shall appear in any action or file anythingin any action without first appearing as counsel of record. In any matter, even if it has gone to judgment, there must be a formalsubstitution or association of counsel before any attorney, who is not an attorney of record, may appear. An attorney of recordshall be deemed responsible as attorney of record in all matters before and after judgment until the time for appeal expires oruntil there has been a formal withdrawal from or substitution in the case.

(b) Withdrawal and Substitution. No attorney shall be permitted to withdraw or be substituted as attorney of record in anypending action except by formal written order of the Court, supported by written application setting forth the reasons therefortogether with the name, last known residence and last known telephone number of the client, as follows:

(1) Where such application bears the written approval of the client, it shall be accompanied by a proposed written order andmay be presented to the Court ex parte. The withdrawing attorney shall give prompt notice of the entry of such order, togetherwith the name, last known residence and last known telephone number of the client, to all other parties or their attorneys.

(2) Where such application does not bear the written approval of the client, it shall be made by motion and shall be servedupon the client and all other parties or their attorneys. The motion shall be accompanied by a certificate of the attorney makingthe motion that (A) the client has been notified in writing of the status of the case including the dates and times of any courthearings or trial settings, pending compliance with any existing court orders and the possibility of sanctions, or (B) the clientcannot be located or for whatever other reason cannot be notified of the pendency of the motion and the status of the case.

(3) No attorney shall be permitted to withdraw as attorney of record after an action has been set for trial, (A) unless there shallbe endorsed upon the application therefor, either the signature of an attorney stating that the attorney is advised of the trialdate and will be prepared for trial, or the signature of the client stating that the client is advised of the time and date and hasmade suitable arrangements to be prepared for trial, or (B) unless the Court is otherwise satisfied for good cause shown thatthe attorney should be permitted to withdraw.

(4) Notwithstanding the provisions of paragraph (b) of this Local Rule, a governmental law office or a private or public law firmthat has appeared as counsel of record may substitute or associate an attorney who is a member of, associated with, or otherwiseemployed by that office or firm by timely filing a notice of substitution or association with the Court. The notice shall statethe names of the attorneys who are the subjects of the substitution or association and the current address and e-mail address ofthe attorney substituting or associating. An occasional court appearance or filing of a pleading, motion or other document as

LRCiv 83.3 Appearance by Attorney or Party; Name and..., AZ R USDCT LRCiv 83.3

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

associate counsel at the request of an attorney of record shall not require the filing of a notice of association. Counsel substitutedor associated pursuant to this paragraph must also comply with (b)(3) above.

(c) Applicability of Rules.

(1) Anyone appearing before the Court is bound by these Local Rules. Any reference in these Local Rules to “attorney” or“counsel” applies to parties not represented by an attorney unless the context requires otherwise.

(2) Appearance by Represented Party. Whenever a party has appeared by an attorney, that party cannot thereafter appear or actin that party's own behalf in the cause, or take any steps therein, unless an order of substitution shall first have been made bythe Court after notice to the attorney of each such party, and to the opposite party. The attorney who has appeared of recordfor any party shall represent such party in the cause and shall be recognized by the Court and by all the parties to the causeas having control of the client's case, in all proper ways, and shall, as such attorney, sign all papers which are to be signed onbehalf of the client, provided that the Court may in its discretion hear a party in open court, notwithstanding the fact that thatparty has appeared or is represented by an attorney.

(d) Notice of Name and Address Changes. An attorney or unrepresented party must file a notice of a name or address change,and an attorney must also file a notice of a change of firm name or e-mail address. The notice must be filed no later than fourteen(14) days before the effective date of the change, except that an unrepresented party who is incarcerated must submit a noticewithin seven (7) days after the effective date of the change. A separate notice must be filed in each active case.

(e) Ex Parte Presentations; Duty to Court. All applications to a District Judge or Magistrate Judge of this Court for ex parteorders shall be made by an attorney of this Court or by an individual on that individual's own behalf. In the event that anyex parte matter or default proceeding has been presented to any District Judge, Magistrate Judge or judicial officer and therequested relief is denied for any reason, such matter shall not be presented to any other District Judge or Magistrate Judgeor judicial officer without making a full disclosure of the prior presentation. Counsel should be governed by the provisions ofER 3.3 of the Rules of Professional Conduct, Rule 42, Rules of the Supreme Court of Arizona. For a failure to comply withthe provisions of this Local Rule, the order or judgment made on such subsequent application may be vacated at any time asa fraud upon the Court.

(f) Waiver of Service of Documents. A party who has been terminated from a case by judgment, order, or stipulation ofdismissal, and for whom the time to appeal the termination has expired, may waive service of any further documents in the caseby filing a Notice of Waiver of Service. An attorney may waive service of documents on associated attorneys by naming themand by certifying that the attorney is authorized to waive service of documents on their behalf. A waiver of service does noteffect a withdrawal of an attorney from the case under paragraph (b) of this rule.

Credits[Effective December 1, 2004. Amended effective August 1, 2005; December 1, 2006; December 1, 2007; December 1, 2009;December 1, 2011.]

Footnotes1 The Local Rules of Civil Procedure may be cited as “LRCiv”.

LRCiv 83.3 Appearance by Attorney or Party; Name and..., AZ R USDCT LRCiv 83.3

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

U. S. Dist. Ct. Rules D.Ariz., LRCiv 83.3, AZ R USDCT LRCiv 83.3Current with amendments received through October 1, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

6

| | Positive

As of: March 16, 2015 10:53 AM EDT

Bohnert v. Burke

United States District Court for the District of Arizona

December 7, 2010, Decided; December 7, 2010, Filed

No. CV-08-2303-PHX-LOA

Reporter

2010 U.S. Dist. LEXIS 145373

Curtis Bohnert, Plaintiff, vs. George A. Burke; Kevin Carr;

Maricopa County; Maricopa County Sheriff Joe Arpaio,

Defendants.

Prior History: Bohnert v. Burke, 2010 U.S. Dist. LEXIS

131696 (D. Ariz., Dec. 2, 2010)

Core Terms

withdraw, motion to withdraw, scheduled

Counsel: [*1] For Curtis Bohnert, Plaintiff: J Scott

Halverson, Law Offices of J Scott Halverson PC, Tempe,

AZ; Joseph F Gmuca, Attorney at Law, Phoenix, AZ.

For George A Burke, Kevin Carr, Defendants: Karen J

Hartman-Tellez, Maricopa County Attorneys Office,

Phoenix, AZ; Randall R Garczynski, Thomas P Liddy,

Maricopa County Attorneys Office - Civil Services Division,

Phoenix, AZ.

For Maricopa, County of, Defendant: Karen J

Hartman-Tellez, Maricopa County Attorneys Office,

Phoenix, AZ; Randall R Garczynski, Maricopa County

Attorneys Office - Civil Services Division, Phoenix, AZ.

For Joseph M Arpaio, Sheriff, Defendant: Maria Brandon, S

Lee White, Thomas P Liddy, Maricopa County Attorneys

Office - Civil Services Division, Phoenix, AZ.

Judges: Lawrence O. Anderson, United States Magistrate

Judge.

Opinion by: Lawrence O. Anderson

Opinion

ORDER

This matter is before the Court on the motion of attorney J.

Scott Halverson to withdraw as co-counsel for Plaintiff

pursuant to LRCiv 83.3(b). (Doc. 129) After consideration

of counsel’s motion and the procedural posture of this case,

the Court will deny Mr. Halverson’s motion.

Local Rule of Civil Procedure (″LRCiv″) 83.3(b) sets forth

the technical requirements for withdrawing as counsel of

record [*2] in the District Court of Arizona. Because this

matter had been set for trial prior to the filing of Halverson’s

motion, LRCiv 83.3(b)(3) controls the contents of the

motion. 1 Mr. Halverson’s motion bears the signature of this

client and reasonably provides the substantive information

required by LRCiv 83.3(b)(3). Mr. Halverson’s motion

complies with LRCiv 83.3(b)(3)’s requirements. Although a

motion to withdraw as counsel must comply with LRCiv

83.3, compliance with the Rule does not guarantee that

counsel will be permitted to withdraw. Rather, the trial court

retains wide discretion in a civil case to grant or deny

counsel’s motion to withdraw. LaGrand v. Stewart, 133 F.3d

1253, 1269 (9th Cir. 1998); Ohntrup v. Firearms Center,

Inc., 802 F.2d 676, 679 (3d Cir. 1986) Stair v. Calhoun, 722

1 Local Rule 83.3(b)(3) provides:

(3) No attorney shall be permitted to withdraw as attorney of record after an action has been set for trial, (A) unless there

shall be endorsed upon the application therefore, either the signature of an attorney stating that the attorney is advised of

the trial date and will be prepared for trial, or the signature of the client stating that the client is advised of the time and

date and has made suitable arrangements to be prepared for trial, or (B) unless the Court is otherwise satisfied for good

cause shown that the attorney should be permitted to withdraw.

LRCiv 83.3(b)(3)

F. Supp. 2d 258, 2010 WL 2670828, * 2 (E.D.N.Y. 2010)

(″Whether to grant or deny a motion to withdraw as counsel

falls to the sound discretion of the trial court.″) (citation and

internal quotation marks omitted). Factors that a district

court should consider when ruling upon a motion to

withdraw as counsel include: (1) the reasons why withdrawal

is sought; (2) the prejudice withdrawal may cause to other

litigants; [*3] (3) the harm withdrawal might cause to the

administration of justice; and (4) the degree to which

withdrawal will delay the resolution of the case. In re Ryan,

2008 U.S. Dist. LEXIS 88566, 2008 WL 4775108, at * 3

(D.Or. Oct. 31, 2008) (citing Irwin v. Mascott, 2004 U.S.

Dist. LEXIS 28264 at 4 (N.D.Cal. December 1, 2004)).

In support of his motion to withdraw, Mr. Halverson’s

argues that he appeared in this case in April 2009 to assist

Plaintiff’s counsel, Joseph F. Gmuca who commenced this

civil rights case on December 17, 2008 and who remains

lead counsel. (Docs. 1, 22) Mr. Halverson further asserts

that, in [*4] view of the Court’s rulings on the motion for

summary judgment, it appears that Plaintiff will be best

served by counsel with appellate experience and that he has

almost no such experience. He also appears to argue that

because the parties have agreed to waive a jury trial in this

case, his assistance is unnecessary.

Although Mr. Halverson entered this case as co-counsel, he

has been an active participant in this matter and has often

assumed a lead role when Mr. Gmuca has been unable to

appear before the Court. Recently, Mr. Halverson appeared

on Plaintiff’s behalf without Mr. Gmuca during the Rule 16

Scheduling Conference on November 4 and 11, 2010.

(Docs. 115, 123) Mr. Halverson’s arguments regarding

Plaintiff’s need for counsel with appellate experience are

not relevant at this point in the proceedings because the case

is still before a trial court and Plaintiff’s interlocutory

appeal to the Ninth Circuit on the § 1983 claims was

″dismissed [on December 1, 2010] for failure to respond to″

the court’s October 27, 2010 order. (Doc. 128) Additionally,

the fact that this matter has been scheduled for a bench trial,

rather than a jury trial, does not support Mr. Halverson’s

motion to [*5] withdraw as counsel. Mr. Gmuca apparently

needed the assistance of co-counsel to litigate Plaintiff’s

claims. Nothing in Mr. Halverson’s motion indicates that

Mr. Gmuca no longer needs such assistance in preparing for

the December 14, 2010 final pretrial conference and trying

the upcoming bench trial which is scheduled for January 31,

2011.

Any factors that might support Mr. Halverson’s motion to

withdraw are outweighed by the Court’s responsibility to

manage its own case load and ensure a fair trial to all

parties. This case has been pending since 2008 and is set for

a bench trial on January 31, 2011. Although Mr. Gmuca may

be lead counsel at this time, throughout the course of this

litigation, he has relied on Mr. Halverson to take the helm at

times on important matters and apportioned work between

them while Mr. Gmuca was ill, recovering from back

surgery or otherwise unable to single handedly represent

Plaintiff. For example, on May 7, 2009, the Court ordered

″[c]ounsel who will be responsible for trial of the lawsuit″

to appear at the May 29, 2010 Rule 16 scheduling

conference. (Doc. 34 at 1) Mr. Halverson appeared without

Mr. Gmuca at the scheduling conference. (Doc. 37) Other

[*6] examples of shared responsibilities is when Mr.

Halverson responded to the County Defendants’ summary

judgment motion of the § 1983 issues and when he prepared

and filed Plaintiff’s Statement of Facts in Support of

Plaintiff’s Response to State Defendants’ Motion for

Summary Judgment. (Docs. 87, 93)

In view of the rapidly approaching trial date, the need to

resolve this case in an expeditious and just manner, and the

history of this case which includes Mr. Halver-son having

personally appeared on behalf of Plaintiff on several

occasions due to Mr. Gmuca’s inability to do so (due to

surgery or otherwise), in the exercise of its discretion, the

Court will deny Mr. Halverson’s motion. Mr. Gmuca’s

unexpected serious medical issues in July, 2010 and his

November, 2010 spinal surgery and readmission to the

hospital could resurface before or during trial and if Mr.

Halverson were permitted to withdraw, the trial will need to

be continued because Plaintiff would be without counsel,

causing undue prejudice to Defendants who have prepared

for trial and further delay in the resolution of this case.

(Docs. 90, 127) The Court’s order does not preclude Mr.

Gmuca and Mr. Halverson from determining [*7] how best

to divide the responsibilities of representing Plaintiff amongst

themselves. Rather, the Court finds that the interests of

justice will be best served if Mr. Halverson remains available

to assist and try this case as he agreed to do when he entered

his notice of appearance in 2009. (Doc. 22)

In the exercise of the Court’s discretion,

IT IS ORDERED that attorney J. Scott Halverson’s Motion

to Withdraw As Co-Counsel of Record for Plaintiff, doc.

129, is DENIED.

Dated this 7th day of December, 2010.

/s/ Lawrence O. Anderson

Lawrence O. Anderson

Page 2 of 3

2010 U.S. Dist. LEXIS 145373, *4

United States Magistrate Judge

Page 3 of 3

2010 U.S. Dist. LEXIS 145373, *7

7

Foulke v. Knuck, 162 Ariz. 517 (1989)

784 P.2d 723

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

162 Ariz. 517Court of Appeals of Arizona,Division 2, Department A.

Donald Gardner FOULKE, Petitioner,v.

The Honorable Theodore KNUCK, a JudgePro Tempore for the Superior Court of the

State of Arizona, County of Pima, Respondent,and

Mary E. ELLINGSEN, Real Party in Interest.

No. 2 CA–SA 89–0142. | Dec. 15, 1989.

Former client sought special action relief from denial ofmotion for disqualification of his spouse's attorney indissolution action. The Court of Appeals, Roll, P.J., held that:(1) attorney-client relationship was established; (2) attorney'srepresentation of former client's spouse created conflict ofinterest; and (3) conflict of interest required disqualification.

Relief granted; trial court's order vacated; and case remanded.

West Headnotes (9)

[1] CourtsIssuance of Prerogative or Remedial Writs

Former client had no equally plain, speedy,and adequate remedy by appeal from denialof motion for disqualification of his spouse'sattorney in dissolution action, and, thus, Courtof Appeals could accept jurisdiction and grantspecial action relief. 17B A.R.S. Special Actions,Rules of Proc., Rules 1, 3; 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.9(a).

2 Cases that cite this headnote

[2] Attorney and ClientWhat Constitutes a Retainer

Test to determine whether attorney-clientrelationship existed is subjective and requiresconsideration of things such as nature ofservices rendered and circumstances under

which confidences were divulged. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.9.

4 Cases that cite this headnote

[3] Attorney and ClientWhat Constitutes a Retainer

Although it is not necessary for individual to payattorney fee for services rendered in order forrelationship to be established, payment for legalservices is persuasive evidence that attorney-client relationship was established, even thoughconsultation is relatively brief. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.9.

6 Cases that cite this headnote

[4] Attorney and ClientWhat Constitutes a Retainer

Attorney-client relationship arose during one-hour consultation during which attorneyprovided “legal information” to another attorneyfor a fee; client attorney was seeking informationon matters pertaining to his rights andresponsibilities as stepparent, not to client ofhis. 17A A.R.S. Sup.Ct.Rules, Rule 42, Rules ofProf.Conduct, ER 1.9(a).

2 Cases that cite this headnote

[5] Attorney and ClientParticular Cases and Problems

General subject matter of former client'sconsultation with attorney about rights andresponsibilities as stepparent was substantiallyrelated to issues to be resolved in dissolutionaction by former client's spouse, and, thus,attorney's representation of spouse presentedconflict of interest. 17A A.R.S. Sup.Ct.Rules,Rule 42, Rules of Prof.Conduct, ER 1.9(a).

2 Cases that cite this headnote

[6] Attorney and ClientParticular Cases and Problems

Foulke v. Knuck, 162 Ariz. 517 (1989)

784 P.2d 723

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Attorney's conflict of interest entitled formerclient to disqualify attorney from representingclient's spouse in dissolution action, even ifno confidences or secrets had been divulged,even though former client established no specificharm, and even though spouse claimed financialhardship due to expense of services alreadyprovided by attorney. 17A A.R.S. Sup.Ct.Rules,Rule 42, Rules of Prof.Conduct, ER 1.9(a).

3 Cases that cite this headnote

[7] Attorney and ClientRepresenting Adverse Interests

Prohibition against representation of anotherperson in same or substantially related matterdoes not require that confidences and secretsbe divulged in order for conflict to exist orfor disqualification to be proper. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.9(a).

8 Cases that cite this headnote

[8] Attorney and ClientParticular Cases and Problems

Former client seeking disqualification ofattorney who was representing client's spousein dissolution action was not required toestablish specific harm; nature of client'sconsultation with attorney about legal rightsand responsibilities as stepparent and client'svigorous opposition to attorney's representationof spouse sufficiently established that denialof disqualification would be burdensome andharmful to client and integrity of profession.17A A.R.S. Sup.Ct.Rules, Rule 42, Rules ofProf.Conduct, ER 1.9(a).

3 Cases that cite this headnote

[9] Attorney and ClientParticular Cases and Problems

Spouse's financial hardship due to paymentfor legal services in dissolution action didnot far outweigh injustice to former clientwho immediately requested disqualification ofspouse's attorney; attorney and spouse proceeded

at their own risk after learning that former clientwas claiming conflict of interest and seekingdisqualification. 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.9(a).

2 Cases that cite this headnote

Attorneys and Law Firms

**724 *518 Robert L. Barrasso, Tucson, for petitioner.

Ann M. Haralambie, P.C. by Ann M. Haralambie, Tucson, forreal party in interest.

**725 *519 OPINION

ROLL, Presiding Judge.

[1] Petitioner Donald Gardner Foulke (Foulke) seeks specialaction relief from the denial of his motion for disqualificationof counsel for real party in interest Mary E. Ellingsen(Ellingsen) in the underlying marital dissolution action.Because we conclude that the respondent judge abused hisdiscretion and because petitioner has no equally plain, speedyand adequate remedy by appeal, we accept jurisdiction andgrant special action relief. Ariz.R.P.Spec. Actions 1 and 3,17B A.R.S.; see also Alexander v. Superior Court, 141 Ariz.157, 685 P.2d 1309 (1984); Sellers v. Superior Court, 154Ariz. 281, 742 P.2d 292 (App.1987).

FACTS

On March 16, 1989, Foulke, a licensed attorney in thisstate, met with Tucson attorney Ann Haralambie. In hisspecial action petition, Foulke alleges that in this meetinghe was seeking Haralambie's professional advice and counselconcerning matters in the upcoming divorce between himselfand his wife, Mary E. Ellingsen, and that an attorney-clientrelationship was established between him and Haralambie.Ellingsen admits only that Foulke had an initial consultationwith Haralambie concerning issues of stepparent rights andresponsibilities with respect to Ellingsen's child. AlthoughEllingsen admits Foulke paid Haralambie for her services, shedenies that an attorney-client relationship existed between thetwo. Foulke claims that during the meeting with Haralambie,he divulged certain confidences and secrets, specifically

Foulke v. Knuck, 162 Ariz. 517 (1989)

784 P.2d 723

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

recalling that he commented during their meeting thatthere was an attorney-client privilege with regard to theirdiscussion. Ellingsen disputes this, contending that the onlyinformation Foulke gave to Haralambie was the names of theparties, the fact that he began living with Ellingsen prior tothe child's birth, and that the child had no relationship with thenatural father. Ellingsen claims these facts are now matters ofrecord and were not privileged when Ellingsen subsequentlyretained Haralambie.

PROCEDURAL BACKGROUND

On March 29, 1989, Ellingsen, through her attorney StefaniGabroy, filed a petition for dissolution of her marriage toFoulke. It appears that on October 4, 1989, Ellingsen metwith Haralambie. The following day, Foulke learned thatHaralambie intended to substitute as counsel for Ellingsen,and through his counsel he requested that Haralambiewithdraw from her representation of Ellingsen based upona conflict of interest. Apparently, when Haralambie initiallymet with Ellingsen, she was unaware that Ellingsen's husbandwas Foulke. On October 12, 1989, Haralambie notifiedFoulke's counsel that she did not intend to withdraw. Inits October 13, 1989 minute entry, the respondent judgeoverruled Foulke's objection to Haralambie's representationof Ellingsen, stating that he was “not convinced thatthere is any real detriment to [Foulke] or any realadvantage to [Ellingsen].” Foulke filed a motion to disqualifyHaralambie on October 16, 1989. At a hearing on October23, 1989, Foulke avowed to the court that confidenceshad been divulged to Haralambie. The respondent judge,however, refused to reconsider the decision not to disqualifyHaralambie and denied Foulke's motion. This special actionfollowed.

ISSUES

The general question raised by this special action iswhether the respondent judge abused his discretion indenying Foulke's motion to disqualify Haralambie. Inanswering this question, we address the following issues:(1) whether Haralambie's representation of Ellingsen violatesEthical Rule 1.9 (ER 1.9) of the Arizona Rules ofProfessional Conduct, Ariz.S.Ct.R. 42, 17A A.R.S.; (2) ifthe representation is an ethical violation, is disqualificationappropriate; and (3) may disqualification under ER 1.9(a)be avoided either by Foulke's alleged failure to establish

specific harm resulting from the conflict or by hardship whichEllingsen claims she will suffer if Haralambie is disqualified.

**726 *520 CONFLICT OF INTEREST

ER 1.9(a), the provision through which Foulke clearly soughtHaralambie's disqualification, provides as follows:

Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a mattershall not thereafter:

(a) represent another person in the same or a substantiallyrelated matter in which that person's interests are materiallyadverse to the interests of the former client unless theformer client consents after consultation;

[2] [3] In determining whether a conflict exists, we mustfirst determine whether Foulke is Haralambie's former client.The existence of an attorney-client relationship “is provedby showing that the party sought and received advice andassistance from the attorney in matters pertinent to thelegal profession.” Matter of Petrie, 154 Ariz. 295, 299,742 P.2d 796, 800 (1987). The test is a subjective one;the court looks to such things as the nature of the servicesrendered, the circumstances under which the individualdivulges confidences, Alexander v. Superior Court, 141 Ariz.157, 162, 685 P.2d 1309, 1314 (1984), and “[t]he client'sbelief that he is consulting a lawyer in that capacity and hismanifested intention to seek professional legal advice.” C.McCormick, Law of Evidence § 88 at 208 (3d ed. 1984); seealso Petrie, 154 Ariz. at 300, 742 P.2d at 801; Alexander,

141 Ariz. at 162, 685 P.2d at 1314. 1 Although it is notnecessary for the individual to pay the attorney a fee forthe services rendered in order for the relationship to beestablished, Petrie, 154 Ariz. at 299, 742 P.2d at 800, webelieve that where payment for legal services has been madeit is persuasive evidence that an attorney-client relationshipwas established. The fact that a consultation is relativelybrief does not negate the establishment of an attorney-clientrelationship. See Arizona Ethics Opinion 74–10.

[4] Although Ellingsen admits that Foulke paid Haralambiefor the March consultation, she argues that Foulke neverretained Haralambie's services, and that the provision of legalinformation under the facts of this case did not constitute theformation of an attorney-client relationship. Ellingsen's ownargument belies her conclusion that the relationship was not

Foulke v. Knuck, 162 Ariz. 517 (1989)

784 P.2d 723

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

established. If, in fact, all Foulke received from Haralambiewas “legal information” as opposed, presumably, to legaladvice, it is a distinction without a difference. Whether oneseeks legal information or legal advice from an attorney, theattorney is being consulted for his or her professional, legalexpertise. The fact that Foulke paid her for that informationafter a one-hour consultation only reinforces the conclusionthat the relationship was established.

Ellingsen suggests that because Foulke is an attorney, theconsultation was nothing more than a sharing of legalinformation, implying that this is somehow distinguishablefrom discussions between attorneys and their non-lawyerclients. This notion is untenable. It is immaterial that Foulkeis licensed to practice law in this state. Based upon therecord before us, it is clear that the consultation was personalin nature, that Foulke was seeking, at the very least, legalinformation on matters pertaining to him, not to a client ofhis. We find that Foulke is Haralambie's former client ascontemplated by ER 1.9.

[5] Our second inquiry in determining if a conflict existsunder ER 1.9(a) is whether, in representing Ellingsen inthe underlying dissolution action, Haralambie is representingsomeone in the same or a substantially related matter whoseinterests are materially **727 *521 adverse to Foulke'sinterests. Although Foulke claims that the consultationfocused on his rights in light of the anticipated dissolutionproceeding, Ellingsen contends that it concerned his legalrights and responsibilities as a stepparent. She argues thatthe dissolution proceeding had not yet been filed and thatthe issues relevant to that litigation are entirely different,citing, by way of example, allegations of child molestation.Ellingsen admits that Foulke discussed the fact that he beganliving with Ellingsen before the child's birth and that the childhad no relationship with the natural father. Even based onHaralambie's characterization of the consultation, the generalsubject matter is substantially related to the issues which mustnecessarily be resolved in the dissolution action. Further,it is self-evident that Ellingsen's interests in the dissolutionproceeding are materially adverse to Foulke's. We conclude,therefore, that Haralambie's representation of Ellingsen in theunderlying proceeding presents a conflict of interest under ER1.9(a).

In arguing that a conflict does not exist under ER 1.9,Ellingsen raises additional arguments related to the nature ofthe communication which appear to be directed to ER 1.9(b).We need not address these arguments, however, as it is clear

that Foulke's motion to disqualify Haralambie was based uponER 1.9(a) as opposed to the use of information obtained froma prior client to that client's disadvantage, under ER 1.9(b).Moreover, having determined that a conflict exists under ER1.9(a), we need not consider whether one exists under ER1.9(b).

DISQUALIFICATION UNDER ER 1.9(A)

A. Disqualification is appropriate.[6] Ellingsen argues that Foulke has failed to establish a

sufficient basis for requiring Haralambie to withdraw, andrelies upon the following Comment to ER 1.7 which isreferred to in the Comment to ER 1.9:

Resolving questions of conflict ofinterest is primarily the responsibilityof the lawyer undertaking therepresentation. In litigation, a courtmay raise the question when thereis reason to infer that the lawyerhas neglected the responsibility....Where the conflict is such as clearlyto call in question the fair orefficient administration of justice,opposing counsel may properly raisethe question. Such an objection shouldbe viewed with caution, however, forit can be misused as a technique ofharassment.

Heeding the admonition expressed in the Comment andrecognizing that “whenever possible the courts shouldendeavor to reach a solution that is least burdensome uponthe client or clients,” Alexander, 141 Ariz. at 161, 685P.2d at 1313; see also Sellers v. Superior Court, supra, wefind that disqualification is the only appropriate resolutionhere in light of the blatant violation of ER 1.9(a). Wereach this conclusion based on the fact that the motionwas brought by counsel for the former client with whomthere is a direct conflict and the rule's absolute prohibitionagainst such representation. As such, the conflict in the casebefore us is distinguishable from the conflict in Sellers,supra. In Sellers, opposing counsel sought to disqualify anattorney, representing multiple defendants, after a conflictarose between one defendant and the attorney, resulting inthe attorney's withdrawal from representation of that onedefendant. 154 Ariz. at 282, 742 P.2d at 293. Unlike the

Foulke v. Knuck, 162 Ariz. 517 (1989)

784 P.2d 723

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

present case, where the conflict directly involves Foulke,the conflicts in Sellers did not pertain to the opposing partywho sought the disqualification. We believe that under thecircumstances of this case, disqualification, as opposed todirecting the issue to the appropriate disciplinary board asEllingsen suggests, is necessary to promote the “fair orefficient administration of justice.”

We find no support in the record before us for Ellingsen'scontention that the conflict has been raised for purposes ofharassment. Specifically, we find no support for Ellingsen'scharge that, because of Haralambie's expertise, Foulkearranged the consultation with Haralambie as a calculatedmaneuver to disqualify her from representing Ellingsen.

**728 *522 B. Disqualification cannot be avoided.Ellingsen's argument in this regard is interwoven with hermore general argument that this matter is simply not onein which disqualification is appropriate, discussed above.For purposes of clarity, however, we address this argumentseparately.

Ellingsen appears to contend that disqualification is notnecessary because (1) no confidences or secrets weredivulged, except perhaps those which are now a matter ofpublic record and no longer privileged, and therefore no “trueconflict” exists, (2) Foulke has shown no harm resulting fromrepresentation of Ellingsen by Haralambie notwithstandinghis consultation with Haralambie, and (3) disqualification ofHaralambie would result in hardship to Ellingsen.

[7] Ellingsen's first contention fails to recognize themandatory nature of ER 1.9(a). The rule does not requirethat confidences and secrets be divulged in order for aconflict to exist or for disqualification to be proper. Statev. Allen, 539 So.2d 1232, 1234–35 (La.1989); see also

Arkansas v. Dean Foods Products Co., 605 F.2d 380, 383 (8thCir.1979); United States v. Kitchin, 592 F.2d 900, 904 (5thCir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d56 (1979). Regardless of what was communicated duringthe representation of the former client, the rule prohibitssubsequent representation of an individual whose interests aresubstantially adverse to those of the former client. In T.C.Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F.Supp.

265, 268–69 (S.D.N.Y.1953), 2 the court stated:

[T]he former client need show no more than that thematters embraced within the pending suit wherein his

former attorney appears on behalf of his adversary aresubstantially related to the matters or cause of actionwherein the attorney previously represented him, theformer client. The Court will assume that during thecourse of the former representation confidences weredisclosed to the attorney bearing on the subject matterof the representation. It will not inquire into their natureand extent. Only in this manner can the lawyer's dutyof absolute fidelity be enforced and the spirit of the rulerelating to privileged communications be maintained.See also Arkansas v. Dean Foods, supra; Cord v. Smith,338 F.2d 516, 524–25 (9th Cir.1964); Matter of Evans, 113Ariz. 458, 462, 556 P.2d 792, 796 (1976).

The “shall not” of ER 1.9(a) “incorporates the T.C. Theatrepresumption of receipt of confidential information; theattorney is not given the option of showing that there isno danger of misuse of confidential information becausehe never received any.” Subsequent Representation and theModel Rules of Professional Conduct: An Evaluation of Rules1.9 and 1.10, 1984 Ariz.State L.J. 161, 180–81.

[8] Ellingsen contends and the respondent judge clearlyagreed that disqualification may be avoided for the reasonthat Foulke failed to establish that he has suffered or willsuffer harm as a result of the consultation with Haralambie.She argues that no confidences and secrets were disclosedand that any which were disclosed are now matters of publicrecord. As to the first point, we have already determined thatthis is irrelevant. Second, the mere fact that such confidencesmay have become public record over Foulke's objection doesnot change their character. Mere litigation does not changethe fact that he divulged confidences which he continuesto seek to protect. Ellingsen bolsters her argument with theunsupported contention that during a discussion involvingFoulke's prior counsel, Haralambie and the court, counselwas unable to state what harm had or would result fromHaralambie's representation of Ellingsen. She then citesGomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986)for the proposition that **729 *523 under the new ethicalrules disqualification by court order requires some actualdetriment and is not to be ordered ipso facto.

Reliance upon Gomez is misplaced. Gomez applies tothose cases where disqualification is sought based upon theappearance of impropriety, a principle previously set forth inCanon 9 of the Code of Professional Responsibility, althoughstill a viable ethical principle. The Gomez court stated:

It would appear, however, that“appearance of impropriety,” however

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784 P.2d 723

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weakened by case law and its omissionin the new Rules of ProfessionalConduct, survives as a part of conflictof interest and an appearance ofimpropriety should be enough to causean attorney to closely scrutinize hisconduct. It does not necessarily followthat it must disqualify him in everycase. Where the conflict is so remotethat there is insufficient appearanceof wrongdoing, disqualification is notrequired.

Id. at 225, 717 P.2d at 904 (citations omitted).

The blatant violation of ER 1.9(a) that exists before uspresents a conflict that is anything but remote. As recognizedin In re Ethics Opinion 74–28, 111 Ariz. 519, 522, 533P.2d 1154, 1157 (1975) (Cameron, J., concurring), whilethere is concern for the appearance of impropriety, “it isactual unethical conduct which is our primary concern.”The representation of an individual in a divorce proceedingagainst a former client who sought legal information onsubstantially related matters is contrary to the clear terms ofan ethical rule and is actual unethical conduct. While it maybe necessary to establish harm where disqualification is basedupon nothing more than the appearance of impropriety andalthough we will consider the least burdensome solution inresolving this problem, Alexander, 141 Ariz. at 161, 685 P.2dat 1313, we do not believe specific harm must be establishedto justify disqualification where there has been a violation ofER 1.9(a).

Because of the mandatory nature of ER 1.9(a), thepresumption that confidences have been divulged, the natureof Foulke's consultation, and Foulke's vigorous opposition toHaralambie's representation of Ellingson, we believe Foulkehas sufficiently established that the denial of Haralambie'sdisqualification is burdensome and harmful to Foulke and theintegrity of the profession. We do not believe that any moreharm than this need be shown. “Disqualification is an ethical,not a legal matter,” Dean Foods, 605 F.2d at 384, and doesnot require a showing that confidences have been divulged.State v. Allen, 539 So.2d at 1235. To require Foulke to showmore would place former clients in a “Catch–22,” requiringthat they divulge the very same confidences and secrets whichthey seek to protect, disclosure of which is, in part, the reasonfor the discomfort of having a prior attorney represent anadversary.

[9] We also find Ellingsen's final contention to be withoutmerit. To avoid disqualification because of hardship to thenew client, the burden must far outweigh the injustice to theformer client who requested the disqualification. We find thatEllingsen is unable to meet this difficult test. Ellingsen claimsthat because of Haralambie's expertise in the area of domesticrelations and, in particular, cases involving allegations ofsexual abuse, she will suffer great hardship if her counsel isdisqualified. She argues that there are few, if any, attorneyswith Haralambie's expertise in the Tucson area. In addition,she claims she will suffer financially because of the expenseof services already provided by Haralambie.

Ellingsen's claims are not sufficient to justify Haralambie'scontinued representation of her. Immediately afterHaralambie met with Ellingsen and as soon as Foulkelearned of Haralambie's intention to substitute as Ellingsen'scounsel, his counsel notified Haralambie of Foulke's adamantopposition. This is not a situation where disqualificationis sought after months or years of representation in acomplicated litigation. It appears that the majority ofHaralambie's work has involved the issue now before us.If indeed the dissolution action has progressed, Haralambiecontinued to render legal services after she and her client werefully aware that the appro **730 *524 priateness of therepresentation was being contested. Both counsel and clientproceeded at their own risk. As for Ellingsen's claim thatHaralambie's expertise is so specialized that other competentcounsel in the Tucson area would be difficult to find, it is notsufficient to avoid Haralambie's disqualification.

CONCLUSION

We conclude that Haralambie's representation of Ellingsenviolates ER 1.9(a). Under the circumstances of this case, thetrial court abused its discretion in denying Foulke's motionseeking Haralambie's disqualification. We therefore grantspecial action relief, vacate the trial court's order and remandfor further proceedings consistent with this opinion.

HATHAWAY and HOWARD, JJ., concur.

Parallel Citations

784 P.2d 723

Foulke v. Knuck, 162 Ariz. 517 (1989)

784 P.2d 723

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Footnotes

1 Alexander was decided based upon the Arizona Code of Professional Responsibility which, effective February 1, 1985, was replaced

by the Rules of Professional Responsibility, this state's adoption of the Model Rules of Professional Conduct of the American Bar

Association. Ariz.St.Ct.R. 42, 17A A.R.S. We find, however, that Alexander and other pre-rules decisions continue to be good law

with regard to the evaluation of questions of ethics because much of the principles of the code and certainly its spirit have been

encompassed by the rules. See generally Preamble and Scope to Rules of Professional Conduct, Ariz.S.Ct.R. 42, 17A A.R.S.; Code

Comparison, ER 1.9, Ariz.S.Ct.R. 42, 17A A.R.S. Alexander is particularly instructive because of its discussion of Model Rule ER

1.9, the very same rule that is before us.

2 T.C. Theatre is the seminal case in the area of former client representation. As the Alexander court noted, the substantially related test

of T.C. Theatre was codified in Rule 1.9 of American Bar Association Model Rules of Professional Conduct adopted by the House

of Delegatees on August 2, 1983. Alexander, 141 Ariz. at 164, 685 P.2d at 1316.

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8

Holloway v. Arkansas, 435 U.S. 475 (1978)

98 S.Ct. 1173, 55 L.Ed.2d 426

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98 S.Ct. 1173Supreme Court of the United States

Winston M. HOLLOWAY et al., Petitioners,v.

State of ARKANSAS.

No. 76–5856. | Argued Nov.2, 1977. | Decided April 3, 1978.

By judgment of the Circuit Court, First Division, PulaskiCounty, Arkansas, the defendants were convicted of robberywith the use of a firearm and rape and they appealed. TheSupreme Court, 260 Ark. 250, 539 S.W.2d 435, affirmedand certiorari was granted. The Supreme Court, Mr. ChiefJustice Burger, held that: (1) where counsel representingthree codefendants made timely motions at state criminal trialfor appointment of separate counsel based on representationof potential conflicts of interest because of confidentialinformation received from codefendants and trial court deniedthose motions without taking adequate steps to ascertainthat risk of conflict of interest was too remote to warrantseparate counsel, reversal of convictions was required, and(2) improperly requiring joint representation over timelyobjection necessitates automatic reversal of conviction, sinceprejudice is presumed.

Reversed and remanded.

Mr. Justice Powell filed a dissenting opinion in which Mr.Justice Blackmun and Mr. Justice Rehnquist joined.

West Headnotes (9)

[1] Criminal LawPrejudice and harm

Requiring or permitting single attorney torepresent codefendants is not per se violative ofconstitutional guarantees of effective assistanceof counsel. U.S.C.A.Const. Amend. 6.

329 Cases that cite this headnote

[2] Criminal LawConflict of interest; joint representation

Criminal Law

Advice, inquiry, and determination

Where counsel appointed to represent threecodefendants in joint trial made timely motionbefore trial for appointment of separate counselto represent defendants based on representationthat because of confidential information receivedfrom codefendants he risked possible conflictsof interest and motion was renewed prior toempanelment of jury, failure of trial court toappoint separate counsel or to take adequatesteps to ascertain whether risk was too remoteto warrant separate counsel was reversibleerror. U.S.C.A.Const. Amend. 6; ABA Code ofProfessional Responsibility, DR4–101(C)(2).

414 Cases that cite this headnote

[3] Criminal LawAdvice, inquiry, and determination

Court has duty to refrain from embarrassingcounsel for multiple defendants by insistingor even suggesting that counsel undertake toconcurrently represent interests which mightdivert from those of his first client, whenpossibility of that divergence is brought home tothe court. U.S.C.A.Const. Amend. 6.

79 Cases that cite this headnote

[4] Criminal LawAdvice, inquiry, and determination

Attorney's request for appointment of separatecounsel, based on his representations as officerof court regarding a conflict of interest,should be granted, since he is in thebest position professionally and ethically todetermine when conflict of interest exists orwill probably develop in course of trial, andhas an obligation upon discovery of conflictof interest to advise court at once of problem.U.S.C.A.Const. Amend. 6; ABA Code ofProfessional Responsibility, DR4–101(C)(2).

631 Cases that cite this headnote

[5] Criminal LawAdvice, inquiry, and determination

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98 S.Ct. 1173, 55 L.Ed.2d 426

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Court's duty to appoint separate counsel fordefendants because of conflicts of interest whentimely motion is made does not impair court'sability to deal with counsel who resort to makingof untimely motions for separate counsel fordilatory purposes.

57 Cases that cite this headnote

[6] Criminal LawAdvice, inquiry, and determination

When timely motion is made by defense counsel,representing several defendants, for appointmentof separate counsel because of possible conflictsof interest, court may hold hearing to exploreadequacy of basis of representation regardingconflicts of interest without improperly requiringdisclosure of confidential communications ofclient. U.S.C.A.Const. Amend. 6.

452 Cases that cite this headnote

[7] Criminal LawConflict of interest; joint representation

Whenever trial court improperly requires jointrepresentation of several defendants over timelyobjection, reversal is automatic; prejudiceis presumed regardless of whether it wasindependently shown. U.S.C.A.Const. Amend.6.

647 Cases that cite this headnote

[8] Criminal LawCounsel for Accused

Assistance of counsel is among thoseconstitutional rights so basic to fair trial that theirinfraction can never be treated as harmless error.U.S.C.A.Const. Amend. 6.

105 Cases that cite this headnote

[9] Criminal LawCounsel for Accused

When defendant is deprived of presence ofand assistance of counsel either throughoutprosecution or during a critical stage in, at least,

the prosecution of a capital offense, reversal isautomatic. U.S.C.A.Const. Amend. 6.

114 Cases that cite this headnote

**1174 Syllabus *

*475 Petitioners, three codefendants at a state criminal trialin Arkansas, made timely motions, both a few weeks beforethe trial and before the jury was empaneled, for appointmentof separate counsel, based on their appointed counsel'srepresentations that, because of confidential informationreceived from the codefendants, he was confronted withthe risk of representing conflicting interests and couldnot, therefore, provide effective assistance for each client.The trial court denied these motions, and petitionerswere subsequently convicted. The Arkansas Supreme Courtaffirmed, concluding that the record showed no actual conflictof interests or prejudice to petitioners. Held:

1. The trial judge's failure either to appoint separate counselor to take adequate steps to ascertain whether the risk ofa conflict of interests was too remote to warrant separatecounsel, in the face of the representations made by counselbefore trial and again before the jury was empaneled, deprivedpetitioners of the guarantee of “assistance of counsel” underthe Sixth Amendment. Pp. 1177–1180.

(a) The trial court has a duty to refrain from embarrassingcounsel for multiple defendants by insisting or evensuggesting that counsel undertake to concurrently representinterests that might conflict, when the possibility ofinconsistent interests is brought home to the court by formalobjections, motions, and counsel's representations. Glasser v.United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed.680. P. 1179.

(b) An attorney's request for the appointment of separatecounsel, based on his representations regarding a conflict ofinterests, should be granted, considering that he is in the bestposition professionally and ethically to determine when sucha conflict exists or will probably develop at trial; that he hasthe obligation, upon discovering such a conflict, to advise thecourt at once; and, that as an officer of the court, he so advisesthe court virtually under oath. Pp. 1179–1180.

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(c) Here no prospect of dilatory practices by the attorneywas present to justify the trial court's failure to take adequatesteps in response to the repeated motions for appointment ofseparate counsel. Pp. 1179–1180.

2. Whenever a trial court improperly requires jointrepresentation over timely objection reversal is automatic,and prejudice is presumed regardless *476 of whether it wasindependently shown. Glasser v. United States, supra, at 75–76, 62 S.Ct. at 467. Pp. 1180–1182.

(a) The assistance of counsel is among those “constitutionalrights so basic to a fair trial that their infraction can never betreated as harmless error,” Chapman v. California, 386 U.S.18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705. P. 1181.

(b) That an attorney representing multiple defendantswith conflicting interests is physically present at pretrialproceedings, during trial, and at sentencing does not warrantdeparture from the general rule requiring automatic reversal.Pp. 1181–1182.

(c) A rule requiring a defendant to show that a conflict ofinterests—which he **1175 and his counsel tried to avoidby timely objections to the joint representation—prejudicedhim in some specific fashion would not be susceptible ofintelligent, evenhanded application. Pp. 1181–1182.

260 Ark. 250, 539 S.W.2d 435, reversed and remanded.

Attorneys and Law Firms

Harold L. Hall, Little Rock, Ark., for petitioners.

Joseph H. Purvis, Little Rock, Ark., for respondent, pro hacvice, by special leave of Court.

Opinion

Mr. Chief Justice BURGER delivered the opinion of theCourt.

Petitioners, codefendants at trial, made timely motions forappointment of separate counsel, based on the representationsof their appointed counsel that, because of confidentialinformation received from the codefendants, he wasconfronted with the risk of representing conflicting interestsand could *477 not, therefore, provide effective assistancefor each client. We granted certiorari to decide whetherpetitioners were deprived of the effective assistance of

counsel by the denial of those motions. 430 U.S. 965, 97 S.Ct.1643, 52 L.Ed.2d 355 (1977).

I

Early in the morning of June 1, 1975, three men entered aLittle Rock, Ark., restaurant and robbed and terrorized thefive employees of the restaurant. During the course of therobbery, one of the two female employees was raped once;the other, twice. The ensuing police investigation led to thearrests of the petitioners.

On July 29, 1975, the three defendants were each chargedwith one count of robbery and two counts of rape. On August5, the trial court appointed Harold Hall, a public defender, torepresent all three defendants. Petitioners were then arraignedand pleaded not guilty. Two days later, their cases were setfor a consolidated trial to commence September 4.

On August 13 Hall moved the court to appoint separatecounsel for each petitioner because “the defendants ha[d]stated to him that there is a possibility of a conflict of interestin each of their cases . . ..” After conducting a hearing on thismotion, and on petitioners' motions for a severance, the court

declined to appoint separate counsel. 1

Before trial, the same judge who later presided at petitioners'

trial conducted a Jackson v. Denno hearing 2 to determine theadmissibility of a confession purportedly made by petitionerCampbell to two police officers at the time of his arrest. Theessence of the confession was that Campbell had entered therestaurant with his codefendants and had remained, armedwith a rifle, one flight of stairs above the site *478 ofthe robbery and rapes (apparently serving as a lookout), buthad not taken part in the rapes. The trial judge ruled theconfession admissible, but ordered deletion of the referencesto Campbell's codefendants. At trial one of the arrestingofficers testified to Campbell's confession.

On September 4, before the jury was empaneled, Hallrenewed the motion for appointment of separate counsel “onthe grounds that one or two of the defendants may testifyand if they do, then I will not be able to cross-examine thembecause I have received confidential information from them.”The court responded, “I don't know why you wouldn't,” and

again denied the motion. 3

The prosecution then proceeded to present its case. Themanager of the restaurant identified petitioners Hollowayand **1176 Campbell as two of the robbers. Another male

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employee identified Holloway and petitioner Welch. A thirdidentified only Holloway. The victim of the single rapeidentified Holloway and Welch as two of the robbers but wasunable to identify the man who raped her. The victim of thedouble rape identified Holloway as the first rapist. She wasunable to identify the second rapist but identified Campbellas one of the robbers.

On the second day of trial, after the prosecution had rested itscase, Hall advised the court that, against his recommendation,all three defendants had decided to testify. He then stated:“Now, since I have been appointed, I had previously filed amotion asking the Court to appoint a separate attorney foreach defendant because of a possible conflict of interest. Thisconflict will probably be now coming up since each one ofthem wants to testify.

*479 “THE COURT: That's all right; let them testify. Thereis no conflict of interest. Every time I try more than one personin this court each one blames it on the other one.

“MR. HALL: I have talked to each one of these defendants,and I have talked to them individually, not collectively.

“THE COURT: Now talk to them collectively.”

The court then indicated satisfaction that each petitionerunderstood the nature and consequences of his right to testifyon his own behalf, whereupon Hall observed:“I am in a position now where I am more or less muzzled asto any cross-examination.

“THE COURT: You have no right to cross-examine your ownwitness.

“MR. HALL: Or to examine them.

“THE COURT: You have a right to examine them, but haveno right to cross-examine them. The prosecuting attorneydoes that.

“MR. HALL: If one [defendant] takes the stand, somebodyneeds to protect the other two's interest while that one istestifying, and I can't do that since I have talked to each oneindividually.

“THE COURT: Well, you have talked to them, I assume,individually and collectively, too. They all say they want to

testify. I think it's perfectly alright [sic ] for them to testify ifthey want to, or not. It's their business.

“Each defendant said he wants to testify, and there willbe no cross-examination of these witnesses, just a directexamination by you.

“MR. HALL: Your Honor, I can't even put them on directexamination because if I ask them—

*480 “THE COURT: (Interposing) You can just put themon the stand and tell the Court that you have advised them oftheir rights and they want to testify; then you tell the man togo ahead and relate what he wants to. That's all you need to

do.” 4

Holloway then took the stand on his own behalf, testifyingthat during the time described as the time of the robbery hewas at his brother's home. His brother had previously givensimilar testimony. When Welch took the witness stand, therecord shows Hall advised him, as he had Holloway, that “Icannot ask you any questions that might tend to incriminateany one of the three of you . . .. Now, the only thing I can sayis tell these ladies and gentlemen of the jury what you knowabout this case . . ..” Welch responded that he did not “haveany kind of speech ready for the jury or anything. I thought Iwas going to be questioned.” When Welch denied, from thewitness stand, that he was at **1177 the restaurant the nightof the robbery, Holloway interrupted, asking:“Your Honor, are we allowed to make an objection?

“THE COURT: No, sir. Your counsel will take care of anyobjections.

“MR. HALL: Your Honor, that is what I am trying to say. Ican't cross-examine them.

“THE COURT: You proceed like I tell you to, Mr. Hall. Youhave no right to cross-examine your own witnesses anyhow.”

Welch proceeded with his unguided direct testimony, denyingany involvement in the crime and stating that he was at hishome at the time it occurred. Campbell gave similar testimony*481 when he took the stand. He also denied making any

confession to the arresting officers.

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The jury rejected the versions of events presented by thethree defendants and the alibi witness, and returned guiltyverdicts on all counts. On appeal to the Arkansas SupremeCourt, petitioners raised the claim that their representationby a single appointed attorney, over their objection, violatedfederal constitutional guarantees of effective assistance ofcounsel. In resolving this issue, the court relied on what itcharacterized as the majority rule:“[T]he record must show some material basis for an allegedconflict of interest, before reversible error occurs in singlerepresentation of co-defendants.” 260 Ark. 250, 256, 539S.W.2d 435, 439 (1977).

Turning to the record in the case, the court observed thatHall had failed to outline to the trial court both the natureof the confidential information received from his clientsand the manner in which knowledge of that informationcreated conflicting loyalties. Because none of the petitionershad incriminated codefendants while testifying, the courtconcluded that the record demonstrated no actual conflictof interests or prejudice to the petitioners, and thereforeaffirmed.

II

More than 35 years ago, in Glasser v. United States, 315 U.S.60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), this Court held thatby requiring an attorney to represent two codefendants whoseinterests were in conflict the District Court had denied oneof the defendants his Sixth Amendment right to the effectiveassistance of counsel. In that case the Government tried fivecodefendants in a joint trial for conspiracy to defraud theUnited States. Two of the defendants, Glasser and Kretske,were represented initially by separate counsel. On the secondday of trial, however, Kretske became dissatisfied with hisattorney and dismissed him. The District Judge thereuponasked Glasser's attorney, Stewart, if *482 he would alsorepresent Kretske. Stewart responded by noting a possibleconflict of interests: His representation of both Glasser andKretske might lead the jury to link the two men together.Glasser also made known that he objected to the proposal. TheDistrict Court nevertheless appointed Stewart, who continuedas Glasser's retained counsel, to represent Kretske. Both menwere convicted.

Glasser contended in this Court that Stewart's representationat trial was ineffective because of a conflict between theinterests of his two clients. This Court held that “the

‘Assistance of Counsel’ guaranteed by the Sixth Amendmentcontemplates that such assistance be untrammeled andunimpaired by a court order requiring that one lawyer shouldsimultaneously represent conflicting interests.” Id., at 70,62 S.Ct., at 465. The record disclosed that Stewart failedto cross-examine a Government witness whose testimonylinked Glasser with the conspiracy and failed to object tothe admission of arguably inadmissible evidence. This failurewas viewed by the Court as a result of Stewart's desireto protect Kretske's interests, and was thus “indicative ofStewart's struggle to serve two masters . . ..” Id., at 75, 62S.Ct., at 467. After identifying this conflict of interests, theCourt declined to inquire **1178 whether the prejudiceflowing from it was harmless and instead ordered Glasser'sconviction reversed. Kretske's conviction, however, wasaffirmed.[1] One principle applicable here emerges from Glasser

without ambiguity. Requiring or permitting a single attorneyto represent codefendants, often referred to as jointrepresentation, is not per se violative of constitutionalguarantees of effective assistance of counsel. This principlerecognizes that in some cases multiple defendants canappropriately be represented by one attorney; indeed, insome cases, certain advantages might accrue from jointrepresentation. In Mr. Justice Frankfurter's view: “Jointrepresentation is a means of insuring against reciprocalrecrimination. A common defense often *483 gives strengthagainst a common attack.” Glasser v. United States, supra, at

92, 62 S.Ct., at 475 (dissenting opinion). 5

Since Glasser was decided, however, the courts have takendivergent approaches to two issues commonly raised inchallenges to joint representation where—unlike this case—trial counsel did nothing to advise the trial court of theactuality or possibility of a conflict between his severalclients' interests. First, appellate courts have differed onhow strong a showing of conflict must be made, or howcertain the reviewing court must be that the asserted conflictexisted, before it will conclude that the defendants weredeprived of their right to the effective assistance of counsel.Compare United States ex rel. Hart v. Davenport, 478 F.2d203 (CA3 1973); Lollar v. United States, 126 U.S.App.D.C.200, 376 F.2d 243 (1967); People v. Chacon, 69 Cal.2d765, 73 Cal.Rptr. 10, 447 P.2d 106 (1968); and State v.Kennedy, 8 Wash.App. 633, 508 P.2d 1386 (1973), withUnited States v. Lovano, 420 F.2d 769, 773 (CA2 1970);see also cases collected in Annot., 34 A.L.R.3d 470, 477–507 (1970). Second, courts have differed with respect to the

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scope and nature of the affirmative duty of the trial judge toassure that criminal defendants are not deprived of their rightto the effective assistance of counsel by joint representationof conflicting interests. Compare United States v. Lawriw,568 F.2d 98 (CA8 1977); United States v. Carrigan, 543 F.2d1053 (CA2 1976); and United States v. Foster, 469 F.2d 1(CA1 1972), with Foxworth v. Wainwright, 516 F.2d 1072(CA5 1975), and United States v. Williams, 429 F.2d 158

(CA8 1970). 6

[2] *484 We need not resolve these two issues in thiscase, however. Here trial counsel, by the pretrial motionsof August 13 and September 4 and by his accompanyingrepresentations, made as an officer of the court, focusedexplicitly on the probable risk of a conflict of interests. Thejudge then failed either to appoint separate counsel or to takeadequate steps to ascertain whether the risk was too remote to

warrant separate counsel. 7 We hold that the failure, **1179in the face of the representations made by counsel weeksbefore trial and again before the jury was empaneled, deprivedpetitioners of the guarantee of “assistance of counsel.”

[3] This conclusion is supported by the Court's reasoning inGlasser :“Upon the trial judge rests the duty of seeing that the trialis conducted with solicitude for the essential rights of theaccused. . . . The trial court should protect the right of anaccused to have the assistance of counsel. . . .

“Of equal importance with the duty of the court to seethat an accused has the assistance of counsel is its duty to*485 refrain from embarrassing counsel in the defense of an

accused by insisting, or indeed, even suggesting, that counselundertake to concurrently represent interests which mightdiverge from those of his first client, when the possibility ofthat divergence is brought home to the court.” 315 U.S., at71, 76, 62 S.Ct., at 465, 467 (emphasis added).

This reasoning has direct applicability in this case wherethe “possibility of [petitioners'] inconsistent interests” was“brought home to the court” by formal objections, motions,and defense counsel's representations. It is arguable, perhaps,that defense counsel might have presented the requests forappointment of separate counsel more vigorously and ingreater detail. As to the former, however, the trial court'sresponses hardly encouraged pursuit of the separate-counselclaim; and as to presenting the basis for that claim in

more detail, defense counsel was confronted with a risk ofviolating, by more disclosure, his duty of confidentiality tohis clients.

[4] Additionally, since the decision in Glasser, most courtshave held that an attorney's request for the appointment ofseparate counsel, based on his representations as an officer ofthe court regarding a conflict of interests, should be granted.See, e. g., Shuttle v. Smith, 296 F.Supp. 1315 (Vt.1969); Statev. Davis, 110 Ariz. 29, 514 P.2d 1025 (1973); State v. Brazile,226 La. 254, 75 So.2d 856 (1954); but see Commonwealthv. LaFleur, 1 Mass.App. 327, 296 N.E.2d 517 (1973). In soholding, the courts have acknowledged and given effect toseveral interrelated considerations. An “attorney representingtwo defendants in a criminal matter is in the best positionprofessionally and ethically to determine when a conflict ofinterest exists or will probably develop in the course of atrial.” State v. Davis, supra, at 31, 514 P.2d, at 1027. Second,defense attorneys have the obligation, upon discovering aconflict of interests, to advise the court at *486 once of the

problem. Ibid. 8 Finally, attorneys are officers of the court,and “ ‘when they address the judge solemnly upon a matterbefore the court, their declarations are virtually made under

oath.’ ” State v. Brazile, supra, at 266, 75 So.2d, at 860–861. 9

(Emphasis deleted.) We find these considerations persuasive.

The State argues, however, that to credit Hall'srepresentations to the trial court would be tantamount totransferring to defense counsel the authority of the trial**1180 judge to rule on the existence or risk of a conflict and

to appoint separate counsel. In the State's view, the ultimatedecision on those matters must remain with the trial judge;otherwise unscrupulous defense attorneys might abuse their“authority,” presumably for purposes of delay or obstruction

of the orderly conduct of the trial. 10

[5] [6] The State has an obvious interest in avoiding suchabuses. But our holding does not undermine that interest.When an untimely motion for separate counsel is madefor dilatory purposes, our holding does not impair the trialcourt's ability to *487 deal with counsel who resort to suchtactics. Cf. United States v. Dardi, 330 F.2d 316 (CA2),cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50(1964); People v. Kroeger, 61 Cal.2d 236, 37 Cal.Rptr. 593,390 P.2d 369 (1964). Nor does our holding preclude a trialcourt from exploring the adequacy of the basis of defensecounsel's representations regarding a conflict of interestswithout improperly requiring disclosure of the confidential

communications of the client. 11 See State v. Davis, supra.

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98 S.Ct. 1173, 55 L.Ed.2d 426

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In this case the trial court simply failed to take adequatesteps in response to the repeated motions, objections, andrepresentations made to it, and no prospect of dilatorypractices was present to justify that failure.

III

The issue remains whether the error committed at petitioners'trial requires reversal of their convictions. It has generallybeen assumed that Glasser requires reversal, even in theabsence of a showing of specific prejudice to the complainingcodefendant, whenever a trial court improperly permits orrequires joint representation. See Austin v. Erickson, 477 F.2d620 (CA8 1973); United States v. Gougis, 374 F.2d 758(CA7 1967); Hall v. State, 63 Wis.2d 304, 217 N.W.2d 352(1974); Commonwealth ex rel. Whitling v. Russell, 406 Pa.45, 176 A.2d 641 (1962); Note, Criminal Codefendants andthe Sixth Amendment: The Case for Separate Counsel, 58Geo.L.J. 369, 387 (1969). Some courts and commentatorshave argued, however, that appellate courts should not reverseautomatically in such cases but rather should affirm unlessthe defendant can demonstrate prejudice. See *488 UnitedStates v. Woods, 544 F.2d 242 (CA6 1976), cert. denied,430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Geer,Representation of Multiple Criminal Defendants: Conflictsof Interest and the Professional Responsibilities of theDefense Attorney, 62 Minn.L.Rev. 119, 122–125 (1978).This argument rests on two aspects of the Court's decisionin Glasser. First, although it had concluded that Stewartwas forced to represent conflicting interests, the Court didnot reverse the conviction of Kretske, Stewart's other client,because Kretske failed to “show that the denial of Glasser'sconstitutional rights prejudiced [him] in some manner.” 315U.S., at 76, 62 S.Ct., at 468 (emphasis added). Second, theCourt justified the reversal of Glasser's conviction, in part,by emphasizing the weakness of the Government's evidenceagainst him; with guilt a close question, “error, which undersome circumstances would not be ground for reversal, cannotbe brushed aside as immaterial, since there is a real chancethat it might have provided the slight impetus which swungthe scales toward guilt.” Id., at 67, 62 S.Ct., at 463 (emphasisadded). Assessing the strength of the prosecution's evidenceagainst the defendant is, of course, one step in applying aharmless-error standard. See Schneble v. Florida, 405 U.S.427, 92 S.Ct. 1056, 31 L.Ed. 340 (1972); Harrington v.California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284(1969).

**1181 [7] We read the Court's opinion in Glasser,however, as holding that whenever a trial court improperlyrequires joint representation over timely objection reversal isautomatic. The Glasser Court stated:“To determine the precise degree of prejudice sustainedby Glasser as a result of the [district] court's appointmentof Stewart as counsel for Kretske is at once difficult andunnecessary. The right to have the assistance of counsel istoo fundamental and absolute to allow courts to indulge innice calculations as to the amount of prejudice arising fromits denial. Cf. Snyder v. Massachusetts, 291 U.S. 97, 116, 54S.Ct. 330, 78 L.Ed. 674; Tumey v. Ohio, 273 U.S. 510, 535,47 S.Ct. 437, 71 L.Ed. 749; Patton v. United States, 281 U.S.276, 292, 50 S.Ct. 253, 74 L.Ed. 854.” 315 U.S., at 75–76,62 S.Ct., at 467.

*489 This language presupposes that the jointrepresentation, over his express objections, prejudiced theaccused in some degree. But from the cases cited it is clearthat the prejudice is presumed regardless of whether it wasindependently shown. Tumey v. Ohio, 273 U.S. 510, 47S.Ct. 437, 71 L.Ed. 749 (1927), for example, stands forthe principle that “[a] conviction must be reversed if [theasserted trial error occurred], even if no particular prejudiceis shown and even if the defendant was clearly guilty.”Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 837,17 L.Ed.2d 705 (1967) (Stewart, J., concurring); see also id.,at 23, and n. 8, 87 S.Ct., at 827 (opinion of the Court). TheCourt's refusal to reverse Kretske's conviction is not contraryto this interpretation of Glasser. Kretske did not raise hisown Sixth Amendment challenge to the joint representation.315 U.S., at 77, 62 S.Ct., at 468; see Brief for PetitionerKretske in Glasser v. United States, O.T. 1941, No. 31. As theCourt's opinion indicates, some of the codefendants arguedthat the denial of Glasser's right to the effective assistanceof counsel prejudiced them as alleged co-conspirators. 315U.S., at 76–77, 62 S.Ct., at 467. In that context, the Courtrequired a showing of prejudice; finding none, it affirmed theconvictions of the codefendants, including Kretske.

[8] [9] Moreover, this Court has concluded that theassistance of counsel is among those “constitutional rights sobasic to a fair trial that their infraction can never be treatedas harmless error.” Chapman v. California, supra, at 23, 87S.Ct., at 827. Accordingly, when a defendant is deprived ofthe presence and assistance of his attorney, either throughoutthe prosecution or during a critical stage in, at least, theprosecution of a capital offense, reversal is automatic. Gideonv. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

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(1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct.1050, 10 L.Ed.2d 193 (1963).

That an attorney representing multiple defendants withconflicting interests is physically present at pretrialproceedings, during trial, and at sentencing does not warrantdeparture from this general rule. Joint representation ofconflicting interests is suspect because of what it tends toprevent *490 the attorney from doing. For example, in thiscase it may well have precluded defense counsel for Campbellfrom exploring possible plea negotiations and the possibilityof an agreement to testify for the prosecution, provideda lesser charge or a favorable sentencing recommendationwould be acceptable. Generally speaking, a conflict mayalso prevent an attorney from challenging the admission ofevidence prejudicial to one client but perhaps favorable toanother, or from arguing at the sentencing hearing the relativeinvolvement and culpability of his clients in order to minimizethe culpability of one by emphasizing that of another.Examples can be readily multiplied. The mere physicalpresence of an attorney does not fulfill the Sixth Amendmentguarantee when the advocate's conflicting obligations haveeffectively sealed his lips on crucial matters.

Finally, a rule requiring a defendant to show that a conflict ofinterests—which he and his counsel tried to avoid by timely**1182 objections to the joint representation—prejudiced

him in some specific fashion would not be susceptible ofintelligent, evenhanded application. In the normal case wherea harmless-error rule is applied, the error occurs at trial and itsscope is readily identifiable. Accordingly, the reviewing courtcan undertake with some confidence its relatively narrowtask of assessing the likelihood that the error materiallyaffected the deliberations of the jury. Compare Chapmanv. California, supra, at 24–26, 87 S.Ct., at 828–829, withHamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887,2902, 41 L.Ed.2d 590 (1974), and United States v. Valle-Valdez, 554 F.2d 911, 914–917 (CA9 1977). But in a caseof joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himselfcompelled to refrain from doing, not only at trial but alsoas to possible pretrial plea negotiations and in the sentencingprocess. It may be possible in some cases to identify fromthe record the prejudice resulting from an attorney's failureto undertake certain trial tasks, but even with a record of thesentencing hearing available it would *491 be difficult tojudge intelligently the impact of a conflict on the attorney'srepresentation of a client. And to assess the impact of a

conflict of interests on the attorney's options, tactics, anddecisions in plea negotiations would be virtually impossible.Thus, an inquiry into a claim of harmless error here wouldrequire, unlike most cases, unguided speculation.

Accordingly, we reverse and remand for further proceedingsnot inconsistent with this opinion.

It is so ordered.

Mr. Justice POWELL with whom Mr. Justice BLACKMUNand Mr. Justice REHNQUIST join, dissenting.

While disavowing a per se rule of separate representation,the Court holds today that the trial judge's failure in this case“either to appoint separate counsel or take adequate steps toascertain whether the risk was too remote to warrant separatecounsel” worked a violation of the guarantee of “assistance ofcounsel” embodied in the Sixth and Fourteenth Amendments.The Court accepts defense counsel's representations of apossible conflict of interests among his clients and of hisinability to conduct effective cross-examination as beingadequate to trigger the trial court's duty of inquiry. The trialcourt should have held an appropriate hearing on defensecounsel's motions for separate representation, but our taskis to decide whether this omission assumes the proportionof a constitutional violation. Because I cannot agree that, inthe particular circumstances of this case, the court's failureto inquire requires reversal of petitioners' convictions, andbecause the Court's opinion contains seeds of a per se rule ofseparate representation merely upon the demand of defensecounsel, I respectfully dissent.

I

It is useful to contrast today's decision with the Court's mostrelevant previous ruling, Glasser v. United States, 315 U.S.60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In that case, the trialcourt ordered Glasser's *492 retained lawyer, Stewart, torepresent both Glasser and his codefendant, Kretske, eventhough Stewart had identified “inconsistency in the defense”that counseled against joint representation. Id., at 68, 62 S.Ct.,at 464. This Court reversed Glasser's conviction becausehis lawyer had been required to undertake simultaneousrepresentation of “conflicting interests.” Id., at 70, 62S.Ct., at 464. The Glasser decision did not rest only onthe determination that “[t]he possibility of the inconsistentinterests of Glasser and Kretske [had been] brought hometo the court . . . .” Id., at 71, 62 S.Ct., at 465. Instead, theCourt proceeded to find record support for Glasser's claim

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of “impairment” of his Sixth Amendment right to assistanceof counsel. The evidence “indicative of Stewart's struggle toserve two masters [could not] seriously be doubted.” Id., at75, 62 S.Ct., at 467; see also id., at 76, 62 S.Ct., at 467.

**1183 Today's decision goes well beyond the limits ofGlasser. I agree that the representations made by defensecounsel in this case, while not as informative as the affidavitof counsel Stewart in Glasser, were sufficient to bring intoplay the trial court's duty to inquire further into the possibilityof “conflicting interests.” I question, however, whether theConstitution is violated simply by the failure to conductthat inquiry, without any additional determination that therecord reveals a case of joint representation in the face of“conflicting interests.” The Court's approach in this case isnot premised on an ultimate finding of conflict of interestor ineffective assistance of counsel. Rather, it presumesprejudice from the failure to conduct an inquiry, equating thatfailure with a violation of the Sixth Amendment guarantee.The justification for this approach appears to be the difficultyof a post hoc reconstruction of the record to determinewhether a different outcome, or even a different defensestrategy, might have obtained had the trial court engagedin the requisite inquiry and ordered separate representation.Although such difficulty may be taken into account in theallocation of the burden of persuasion on the questions ofconflict and prejudice, see *493 infra, at 1184–1185, I amnot convinced of the need for a prophylactic gloss on therequirements of the Constitution in this area of criminal law.Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16L.Ed.2d 694 (1966).

Several other aspects of the Court's opinion suggest a ruleof separate representation upon demand of defense counsel.The Court leaves little room for maneuver for a trial judgewho seeks to inquire into the substantiality of the defensecounsel's representations. Apparently, the trial judge mustorder separate representation unless the asserted risk ofconflict “was too remote to warrant separate counsel,” ante,at 1178–1179, a formulation that suggests a minimal showingon the part of defense counsel. The Court also offers the viewthat defense counsel in this case could not be expected tomake the kind of specific proffer that was present in Glasserbecause of “a risk of violating, by more disclosure, hisduty of confidentiality to his clients.” Id., at 1179. Althoughconcededly not necessary to a decision in this case, the Courtthen states that the trial court's inquiry must be conducted“without improperly requiring disclosure of the confidential

communications of the client.” Ante, at 1180, and n. 11. 1

When these intimations are coupled with the Court's policy of

automatic reversal, see ante, at 1180–1181, the path may havebeen cleared for potentially disruptive demands for separatecounsel predicated solely on the representations of defensecounsel.

*494 II

Recognition of the limits of this Court's role in addingprotective layers to the requirements of the Constitutiondoes not detract from the Sixth Amendment obligation toprovide separate counsel upon a showing of reasonableprobability of need. In my view, a proper accommodation ofthe interests of defendants in securing effective assistance ofcounsel and that of the State in avoiding the delay, potentialfor disruption, and costs inherent in the appointment of

multiple counsel, 2 can be achieved by means **1184 whichsweep less broadly than the approach taken by the Court.I would follow the lead of the several Courts of Appealsthat have recognized the trial court's duty of inquiry in jointrepresentation cases without minimizing the constitutional

predicate of “conflicting interests.” 3

*495 Ordinarily defense counsel has the obligation to raiseobjections to joint representation as early as possible before

the commencement of the trial. 4 When such a motion ismade, supported by a satisfactory proffer, the trial court isunder a duty to conduct “the most careful inquiry to satisfyitself that no conflict of interest would be likely to resultand that the parties involved had no valid objection.” UnitedStates v. DeBerry, 487 F.2d 448, 453 (CA2 1973). At thathearing, the burden is on defense counsel, because his clientsare in possession of the relevant facts, to make a showing ofa reasonable likelihood of conflict or prejudice. Upon such ashowing, separate counsel should be appointed. “If the courthas carried out this duty of inquiry, then to the extent adefendant later attacks his conviction on grounds of conflictof interest arising from joint representation he will bear aheavy burden indeed of persuading” the reviewing court “thathe was, for that reason, deprived of a fair trial.” United Statesv. Foster, 469 F.2d 1, 5 (CA1 1972). If, however, a properand timely motion is made, and no hearing is held, “the lackof satisfactory judicial inquiry shifts the burden of proof onthe question of prejudice to the Government.” United Statesv. Carrigan, 543 F.2d 1053, 1056 (CA2 1976).

Since the trial judge in this case failed to inquire into the*496 substantiality of defense counsel's representations of

September 4, 1975, ante, at 1179 n. 7, the burden shifted to theState to establish the improbability of conflict or prejudice.

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I agree that the State's burden is not met simply by theassertion that the defenses of petitioners were not mutuallyinconsistent, for that is not an infrequent consequence ofimproper joint representation. Nevertheless, the record mustoffer some basis for a reasonable inference that “conflictinginterests” hampered a potentially effective defense. See, e. g.,United States v. Donahue, 560 F.2d 1039, 1044–1045 (CA1

1977). Because the **1185 State has demonstrated that such

a basis cannot be found in the record of this case, 5 I wouldaffirm the judgment of the Supreme Court of Arkansas.

Parallel Citations

98 S.Ct. 1173, 55 L.Ed.2d 426

Footnotes

* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience

of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

1 No transcript of this hearing is included in the record, and we are not informed whether the hearing was transcribed.

2 See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

3 It is probable that the judge's response, “I don't know why you wouldn't,” referred back to counsel's statement, “I will not be able to

cross-examine them . . ..” If the response is so read, the judge's later statements, see infra, at 1176 and 1177, are directly contradictory.

4 The record reveals that both the trial court and defense counsel were alert to defense counsel's obligation to avoid assisting in the

presentation of what counsel had reason to believe was false testimony, or, at least, testimony contrary to the version of facts given

to him earlier and in confidence. Cf. ABA Project on Standards Relating to the Administration of Criminal Justice, The Defense

Function § 7.7(c) p. 133 (1974).

5 By inquiring in Glasser whether there had been a waiver, the Court also confirmed that a defendant may waive his right to the

assistance of an attorney unhindered by a conflict of interests. 315 U.S., at 70, 62 S.Ct., at 464. In this case, however, Arkansas does

not contend that petitioners waived that right.

6 See ABA Project on Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge § 3.4(b), p. 171

(1974):

“Whenever two or more defendants who have been jointly charged, or whose cases have been consolidated, are represented by the

same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity

of his counsel.”

7 There is no indication in the record, and the State does not suggest, that the hearing held in response to the motion of August

13 disclosed information demonstrating the insubstantiality of Hall's September 4 representations—based, as nearly as can be

ascertained, on the codefendants' newly formed decision to testify—respecting a probable conflict of interests. So far as we can tell

from this record, the trial judge cut off any opportunity of defense counsel to do more than make conclusory representations. During

oral argument in this Court, Hall represented that the trial court did not request him to disclose the basis for his representations as

to a conflict of interests. See Tr. of Oral Arg. 14–15.

There is no occasion in this case to determine the constitutional significance, if any, of the trial court's response to petitioners' midtrial

objections.

8 The American Bar Association in its Standards Relating to the Administration of Criminal Justice, The Defense Function § 3.5(b),

p. 123 (1974) cautions:

“Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice

should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict

with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer

should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is

clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.”

9 When a considered representation regarding a conflict in clients' interests comes from an officer of the court, it should be given the

weight commensurate with the grave penalties risked for misrepresentation.

10 Such risks are undoubtedly present; they are inherent in the adversary system. But courts have abundant power to deal with attorneys

who misrepresent facts.

11 This case does not require an inquiry into the extent of a court's power to compel an attorney to disclose confidential communications

that he concludes would be damaging to his client. Cf. ABA Code of Professional Responsibility, DR 4–101(C)(2) (1969). Such

compelled disclosure creates significant risks of unfair prejudice, especially when the disclosure is to a judge who may be called

upon later to impose sentences on the attorney's clients.

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1 I do not propose to resolve here the tension between the assertion of a constitutional right and a claim of lawyer-client privilege.

But I reject the assumption that defense counsel will be unable to discuss in concrete terms the difficulties of joint representation

in a particular case without betraying confidential communications. Nor am I persuaded that the courts will be unable to pursue

a meaningful inquiry without insisting on a breach of confidentiality. Experience in the somewhat analogous area of claims of

exemption from the disclosure requirements of the Freedom of Information Act, 5 U.S.C. § 552 (1976 ed.), supports this point. See,

e. g., EPA v. Mink, 410 U.S. 73, 92–94, 93 S.Ct. 827, 839, 35 L.Ed.2d 119 (1973); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484

F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

2 Each addition of a lawyer in the trial of multiple defendants presents increased opportunities for delay in setting the trial date, in

disposing of pretrial motions, in selecting the jury, and in the conduct of the trial itself. Additional lawyers also may tend to enhance

the possibility of trial errors. Moreover, in light of professional canons of ethics, cf. ABA Code of Professional Responsibility, DR

5–105(D) (1969); Allen v. District Court, 184 Colo. 202, 205–206, 519 P.2d 351, 353 (1974); Tr. of Oral Arg. 6–7, 15–16, a rule

requiring separate counsel virtually upon demand may disrupt the operation of public defender offices.

3 See, e. g., United States v. Carrigan, 543 F.2d 1053, 1055–1056 (CA2 1976):

“The mere representation of two or more defendants by a single attorney does not automatically give rise to a constitutional deprivation

of counsel. It is settled in this Circuit that some specific instance of prejudice, some real conflict of interest, resulting from a joint

representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel.

United States v. Mari, . . . 526 F.2d [117,] at 119 [(CA2 1975)]; United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert.

denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); United States v. Wisniewski, 478 F.2d 274, 281 (2d Cir. 1973); United

States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970). In all of these cases

the trial court had carefully inquired as to the possibility of prejudice and elicited the personal responses of the defendants involved.

Here the record is barren of any inquiry by the court or any concern by the Government.

“In United States v. DeBerry, supra, 487 F.2d, at 453–54, we . . . noted with approval the view of the First Circuit in United States

v. Foster, 469 F.2d 1, 5 (1st Cir. 1972), that the lack of satisfactory judicial inquiry shifts the burden of proof on the question of

prejudice to the Government. 487 F.2d at 453 n. 6.”

4 Since a proper, timely objection was interposed in this case, there is no occasion to identify the circumstances which might trigger

a duty of inquiry in the absence of such a motion.

Of course, a later motion may be appropriate if the conflict is not known or does not become apparent before trial proceeds. To guard

against strategic disruption of the trial, however, the court may require a substantial showing of justification for such midtrial motions.

5 It is unlikely that separate counsel would have been able to develop an independent defense in this case because of the degree of

overlap in the identification testimony by the State's witnesses and because of the consistency of the alibis advanced by petitioners.

Campbell and Welch, who are half brothers, both used the same alibi. Since Campbell was not identified as an actual participant in

the rapes, it might be argued that separate counsel would have encouraged him to endorse his earlier confession in an effort to show

that he was less culpable than his two codefendants. But, given his common alibi with Welch, Campbell would have found it difficult

to extricate himself from his half brother's cause. In any event, such an argument would have been an appeal to jury nullification

because, as the court below noted, Campbell's denial of direct involvement in the rapes “had no effect on his guilt as a principal.”

260 Ark. 250, 256, 539 S.W.2d 435, 439 (1976). Conceivably Holloway, who gave an independent alibi, might have wished to argue

that while the State had apprehended two of the real culprits, his arrest was due to a mistaken identification. It is most unlikely that

separate counsel would have succeeded on such a tack because each witness who identified Holloway also identified one of the other

two codefendants. Moreover, petitioners do not argue in this Court that joint representation impeded effective cross-examination of

the State's witnesses. In sum, this is not a case where an inquiry into the possibility of “conflicting interests” reasonably might have

revealed a basis for separate representation.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

9

Maricopa County Public Defender's Office v. Superior Court In..., 187 Ariz. 162 (1996)

927 P.2d 822

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

187 Ariz. 162Court of Appeals of Arizona,

Division 1, Department B.

MARICOPA COUNTY PUBLIC DEFENDER'SOFFICE, Attorneys Christopher

Johns and Diane Enos, MaricopaCounty Public Defenders, Petitioners,

v.SUPERIOR COURT of the State of Arizona, In andFor the COUNTY OF MARICOPA, The Honorable

Alfred J. Rogers, a judge thereof, Respondent Judge,Clarence Charles Nelson and former client,

Shawna Debus, Real Parties in Interest.MARICOPA COUNTY PUBLIC DEFENDER'SOFFICE; Attorney Chelli Wallace, Maricopa

County Public Defender, Petitioners,v.

SUPERIOR COURT of the State of Arizona, In andFor the COUNTY OF MARICOPA, The Honorable

John H. Seidel, a judge thereof, Respondent Judge,Frank Rangel, and former client,

Juan Salas, Real Parties in Interest.

Nos. 1 CA-SA 96-0102, | 1 CA-SA 96-0118.| July 11, 1996. | As Corrected July 15,

1996. | Review Denied Nov. 19, 1996.

Defense counsel appointed by public defender's office intwo unrelated cases, asserting conflicts of interest involvingformer clients as witnesses, filed petitions for special actionafter the Superior Court, Maricopa County, Cause Nos. CR95-10524, CR 95-11203, Alfred J. Rogers and John H. Seidel,JJ., denied their motions to withdraw. After consolidatingthe petitions, the Court of Appeals, Noyes, J., held that: (1)jurisdiction over the special actions would be accepted, and(2) counsel's showings were sufficient to entitle counsel towithdraw, without disclosure of confidential information totrial court.

Jurisdiction accepted; relief granted.

West Headnotes (7)

[1] Courts

Issuance of Prerogative or Remedial Writs

Order denying counsel's motion to withdraw isproper subject of petition for special action.

Cases that cite this headnote

[2] CourtsIssuance of Prerogative or Remedial Writs

Court of Appeals accepted jurisdiction ofspecial actions concerning desire of defensecounsel appointed by public defender's officeto withdraw from two unrelated cases basedon ethical conflicts, notwithstanding that issuemay have been unique to one county, where itappeared to be recurring problem there.

Cases that cite this headnote

[3] Criminal LawPresumptions and Burden of Proof

Guarantees of Sixth Amendment include rightto attorney with undivided loyalty. U.S.C.A.Const.Amend. 6.

2 Cases that cite this headnote

[4] Criminal LawConflict of Interest

Counsel must be free to zealously defendaccused in conflict-free environment. U.S.C.A.Const.Amend. 6.

1 Cases that cite this headnote

[5] Criminal LawPartners and Associates; Public Defenders

Conflict of interest guidelines adopted by publicdefender's office concerning former clientsas witnesses, requiring defendant's counselto talk with former client's counsel andreview former client's file rather than to“screen” herself from both, were prudentexercise of professional responsibility. U.S.C.A.Const.Amend. 6; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.6, ER 1.7, ER1.9, ER 1.10.

Maricopa County Public Defender's Office v. Superior Court In..., 187 Ariz. 162 (1996)

927 P.2d 822

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Cases that cite this headnote

[6] Criminal LawWithdrawal by Counsel

Trial court should not ordinarily require defensecounsel to disclose confidential informationwhen counsel avows that counsel hasethical conflict requiring withdrawal. U.S.C.A.Const.Amend. 6; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.6, ER 1.7, ER1.9, ER 1.10, ER 1.16.

1 Cases that cite this headnote

[7] Criminal LawPartners and Associates; Public Defenders

Defense counsel appointed by county publicdefender's office to represent two defendantswere entitled to withdraw based on assertedconflicts of interest involving former clientsas witnesses, without disclosing confidentialinformation to trial court, where they madefollowing showings: facts establishing apparentconflict of interest, compliance with publicdefender's conflicts policy, understanding ofapplicable rules and cases, avowal of ethicalconflict requiring withdrawal, and no reason toreject that avowal. U.S.C.A. Const.Amend. 6;17A A.R.S. Sup.Ct.Rules, Rule 42, Rules ofProf.Conduct, ER 1.6, ER 1.7, ER 1.9, ER 1.10,ER 1.16.

5 Cases that cite this headnote

Attorneys and Law Firms

**823 *163 Dean W. Trebesch, Maricopa County PublicDefender by Christopher Johns, Diane Enos and ChelliWallace, Deputy Public Defenders, Phoenix, for Petitioners.

Grant Woods, Arizona Attorney General by Paul J.McMurdie, Chief Counsel-Criminal Appeals Section, DianeM. Ramsey, Assistant Attorney General, Phoenix, forRespondent Judge.

OPINION

NOYES, Judge.

These special actions arise from two unrelated cases in whichthe Maricopa County Public Defender's Office (“the publicdefender”) moved to withdraw on grounds that an ethicalconflict existed between its duty to zealously represent acurrent client (the defendant) and its duty of loyalty to aformer client (an adverse witness). In each case, the trialcourt denied the motion because counsel failed to discloseconfidential information about the former client. The publicdefender **824 *164 then filed petitions for special action,arguing that the trial court abused its discretion and thatwe should accept jurisdiction and remand with directions togrant the motion to withdraw. We consolidated the actions,accepted jurisdiction, and granted the requested relief.

I

[1] [2] An order denying counsel's motion to withdrawis the proper subject of a petition for special action. Okeaniv. Superior Court, 178 Ariz. 180, 181, 871 P.2d 727, 728(App.1993). The issue presented in these special actions maybe unique to Maricopa County, but because it appears to be arecurring problem there, we accepted jurisdiction to addressit. See State ex rel. Romley v. Superior Court, 184 Ariz. 223,225, 908 P.2d 37, 39 (App.1995).

II

On November 27, 1995, the superior court appointed thepublic defender to represent Clarence Charles Nelson on aburglary charge. The case was assigned to Deputy PublicDefender Diane Enos, who soon interviewed Shawna Debus,who had been arrested with Nelson, and determined that shewas a potential unindicted coconspirator and had given thepolice inculpatory statements about Nelson.

On December 7, Enos learned from her conflicts checkthat the public defender represented Debus on charges“similar” to Nelson's, and that Debus was to be sentenced onDecember 15. Enos filed a “Motion to Determine Counsel”and requested a hearing. At the ex parte hearing, DeputyPublic Defender Christopher Johns appeared with Enos and,

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after stating the facts, avowed that an ethical conflict existedrequiring withdrawal as Nelson's counsel because the publicdefender's file on Debus contained confidential informationthat should be used to impeach her.

Judge Rogers advised that avowals were not sufficient; thatcounsel needed to show “something that another-that anattorney wouldn't come across, or to put it another way, thatyou learned because of looking through the client's file....[Y]ou're going to have to give me what I'll call some meatrather than just talking in these broad generalities as towhy I should allow you to withdraw.” The court advisedthat it would seal any confidential information counseldisclosed and would recuse itself if the information affectedits impartiality. Counsel declined to disclose any confidentialinformation and the court denied the motion to withdraw.

Also on November 27, 1995, the public defender wasappointed to represent Frank Rangel on a burglary charge.The case was assigned to Deputy Public Defender ChelliWallace, who conducted a conflicts check and learned thattwo people with Rangel at relevant times were former clientsof the public defender. Wallace reviewed the office files anddiscovered confidential information to impeach Juan Salas,whom the public defender had represented in various juvenilecourt proceedings, one of which was a burglary charge.

Rangel's defense was that he was sitting in the car, unawarethat Salas was committing a burglary. Salas did not supportthis defense, but the victim arguably did: the victim identifiedSalas as the one who came out of the backyard and shothim, and he identified Rangel as the one sitting in the car.Salas, however, had told police that he, Salas, was not in thebackyard, and he did not shoot the victim; he was sitting inthe back seat of the car when the victim was shot. Salas alsostated to police that he had told Rangel not to do a burglarybecause he, Salas, did not want to get in trouble. (The otherformer client told police that he, himself, was sitting in the carand knew nothing about a burglary, but he did honk the hornto alert Rangel, who was in the backyard.)

Wallace filed a motion to withdraw, supported by aconfidential memorandum containing the above-related facts.Judge Seidel denied the motion, explaining in a minute entrythat:

[T]here is nothing in the confidentialmemorandum which sets forth ordescribes what, if any, confidentialinformation was obtained from either

witness in the course of the priorrepresentation which could be usedin this case if the person was called**825 *165 as a witness and if

counsel had to cross-examine theperson. This Court is therefore unableto find a conflict, and accordingly, themotion to withdraw is denied.

After Wallace received a telephonic, informal ethics opinionfrom the State Bar advising that continued representationof Rangel would be an ethical violation, she moved forreconsideration of the motion to withdraw. At the ensuingopen-court hearing, the court said it assumed that the publicdefender's file on Salas contained information that wouldbenefit Rangel, but “my understanding is that you [Wallace]have to make a showing that you have got some kind ofinformation that you can use to cross-examine [Salas] ...that nobody else can get at, such as an attorney/clientconversation.” The court stated its presumption that whatWallace knew about Salas was available in the juvenile courtfile, and that new counsel could access that file with a courtorder. Wallace did not disclose any confidential informationto overcome the court's presumption, and the court denied themotion for reconsideration.

III

[3] [4] The guarantees of the Sixth Amendment include theright to an attorney with undivided loyalty. See Holloway v.Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 1177-78, 55L.Ed.2d 426 (1978); State v. Davis, 110 Ariz. 29, 31, 514 P.2d1025, 1027 (1973). Counsel must be free to zealously defendthe accused in a conflict-free environment. See Johnson v.Hopper, 639 F.2d 236, 238 (5th Cir.), cert. denied, 454 U.S.1010, 102 S.Ct. 548, 70 L.Ed.2d 412 (1981).

Attorney conflicts of interest are addressed in the EthicalRules incorporated into Rule 42 of the Arizona Rules of theSupreme Court. We have appended to this opinion the text ofthe rules most relevant to these actions: Ethical Rules (“ER”)1.6, 1.7, 1.9, and 1.10.

The Maricopa County Public Defender's Office has adopted“Conflict of Interest Guidelines” which we will refer to as its“conflicts policy.” The current version of this policy becameeffective on January 4, 1994, and was followed by the deputypublic defenders assigned to represent Nelson and Rangel.

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The public defender's conflicts policy provides, in part, asfollows:

IV. FORMER CLIENTS AS WITNESSES

Former representation of a potential witness against apresent client is not, in itself, grounds for disqualification.If representation of the former client has resulted ininformation that is 1) substantially related to the presentcase, 2) materially adverse to the interests of the formerclient, and 3) not contained in easily accessible publicrecords, the office should move to withdraw.

....

VI. PROCEDURES FOR DETERMINING CONFLICT

As soon as possible after assignment, the attorney shouldreview all charging documents, police reports, and otheravailable records for potential conflicts of interest....

If a former client is identified [by an office records check],the attorney should examine the case file to determinewhether confidential information exists.... If the attorneywho previously represented the former client is still withthe office, the attorney should be contacted to determinewhether the attorney is aware of confidential information.

VII. SUPERIOR COURT CONFLICTS OF INTEREST

When an attorney identifies a conflict of interest in superiorcourt, the attorney must complete the potential conflictof interest portion of the Conflict Check and SupervisorReview Form and submit it to the attorney's supervisor forapproval before moving to withdraw. If the supervisor doesnot approve the request, the attorney may request a reviewby the Chief Trial Deputy or Juvenile Division Supervisor.

If the request is approved, the attorney should immediatelymove to withdraw. The motion to withdraw mustthoroughly state the reasons for withdrawal whileprotecting confidential client information.

**826 [5] *166 Some may question why the publicdefender's conflicts policy requires defendant's counsel to talkwith the former client's counsel and review the former client'sfile rather than to “screen” herself from both, but we findthis action a prudent exercise of professional responsibility.It is certain that a percentage of cases assigned to the publicdefender will involve conflicts of interest. Those conflictsshould be discovered immediately, for they will come out

inevitably. The earlier a conflict of interest is discovered anddealt with, the less damage it can do.

Some law firms have the structure and resources to screenattorneys from conflicts of interest, see, e.g., Romley v.Superior Court, 184 Ariz. at 228, 908 P.2d at 42, but therecord contains no suggestion that the public defender cando so. In any event, public defender screening of conflictsmight cost the criminal justice system more than it wouldsave. The actions and inactions of deputy public defenders areoccasionally questioned by clients, and screening of publicdefender conflicts would be a source of pre-trial and post-triallitigation, with all its attendant costs.

[6] The State advises that “the gist of this action is whetherdefense counsel or the trial court is going to decide if there is aconflict of interest necessitating disqualification of counsel,”but we disagree with this “either-or” proposition. Defensecounsel and the trial court each decide something here:counsel decides whether to file a motion to withdraw, andthe court decides whether to grant it. As we see it, the issuehas to do with disclosure: the question is whether the trialcourt should require defense counsel to disclose confidentialinformation when counsel avows that counsel has an ethicalconflict requiring withdrawal. We conclude that ordinarilythe trial court should not do that.

In the interest of clarity and brevity, we focus on just twoleading cases, Holloway and Davis, and we refer thoseinterested in a broader discussion to Gary T. Lowenthal,Successive Representation by Criminal Lawyers, 93 Yale L.J.1 (1983), and Bruce A. Green, “Through a Glass, Darkly”:How the Court Sees Motions to Disqualify Criminal DefenseLawyers, 89 Colum. L.Rev. 1201 (1989). Holloway andDavis involved counsel who represented codefendants, butwe find them instructive here as well. We apply the followingprinciples from Davis to motions to withdraw based onconflicts between the interests of current and former clients:

An attorney representing twodefendants in a criminal matter is inthe best position professionally andethically to determine when a conflictof interest exists or will probablydevelop in the course of a trial. Hehas an obligation to bring the fact ofthis conflict to the attention of thecourt at the earliest possible time afterthe conflict is discovered. The trialcourt should give great weight to a

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representation by counsel that thereis a conflict, particularly in the casewhere the counsel has been appointedby the court rather than retained by thedefendants.

110 Ariz. at 31, 514 P.2d at 1027 (emphasis added).

Holloway expanded upon Davis and explained why counsel'savowal of an ethical conflict requiring withdrawal is entitledto great weight despite the concern that some might abuse thistrust:

[A]ttorneys are officers of the court, and “ ‘when theyaddress the judge solemnly upon a matter before the court,their declarations are virtually made under oath.’ ” ...

... In the State's view, the ultimate decision on those[withdrawal] matters must remain with the trial judge;otherwise unscrupulous defense attorneys might abusetheir “authority,” presumably for purposes of delay orobstruction of the orderly conduct of the trial.

The State has an obvious interest in avoiding such abuses.But our holding does not undermine that interest. Whenan untimely motion for separate counsel is made fordilatory purposes, our holding does not impair the trialcourt's ability to deal with counsel who resort to suchtactics. Nor does our holding preclude a trial court fromexploring the adequacy of the basis of defense counsel'srepresentations regarding a conflict of interests without**827 *167 improperly requiring disclosure of the

confidential communications of the client.

435 U.S at 486-87, 98 S.Ct. at 1179-80 (emphasis added)(citations omitted) (footnotes omitted).

We also note the Comment to ER 1.16, which concernsmotions to withdraw based on client demands that counselengage in unprofessional conduct: “The court may wish anexplanation for the withdrawal, while the lawyer may bebound to keep confidential the facts that would constitutesuch an explanation. The lawyer's statement that professionalconsiderations require termination of the representationordinarily should be accepted as sufficient.”

Conflicts involving representation of codefendants, or ofa defendant who demands unprofessional conduct fromcounsel, are more readily perceived as requiring withdrawalthan conflicts between a defendant and an adverse witness.In the defendant-witness situation, the trial court might

be expected to require adequate support for the avowalthat counsel has an ethical conflict requiring withdrawal.Counsel's burden of persuasion might be expected to rise asthe case approaches trial. But ordinarily the court should notcondition the grant or denial of a motion to withdraw oncounsel's willingness to violate ER 1.6.

IV

[7] In each of these special actions, we conclude that thetrial court abused its discretion in denying the motion towithdraw, given what defense counsel had timely shown:facts establishing an apparent conflict of interest, compliancewith the public defender's conflicts policy, an understandingof the applicable rules and cases, an avowal that counsel hadan ethical conflict requiring withdrawal, and no reason toreject that avowal.

Relief has already been granted by separate orders directingthe trial court to grant the public defender's motions towithdraw.

GRANT, P.J., and EHRLICH, J., concur.

APPENDIX

ER 1.6 CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating torepresentation of a client unless the client consents afterconsultation, except for disclosures that are impliedlyauthorized in order to carry out the representation, and exceptas stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2) [noneof which apply here].

ER 1.7 CONFLICT OF INTEREST: GENERAL RULE

(a) A lawyer shall not represent a client if the representationof that client will be directly adverse to another client, unless:

(1) The lawyer reasonably believes the representation willnot adversely affect the relationship with the other client;and

(2) each client consents after consultation.

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(b) A lawyer shall not represent a client if the representationof that client may be materially limited by the lawyer'sresponsibilities to another client or to a third person, or by thelawyer's own interests, unless:

(1) the lawyer reasonably believes the representation willnot be adversely affected; and

(2) the client consents after consultation. Whenrepresentation of multiple clients in a single matter isundertaken, the consultation shall include explanation ofthe implications of the common representation and theadvantages and risks involved.

ER 1.9 CONFLICT OFINTEREST: FORMER CLIENT

A lawyer who has formerly represented a client in a mattershall not thereafter:

(a) represent another person in the same or a substantiallyrelated matter in which that person's interests are materially

adverse to the interests of the former client unless the formerclient consents after consultation; or

(b) use information relating to the representation to thedisadvantage of the former client except as ER 1.6 wouldpermit with **828 *168 respect to a client or when theinformation has become generally known.

ER 1.10 IMPUTEDDISQUALIFICATION: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shallknowingly represent a client when any one of them practicingalone would be prohibited from doing so by ER 1.7, 1.8(c),1.9 or 2.2.

Parallel Citations

927 P.2d 822

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10

Okeani v. Superior Court In and For County of Maricopa, 178 Ariz. 180 (1993)

871 P.2d 727

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

178 Ariz. 180Court of Appeals of Arizona,

Division 1, Department C.

Amaechi OKEANI, Petitioner,v.

SUPERIOR COURT of the State ofArizona, In and For the COUNTY OF

MARICOPA, The Honorable Steven D.Sheldon, a judge thereof, Respondent Judge,Richard M. ROMLEY, Real Party in Interest.

No. 1 CA–SA 93–0159. | Sept. 28,1993. | Review Denied May 3, 1994.

Public defender's motion to withdraw from representation ofdefendant charged with sexual assault, based on conflict ofinterest, was denied by the Superior Court, Maricopa County,Cause No. CR 92–90518, Steven D. Sheldon, J. Specialreview was sought. The Court of Appeals, Lankford, J., heldthat: (1) denial of motion to withdraw from representation wasnonappealable order suitable for special action review, and (2)representation by public defender's office of defendant and, inunrelated matter, victim created conflict of interest of interest.

Reversed and remanded.

West Headnotes (3)

[1] CourtsIssuance of Prerogative or Remedial Writs

Criminal LawPreliminary or interlocutory orders in

general

Order denying motion to withdraw fromrepresentation due to conflict of interest wasnonappealable order suitable for special actionreview. A.R.S. § 13–4033.

5 Cases that cite this headnote

[2] Criminal LawWithdrawal by Counsel

Decisions on motions to withdraw fromrepresentation are left to discretion of trial court.

3 Cases that cite this headnote

[3] Criminal LawPartners and associates; public defenders

Conflict of interest arising when publicdefender's office represented defendant chargedwith sexual assault and, in unrelated juvenilematter, victim was conflict of interest requiringtrial court to permit withdrawal. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.6 comment, ER 1.9, ER 1.10(a).

7 Cases that cite this headnote

Attorneys and Law Firms

**727 *180 Dean W. Trebesch, Maricopa County PublicDefender by Timothy J. Ryan, Deputy Public Defender,Phoenix, for petitioner.

Richard M. Romley, Maricopa County Atty. by ArthurHazelton, Scott Evans and Jessica Gifford Funkhouser,Deputy County Attys., Phoenix, for real party in interest.

OPINION

LANKFORD, Judge.

This is a special action review from the trial court'sorder denying defense counsel's motion to withdraw fromthe representation of defendant. We previously acceptedjurisdiction and granted relief, with an opinion to follow. Thisis that opinion.

Deputy Maricopa County Public Defender Scott Halversonrepresented defendant, who was charged with one count ofsexual assault, a class 2 felony. After learning that DeputyPublic Defender Terri Shaw represented the victim of thealleged assault in an unrelated juvenile matter, Halversonobtained a copy of the police report in the victim's juvenilefile from Shaw. Halverson intended to use the juvenile chargeto impeach the alleged victim at trial.

Halverson notified the trial court that the Maricopa CountyPublic Defender's Office represented both defendant andthe alleged victim. In response, the trial court ordered

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Halverson to return the police report and refrain fromdiscussing the case with Shaw. Because the trial court barredHalverson from discussing the case with Shaw, Halversonwas unable to determine whether the juvenile matter wasfinally adjudicated.

Halverson then filed a motion to withdraw fromrepresentation of defendant, claiming conflict of interest. Thetrial court denied the motion and defendant petitioned thiscourt for extraordinary relief.

**728 *181 I.

[1] We accepted jurisdiction of this special action becausedefendant had no equally plain, speedy and adequate remedyby appeal. Ariz.Rev.Stat.Ann. (“A.R.S.”) section 13–4033provides that a criminal defendant may appeal only from:

(1) a final judgment of conviction;

(2) an order denying a motion for new trial or denying amotion for an arrest of judgment, or from an order made afterjudgment which affects the substantial rights of a party;

(3) an illegal or excessive sentence.In this case, defendant seeks relief from an order denying hisattorney's motion to withdraw from representation due to aconflict of interest. This is a non-appealable order suitable forspecial action review. See Rodriguez v. State, 129 Ariz. 67,628 P.2d 950 (1981).

II.

[2] Because decisions on motions to withdraw are left tothe discretion of the trial court, Agraan v. Superior Ct., 4Ariz.App. 141, 418 P.2d 161 (1966), we will overturn suchdecisions only when the trial court has abused its discretion,State v. Gottsfield, 171 Ariz. 195, 829 P.2d 1241 (App.1992).This is such a case.

[3] The trial court was required to permit withdrawalbecause the Public Defender's Office could not ethicallyrepresent both defendant and the alleged victim. Ethical Rule1.7, Rule 42, Rules of the Arizona Supreme Court, states thegeneral rule governing conflicts of interest:

(a) A lawyer shall not represent a client if the representationof that client will be directly adverse to another client,unless:

(1) The lawyer reasonably believes the representation willnot adversely affect the relationship with the other client;and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representationof that client may be materially limited by the lawyer'sresponsibilities to another client or to a third person, or bythe lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation willnot be adversely affected; and

(2) the client consents after consultation. Whenrepresentation of multiple clients in a single matter isundertaken, the consultation shall include explanation ofthe implication of the common representation and theadvantages and risks involved.

The Public Defender's representation of defendant wouldhave been “directly adverse” to its representation of thealleged victim. Halverson was bound to zealously representhis client, see ER 1.3, cmt., including impeachment of avictim witness. Yet because the victim was also a client ofthe Public Defender's Office, fulfilling the duty to defendantwould have adversely affected another client of the sameoffice. Conversely, protecting the victim from impeachmentwould have injured the defendant. This is clearly a conflictof interest from which the trial court was required to relievecounsel by permitting withdrawal.

The petitioner also suggests that the victim's police reportwas confidential. According to petitioner, his counsel wasunable to obtain the report by subpoena and the policeagencies told counsel that the report was confidential. Thisaggravates the conflict of interest. The victim's lawyer couldnot reveal confidential information. This rule protects theclient from a variety of harms of disclosure and protectsthe attorney-client relationship. See ER 1.6, cmt. Thus, dualrepresentation by the Public Defender's office would not onlyrequire defense counsel to represent one client at another'sexpense, it would require the violation of counsel's duty not

to reveal confidential information. 1

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**729 *182 The conflict of interest is not alleviated bythe fact that defendant and the victim were represented bydifferent lawyers with the Public Defender's Office. EthicalRule 1.10(a) provides: “While lawyers are associated in afirm, none of them shall knowingly represent a client whenany one of them practicing alone could be prohibited fromdoing so by ER 1.7....” Accord Rodriguez v. State, 129 Ariz. at73, 628 P.2d at 956. The superior court's order in this case—that the defense attorneys have no further contact—thereforecould not remedy the conflict.

Nor does the conflict evaporate if the alleged victim's juvenilematter were resolved and she thus had become a formerclient of the Public Defender. Ethical Rule 1.9 prohibitsrepresentation when the interests of a former client would beadversely affected:

A lawyer who has formerly represented a client in a mattershall not thereafter:

(a) represent another person in the same or a substantiallyrelated matter in which that person's interests are materially

adverse to the interests of the former client unless theformer client consents after consultation; or

(b) use information relating to the representation to thedisadvantage of the former client except as ER 1.6 wouldpermit with respect to a client or when the information hasbecome generally known.

The Maricopa Public Defender's continued representation ofdefendant would have resulted in a violation of the ethicalrules. The trial court therefore abused its discretion when itdenied defense counsel's motion to withdraw.

CONTRERAS, P.J., and GERBER, J., concur.

Parallel Citations

871 P.2d 727

Footnotes

1 Even if no confidential information were obtained, however, a conflict exists which requires withdrawal. In Rodriguez v. State, our

Supreme Court granted special action relief and ordered the trial court to grant withdrawal. Although defense counsel had obtained

no confidential data, “the admonition of [former] Canon 9 [Rules of the Arizona Supreme Court], that a lawyer should avoid even

the appearance of impropriety, is especially appropriate.” 129 Ariz. at 73, 628 P.2d at 956.

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11

Riley, Hoggatt & Suagee, P.C. v. Riley, 165 Ariz. 138 (1990)

796 P.2d 940

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

165 Ariz. 138Court of Appeals of Arizona,Division 2, Department B.

RILEY, HOGGATT & SUAGEE,P.C., Mark A. Suagee, Petitioners,

v.The Honorable James L. RILEY, a Judge

for The Superior Court of the State ofArizona, County of Cochise, Respondent,

andThe STATE of Arizona and KennethKempton, Real Parties in Interest.

No. 2 CA–SA 90–0121. | Aug. 16, 1990.

Special action was taken from order of trial court denyingdefense counsel's motion to withdraw. The Court of Appeals,Fernandez, C.J., held that motion to withdraw, made prior totrial setting and based solely of nonpayment of fees, shouldhave been granted, in absence of any showing of prejudice toeither defendant or judicial process.

Vacated and remanded with directions.

West Headnotes (4)

[1] Criminal LawFinality of Determination in General

Order denying defense counsel's motion towithdraw was not appealable final order.

Cases that cite this headnote

[2] Criminal LawFinality of Determination in General

Appellate court accepted jurisdiction of appealfrom nonfinal, nonappealable order denyingdefense counsel's motion to withdraw andgranted relief because trial court either failed toexercise discretion that it had duty to exercise orabused that discretion.

3 Cases that cite this headnote

[3] Criminal LawWithdrawal by Counsel

Exercise of trial court's discretion in decidingmotion to withdraw made by defense counselprior to trial setting must be governed byconsiderations of potential prejudice to judicialprocess, counsel, and defendant. 17 A.R.S. RulesCrim.Proc., Rule 6.3.

1 Cases that cite this headnote

[4] Criminal LawWithdrawal by Counsel

Motion to withdraw made by defense counselprior to trial setting, based solely on nonpaymentof fees, should have been granted, in absence ofany showing of prejudice to defendant or judicialprocess. 17 A.R.S. Rules Crim.Proc., Rule 6.3.

3 Cases that cite this headnote

Attorneys and Law Firms

**940 *138 Riley, Hoggatt & Suagee, P.C. by Mark A.Suagee, Sierra Vista, pro se.

Alan K. Polley, Cochise County Atty. by Wayne A. Dirst,Bisbee, for real parties in interest.

OPINION

FERNANDEZ, Chief Judge.

[1] [2] This special action was taken from the order of thetrial court denying petitioners' motion to withdraw as counselfor real party in interest Kenneth Kempton in the underlyingcriminal action. The order is not a final order and is thereforenot appealable. Cf. Security General Life Ins. Co. v. SuperiorCourt, 149 Ariz. 332, 718 P.2d 985 (1986). Because weconclude that the trial court either failed to exercise discretionwhich it had a duty to exercise or abused that discretion, weaccept jurisdiction and grant relief. Id.

The essential facts are undisputed. Sometime in early Aprilof 1990, Kempton was charged with theft, a class 3 felony.Petitioners agreed to represent Kempton pursuant to an

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agreement which provided for the payment of a sum in cash tobe paid by Kempton through his employer. Petitioner Suageerepresented Kempton at his initial appearance in justice courton April 12. On April 17, Suagee filed a motion in justicecourt to withdraw from further representation alleging thathis representation at the initial appearance was a “special

appearance for the purpose of that hearing,” 1 and that “[a]sarrangements for legal **941 *139 representation were notcompleted, the contractual obligation was never established.”The state did not oppose the motion, but no action was takenby the justice court.

On April 20, Kempton was indicted for theft in violation ofA.R.S. § 13–1802(A)(6), a class 3 felony. Suagee representedKempton at his arraignment on April 30 and advised the courtthat he was retained by Kempton solely for that hearing. Notrial date was set at the arraignment. On June 18, Suageefiled a motion to withdraw in superior court on the groundthat Kempton had failed to comply with the terms of therepresentation agreement. The motion noted that no trial datehad been set and that Kempton had adequate time to obtainother counsel without prejudice. Again, the state did notobject, nor did Kempton. Following a hearing, the trial judgedenied the motion, stating that he would not grant the motionsolely for nonpayment of fees. A trial date was then set forAugust 23, 1990, which has been stayed by this court.

[3] [4] Petitioners argue that the trial court abusedits discretion in denying the motion under Rule 6.3,Ariz.R.Crim.P., 17 A.R.S., in light of the fact that no trial datehad been set and all parties agreed that no prejudice wouldresult. Rule 6.3 provides:

a. Notice of Appearance. At his first appearance inany court on behalf of a defendant, an attorney, whetherprivately retained or appointed by the court, shall file anotice of appearance on a form provided by the clerk of thecourt.

b. Duty of Continuing Representation. Counselrepresenting a defendant at any stage shall continue torepresent him in all further proceedings in the trial court,including filing of notice of appeal, unless the court permitshim to withdraw.

c. Duty Upon Withdrawal. No attorney shall be permittedto withdraw after a case has been set for trial exceptupon motion accompanied by the name and address ofanother attorney, together with a signed statement by thesubstituting attorney that he is advised of the trial date

and will be prepared for trial. Appointed counsel maywithdraw after the arraignment on the grounds of hisclient's ineligibility only upon a showing that withdrawalwill not disrupt the orderly processing of the case.

Although the rule limits counsel's ability to withdraw once atrial date has been set, it contains no guidelines or limitationson withdrawal prior to trial setting. Prior to 1975, the rulecontained an additional subsection which would have beendispositive of this case:

d. Limitation of Grounds for Withdrawal. After anarraignment, no attorney may withdraw from a criminalcase solely for nonpayment of fees. Appointed counselmay withdraw after the arraignment on the grounds of hisclient's ineligibility only upon a showing that withdrawalwill not disrupt the orderly processing of the case.

In 1975, however, this subsection was deleted and thelast sentence pertaining to appointed counsel was addedto subparagraph (c). From this amendment of the rules,petitioners urge that we can infer that nonpayment of fees isnow a permissible and sufficient ground for withdrawal solong as a trial date has not been set. Under the circumstancesof this case, we agree.

In the absence of controlling case law in Arizona, wehave looked to other jurisdictions for guidance. The fewcases we have found indicate that, while the decision topermit withdrawal is committed to the court's discretion,that discretion is not unbounded and must be exercised withreference to the potential prejudice to the judicial process,counsel, and the defendant. Mandell v. Superior Court for LosAngeles County, 67 Cal.App.3d 1, 136 Cal.Rptr. 354 (1977);Allison v. State, 436 So.2d 792 (Miss.1983); Commonwealthv. Scheps, 361 Pa.Super. 566, 523 A.2d 363 (1987). In Allison,the court noted:

Withdrawal will not be automaticallyallowed. Such factors as the timingof the motion to withdraw, possibleprejudice to the adverse party, thecourt's and the public's interest inthe prompt disposition of the matter,and the like, will be **942 *140relevant considerations. On the otherhand, a timely motion to withdrawmade for bona fide reasons willnormally be looked upon with favor.We emphasize that motions for leave

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to withdraw will be considered againstthe backdrop of D.R. 2–110 of theCode of Professional Responsibility,as well as the formally publishedEthical Considerations undergirdingthe same.

436 So.2d at 796 n. 9. Citing DR 2–110(C)(1)(f), the courtnoted that “in many circumstances the failure of the clientto pay a reasonable fee may be a good and valid reason for

withdrawal.” Allison v. State, 436 So.2d at 796. 2

In Mandell, counsel moved to withdraw following thedefendant's arraignment on the ground that he had beenretained only for purposes of representing the defendant at thepreliminary hearing. Because the record of the preliminaryhearing did not clearly reflect the “special appearance,” thetrial court concluded that counsel was “on the hook, so tospeak,” and denied the motion. 67 Cal.App.3d at 2, 136Cal.Rptr. at 355. The appellate court reversed, finding “noreason at all for refusing to relieve counsel....” Id. In Scheps,the court reached the same result, reasoning as follows:

Where a lawyer has conscientiouslyrepresented his client and has not lefthim without time to prepare his casefor trial or to procure other counsel forsuch trial, his petition for withdrawalis not made in bad faith. And wheresaid client made in bad faith [sic] owespast legal fees of a substantial amount

and is not in a position to pay for futurelegal fees for a protracted trial, there isno reason to deny an attorney's petitionfor leave to withdraw.

361 Pa.Super. at 581–82, 523 A.2d at 370.

We believe that the reasoning of these cases is consistentwith the purposes behind Rule 6.3 and that the exercise of thetrial court's discretion in deciding motions to withdraw madeprior to trial setting must be governed by considerations ofthe potential prejudice to the judicial process, counsel, andthe defendant. Thus, while nonpayment of fees alone maynot be sufficient to warrant withdrawal, in the absence ofany showing of prejudice to the defendant or to the judicialprocess, a motion to withdraw on this ground should begranted. In the present case, the state agreed that no prejudicewould result from counsel's withdrawal. Accordingly, the trialcourt abused its discretion in denying petitioners' motion towithdraw.

The order of the trial court is vacated and the cause isremanded with directions to grant petitioners' motion towithdraw.

ROLL, P.J., and HOWARD, J., concur.

Parallel Citations

796 P.2d 940

Footnotes

1 There is no provision in the Rules of Criminal Procedure for a “special appearance” by counsel.

2 DR 2–110(C)(1)(f) permits an attorney to withdraw from representation if his client “[d]eliberately disregards an agreement or

obligation to the lawyer as to expenses and fees.” Under ER 1.16 of the Rules of Professional Conduct adopted in Arizona in 1983,

unless ordered to continue by the court, a lawyer may withdraw from representing a client if “the representation will result in an

unreasonable financial burden on the lawyer....” Ariz.R.S.Ct. 42, Rules of Professional Conduct, ER 1.16(b)(5), 17A A.R.S.

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12

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628 P.2d 950

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129 Ariz. 67Supreme Court of Arizona, In Banc.

Louis Anthony RODRIGUEZ and the MaricopaCounty Public Defender's Office, Petitioners,

v.STATE of Arizona, through its representativethe Maricopa County Attorney, real party in

interest, and the Superior Court of the State ofArizona, the Hon. David L. Grounds, Respondents.

No. 15057. | May 11, 1981.

In special action, member of the public defender's officechallenged the trial court's refusal to permit his withdrawalas criminal defense attorney for specific defendant. TheSupreme Court, Struckmeyer, C. J., held that: (1) Statedid not have standing to disqualify public defender's officefrom participating in defense of defendant; (2) attorney wasnot compelled to withdraw from defendant's case underdisciplinary rule governing withdrawal from employment;and (3) due to appearance of impropriety, attorney and publicdefender's office should have been disqualified.

Relief granted.

Holohan, V. C. J., specially concurred and filed opinion inwhich Hays, J., joined.

West Headnotes (6)

[1] Criminal LawPublic Defenders

As no ethical duty was owed to prosecutionby either attorney representing defendant orby public defender's office, State did not havestanding to disqualify public defender's officefrom participating in defense of defendant afterdefendant's attorney had indicated he mighthave to withdraw as counsel due to publicdefender's office's past representation of personthat attorney intended to call as witness to rebutidentification of defendant.

6 Cases that cite this headnote

[2] Criminal LawWithdrawal by Counsel

Defense counsel may move court to withdrawif he believes his continued representation ofdefendant will or is likely to result in violation ofdisciplinary rule. 17A A.R.S. Sup.Ct.Rules, Rule29(a), DR2–110(B)(2), (C)(2).

1 Cases that cite this headnote

[3] Attorney and ClientActing for party adversely interested

Where second “client” of public defender'soffice was not charged with any crimes ofwhich defendant stood accused, there wasno indication that second client had anyinformation about those crimes or gave anyinformation concerning defendant's activitiesto his public defender attorney, defendant'scounsel did not receive confidential informationfrom sources within public defender's officeconcerning second client, and defendant'scounsel scrupulously avoided examining secondclient's file, attorney's brief investigation ofsecond client on defendant's behalf did notviolate disciplinary rule governing confidenceand secrets of client. 17A A.R.S. Sup.Ct.Rules,Rule 29(a), DR4–101.

Cases that cite this headnote

[4] Criminal LawPublic Defenders

Although defendant's counsel could notrepresent second client in public defender'soffice after associate in public defender's officewithdrew from second client's case, section ofdisciplinary rule governing refusal to acceptor continue employment which provides iflawyer is required to decline or withdrawfrom employment no partner or associate ofhis or his firm may accept or continue suchemployment did not have any relevancy toquestion of whether defendant's counsel wasrequired to withdraw from defense of defendantdue to public defender's office's withdrawalfrom representation of second client. 17A A.R.S.Sup.Ct.Rules, Rule 29(a), DR5–105(D).

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5 Cases that cite this headnote

[5] Attorney and ClientPartners and associates

In applying “vicarious disqualification” rule,inquiry is directed to whether representationof present client is substantially related torepresentation of former client; if it is,confidences and secrets known by former client'slawyer are imputed to any associate and thatassociate is disqualified vicariously. 17A A.R.S.Sup.Ct.Rules, Rule 29(a), DR5–105(D).

4 Cases that cite this headnote

[6] Criminal LawPublic Defenders

Although public defender's office received noinformation about defendant's alleged crimesfrom second client, where public defender'soffice probably received from second clientconfidential information and secrets abouthimself and his activities, and if office continuedto represent defendant and confrontation withsecond client developed at defendant's trial,it was possible that it would appear thatconfidences and secrets of second client wereused to his disadvantage, giving rise toappearance of impropriety, defendant's attorneyand public defender's office should have beendisqualified from representing defendant. ABACode of Professional Responsibility, Canon 9.

4 Cases that cite this headnote

Attorneys and Law Firms

*68 **951 Ross P. Lee, Maricopa County Public Defenderby John Foreman, Deputy Public Defender, Phoenix, forpetitioners.

Charles F. Hyder, Maricopa County Atty. by Michael D.Ryan, Deputy County Atty., Phoenix, for respondents.

Opinion

*69 **952 STRUCKMEYER, Chief Justice.

This special action challenges the trial court's refusal topermit John Foreman, a member of the Maricopa CountyPublic Defender's Office, to withdraw as criminal defenseattorney for Louis Anthony Rodriguez. This Court acceptedjurisdiction and, believing that the defendant's right toeffective assistance of counsel would be damaged while awritten opinion was prepared, we ordered the trial courtto allow the Maricopa County Public Defender's Office towithdraw and to appoint new counsel. We further suspendedthe time limits of Rule 8.2, Rules of Criminal Procedure, anddirected that our written decision would follow.

Rodriguez, at the time of filing this petition, was underindictment for fifteen counts of sexual assault, sexual abuse,kidnapping, and first and second degree burglary. SinceRodriguez was indigent, the Superior Court appointed theMarciopa County Public Defender to represent him. Onemember of that office, John Foreman, was assigned thecase. A defense to the charges against Rodriguez was hisidentification as a participant in the offenses.

In August 1980, another member of the Public Defender'sOffice was assigned to represent a person by the name ofFrank Silva, who was also charged with numerous counts ofsexual assault. Silva is not charged with any of the crimesfor which Rodriguez was indicted and there is absolutely noindication that Silva has any information about the crimesfor which Rodriguez stands accused or that any informationconcerning Rodriguez's activities was given by Silva tothe Public Defender's Office. Rodriguez's counsel, Foreman,became aware that his office represented Silva in earlySeptember. He approached counsel representing Silva andinquired of Silva's physical appearance and the chargesagainst Silva. Foreman states that this conversation waspurposefully kept general and that it did not involve anyprivileged or confidential information. Foreman determinedthat Silva's appearance was similar to Rodriguez's. Hetherefore decided to call Silva as a defense witness andsubpoenaed him for Rodriguez's trial. Foreman's purpose incalling Silva as a witness was to show the jury the similarappearance between the two men in order to impeach thewitnesses' identifications of Rodriguez. Foreman advisedSilva's counsel to withdraw from Silva's case. This was done,and the trial court appointed Silva counsel from other than thePublic Defender's Office.

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Thereafter, a hearing was held to determine if Silva could berequired to appear at Rodriguez's trial. During this hearing,Foreman indicated that he might have to withdraw as counselfor Rodriguez because of his office's past representationof Silva. The next day, the Maricopa County Attorneymoved to disqualify the entire Public Defender's Officefrom the representation of Rodriguez. After obtaining aninformal ethics opinion from the State Bar that continuedrepresentation of Rodriguez would involve an appearance ofimpropriety, Foreman moved the court to be permitted towithdraw. Rodriguez opposed the withdrawal, objecting toany more delays in his trial and, additionally, for the reasonhe believed Foreman was an effective lawyer. Rodriguez toldthe court that if Foreman was allowed to withdraw, he wouldgo to trial without counsel.

The trial court denied Foreman's motion. Instead, it appointedanother attorney, stating:

“ * * * to investigate only that aspect of the defenseas it concerns Mr. Silva, and if he finds, as a result ofthat investigation, that there is something which may beadmissible during the course of this trial, then (he) willhandle that aspect of the case * * *.

* * * if he finds there may be something relevant ormaterial, he is to present that evidence on behalf of Mr.Rodriguez, and also do any cross-examination in thatregard.“

Rodriguez objected to this arrangement, arguing that hewished Foreman to handle his entire defense and indicatedthat he would not cooperate with new counsel. Foreman alsoobjected to this solution and filed this special action.

**953 [1] It should be first stated that the State did nothave standing to disqualify the Public Defender's Office fromparticipating in the defense of Rodriguez.

We said in Knapp v. Hardy, 111 Ariz. 107, 112, 523 P.2d1308 (1974):

“That the county attorney has standing to object to adetermination of indigency there can be no doubt, but oncethat indigency is determined the county attorney has nostanding to object as to who will or will not represent thedefendant or be associated as counsel. Not only does thisstrike at the very heart of the adversary system, but as wehave previously stated:

‘ * * * for the prosecution to participate in the selectionor rejection of its opposing counsel is unseemly if for noother reason than the distasteful impression which couldbe conveyed.’ State v. Madrid, 105 Ariz. 534, 535, 468P.2d 561, 562 (1970).“

No ethical duty was owed to the prosecution by eitherForeman or the Public Defender's Office. See State v.Garaygordobil, 89 Ariz. 161, 164, 359 P.2d 753 (1961).

If the State believed an ethical violation was occurring,it should have followed the guidelines of the Code ofProfessional Responsibility:

“A lawyer possessing unprivileged knowledge of aviolation of DR 1-102 should report such knowledge to atribunal or other authority empowered to investigate or actupon such violation.” Rule 29(a), DR 1-103(A), Rules ofthe Supreme Court, 17A A.R.S.

[2] Foreman, however, orally joined in the State's motionto disqualify the Public Defender's Office from anyrepresentation of Rodriguez, thus solving any standingproblem. Defense counsel may move the court to withdraw ifhe believes his continued representation of a defendant will or

is likely to result in a violation of a Disciplinary Rule. 1 Rule29(a), DR 2-110(B)(2), (C)(2), Rules of the Supreme Court,17A A.R.S. He must reveal any potential conflicts of interestto the defendant even though the conflict is not one which islikely to result in a violation of a Disciplinary Rule. See Rule29(a), DR 5-101(A), DR 5-105, Rules of the Supreme Court,17A A.R.S.; Standard 4-3.5, ABA Standards for CriminalJustice. If counsel believes an actual conflict exists, he mustalso promptly reveal it to the court. State v. Davis, 110 Ariz.29, 31, 514 P.2d 1025 (1973).

Foreman's position is that he was faced with an incurableconflict of interest which compels him to withdraw. He urgesthat this conflict arose from the fact that he must zealouslyrepresent Rodriguez, but that in so doing might incriminateSilva, a former client of the Public Defender's Office.

An attorney owes a defendant representation which is bothloyal and zealous. Rule 29(a), DR 5-101(A), DR 5-105, DR7-101, Rules of the Supreme Court, 17A A.R.S.; Standards4-1.1(b), 4-1.6 and 4-4.1, ABA Standards for CriminalJustice. This loyalty is superior to the lawyer's personaland other professional interests. It rises above the interestsof third persons, including other clients, both past and

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present. EC 5-1, Code of Professional Responsibility. Zealousrepresentation requires that an attorney do everything legallyand ethically possible to gain an acquittal for a defendant.Rule 29(a), DR 7-101, Rules of the Supreme Court, 17AA.R.S.; see Standard 4-4.1, ABA Standards for CriminalJustice.

[3] Here, Foreman owed both loyal and zealousrepresentation to Rodriguez. So, if guilt could be shifted tosomeone other than Rodriguez, Foreman was under an ethicaland moral obligation to do so. Yet, it would be unethical toshift Rodriguez's guilt to Silva while Silva was representedby the Public Defender's Office, because *71 **954 thePublic Defender's Office also had a duty of loyalty to Silva.Rule 29(a), DR 5-105(B), Rules of the Supreme Court, 17AA.R.S.; EC 5-14, Code of Professional Responsibility; seeABA Informal Opinion 1418 (1978); cf. State v. Davis,supra (requiring a court-appointed counsel to represent adefendant and a codefendant after attempting to withdraw onground of conflict of interest denied the defendant effectiveassistance of counsel). See Allen v. District Court in andfor Tenth Jud. Dist., 184 Colo. 202, 519 P.2d 351 (1974)(where public defender's office represents both defendant andprosecution witness, the office must be allowed to withdrawfrom representation of witness; no mention that office mustalso withdraw from defendant's case).

As stated, Silva is not charged with any of the crimes ofwhich Rodriguez stands accused and there is no indicationthat Silva has any information about those crimes or thatSilva gave any information concerning Rodriguez's activitiesto his public defender attorney. Foreman, in his memorandumaccompanying his petition filed in this Court, says that he didnot receive confidential information from sources within thePublic Defender's Office. He also says that he scrupulouslyavoided examining Silva's file. Since Foreman did notobtain any confidential information about Silva's defense, hisbrief investigation of Silva on Rodriguez's behalf did notviolate DR 4-101 requiring the preservation of confidencesand secrets of a past or present client. Any subsequentinvestigation of Silva by Foreman would violate DR 4-101only if Foreman thereafter used confidential informationreceived by the Public Defender's Office as a result of itsrepresentation of Silva.

Hence, the appointment of separate counsel cannot curethe claimed ethical dilemma. Substitute counsel wouldstill be in Foreman's position since, in investigating Silva,substituted counsel could neither interview Silva's former

public defender nor obtain access to Silva's file. In this light,it is apparent that Foreman was not placed in an inextricableconflict between violating the duty of confidentiality andthe duty of zealous representation. Other courts have alsoheld under somewhat similar circumstances that a person inRodriguez's position was not denied effective assistance ofcounsel. The test is whether there was undivided loyalty. SeeUnited States v. Jeffers, 520 F.2d 1256, 1263-1264 (7th Cir.1975); Olshen v. McMann, 378 F.2d 993 (2nd Cir. 1967);People v. Pineda, 106 Cal.Rptr. 743, 30 Cal.App.3d 860(1973); Commonwealth v. Smith, 362 Mass. 782, 291 N.E.2d607 (1973).

In the case of People v. Pineda, supra, two men werearrested and charged with the robbery of a convenience store.Pineda was represented by Lucero, a public defender. Theother, Warren, was appointed another attorney from the samepublic defender's office. Warren related certain matters tohis counsel, but they were not communicated to Lucero.The charges against Warren were later dropped. At Pineda'strial, Lucero called Warren to the stand in an attempt to linkhim rather than Pineda to the robbery. Warren refused totestify, invoking his right against self-incrimination. Luceromoved for a mistrial and for the appointment of new counselfor Pineda, arguing that Warren's refusal was also basedon the attorney-client privilege, and, thus, he was unable toeffectively examine Warren. This motion was denied andPineda was convicted. On appeal, Pineda claimed his counsel,Lucero, had a conflict of interest that prevented the giving ofeffective assistance of counsel. In affirming, the court foundno conflict, saying:

“The mere fact that Warren was previously represented bythe same public defender's office at which Lucero workeddoes not, standing alone, give rise to an inference of anyconflict of interest. On the contrary, in the absence ofsome affirmative showing that a particular deputy publicdefender has acquired confidential adverse informationfrom a defendant from the files or other employees ofthe office, any claim of conflict of interest would begroundless.” *72 **955 People v. Pineda, 106 Cal.Rptr.at 746, 30 Cal.App.3d at 865.

Hence, we do not believe Foreman was compelled towithdraw under Rule 29(a), DR 2-110(B)(2) and (C)(2),Rules of the Supreme Court.

[4] It has been suggested that DR 5-105(D) requiresForeman to withdraw from Rodriguez's defense. Arizona'sversion of that rule differs in wording from the ABA's Code of

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Professional Responsibility. Rule 29(a), DR 5-105(D), Rulesof the Supreme Court, provides:

“If a lawyer is required to declineemployment or to withdraw fromemployment under DR 5-105, nopartner or associate of his or hisfirm may accept or continue suchemployment.”

This provision prevents an associate of a withdrawing counselfrom accepting or continuing the employment. Foremancould not represent Silva after Foreman's associate in thePublic Defender's Office withdrew. The provision does nothave any relevancy to the question of whether Foreman mustwithdraw from the defense of Rodriguez because the PublicDefender's Office withdrew from the representation of Silva.

Moreover, to require Foreman to withdraw because of Rule29(a), DR 5-105(D), would not be consistent with ourdecision in State v. Belcher, 106 Ariz. 170, 472 P.2d 39(1970). There, we reversed a conviction when the appellant'scounsel also represented a codefendant who was to be triedseparately. The appellant wished to call this codefendantas a witness, but his counsel disagreed and attempted towithdraw. The withdrawal was denied and appellant wasconvicted without the codefendant being called on his behalf.Reversing, we said:

“A lawyer may represent codefendants until a conflictarises or can reasonably be foreseen. At that pointindependent legal advice must be provided for one or theother.” Id. at 171, 472 P.2d 39. (Emphasis added.)

Accord, State v. Kruchten, 101 Ariz. 186, 199, 417 P.2d 510(1966); Watson v. District Court in and for Fourth Jud., Colo.,604 P.2d 1165, 1168 (1980).

Even though the Disciplinary Rules do not require Foremanto move to withdraw, other considerations may allow a courtto disqualify Foreman from representing Rodriguez.

[5] It is urged that any confidential knowledge knownto Silva's former counsel (public defender) is imputed toForeman through the “vicarious disqualification” rule. Theunderpinnings of this rule are found in the duty not todisclose a former client's confidences and secrets, the dutyof zealous and loyal representation, the ABA's version

of DR 5-105(D), 2 and the general warning against theappearance of impropriety. In applying this rule, the inquiry

is directed to whether the representation of the present clientis “substantially related” to the representation of the formerclient. If it is, confidences and secrets known by the formerclient's lawyer are imputed to any associate and that associateis disqualified vicariously. Silver Chrysler Plymouth, Inc. v.Chrysler Mot. Corp., 518 F.2d 751 (2nd Cir. 1975); AmericanCan Company v. Citrus Feed Co., 436 F.2d 1125, 1128-29(5th Cir. 1971). See State v. Latigue, 108 Ariz. 521, 502 P.2d1340 (1972); Bicas v. Superior Court in and for Pima County,116 Ariz. 69, 567 P.2d 1198 (App.1977). Note, “UnchangingRules in Changing Times: The Canon of Ethics and Intra-Firm Conflicts of Interest”, 73 Yale L.J. 1058, 1060 (1964).

This rule attempts to avoid situations:

“(1) where an attorney's conflict of interests in violation ofCanons 5 and 9 of the Code of Professional Responsibilityundermines the court's confidence in the vigor of theattorney's representation of his client, * * * or morecommonly (2) where the attorney is at least potentiallyin a position to use privileged information *73 **956concerning the other side through prior representation, forexample, in violation of Canons 4 and 9, thus giving hispresent client an unfair advantage (over the former client)* * *.” Bd. of Ed. of N. Y. City v. Nyquist, 590 F.2d 1241,1246 (2nd Cir. 1979). (Footnotes omitted.)

At this point we reach the issue of the appearance ofimpropriety which we think is determinative of this case.Under the view imputing knowledge of one attorney toothers, attorneys and partnerships are generally disqualifiedby reason of disqualification of an attorney associated withthem either on the basis of representation of an adverseinterest or the possible disclosure of confidential information.The Arizona Court of Appeals has held that an attorneywho as a partner, associate or employee may have beeninvolved in the interchange of ideas and problems presentedin the law firm carries the taint of disqualification to anotherlaw firm representing an adverse party, even though he didnot personally handle the affairs of the other party and didnot possess any of their confidential information. Bicas v.Superior Court in and for Pima County, supra.

The ABA, however, has criticized the concept of theappearance of impropriety in this language:

“It is fortunate that ‘avoiding even the appearance ofprofessional impropriety’ was not made an element ofthe disciplinary rule, for it is too vague a phrase to beuseful * * *, and lawyers will differ as to what constitutes

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the appearance of evil * * *. For the same reasons, theconcept is of limited assistance as an underlying policyconsideration. If ‘appearance of professional impropriety’had been included as an element in the disciplinary rule,it is likely that the determination of whether particularconduct violated the rule would have degenerated from thedetermination of the fact issues * * * into a determinationon an instinctive, ad hoc or even ad hominem, basis * * *.”ABA Formal Opinion 342, n. 17 (1975).

See also, Bd. of Ed. of N. Y. City v. Nyquist, supra at1246-1247. But we think the determination of a fact issuedoes not always satisfy the moral concept often inherent inclose decisions.

New York State's highest court, in Cardinale v. Golinello,43 N.Y.2d 288, 401 N.Y.S.2d 191, 195, 372 N.E.2d 26, 30(1977), put it this way:

“Accordingly, it is no answer thatthe lawyer did not in fact obtain anyconfidential information in connectionwith the first employment, or even thatit was only other members of his firmwho rendered the services to the client.Irrespective of any actual detriment,the first client is entitled to freedomfrom apprehension and to certaintythat his interests will not be prejudicedin consequence of representation of theopposing litigant by the client's formerattorney. (Drinker, Legal Ethics, pp.109, 115.) The standards of theprofession exist for the protectionand assurance of the clients and aredemanding; an attorney must avoid notonly the fact, but even the appearance,of representing conflicting interests(Rotante v. Lawrence Hosp., 46A.D.2d 199, 361 N.Y.S.2d 372;Edelman v. Levy, 42 A.D.2d 758, 346N.Y.S.2d 347).”

We note also that in Schloetter v. Railoc of Indiana, Inc. 546F.2d 706, 709 (7th Cir. 1976), the court observed:

“The basic policies underlying any judicially-compelledwithdrawal of counsel because of a potential conflict ofinterest can be found in Canons 4 and 9 of the ABA Codeof Professional Responsibility. Canon 4 provides that ‘a

Lawyer Should Preserve the Confidences and Secrets of aClient,’ and Canon 9 provides that ‘a Lawyer Should AvoidEven the Appearance of Professional Impropriety.’ Readtogether, the two canons indicate that an attorney may berequired to withdraw from a case where there exists evenan appearance of a conflict of interest.” (Footnote omitted.)

[6] In the instant case, the admonition of Canon 9, thata lawyer should avoid even the appearance of impropriety,is especially appropriate. Persons charged with crime *74**957 must have ultimate faith in their attorney and such

faith may be slow to develop when the attorney is court-appointed and not retained. Without faith in counsel, thecriminal defendant may not freely communicate informationnecessary to an adequate defense. We recognize the factthat the Public Defender's Office received no informationabout Rodriguez's alleged crimes from Silva. But weassume that office has received from Silva confidentialinformation and secrets about himself and his activities. Ifthe Public Defender's Office continues to represent Rodriguezand a confrontation with Silva developed at Rodriguez'strial, it is possible, even probable, that it would be toSilva's disadvantage. Such a result would make it appearthat confidences and secrets of Silva were used to hisdisadvantage. This appearance could only hurt Silva's, hisfriends' and relatives', and even the general public's faith inthe Public Defender's Office.

We therefore hold that because of the appearance ofimpropriety, Foreman and the Public Defender's Officeshould have been disqualified. Our order heretofore entereddirecting the trial court to permit the Maricopa County PublicDefender's Office to withdraw from Rodriguez's defense isconfirmed.

CAMERON and GORDON, JJ., concur.

HOLOHAN, Vice Chief Justice (specially concurring):Although I agree with the result reached, I do not agree withthe rationale of the majority opinion.

At the onset, I believe that the public defender was totallycorrect and justified in seeking to be relieved of hisrepresentation of Rodriguez. The occurrences in the publicdefender's office during the simultaneous representation ofRodriguez and Silva created a clear conflict of interest not justan appearance of impropriety.

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The relationship of the public defender's office in therepresentation of indigent defendants should be no differentthan the representation of any client by a private law firm.Apparently this principle is not accepted in California, at leastas I read People v. Pineda, 106 Cal.Rptr. 743, 30 Cal.App.3d860 (1973). In my judgment, the correct position is that statedby the Colorado Supreme Court in Allen v. District Court Inand For Tenth Jud. Dist., 184 Colo. 202, 519 P.2d 351 (1974).The Colorado Supreme Court stated that “the knowledge, orposition gained by any member of the staff (public defender)would be attributed to the other. DR 5-105(D).” Thus, inAllen the public defender's office was found to have a conflictof interest between two defendants, one of whom was to be awitness against the other. This conflict was found even thoughthe crimes charged against the defendants were in no wayrelated to each other. The fact, however, that a lawyer mustinterview his client to determine all relevant facts presents theconflict, if the information gained by one deputy (partner) isimputed to the members of the staff (other partners). But cf.:Watson v. District Court In and For Fourth Jud. Dist., Colo.,604 P.2d 1165 (1980).

It is my view that the principle set forth in Allen, supra, isnot only legally correct and sound, but it is vital to the justicesystem. Allowing lawyers to pick and choose between clientsis a pernicious concept. I had thought that the ethics of theprofession and common sense had caused such a concept to berejected as totally incompatible with the role of an attorney.

The cardinal point in this case is the fact that both defendants,Silva and Rodriguez, were clients of the public defender'soffice at the same time. We are not dealing with a formerclient situation. The relationship of the public defender withSilva was the same fiduciary relationship which the membersof the office had with Rodriguez. They were both clients ofthe office and each entitled to the undivided allegiance andloyalty of their attorneys. As events occurred, the interestsof Rodriguez and *75 **958 Silva were brought into adirect conflict which placed the public defender's office in anirreconcilable conflict with the interests of Silva.

The public defender's office had no choice but to withdrawfrom both cases. See Cinema 5, Ltd. v. Cinerama, Inc., 528F.2d 1384 (2d Cir. 1976); Bicas v. Superior Court In andFor Pima Cty., 116 Ariz. 69, 567 P.2d 1198 (App.1977). Thetrial court should have allowed the public defender's office towithdraw, and I, therefore, concur in the result reached in thiscase.

HAYS, Justice (specially concurring):

I concur in the special concurrence of HOLOHAN, V. C. J.

Parallel Citations

628 P.2d 950

Footnotes

1 “No attorney shall be permitted to withdraw after a case has been set for trial except upon motion accompanied by the name and

address of another attorney, together with a signed statement by the substituting attorney that he is advised of the trial date and will

be prepared for trial.” Rule 6.3(c), Rules of Criminal Procedure, 17 A.R.S. Foreman's motion failed to meet this requirement since

no substituting counsel was offered.

2 “If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate,

or any other lawyer affiliated with him or his firm may accept or continue such employment.” DR 5-105(D), Code of Professional

Responsibility.

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810 F.Supp.2d 929United States District Court,

D. Arizona.

ROOSEVELT IRRIGATION DISTRICT, a politicalsubdivision of the State of Arizona, Plaintiff,

v.SALT RIVER PROJECT AGRICULTURAL

IMPROVEMENT AND POWERDISTRICT, a political subdivision of

the State of Arizona; et al., Defendants.

CV. No. 10–00290 DAE–MHB. | Aug. 26, 2011.

SynopsisBackground: Irrigation District, which ownedapproximately 100 groundwater wells in western portionof Arizona county, brought cost recovery action underComprehensive Environmental Response, Compensation,and Liability Act (CERCLA) against dozens of purportedpotentially responsible parties (PRP), seeking to recuperatecosts it had or would incur in responding to contaminationof its wells and to recover for damages to its property. Sixdefendants moved to disqualify plaintiffs' counsel.

Holdings: The District Court, David Alan Ezra, J., held that:

[1] district's attorney's prior representation of PRP wassame or substantially similar to action, as required fordisqualification of attorney;

[2] screening was not available to cure attorney'sdisqualifying conflict, thereby precluding law firm'srepresentation of district;

[3] PRP's conflict waiver was not sufficient to waiveattorneys' conflicts;

[4] attorney did not have concurrent conflict of interest inrepresenting one of PRPs; and

[5] relevant factors weighed in favor of disqualification ofdistrict's attorney from representation against five of PRPs.

Motions granted in part and denied in part.

West Headnotes (31)

[1] Attorney and ClientDisqualification in general

The court applies Arizona's ethical rules whenevaluating motions to disqualify counsel, as ithas adopted the Arizona Rules of ProfessionalConduct as its ethical standards.

3 Cases that cite this headnote

[2] Attorney and ClientDisqualification in general

Under Arizona law, only in extremecircumstances should a party to a lawsuit beallowed to interfere with the attorney-clientrelationship of his opponent.

1 Cases that cite this headnote

[3] Attorney and ClientDisqualification proceedings; standing

A motion to disqualify counsel should besubjected to particularly strict scrutiny becauseof its potential for abuse; however, closeor doubtful cases are resolved in favor ofdisqualification in order to preserve the integrityof the judicial system.

1 Cases that cite this headnote

[4] Attorney and ClientDisqualification proceedings; standing

The moving parties have the burden ofsufficiently showing why the court shoulddisqualify an attorney from representing itsclient.

Cases that cite this headnote

[5] Attorney and ClientInterests of former clients

For a conflict to exist pursuant to Arizona Ruleof Professional Conduct governing former clientconflicts of interest, moving party must show:

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(1) the existence of attorney-client relationship;(2) the former representation was the same orsubstantially related to current litigation; and(3) the current client's interests are materiallyadverse to former client's interests. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.9(a).

2 Cases that cite this headnote

[6] Attorney and ClientPartners and associates

Arizona Rule of Professional Conduct precludesscreening of a disqualified lawyer from anyparticipation in matter, as solution to anytaint to firm from disqualified lawyer's priorrepresentation, when: (1) the disqualifiedlawyer either switched sides in the currentrepresentation or the current representationnecessarily requires relitigating a particularaspect of a prior representation; (2) priorrepresentation was a proceeding before atribunal; and (3) disqualified lawyer played asubstantial role in prior proceeding. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.10(d)(1).

1 Cases that cite this headnote

[7] Attorney and ClientGovernment, employment by or

representation of

Attorney's prior representation of purportedpotentially responsible party (PRP) was sameor substantially similar to cost recoveryaction, under Comprehensive EnvironmentalResponse, Compensation, and Liability Act(CERCLA), brought by attorney's client, anirrigation district which owned approximately100 groundwater wells in western portion ofArizona county against PRPs, as required fordisqualification of attorney; attorney representedPRP in initial stages of action and analyzedtwo of district's draft complaints in hiscapacity as counsel for PRP, when previouslyengaged by PRP attorney was charged withdeveloping legal strategy and analyzing liabilityfor contamination that purportedly emanated

from PRP's facilities that purportedly becamepart of commingled plume of contamination,and therefore, there was “substantial risk”that confidential factual information as wouldnormally have been obtained in attorney'srepresentation of PRP would materially advancedistrict's position in action. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.9.

Cases that cite this headnote

[8] Attorney and ClientPartners and associates

Screening was not available to cure attorney'sdisqualifying conflict, thereby precludingrepresentation by attorney's law firm ofirrigation district in cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against potentially responsible parties (PRP)to recuperate costs it had or would incur inresponding to contamination of approximately100 groundwater wells it owned in westernportion of Arizona county; attorney representedPRP in initial stages of action, in thiscapacity attorney met with district's counselon PRP's behalf, analyzed two of district'sdraft complaints for PRP, conferred withPRP's experts to review district's proposal,communicated with other defendants named indistrict's draft complaint, and had “materialand weighty” role in proceeding based onbilling records. Comprehensive EnvironmentalResponse, Compensation, and Liability Act of1980, § 101 et seq., 42 U.S.C.A. § 9601 etseq.; 17A A.R.S. Sup.Ct.Rules, Rule 42, Rulesof Prof.Conduct, ER 1.10(d)(1).

Cases that cite this headnote

[9] Attorney and ClientPartners and associates

Screening was not available to cure attorney'sdisqualifying conflict, thereby precludingrepresentation by attorney's law firm of

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irrigation district in cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against potentially responsible parties (PRP)to recuperate costs it had or would incur inresponding to contamination of approximately100 groundwater wells it owned in westernportion of Arizona county; law firm did notscreen attorney from cost recovery action foralmost two years after its engagement by districtdue to its failure to input attorney's prior work forPRP into its conflicts database. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.10(d).

Cases that cite this headnote

[10] Attorney and ClientDisclosure, waiver, or consent

Potentially responsible party's (PRP) conflictwaiver was not sufficient to waive conflictsof its former attorneys in representingirrigation district in cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against PRPs to recuperate costs it had orwould incur in responding to contamination ofapproximately 100 groundwater wells it ownedin western portion of Arizona county; waiverwas limited to an unrelated tax issue, firm's letterseeking conflict waiver only sought to allow firmto pursue settlement negotiations with PRP onbehalf of district and did not contemplate waiverthrough litigation stage of action, and PRPnever gave informed consent. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.7(b), 1.10(c).

Cases that cite this headnote

[11] Attorney and ClientGovernment, employment by or

representation of

Attorney's prior representation of purportedpotentially responsible party (PRP) was sameor substantially similar to cost recoveryaction, under Comprehensive EnvironmentalResponse, Compensation, and Liability Act(CERCLA), brought by its present client, anirrigation district which owned approximately100 groundwater wells in western portion ofArizona county against PRPs, as required fordisqualification of attorney; district assertedin action that hazardous substances usedand disposed of at complex, the samefacility and same contamination at issueduring attorney's prior representation of PRP,contributed to groundwater contamination ofits wells, as counsel for PRP attorneyspearheaded investigation into possible sourcesof potential groundwater contamination,analyzed information generated by technicalexperts, led settlement negotiations, andformulated litigation strategy. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.9.

Cases that cite this headnote

[12] Attorney and ClientPartners and associates

Screening was not available to cure attorney'sdisqualifying conflict, thereby precludingrepresentation by attorney's law firm ofirrigation district in cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against his former client, potentially responsibleparties (PRP), to recuperate costs it had orwould incur in responding to contamination ofapproximately 100 groundwater wells it ownedin western portion of Arizona county; instantand prior action concerned potential liabilityfor same alleged contamination emanatingfrom complex, and both proceedings werebefore tribunal in which personally disqualifiedattorney had a substantial role. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.

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§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.10(d)(1).

Cases that cite this headnote

[13] Attorney and ClientWhat constitutes a retainer

A joint defense agreement establishes animplied attorney-client relationship with the co-defendant.

Cases that cite this headnote

[14] Attorney and ClientWhat constitutes a retainer

Courts generally agree a traditional attorney-client relationship is not established betweenan attorney and his client's former co-defendantvia a joint defense agreement, but attorney maynonetheless owe a duty of confidentiality toformer co-defendant; to determine whether dutyexists, a court must consider whether there wasan actual exchange of confidential information,as courts do not presume the exchange occurred.

Cases that cite this headnote

[15] Attorney and ClientClient's confidences, in general

Privileged Communications andConfidentiality

Common interest doctrine; joint clients orjoint defense

If confidential information has been obtainedby an attorney pursuant to a joint defenseagreement, the attorney must maintain thatconfidence.

Cases that cite this headnote

[16] Attorney and ClientInterests of former clients

An attorney may be disqualified from aproceeding if the attorney is both in actualpossession of confidential information pursuantto joint defense agreement, and by virtue ofhaving this information, is either incapable of

adequately representing the new client or willbreach the duty of confidentiality owed to theformer co-defendant.

Cases that cite this headnote

[17] Attorney and ClientDisqualification proceedings; standing

The duty of confidentiality imposed by ajoint defense agreement is limited in that theshowing required to establish a conflict ofinterest arising from prior participation in a jointdefense agreement is significantly higher thanrequired to make out a conflict based on formerrepresentation of a client.

Cases that cite this headnote

[18] Attorney and ClientInterests of former clients

Disqualification of a defendant's attorneyis appropriate where a party seekingdisqualification can show an attorney for anotherdefendant actually obtained relevant confidentialinformation through a joint defense agreement.

Cases that cite this headnote

[19] Attorney and ClientParticular Cases and Problems

Joint defense agreements give rise to an impliedattorney-client relationship, which may includea duty of confidentiality; the relationship canlead to a disqualifying conflict of interest whereinformation gained in confidence by an attorneybecomes an issue, specifically when the formerrepresentation was same or substantially relatedto current litigation and when current client'sinterests are materially adverse to interests ofparty asserting conflict of interest.

Cases that cite this headnote

[20] Attorney and ClientPartners and associates

Conflicts of interest arising from joint defenseagreements, and participation in joint defense

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groups, can be imputed to an entire law firm inaccordance with the applicable ethical rules.

Cases that cite this headnote

[21] Attorney and ClientGovernment, employment by or

representation of

Irrigation district attorneys' prior representation,pursuant to joint defense agreement, of purportedpotentially responsible parties (PRP) was sameor substantially similar to cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),brought by irrigation district which ownedapproximately 100 groundwater wells in westernportion of Arizona county against PRPs, asrequired for disqualification of attorneys; atissue in former representation was PRPs'potential liability for groundwater contaminationexisting within particular sites, and in instantaction, district alleged facilities contributed togroundwater contamination of its wells locatedin same sites. Comprehensive EnvironmentalResponse, Compensation, and Liability Act of1980, § 101 et seq., 42 U.S.C.A. § 9601 etseq.; 17A A.R.S. Sup.Ct.Rules, Rule 42, Rulesof Prof.Conduct, ER 1.9.

Cases that cite this headnote

[22] Attorney and ClientGovernment, employment by or

representation of

Attorneys' prior representation, pursuant to jointdefense agreement, of purported potentiallyresponsible parties (PRP) was materiallyadverse to interests of their current client, anirrigation district which brought cost recoveryaction, under Comprehensive EnvironmentalResponse, Compensation, and Liability Act(CERCLA), against PRPs seeking to recuperatecosts it had or would incur in respondingto contamination of approximately 100groundwater wells it owned in westernportion of Arizona county, as required fordisqualification of attorneys; group recognizedand assessed potential impacts to district and

discussed it and its pumping in confidentialand privileged communications transmittedbetween and among the group members,and group engaged in frank discussionsregarding their individual liabilities as wellas group's collective liabilities. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.9.

Cases that cite this headnote

[23] Attorney and ClientGovernment, employment by or

representation of

Attorney did not have concurrent conflict ofinterest in representing irrigation district incost recovery action, under ComprehensiveEnvironmental Response, Compensation, andLiability Act (CERCLA), against purportedlyhis former client, a potentially responsible party(PRP), for pollution to district's approximately100 groundwater wells, thereby precludingdisqualification of attorney; any expressattorney-client relationship between attorneyand PRP ended when attorney withdrew fromrepresenting PRP, and attorney's firm did notever represent PRPs as clients. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.7.

Cases that cite this headnote

[24] Attorney and ClientGovernment, employment by or

representation of

Attorneys' prior representation, pursuant to jointdefense agreement, of purported potentiallyresponsible parties (PRP) did not result in actualexchange of relevant confidential information,thereby precluding disqualification of attorneyin cost recovery action, under ComprehensiveEnvironmental Response, Compensation, andLiability Act (CERCLA), brought by currentclient, an irrigation district, against PRPs seeking

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to recuperate costs it had or would incur inresponding to contamination of approximately100 groundwater wells it owned in westernportion of Arizona county; joint defenseagreements, attorney's letter advising federalagency that he no longer represented PRP, e-mail exchange discussing attorney's potentialconflict as well as firm's decision to remove PRPas defendant in proceedings, letter explainingwhy PRP believed there was a conflict, andother related documents did not demonstratePRP provided relevant confidential informationto attorney while he represented anotherPRP. Comprehensive Environmental Response,Compensation, and Liability Act of 1980, § 101et seq., 42 U.S.C.A. § 9601 et seq.

Cases that cite this headnote

[25] Attorney and ClientPartners and associates

Attorney was timely screened from anydisqualifying conflict, thereby precludingdisqualification of attorney's law firmfrom representation of irrigation district incost recovery action, under ComprehensiveEnvironmental Response, Compensation, andLiability Act (CERCLA), against potentiallyresponsible parties (PRP) to recuperate costsit had or would incur in respondingto contamination of approximately 100groundwater wells it owned in western portionof Arizona county; while attorney did not playsubstantial role in prior matter, he was informedprior to joining firm that firm represented PRPand arrangements were made for him to bescreened, and PRP was given prompt writtennotice of attorney's hiring. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.; 17A A.R.S. Sup.Ct.Rules, Rule42, Rules of Prof.Conduct, ER 1.10(d)(1).

Cases that cite this headnote

[26] Attorney and ClientGovernment, employment by or

representation of

Attorney and ClientPartners and associates

Nature of ethical violation by irrigation district'sattorney, arising from his representation ofpotentially responsible parties (PRP) in sameor substantially similar action, weighed infavor of disqualification of attorney andhis firm in district's cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against PRPs to recuperate costs district had orwould incur in responding to contamination ofapproximately 100 groundwater wells it ownedin western portion of Arizona county; district andPRPs were adverse parties, firm owed duty ofconfidence to each of moving PRPs on preciselyquestion at issue in action, moving PRPs didnot waive any conflict and firm's screen didnot prevent imputation of conflicts to entirefirm. Comprehensive Environmental Response,Compensation, and Liability Act of 1980, § 101et seq., 42 U.S.C.A. § 9601 et seq.

Cases that cite this headnote

[27] Attorney and ClientGovernment, employment by or

representation of

Attorney and ClientPartners and associates

Prejudice to potentially responsible parties(PRP) as result of representation by irrigationdistrict's attorney of PRPs in same orsubstantially similar action, weighed infavor of disqualification of attorney andhis firm in district's cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against PRP to recuperate costs district had orwould incur in responding to contamination ofapproximately 100 groundwater wells it ownedin western portion of Arizona county; districtdid not explain how investigative work doneby firm would be undone, firm would only bedisqualified from representing district againstfive of dozens of PRPs, and any prejudice todistrict due to delay paled in comparison todelay moving PRPs would suffer if firm were to

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proceed as counsel for district. ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980, § 101 et seq., 42 U.S.C.A.§ 9601 et seq.

Cases that cite this headnote

[28] Attorney and ClientGovernment, employment by or

representation of

Attorney and ClientPartners and associates

Effectiveness of counsel for irrigation districtweighed in favor of disqualification of irrigationdistrict's attorney and his firm in district'scost recovery action, under ComprehensiveEnvironmental Response, Compensation, andLiability Act (CERCLA), against potentiallyresponsible parties (PRP) to recuperate costsdistrict had or would incur in respondingto contamination of approximately 100groundwater wells it owned in western portionof Arizona county; firm would be unableto effectively represent district while alsomaintaining its confidences to PRPs, whowere former clients of attorney and hisfirm. Comprehensive Environmental Response,Compensation, and Liability Act of 1980, § 101et seq., 42 U.S.C.A. § 9601 et seq.

Cases that cite this headnote

[29] Attorney and ClientGovernment, employment by or

representation of

Attorney and ClientPartners and associates

Public's perception of legal profession weighedin favor of disqualification of irrigation district'sattorney and his firm in district's cost recoveryaction, under Comprehensive EnvironmentalResponse, Compensation, and Liability Act(CERCLA), against potentially responsibleparties (PRP) to recuperate costs district hador would incur in responding to contaminationof approximately 100 groundwater wells itowned in western portion of Arizona county;public's expectation was that attorney and

law firms would not divulge confidentialinformation once obtained from former clients,who were on other side of dispute, and public'sfaith in judicial process could be seriouslyundermined if firm were allowed to representdistrict against PRPs, which attorney and hisfirm had represented in past in substantiallyrelated matter. Comprehensive EnvironmentalResponse, Compensation, and Liability Act of1980, § 101 et seq., 42 U.S.C.A. § 9601 et seq.

Cases that cite this headnote

[30] Attorney and ClientGovernment, employment by or

representation of

Attorney and ClientPartners and associates

Motions to disqualify counsel were notused as tactical device or means ofharassment, and thus, did not weigh againstdisqualification of irrigation district's attorneyand his firm in district's cost recovery action,under Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA),against potentially responsible parties (PRP) torecuperate costs district had or would incur inresponding to contamination of approximately100 groundwater wells it owned in westernportion of Arizona county; moving PRPsfiled motions roughly one month after districtfiled its complaint, and they had legitimateconcern, as they revealed, during course ofattorney's prior representation of PRPs in relatedmatters, confidential information to district'scurrent attorneys regarding extent of theirpotential liability and strategies for dealing withthat liability. Comprehensive EnvironmentalResponse, Compensation, and Liability Act of1980, § 101 et seq., 42 U.S.C.A. § 9601 et seq.

Cases that cite this headnote

[31] Attorney and ClientInterests of former clients

Disqualification of counsel does not dependupon proof of the abuse of confidentialinformation; because of the sensitivity of client

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confidence and the profession's institutional needto avoid even the appearance of a breach ofconfidence, disqualification is required whenlawyers change sides in factually related cases.

Cases that cite this headnote

Attorneys and Law Firms

*935 Bradley Joseph Glass, David J. DePippo, MichaelK. Kennedy, Stuart Spencer Kimball, Gallagher & KennedyP.A., Phoenix, AZ, for Plaintiff.

Craig Carson Hoffman, David John Armstrong, Ballard SpahrLLP, Mark A. McGinnis, Karen Sinodis Gaylord, RonniePerry Hawks, Salmon Lewis & Weldon PLC, ChristopherDavid Thomas, Diane Joyce Humetewa, Matthew LuisRojas, Squire Sanders & Dempsey LLP, Stephen LawrenceWetherell, Phoenix City Attorneys Office, Brian AlexanderHowie, Joseph Allen Drazek, Michael Shawn Catlett, Quarles& Brady LLP, Christopher L. Callahan, Phillip F. Fargotstein,John M. Pearce, Scott K. Ames, William Lee Thorpe,Fennemore Craig P.C., Thomas A. Stoops, Stoops DeniousWilson & Murray PLC, Troy Blinn Froderman, JonathanGrant Brinson, Mitchell J. Klein, John Douglas Burnside,Anthony W. Merrill, Michael C. Ford, Polsinelli ShughartP.C., Allison Renee Edwards, Stephen D. Hoffman, LewisBrisbois Bisgaard & Smith LLP, Margaret Olek Esler, MoyesSellers & Hendricks, John Howard Gray, Shane R. Swindle,Jack Adam Vincent, Tawn T. Pritchette, Perkins Coie LLP,Jerry Doyle Worsham, II, Ridenour Hienton & Lewis PLLC,Larry C. Schafer, Warner Angle Hallam Jackson & FormanekPLC, Timothy James Sabo, Michael W. Patten, John MatthewDerstine, Roshka Dewulf & Patten *936 PLC, Joshua S.Akbar, SNR Denton U.S. LLP, Christopher James Berry,Katherine Rae Branch, Berry & Branch PLLC, Marc AllenErpenbeck, G. Van Velsor Wolf, Jr., Snell & Wilmer LLP,Matthew Glenn Bingham, Robert Gerald Schaffer, Carla A.Consoli, Lewis & Roca LLP, Mark Jeffrey Andersen, LawOffices of Mark J. Andersen, Gerald K. Smith, Attorney atLaw, Monty Lee Greek, Sara Rebecca Witthoft, ZwillingerGreek Zwillinger & Knecht P.C., William W. Pearson,Megan Irwin Lennox, Bryan Cave LLP, Scott Thomas Ashby,Bolliger Law Offices, Phoenix, AZ, Eric Mason, Ryan M.Nishimoto, Sean Morris, Arnold & Porter LLP, Los Angeles,CA, Amy E. Gaylord, Pillsbury Winthrop Shaw Pittman LLP,San Francisco, CA, Jerry Wayne Ross, Pillsbury WinthropShaw Pittman LLP, Andrew J. Torrant, Eva Fromm Obrien,

Fulbright & Jaworski LLP, Houston, TX, Carl H. Helmstetter,Spencer Fane Britt & Browne LLP, Kansas City, MO, JohnR. Tellier, Titus Brueckner & Levine PLC, Matthew Joy,Eric Lynn Hiser, Trevor Joseph Louis Burggraff, JordenBischoff & Hiser PLC, Scottsdale, AZ, Jeffrey C. Fort, SNRDenton U.S. LLP, Alan Bruce White, Barnes & Thornburg,Chicago, IL, John Christopher Smith, Gerald K. Smith &John C. Smith Law Offices PLLC, Tucson, AZ, HowardM. Shanker, Shanker Law Firm PLC, David Vincent Seyer,Law Offices of David V. Seyer, Tempe, AZ, Brent HowardBryson, Bryson Law Firm PLC, Mesa, AZ, Benjamin L.Snowden, William Hughes, Wallace King Domike & ReiskinPLLC, C. Scott Spear, Michelle R. Lambert, U.S. Dept. ofJustice, Washington, DC, Douglas S. Arnold, Jody MarieRhodes, Sarah T. Babcock, Alston & Bird LLP, Atlanta,GA, Walter Edward Rusinek, Procopio Cory Hargreaves &Savitch LLP, San Diego, CA, for Defendants.

Seven Angels LLC, Phoenix, AZ, pro se.

Walker Power Systems Incorporated, Phoenix, AZ, pro se.

Willmore Manufacturing Incorporated, Phoenix, AZ, pro se.

ORDER: (1) GRANTING HONEYWELL'S MOTION TODISQUALIFY; (2) GRANTING CORNING'S MOTION

TO DISQUALIFY; (3) GRANTING UNIVAR'S MOTIONTO DISQUALIFY; (4) GRANTING SRP'S MOTION

TO DISQUALIFY; (5) GRANTING DOLPHIN'SMOTION TO DISQUALIFY; (6) DENYING ARVIN

AND COOPER'S MOTION TO DISQUALIFY

DAVID ALAN EZRA, District Judge.

On May 2, 2011, the Court heard Defendant HoneywellInternational, Inc.'s Motion to Disqualify Gallagher &Kennedy as Counsel for Roosevelt Irrigation District(“Honeywell's Motion to Disqualify”) (Doc. # 120);Defendant Corning Incorporated's Motion to DisqualifyCounsel for Plaintiff (“Corning's Motion to Disqualify”)(Doc. # 129); Defendant Univar USA Inc.'s Motion toDisqualify Gallagher & Kennedy as Counsel for RooseveltIrrigation District (“Univar's Motion to Disqualify”) (Doc. #131); Defendant Salt River Project Agricultural Improvementand Power District's Motion to Disqualify Plaintiff's CounselGallagher & Kennedy (“SRP's Motion to Disqualify”)(Doc. # 132); Defendant Dolphin, Incorporated's Motionfor Disqualification (“Dolphin's Motion to Disqualify”)(Doc. # 133); and Defendants ArvinMeritor, Inc. and

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Cooper Industries, LLC's Motion to Disqualify Gallagher &Kennedy, P.A. as Counsel for Roosevelt Irrigation District(“Arvin and Cooper's Motion to Disqualify”) (Doc. # 423)(collectively, “Motions to Disqualify”).

Michael K. Kennedy, Esq., Bradley Joseph Glass, Esq., andDavid DePippo, *937 Esq., appeared at the hearing onbehalf of Plaintiff Roosevelt Irrigation District (“RID”); SeanMorris, Esq., appeared at the hearing on behalf of DefendantHoneywell International, Inc. (“Honeywell”); Shane R.Swindle, Esq., appeared at the hearing on behalf of DefendantCorning Incorporated (“Corning”); Joseph Allen Drazek,Esq., appeared at the hearing on behalf of Defendant UnivarUSA Inc. (“Univar”); David John Armstrong, Esq., appearedat the hearing on behalf of Defendant Salt River ProjectAgricultural Improvement and Power District (“SRP”);Troy Blinn Froderman, Esq., appeared at the hearing onbehalf of Defendant Dolphin, Incorporated (“Dolphin”);Jerry Doyle Worsham, II, Esq., appeared at the hearingon behalf of Defendants ArvinMeritor, Inc. (“Arvin”) andCooper Industries, LLC (“Cooper”) (collectively, “MovingDefendants”).

After reviewing the motions and the supporting and opposingmemoranda, and after considering Moving Defendants' incamera filings, the Court GRANTS Honeywell's Motionto Disqualify; GRANTS Corning's Motion to Disqualify;GRANTS Univar's Motion to Disqualify; GRANTS SRP'sMotion to Disqualify; GRANTS Dolphin's Motion toDisqualify; and DENIES Arvin and Cooper's Motion toDisqualify.

BACKGROUND

This is a cost recovery action under the ComprehensiveEnvironmental Response, Compensation, and Liability Act of1980, 42 U.S.C. §§ 9601 et seq. (“CERCLA”) among otherlaws, whereby Plaintiff Roosevelt Irrigation District (“RID”)seeks to recuperate the costs it has or will incur in respondingto the contamination of its wells and to recover for damagesto RID property. RID is a political subdivision of the State ofArizona, and it owns approximately 100 groundwater wells inthe western portion of Maricopa County, Arizona. (FAC ¶¶ 7,9, 89.) RID operates and maintains the groundwater wells forthe purpose of providing water to public and private entitiesand individuals for industrial, agricultural, and residentialuses. (Id. ¶¶ 9, 89.) More than twenty of RID's groundwaterwells in the West Van Buren Area (“WVBA”) Water

Quality Assurance Revolving Fund (“WQARF”) Site havepurportedly been contaminated by hazardous substances, andan additional eleven wells are allegedly threatened. (Id. ¶¶ 11,90.) RID asserts that the contamination of its wells stems fromthree regional sites identified by the Arizona Departmentof Environmental Quality (“ADEQ”) and the United StatesEnvironmental Protection Agency (the “EPA”). (Id. ¶ 91.)Those three sites include: (1) the Motorola 52nd StreetSuperfund Site (the “M–52 Site”); (2) the WVBA WQARFSite; and (3) the West Central Phoenix (“WCP”) WQARFSite. (Id.) According to RID, the contaminated groundwaterunderlying each of these sites is “moving in a southwesterlyor westerly direction toward RID's groundwater wells” has“infiltrated and impacted” RID's wells. (Id. ¶¶ 92–93.)

In October 2008, RID hired Gallagher & Kennedy, P.A. (“G& K”) to provide investigatory and legal services regarding,and to assist in resolving the issues associated with, thecontamination of RID's wells. (Consolidated Opp'n Ex. 3,Declaration of David P. Kimball, III (“Kimball Decl. I”) ¶ 2.)The members of G & K's litigation team performing work onRID's behalf include: Michael Kennedy, David P. Kimball,III, Bradley J. Glass, David DePippo, Lindsi Weber, StuartKimball, Andrew Dudley, and Christine Goldberg. (Id. ¶ 37.)On February 9, 2010, RID, represented by G & K, filed aComplaint in the United States District Court for the Districtof Arizona against dozens of defendants. (Doc. # 1.) RID fileda First Amended Complaint on July 23, 2010. *938 (“FAC,”Doc. # 10.) Although RID primarily seeks to recover underCERCLA (id. ¶¶ 1, 106–16), it also asserts causes of action forQuasi Contract, Unjust Enrichment, Restitution; Nuisance;and Trespass (id. ¶¶ 117–32).

Shortly after RID filed its First Amended Complaint, severaldefendants filed motions to disqualify G & K as counselfor RID. These motions can be separated into two groups:(1) the former client motions to disqualify; and (2) the jointdefense group motions to disqualify. Due to the complexityunderlying these motions, the Court will first describe theirfactual underpinnings.

I. Former Client Motions to DisqualifyDefendants Honeywell International, Inc. (“Honeywell”) andCorning Incorporated (“Corning”) both seek to disqualifyG & K on the basis that they are former clients of currentG & K attorneys (collectively, “Former Client Motions toDisqualify”).

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A. Honeywell's Motion to DisqualifyHoneywell's facilities, located immediately north of thePhoenix Sky Harbor Airport, (the “Honeywell Facilities”) areon the southern boundary of Operable Unit 2 (“OU–2”) of

the M–52 Site. 1 (Declaration of Troy J. Kennedy, (“TroyKennedy Decl. I”) ¶ 2, Doc. # 126.) In 1992, the EPA notifiedHoneywell that it and other potentially responsible parties(“PRPs”) might be liable for contamination originating fromthe M–52 Site. (Id.) Since that time, Honeywell “negotiatedextensively” with the EPA, ADEQ, and other PRPs regardingthe investigation of the Honeywell Facilities as well as theremedies and clean up costs associated with the allegedreleases, which became commingled with another plume ofcontamination from other sources. (Id. ¶ 3.)

1. James G. Derouin

For several years in the 1990s, Honeywell engaged JamesG. Derouin (“Derouin”), now employed by G & K, torepresent its interests in connection with the contaminationthat allegedly emanated from the Honeywell Facilities in

OU–2 of the M–52 Site. 2 (Id. ¶ 4; Berke Decl. ¶ 2.)Derouin continued to represent Honeywell in this manneruntil approximately 1996. (Berke Decl. ¶ 11; Derouin Decl.I ¶¶ 10–12.)

In 2005, the EPA issued a special notice letter to Honeywelland other PRPs regarding issues arising in Operable Unit3 (“OU–3”) of the M–52 Site, which resulted from thesame commingled plume the parties had been addressingsince 1992. (Troy Kennedy Decl. I ¶ 7.) Honeywell retainedDerouin in 2007 to represent its interests in this matter. (Id.;Derouin Decl. I ¶ 14.)

In May 2009, David P. Kimball, III (“Kimball”), a G &K shareholder and counsel for RID, contacted Derouin, ascounsel for Honeywell, to discuss technical issues relatedto groundwater contamination associated with RID's wells.(Derouin Decl. I ¶ 15; Kimball Decl. I ¶ 11.) On two separateoccasions, Kimball met with Derouin to discuss these matters.(Derouin Decl. I ¶¶ 16–18; Kimball Decl. I *939 ¶¶12–15.) Kimball informed Derouin that RID intended tobring a cost recovery action if settlement discussions provedunsuccessful. (Kimball Decl. I ¶ 15; Derouin Decl. I ¶ 19.)In his capacity as counsel for Honeywell, Derouin receivedtwo copies of RID's draft complaint. (Troy Kennedy Decl. I ¶19; Derouin Decl. I ¶ 23; Kimball Decl. I ¶ 17; Supplemental

Declaration of Troy J. Kennedy (“Troy Kennedy Decl. II”) ¶2, Ex. A, Doc. # 331.)

On December 9, 2009, Derouin contacted Tom Byrne,Associate General Counsel/Chief Environmental Counsel forHoneywell, to inform him that he planned to leave Steptoeto join G & K. (Derouin Decl. I ¶¶ 28–29; Declaration ofTom Byrne (“Byrne Decl.”) ¶ 2, Doc. # 125.) Derouin washired by G & K in January 2010, and he attests that he did not“transfer or take any files, documents, or materials” relatedto his representation of Honeywell to G & K. (Derouin Decl.I ¶¶ 27, 31.) Derouin states that since his arrival at G & K,he has been screened from the RID matter. (Id. ¶¶ 32–35;see also Kimball Decl. I ¶¶ 30–31; Consolidated Opp'n Ex.9, Declaration of Michael K. Kennedy (“Michael KennedyDecl.”) ¶¶ 5–9.)

2. Glen Hallman

Glen Hallman (“Hallman”), now employed by G & K,served as Honeywell's in-house litigation counsel from 1987to 1999. (Consolidated Opp'n Ex. 6, Declaration of GlenHallman (“Hallman Decl.”) ¶ 5; Troy Kennedy Decl. I ¶21.) According to Honeywell's files, Hallman representedHoneywell with regard to the alleged contamination from theHoneywell Facilities and the resulting commingled plume.(Troy Kennedy Decl. I ¶¶ 21–41.)

Hallman has been a shareholder at G & K since 1999, andhe is a member of the firm's Litigation Department. (HallmanDecl. ¶¶ 2–3.) Hallman attests that when he joined G & K, hedid not bring “any written or electronic files or documents thatconstituted work product or confidential information relatingto the [M–52 Site].” (Id. ¶ 6.) Hallman has been screened fromthe RID matter since June 2010. (Id. ¶ 5; see also KimballDecl. I ¶¶ 40–41; Michael Kennedy Decl. ¶¶ 15–17.)

On September 15, 2010, Honeywell filed a Motion toDisqualify Gallagher & Kennedy as Counsel for RooseveltIrrigation District as well as a Memorandum in Support ofits Motion (“Honeywell's Motion to Disqualify”), contendingthat Derouin's and Hallman's employment by G & Kcreates impermissible conflicts of interest. (“Honeywell'sMot.,” Docs. 120, 123.) On October 25, 2010 RID, withpermission of the Court (Docs. 252, 292), filed a ConsolidatedOpposition to the Honeywell, Corning, Univar, SRP,and Dolphin Motions to Disqualify. (“RID's Consolidated

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Opp'n,” Doc. # 289.) Honeywell filed a Reply on November19, 2010. (“Honeywell's Reply,” Doc. # 330.)

B. Corning's Motion to DisqualifyCorning is a past “own[er] and/or operat[or]” of a formerelectronics manufacturing facility located at 35th Avenueand Osborn Road in Phoenix, Arizona (“West OsbornComplex”), within the WCP WQARF Site. (FAC ¶ 33.)ADEQ began investigating groundwater contamination at andin the vicinity of the West Osborn Complex as early as 1990.(Corning's Mot. Ex. A, Declaration of Richard D. Geiger(“Geiger Decl.”) ¶ 2.)

From 1990 to 1995, Derouin represented Corning with regardto the alleged groundwater contamination attributed to theWest Osborn Complex. (Derouin Decl. I ¶¶ 6–7; Geiger Decl.¶¶ 3, 5, 9.) In that capacity, Derouin negotiated extensivelywith ADEQ and assisted with lawsuits involving eitherCorning or its *940 subsidiary, Components, Incorporated(“Components”). (See Geiger Decl. ¶¶ 5–8.)

Derouin attests that he has not performed any work forCorning since 1995. (Derouin Decl. I ¶ 7.) As noted, Derouinwas hired by G & K in January 2010, and he states that hedid not “bring any written or electronic documents” relatedto his representation of Corning to G & K. (Id. ¶ 9.) Derouinrepresents that he has been screened from the RID mattersince his arrival at G & K. (Id. ¶¶ 32–35; see also KimballDecl. I ¶¶ 30–31; Michael Kennedy Decl. ¶¶ 5–9.)

On September 15, 2010, Corning filed a Motion to DisqualifyCounsel for Plaintiff (“Corning's Motion to Disqualify”), onthe basis that Derouin's employment by G & K creates animpermissible conflict of interest. (“Corning's Mot.,” Doc.# 129.) On October 25, 2010, RID filed its ConsolidatedOpposition. Corning filed a Reply on November 19, 2010.(“Corning's Reply,” Doc. # 332.)

II. Joint Defense Group Motions to DisqualifyDefendants Univar USA, Inc. (“Univar”), Salt River ProjectAgricultural Improvement and Power District (“SRP”),Dolphin, Incorporated (“Dolphin”), and ArvinMeritor, Inc.(“Arvin”) and Cooper Industries, LLC (“Cooper”) all moveto disqualify G & K on the basis that various current andformer G & K attorneys obtained privileged and confidentialinformation relevant to the instant dispute by virtue of theirparticipation in myriad joint defense groups (collectively,“Joint Defense Group Motions to Disqualify”). Honeywell

and Corning also assert that G & K's participation in certainjoint defense groups provides an alternative basis for grantingtheir motions. The joint defense groups at issue are: (1) theWest Van Buren Group; (2) the M–52 Group; and (3) the

AdobeAir–Arvin and Arvin–Cooper Groups. 3

A. The West Van Buren Group—Univar and DolphinUnivar's facilities, located at 50 S. 45th Avenue, Phoenix,Arizona (“Univar's Facilities”), and Dolphin's facilities,located at 740 South 59th Avenue, Phoenix, Arizona(“Dolphin's Facilities”) are within the WVBA WQARF

Site. 4 (FAC ¶¶ 36, 79; Univar's Mot. Ex. A, Declaration ofWayne Grotheer (“Grotheer Decl.”) ¶ 2.)

In 1992, ADEQ notified Univar, Dolphin, and several otherPRPs that they might be liable for groundwater contaminationoriginating from the WVBA WQARF Site. (Grotheer Decl.¶ 2; Declaration of Philip J. Lagas (“Lagas Decl.”) ¶3, Doc. # 134.) In response, Univar, Dolphin, ReynoldsMetals (“Reynolds”), Maricopa County, and American Linen

Supply Company 5 formed a joint defense group (the “WVBGroup”), whose primary purpose was to jointly negotiatea consent decree with *941 ADEQ for performance of aRemedial Investigation/Feasibility Study (“RI/FS”) in theWVBA Site. (Grotheer Decl. ¶¶ 3–4; Lagas Decl. ¶ 4.) Theparties executed the joint defense agreement in 1993, and thegroup met regularly until approximately June 1996, when thegroup suspended negotiations with ADEQ. (Grotheer Decl.¶¶ 4–5, 8; Lagas Decl. ¶¶ 5, 21.)

During the WVB Group's existence, Reynolds wasrepresented by current G & K attorneys David L. Wallis(“Wallis”), J. Stanton Curry (“Curry”), and Dalva L.

Moellenberg (“Moellenberg”). 6 (Grotheer Decl. ¶ 6; LagasDecl. ¶¶ 13–14.) Wallis, Curry, and Moellenberg all attestthat they were screened from the RID matter “shortly” afterRID engaged G & K in October 2008. (Consolidated Opp'nEx. 4, Declaration of David L. Wallis (“Wallis Decl.”) ¶¶4–5; Consolidated Opp'n Ex. 5, Declaration of J. StantonCurry (“Curry Decl.”) ¶¶ 4–5; Consolidated Opp'n Ex. 7,Declaration of Dalva L. Moellenberg (“Moellenberg Decl.”)¶¶ 4–5; see also Kimball Decl. I ¶ 7.)

On September 15, 2010, Univar filed a Motion to DisqualifyGallagher & Kennedy as Counsel for Roosevelt IrrigationDistrict (“Univar's Motion to Disqualify”), asserting that G& K's participation in the WVB Group on Reynolds's behalf

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created an implied attorney-client relationship with Univar. 7

(“Univar's Mot.,” Doc. # 131.) On the same day, Dolphinfiled a Motion for Disqualification (“Dolphin's Motion toDisqualify”) on the same grounds. (“Dolphin's Mot.,” Doc.# 133.) On October 25, 2010, RID filed its ConsolidatedOpposition. Univar filed a Reply on November 19, 2010.(“Univar's Reply,” Doc. # 328.) Dolphin filed a Reply on thesame day. (“Dolphin's Reply,” Doc. # 324.)

B. The M–52 Group—SRP and HoneywellSRP's facilities are located at 1616 East Lincoln Street,Phoenix, Arizona (“SRP's Facilities”). (FAC ¶ 66.) In 2003,the EPA identified SRP and Arizona Public Service (“APS”)as PRPs in connection with alleged contamination in OU–3of the M–52 Site. (SRP's Mot. Ex. A, Declaration of KevinWanttaja (“Wanttaja Decl.”) ¶ 5.) The EPA had alreadyidentified Honeywell as a PRP for this contamination. (Id. ¶6.)

Thereafter, SRP, Honeywell, and APS (the “M–52 Group”)executed a joint defense agreement effective March 1, 2008.(Id. ¶ 9.) Derouin participated in the M–52 Group meetingson behalf of Honeywell, and Curry participated on behalf

of APS, who was represented by G & K in the matter. 8

(Id. ¶¶ 11, 13; Derouin Decl. I ¶ 21.) SRP withdrew fromparticipation in the M–52 Group in December 2008. (SRP'sMot. at 6.)

As noted, Derouin was hired by G & K in January 2010, andhe states that he did not “transfer or take any files, documents,or materials” related to his representation of Honeywell to G& K. (Derouin Decl. I ¶¶ 27, 31.) Derouin attests that he hasbeen screened from the RID matter since his arrival at G &K. (Id. ¶¶ 32–35; see also Kimball Decl. I ¶¶ 30–31; MichaelKennedy Decl. ¶¶ 5–9.) Additionally, Curry represents thathe was screened from the RID matter “shortly” after RIDengaged G & K in October 2008. (Consolidated *942 Opp'nEx. 5, Declaration of J. Stanton Curry (“Curry Decl.”) ¶¶ 4–5; see also Kimball Decl. I ¶ 7.)

On September 15, 2010, SRP filed a Motion to DisqualifyPlaintiff's Counsel Gallagher & Kennedy (“SRP's Motion toDisqualify”), arguing that G & K's participation in the M–52Group creates an impermissible conflict of interest. (“SRP'sMot.,” Doc. # 132.) On October 25, 2010, RID filed itsConsolidated Opposition. SRP filed a Reply on November 19,2010. (“SRP's Reply,” Doc. # 334.)

C. The AdobeAir–Arvin and Arvin–Cooper GroupsArvin and Cooper are former successive owners of a facilitylocated at 500 South 15th Street, Phoenix, Arizona (the“South 15th Street Facility”). (FAC ¶ ¶ 20, 32.) This facility iswithin OU–3 of the M–52 Site. (A & C's SOF Ex. 1, Affidavitof Jerry D. Worsham, II (“Worsham Aff.”) ¶ 9.) In May1987, the EPA placed the South 15th Street Facility on theComprehensive Environmental Response, Compensation andLiability Information System (“CERCLIS”). (A & C's SOFEx. 2, Affidavit of Linda S. Furlough (“Furlough Aff.”) ¶ 5.)

During his employment at Steptoe, Derouin was the partnerprimarily responsible for the legal services rendered toAdobeAir, Inc. (“AdobeAir”), another former owner of theSouth 15th Street Facility. (Id. ¶ 2; Opp'n to A & C's Mot.Ex. B, Declaration of James G. Derouin (“Derouin Decl. II”)

¶ 3). 9 In connection with this matter, AdobeAir entered intoa joint defense agreement with Arvin in October 2002 (the“AdobeAir–Arvin Group”). (Derouin Decl. II ¶ 3; FurloughAff. ¶ 7.) Effective November 25, 2002, Arvin and Cooperentered into a Tolling, Standstill and Cooperation Agreement(the “Arvin–Cooper Group”). (A & C's SOF Ex. 3, Affidavitof Keith H. Odenweller (“Odenweller Aff.”) ¶ 7.) JerryD. Worsham, II (“Worsham”) was counsel for Arvin andwas common counsel under the joint defense agreements.(Worsham Aff. ¶ 3.) In September 2004, representativesfrom AdobeAir, Arvin, and Cooper signed an AdministrativeOrder on Consent (“AOC”) titled “In the Matter of: Motorola52nd Street Superfund Site, U.S. EPA Docket No. 2004–18,”which was negotiated with the EPA and prescribed that an RI/FS was to be performed on the South 15th Street Facility. (Id.¶ 10; Furlough Aff. ¶¶ 8–11; Derouin Decl. II ¶ 3.)

Derouin withdrew from representing AdobeAir in April 2009because it sold its assets and ceased doing business. (DerouinDecl. II ¶ 5.) As noted, Derouin was hired by G & K in January2010, and he states that he did not bring any of AdobeAir'sfiles with him to the firm. (Id. ¶¶ 7, 11.) Derouin attests thathe has been screened from the RID matter since his arrival atG & K. (Id. ¶ 12; see also Kimball Decl. II ¶ 11.)

On August 17, 2010, Arvin and Cooper filed a Motion toDisqualify Gallagher & Kennedy, P.A. as Counsel for RID(Doc. # 88) as well as a Statement of Facts in support of itsmotion (Doc. # 89). On September 10, 2010, RID filed anOpposition (“RID's Opp'n to A & C's Mot.,” Doc. # 114)as well as a Controverting Statement of Facts (Doc. # 115).

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Arvin and Cooper filed a Reply on September 24, 2010. (“A& C's Reply,” Doc. # 156.)

*943 On March 29, 2011, the Court heard via

videoconference Arvin and Cooper's Motion to Disqualify. 10

At the hearing, the Court expressed concern that the partiesdid not provide sufficient information for the Court toproperly analyze either this motion or the other five motionsto disqualify. Accordingly, on March 30, 2011, the Courtdenied without prejudice Arvin and Cooper's Motion toDisqualify with leave to refile it with supplemental briefingas to the applicability and effect of Arizona Ethical Rule1.10. (Doc. # 418.) Because this issue could potentiallyimpact each of the motions to disqualify, the Court directedHoneywell, Corning, Univar, SRP, Dolphin, and Arvin andCooper (collectively, “Moving Defendants”) to file a single,combined supplemental brief. (Id.)

On April 5, 2011, Moving Defendants filed a JointSupplemental Brief in Support of the Motions forDisqualification (“Supplemental Brief”). (“Moving Defs.'Supp. Br.,” Doc. # 421.) RID filed a Supplemental Briefin Opposition to the Motions for Disqualification on April12, 2011 (“Opposition to the Supplemental Brief”). (“RID'sOpp'n to Supp. Br.,” Doc. # 425.) Moving Defendants fileda Supplemental Reply Brief in Support of the Motions forDisqualification on April 15, 2011 (“Supplemental BriefReply”). (“Moving Defs.' Supp. Br. Reply,” Doc. # 427.)

Pursuant to the Court's March 30, 2011 Order, on April 11,2011, Arvin and Cooper refiled their Motion to DisqualifyGallagher & Kennedy, P.A. as Counsel for RID (“Arvin andCooper's Motion to Disqualify”) (“A & C's Mot.,” Doc. # 423)as well as their Statement of Facts in support of the motion(“A & C's SOF,” Doc. # 424). RID filed a Renewed Responseto Arvin and Cooper's Motion to Disqualify on April 27, 2011.(Doc. # 432.) Arvin and Cooper filed a Renewed Reply onApril 28, 2011. (Doc. # 433.)

The Court heard the Motions to Disqualify on May 2, 2011.On May 6, 2011, the Court issued an Order Directing MovingDefendants to File In Camera Documents. (Doc. # 443.)To the extent that the Motions to Disqualify were premisedupon participation in a joint defense group, the Court directedthe parties to submit the following: (1) a copy of the jointdefense agreement at issue; (2) a list of the parties andattorneys who participated in the joint defense group; (3)information regarding the frequency of joint defense groupmeetings, the regularity with which the attorneys in question

attended those meetings, and the duration of the joint defensegroup; and (4) a detailed description of the topics discussedand the information exchanged in connection with the jointdefense group. (Id. at 3.) The Court also ordered MovingDefendants to provide G & K with copies of the joint defenseagreements at issue, but clarified that they could redact anyprivileged or confidential information contained therein. (Id.at 5.) Finally, the Court directed the parties to submit anyadditional documents and information they believed wouldassist the Court in its review of the Motions to Disqualify. (Id.at 3–4.)

On May 16, 2011, Corning filed a Notice of Filing ofAmended Exhibits to its Motion to Disqualify. (Doc. #445.) On the same day, Corning, Arvin and Cooper, SRP,Honeywell, and Dolphin and Univar filed notices to indicatethat they had complied with the May 6, 2011 Order. (Docs.446–448, 450–451.) SRP also filed a Notice of Service ofRedacted Joint Defense *944 Agreement. (Doc. # 449.) OnJuly 26, 2011, RID filed a Notice of Receipt of RedactedJoint Defense Agreements to Complete the Record Re:Disqualification. (Doc. # 463.)

On July 29, 2011, in accordance with the Court's directive(Doc. # 462), Moving Defendants filed a Closing ArgumentBrief in support of the Motions to Disqualify (“Moving Defs.'Closing Arg. Br.,” Doc. # 465). RID filed a Closing ArgumentBrief on the same day. (“RID's Closing Arg. Br.,” Doc. # 466.)

STANDARD OF REVIEW

[1] The United States District Court for the District ofArizona has adopted the Arizona Rules of ProfessionalConduct as its ethical standards. LR Civ 83.2(e); ResearchCorp. Techs., Inc. v. Hewlett–Packard Co., 936 F.Supp.697, 700 (D.Ariz.1996). Accordingly, this Court applies theArizona ethical rules when evaluating motions to disqualifycounsel. See In re Cnty. of L.A., 223 F.3d 990, 995 (9thCir.2000) (stating that federal courts “apply state law indetermining matters of disqualification” and that they “followthe reasoned view of the state supreme court when it hasspoken on the issue”); Christensen v. U.S. Dist. Court, 844F.2d 694, 697 n. 6 (9th Cir.1988) (finding that when a districtcourt has adopted a state's ethical rules, the district court mustapply those rules to a motion to disqualify); Unified SewerageAgency v. Jelco, Inc., 646 F.2d 1339, 1342 n. 1 (9th Cir.1981)(same); see also Paul E. Iacono Structural Eng'r, Inc. v.Humphrey, 722 F.2d 435, 439–40 (9th Cir.1983) (analyzing

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whether the district court, which had adopted the Californiaethical rules, properly applied California law to the motion todisqualify).

[2] [3] [4] The Preamble to the Arizona Rules ofProfessional Conduct cautions that a violation of an ethicalrule “does not necessarily warrant any other nondisciplinaryremedy, such as disqualification of a lawyer in pendinglitigation,” and warns that “the purpose of the Rules canbe subverted when they are invoked by opposing parties asprocedural weapons.” Pmbl. ¶ 20, Ariz. R. Prof'l Conduct.Arizona law reiterates that “[o]nly in extreme circumstancesshould a party to a lawsuit be allowed to interfere withthe attorney-client relationship of his opponent.” Alexanderv. Superior Court, 141 Ariz. 157, 685 P.2d 1309, 1313(1984); see also Gomez v. Superior Court, 149 Ariz. 223,717 P.2d 902, 905 (1986) (stating that Arizona courts “viewwith suspicion” motions to disqualify opposing counsel basedon a conflict of interest or appearance of impropriety);Villalpando v. Reagan, 211 Ariz. 305, 121 P.3d 172, 175(Ariz.Ct.App.2005) (same); Amparano v. ASARCO, Inc.,208 Ariz. 370, 93 P.3d 1086, 1092 (Ariz.Ct.App.2004)(“[T]he rules of professional responsibility are for ethicalenforcement and are not designed to be used as ameans to disqualify counsel. The courts have, of course,looked to the ethical rules for guidance on disqualificationissues.”) (citation omitted). As the Ninth Circuit has noted,disqualification motions should be subjected to “particularlystrict scrutiny” because of their potential for abuse. OptylEyewear Fashion Int'l Corp. v. Style Cos., Ltd., 760 F.2d1045, 1050 (9th Cir.1985); see also Cnty. of L.A., 223F.3d at 996 (“A motion to disqualify a law firm can be apowerful litigation tactic to deny an opposing party's counselof choice.”). “However, close or doubtful cases are resolvedin favor of disqualification in order to preserve the integrity ofthe judicial system.” Richards v. Holsum Bakery, Inc., 2009WL 3740725, at *6 (D.Ariz. Nov. 5, 2009); see also Kaiser

v. AT & T, 2002 WL 1362054, at *5 (D.Ariz. Apr. 5, 2002)(same) (quoting Palmer v. The Pioneer Hotel & Casino, 19F.Supp.2d 1157, 1162 (D.Nev.1998)). The moving partieshave the burden of sufficiently *945 showing why the Courtshould disqualify an attorney from representing its client.Alexander, 685 P.2d at 1313; Amparano, 93 P.3d at 1093; seealso Research Corp., 936 F.Supp. at 701.

DISCUSSION

For the reasons set forth below, the Court concludes that G& K should be disqualified from representing RID againstHoneywell, Corning, Univar, SRP, and Dolphin. G & K mayrepresent RID against Arvin and Cooper, provided that G & Kcontinues to comply with the screening provisions of EthicalRule 1.10(d).

I. Former Client Motions to DisqualifyHoneywell and Corning both argue that their formerrepresentation by current G & K attorneys creates animpermissible conflict of interest that is imputed to G & Kby virtue of Ethical Rule 1.10 and is not subject to screening.The Court agrees.

A. Former Client Conflict of Interest—Ethical Rule 1.9[5] Ethical Rule 1.9(a) states that “[a] lawyer who has

formerly represented a client in a matter shall not thereafterrepresent another person in the same or a substantially relatedmatter in which that person's interests are materially adverseto the interests of the former client unless the former clientgives informed consent, confirmed in writing.” ER 1.9(a).For a conflict to exist pursuant to this provision, the movingparty must show: (1) the existence of an attorney-clientrelationship; (2) that the former representation was “the sameor substantially related” to the current litigation; and (3)that the current client's interests are “materially adverse”to the former client's interests. Foulke v. Knuck, 162 Ariz.517, 784 P.2d 723, 726–27 (Ariz.Ct.App.1989). Matters aresubstantially related “if they involve the same transactionor legal dispute or if there otherwise is a substantial riskthat confidential factual information as would normally havebeen obtained in the prior representation would materiallyadvance the client's position in the subsequent matter.” ER1.9 cmt. 3; see also Trone v. Smith, 621 F.2d 994, 998–99(9th Cir.1980) (concluding that a “substantial relationship”exists if the factual contexts of the two representations aresimilar or related); Amparano, 93 P.3d at 1093; Foulke, 784P.2d at 726–27 (finding that an Ethical Rule 1.9(a) conflictof interest existed when the general subject matter of theprior representation was substantially related to the issues thatwould necessarily be resolved in the subsequent action); cf.In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350, 1352 (1990)(stating that one of the aims of Ethical Rule 1.9 is to “avoida public perception of ‘switching sides' ”). Determining thescope of a matter requires an examination of the facts of aparticular situation or transaction and the nature and degreeof the lawyers' involvement. ER 1.9 cmt. 2. Additionally,

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information that has been disclosed to the public ordinarilywill not be disqualifying. ER 1.9 cmt. 3.

B. Vicarious Disqualification and Screening—EthicalRule 1.10Ethical Rule 1.10(a) states that no lawyer in a firm “shallknowingly represent a client when any one of them practicingalone would be prohibited from doing so by [Ethical Rules]1.7 or 1.9.” ER 1.10(a). Until recently, this rule was

absolute. 11 *946 Arizona amended Ethical Rule 1.10 in2003, and added the following provision:

(d) When a lawyer becomes associated with a firm, nolawyer associated in the firm shall knowingly representa person in a matter in which that lawyer is disqualifiedunder [Ethical Rule] 1.9 unless:

(1) the matter does not involve a proceeding beforea tribunal in which the personally disqualifiedlawyer had a substantial role;

(2) the personally disqualified lawyer is timelyscreened from any participation in the matter andis apportioned no part of the fee therefrom; and

(3) written notice is promptly given to any affectedformer client to enable it to ascertain compliancewith the provisions of this Rule.

ER 1.10(d). This provision is “unique and was not takenfrom ABA proposals or rules adopted in other states.”Eberle Design, Inc. v. Reno A & E, 354 F.Supp.2d 1093,1095 (D.Ariz.2005).

According to its unambiguous terms, Ethical Rule 1.10(d)'sscreening mechanism is only available in circumstances inwhich the lawyer who represented the former client joins anew firm. ER 1.10(d) (“When a lawyer becomes associatedwith a firm, no lawyer associated in the firm shall knowinglyrepresent a person in a matter in which that lawyer isdisqualified under [Ethical Rule] 1.9.” (emphasis added));see also Eberle, 354 F.Supp.2d at 1095 (“By its terms,[Ethical Rule 1.10(d) ] applies only when the lawyer joiningthe new firm is personally disqualified under [Ethical Rule]1.9.”); Ariz. Ethics Op. 04–04 (“[T]he intent of [Ethical Rule1.10(d) ] was to address the situation of a lawyer movinglaterally between firms to promote lawyer mobility.”). Oncethis threshold requirement is met, however, for screening tobe available, the terms of subsections (d)(1)-(3) must also besatisfied.

1. Ethical Rule 1.10(d)(1)

Ethical Rule 1.10(d)(1) provides: “When a lawyer becomesassociated with a firm, no lawyer associated in the firm shallknowingly represent a person in a matter in which that lawyeris disqualified under ER 1.9 unless: (1) the matter does notinvolve a proceeding before a tribunal in which the personallydisqualified lawyer had a substantial role.” ER 1.10(d)(1).

There is a paucity of authority on this provision, and thusfar, no court has interpreted it in its entirety. The commentsprovide some insight into this rule, however. For instance,the comments define “tribunal” as “a court, an arbitrator inan arbitration proceeding or a legislative body, administrativeagency or other body acting in an adjudicative capacity.”ER 1.0(m). They further provide that “[a] legislative body,administrative agency or other body acts in an adjudicativecapacity when a neutral official, after the presentation ofevidence or legal argument by a party or parties, will rendera legal judgment directly affecting a party's interests in aparticular matter.” Id.

In Eberle, the only case to touch upon Ethical Rule 1.10(d),the court concluded that to be considered “substantial” withinthe meaning of this rule, the affected lawyer's role in theformer client's representation must have been “material andweighty.” Eberle, 354 F.Supp.2d at 1097 (citing ER 1.0(l)). Whether the lawyer had such a role depends on “thenature and amount of work he performed, the responsibilityhe assumed, the degree to which the client relied on himfor managing the case, and similar considerations.” Id.(concluding that an attorney who billed 9.2 hours to a caseover a period of 9 days for drafting voir dire questions didnot *947 play a “substantial” role in the former client'srepresentation).

With respect to the remainder of Ethical Rule 1.10(d)(1), the comments do not provide any insight into how itshould be construed, and courts have not yet interpreted its

requirements. 12 The Court therefore applies its plain terms.See Janson v. Christensen, 167 Ariz. 470, 808 P.2d 1222,1223 (1991) (“[T]he best and most reliable index of a statute'smeaning is its language.”); W. Corr. Grp., Inc. v. Tierney, 208Ariz. 583, 96 P.3d 1070, 1074 (Ariz.Ct.App.2004) (statingthat courts refer to established and widely used dictionariesto determine the plain meaning of a term in a statute);Herberman v. Bergstrom, 168 Ariz. 587, 816 P.2d 244, 246

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(Ariz.Ct.App.1991) (providing that clear statutory languageis given its usual meaning unless impossible or absurdconsequences result); see also United States v. Nader, 542F.3d 713, 717 (9th Cir.2008) (stating that courts first considerthe plain meaning of a statute's text).

According to the plain terms of this provision, “matter”refers to the representation that Ethical Rule 1.9 disqualifiesthe lawyer from undertaking, i.e. the current representation.Therefore, pursuant to Ethical Rule 1.10(d)(1), for screeningto be available, the current representation must not“involve a proceeding before a tribunal in which thepersonally disqualified lawyer had a substantial role.” ER1.10(d)(1) (emphasis added). The word “involve” means“to have within or as part of itself” or “to requireas a necessary accompaniment.” Webster's Third NewInternational Dictionary 1191 (2002); see also 8 OxfordEnglish Dictionary 57 (2d ed. 1989) (defining “involve” as“to enfold, envelop, entangle, include”); United States v.Awan, 607 F.3d 306, 315 (2d Cir.2010) (defining “involve”as “to have within or as part of itself” or “to include”); Valansiv. Ashcroft, 278 F.3d 203, 209–10 (3d Cir.2002) (defining“involve” as “to have within or as part of itself” or “torequire as a necessary accompaniment”). Thus, the currentrepresentation “involve[s] a proceeding before a tribunal inwhich the personally disqualified lawyer had a substantialrole” when it necessarily includes such a proceeding.

At its minimum, this provision allows screening unlessthe disqualified lawyer switched sides in the currentrepresentation, provided that it was a proceeding beforea tribunal and the disqualified lawyer had a substantialrole. This provision can also be interpreted to provide thatscreening may be used unless the current representationnecessarily requires relitigating some aspect of a priorproceeding before a tribunal, in which the potentiallydisqualified lawyer had a substantial role. A helpful exampleof this interpretation would be: A lawyer represents theplaintiff in a personal injury tort lawsuit. After conclusion ofthis representation, the lawyer is hired by the defendant's lawfirm. Thereafter, the defendant's law firm seeks to representthe defendant in asserting that there was fraud on the courtin the personal injury tort lawsuit. Because the fraud on thecourt claim, i.e. the current representation, would necessarilyrequire relitigating certain aspects of the personal *948injury tort lawsuit, i.e. the prior proceeding, screening wouldnot be available, and the lawyer's disqualification would beimputed to the entire law firm.

In any event, Ethical Rule 1.10(d)(1) cannot be interpreted soas to preclude screening if the prior representation is merelysubstantially related to the current representation. This wouldcontradict the plain meaning of “involve” because if twomatters are substantially related, one does not “include” theother or “require [the other] as a necessary accompaniment.”Additionally, Ethical Rule 1.10(d)(1) does not use the words“substantially related.” This phrase appears in several otherprovisions of the Ethical Rules, and if the drafters intendedEthical Rule 1.10(d)(1) to preclude screening when the tworepresentations are substantially related, then they wouldhave specified as such. The Court cannot adopt a reading ofthe rule that belies its plain terms.

Eberle is not to the contrary. In that case, an attorney billed9.2 hours to a matter while employed by the plaintiff's lawfirm, then the attorney joined the law firm representingthe defendant in the same action, while the lawsuit wasongoing. Eberle, 354 F.Supp.2d at 1096–97. The lawyerunquestionably switched sides in a lawsuit that was before atribunal, and therefore, the focus of the Eberle court's inquirywas whether the attorney had undertaken a “substantial role”in the lawsuit while he was employed by the plaintiff'sfirm. Id. at 1096. The Court agrees with Eberle, in thathad this attorney undertaken a substantial role in thelawsuit, his conflict of interest would have been imputedto the defendant's firm and screening would not have beenavailable. The question of whether screening is availablewhen the Ethical Rule 1.9 conflict of interest falls short ofsideswitching, however, was not presented in Eberle. Thatdecision, therefore, provides no guidance into the meaningof “involve” because it only addressed what constitutes a“substantial role” within the meaning of Ethical Rule 1.10(d)(1).

[6] Accordingly, the Court concludes that Ethical Rule1.10(d)(1) precludes screening when: (1) the disqualifiedlawyer either switched sides in the current representationor the current representation necessarily requires relitigatinga particular aspect of a prior representation; (2) the priorrepresentation was a proceeding before a tribunal; and (3)the disqualified lawyer played a substantial role in that priorproceeding.

2. Ethical Rule 1.10(d)(2)

Ethical Rule 1.10(d)(2) provides as follows: “When a lawyerbecomes associated with a firm, no lawyer associated in

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the firm shall knowingly represent a person in a matter inwhich that lawyer is disqualified under ER 1.9 unless: (2) thepersonally disqualified lawyer is timely screened from anyparticipation in the matter and is apportioned no part of thefee therefrom.” ER 1.10(d)(2).

“ ‘Screened’ denotes the isolation of a lawyer from anyparticipation in a matter through the timely imposition ofprocedures within a firm that are reasonably adequate underthe circumstances to protect information that the isolatedlawyer is obligated to protect under these Rules or other

law.” 13 ER 1.0(k). The comments *949 to Ethical Rule 1.0elaborate on what the screen should entail:

The purpose of screening is to assure the affected partiesthat confidential information known by the personallydisqualified lawyer remains protected. The personallydisqualified lawyer should acknowledge the obligation notto communicate with any of the other lawyers in thefirm with respect to the matter. Similarly, other lawyersin the firm who are working on the matter should beinformed that the screening is in place and that they maynot communicate with the personally disqualified lawyerwith respect to the matter. Additional screening measuresthat are appropriate for the particular matter will depend onthe circumstances. To implement, reinforce and remind allaffected lawyers of the presence of the screening, it maybe appropriate for the firm to undertake such procedures asa written undertaking by the screened lawyer to avoid anycommunication with other firm personnel and any contactwith any firm files or other materials relating to the matter,written notice and instructions to all other firm personnelforbidding any communication with the screened lawyerrelating to the matter, denial of access by the screenedlawyer to firm files or other materials relating to the matterand periodic reminders of the screen to the screened lawyerand all other firm personnel.ER 1.0 cmt. 9; see also State ex rel. Romley v. SuperiorCourt, 184 Ariz. 223, 908 P.2d 37, 43 (Ariz.Ct.App.1995)(finding that for purposes of Ethical Rule 1.11, thescreening mechanism “must be designed both to eliminateopportunities for inadvertent disclosure and to provide agenuine appearance of a security wall around the subjectattorney”); Restatement (Third) of the Law GoverningLawyers § 124(d)(ii) (describing the requirements of aneffective screen).

Additionally, “to be effective, screening measures must beimplemented as soon as practical after a lawyer or law

firm knows or reasonably should know that there is aneed for screening.” ER 1.0 cmt. 10; see also Restatement(Third) of the Law Governing Lawyers § 124 cmt. d(i)(“The required screening measures must be imposed inthe subsequent representation at the time the conflict isdiscovered or reasonably should have been discovered, andthey must be of sufficient scope, continuity, and duration toassure that there will be no substantial risk to confidentialclient information.”). Ethical Rule 1.0(f) defines “knows”as “actual knowledge of the fact in question.” ER 1.0(f).Knowledge may also be inferred from circumstances. Id.The term “reasonably should know” means that “a lawyerof reasonable prudence and competence would ascertain thematter in question.” ER 1.0(j).

3. Ethical Rule 1.10(d)(3)

Ethical Rule 1.10(d)(3) provides as follows: “When a lawyerbecomes associated with a firm, no lawyer associated in thefirm shall knowingly represent a person in a matter in whichthat lawyer is disqualified under ER 1.9 unless: (3) writtennotice is promptly given to any affected former client toenable it to ascertain compliance with the provisions of thisRule.” ER 1.10(d)(3).

Although the comments to Ethical Rule 1.10 do not specifywhat information should be included in this notice, thefollowing explanation appears in the comments to EthicalRules 1.11, 1.12, and 1.18, the other three provisions thatpermit screening: “Notice, including a description of thescreened lawyer's prior representation and of the screeningprocedures employed, generally should be given as soon aspracticable after the need for screening becomes apparent.”ER 1.11 cmt. 6; ER 1.12 cmt. 5; ER 1.18 cmt. 9; see also*950 Restatement (Third) of the Law Governing Lawyers §

124 cmt. d(iii) (“Timely and adequate notice of the screeningmust ... be given to the affected clients, including descriptionof the screening measures reasonably sufficient to inform theaffected client of their adequacy.... Notice should ordinarilybe given as soon as practical after the lawyer or firm realizesor should realize the need for screening.”); Romley, 908 P.2dat 43 (finding that for purposes of Ethical Rule 1.11, “thedetails of the [screening] mechanism must be communicatedto the defendant and his counsel”).

C. Honeywell's Motion to Disqualify

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Honeywell argues that Derouin's and Hallman's employmentby G & K create impermissible former client conflicts ofinterest.

1. Derouin

Honeywell asserts that Derouin is personally disqualifiedfrom representing RID, pursuant to Ethical Rule 1.9, and thatthis disqualification is imputed to G & K, in accordance withEthical Rule 1.10. The Court agrees.

a. Ethical Rule 1.9

As noted, for an Ethical Rule 1.9(a) conflict to exist, themoving party must show: (1) the existence of an attorney-client relationship; (2) that the former representation was “thesame or substantially related” to the current litigation; and (3)that the current client's interests are “materially adverse” tothe former client's interests. Foulke, 784 P.2d at 726–27. Itis undisputed here that Honeywell is Derouin's former clientand that Derouin represented Honeywell regarding the M–52 Site for several years in the early 1990s and from 2007to December 2009. (Berke Decl. ¶¶ 2, 11; Troy KennedyDecl. I ¶¶ 4, 7, 20; Derouin Decl. I ¶¶ 10–14.) Additionally,the current representation—the RID matter—is materiallyadverse to Honeywell's interests because RID has namedHoneywell as a defendant in the instant action. The partiessharply disagree, however, as to whether the RID matter is thesame or substantially related to Derouin's prior representationof Honeywell.

Derouin first represented Honeywell in the early 1990s, andin that capacity, he developed legal strategy and settlementpositions, and assessed confidential information, relatedto Honeywell's potential liability for the contaminationthat allegedly emanated from its facilities and purportedlymoved westward to commingle with a separate plumeof contamination. (Berke Decl. ¶¶ 2–4; Troy KennedyDecl. I ¶¶ 4–5.) The in camera materials reflectthat Derouin was intimately involved in analyzing theavailable information regarding the alleged contamination,representing Honeywell's interests at meetings andnegotiations with other potential PRPs, and providingHoneywell with detailed legal advice as to these issues. Asthe Berke Declaration suggests, included within the in cameramaterials are memoranda authored by Derouin: (1) containinganalysis and advice regarding government agency findings

about the sources of contamination in the commingled plume;(2) concerning the development of Honeywell's case strategyfor issues arising from the commingled plume; (3) regardingthe alleged releases of contamination from the HoneywellFacilities and potential liability for the entire commingledplume; and (4) summarizing meetings with other PRPsconcerning the commingled plume and providing analysis asto this issue. (See Berke Decl. ¶¶ 6–10.) Derouin continuedto represent Honeywell in this manner until approximately1996. (Id. ¶ 11; Derouin Decl. I ¶¶ 10–12.)

Honeywell retained Derouin again in 2007 to represent itsinterests regarding “the same commingled plume the partieshad been addressing since the early *951 1990s.” (See TroyKennedy Decl. I ¶ 7.) During the course of this representation,Derouin reviewed additional confidential technical analysesof Honeywell's potential contribution to the commingledplume and assessed Honeywell's potential liability. (Id. ¶8.) In May 2009, David Kimball, III, a member of G& K's litigation team handling the RID matter, contactedDerouin, as counsel for Honeywell, to discuss issues relatedto the groundwater contamination of RID's wells. (Id. ¶ 9;Derouin Decl. I ¶ 15; Kimball Decl. I ¶¶ 11–12.) Derouin,on Honeywell's behalf, subsequently met with Kimball andRID's technical representative on two separate occasions, fora technical and factual presentation about the groundwatercontamination impacts to RID's wells. (Troy Kennedy Decl.I ¶ 10; Derouin Decl. I ¶¶ 16–18; Kimball Decl. I ¶¶ 12–15.) During these meetings, Kimball informed Derouin thatRID planned to bring a cost recovery action if settlementdiscussions proved unsuccessful. (Troy Kennedy Decl. I ¶ 9;Derouin Decl. I ¶ 19; Kimball Decl. I ¶¶ 13, 15.) Kimballalso e-mailed Derouin a copy of RID's draft complaint. (TroyKennedy Decl. II ¶ 2, Ex. A.)

Honeywell asserts that Derouin played an important role indeveloping legal strategy and analysis for RID's threatenedlawsuit and that he assisted Honeywell in weighing theoptions available to it, including potential settlement. (TroyKennedy Decl. I ¶¶ 12–13.) The in camera materialsare in accord. Included within them are numerous e-mailcommunications from Derouin to Honeywell, which: (1)summarize Derouin's meetings with Kimball and assess theimplications for Honeywell; (2) discuss Derouin's meetingwith Honeywell's outside environmental consultant to reviewRID's allegations; and (3) analyze Derouin's communicationswith other potential defendants in RID's contemplatedlawsuit. (See id. ¶¶ 15–17.) Additionally, in August 2009,Kimball gave Derouin, as counsel for Honeywell, another

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copy of RID's draft complaint for the instant action. (Id.¶ 19; Derouin Decl. I ¶ 23; see Kimball Decl. I ¶ 17.)Derouin subsequently sent Honeywell an e-mail, contained inthe in camera materials, which provides his analysis of thecomplaint and RID's proposal. (See Troy Kennedy Decl. I ¶19.)

Derouin ceased representing Honeywell in December 2009.(Id. ¶ 20; Byrne Decl. ¶¶ 2–5; Derouin Decl. I ¶¶ 28–29.)Derouin was hired by G & K in January 2010, and he has beenscreened from the RID matter since his arrival at the firm.(Derouin Decl. I ¶¶ 32–35; Kimball Decl. I ¶¶ 30–31; MichaelKennedy Decl. ¶¶ 5–9.)

[7] On these facts, the Court can only conclude thatDerouin's prior representation of Honeywell is the sameor substantially related to the instant matter, particularlybecause Derouin represented Honeywell in the initial stagesof this lawsuit and analyzed two of RID's draft complaintsin his capacity as counsel for Honeywell. Moreover, whenHoneywell engaged Derouin in the early 1990s, Derouinwas charged with developing legal strategy and analyzingliability for the contamination that purportedly emanatedfrom the Honeywell Facilities and allegedly became partof a commingled plume. In this lawsuit, RID asserts thathazardous substances used and disposed of at the HoneywellFacilities contributed to the groundwater contamination ofits wells. (FAC ¶ 41.) The instant action therefore involvesthe same contamination from the same facilities and thesame commingled plume as were at issue in Derouin'sprior representation of Honeywell. There is undoubtedlya “substantial risk” that confidential factual informationas would normally have been obtained in Derouin'srepresentation of Honeywell would “materially advance”RID's position in the instant *952 matter. See ER 1.9 cmt.3; see also Trone, 621 F.2d at 998–99.

RID emphasizes that Honeywell told Derouin he should notopen a file for the RID matter and that Karen Gaylord ofSalmon, Lewis & Weldon, P.L.C. would represent Honeywellin this litigation. (RID's Consolidated Opp'n at 34; seeDerouin Decl. I ¶¶ 20, 25.) RID focuses on the wrong inquiry.It does not matter that Honeywell hired another law firmto spearhead the defense of this action; the relevant inquiryis whether Derouin's prior representation of Honeywell issubstantially related to the instant action. After conducting acareful review of the declarations and the in camera materials,the Court determines that it is so related. Accordingly, basedon his prior representation of Honeywell, Ethical Rule 1.9(a)

would bar Derouin from representing RID in the instantaction.

b. Ethical Rule 1.10

Derouin's Ethical Rule 1.9(a) conflict of interest will beimputed to G & K, in accordance with Ethical Rule 1.10(a),unless the screening provisions of Ethical Rule 1.10(d) apply.As noted, Ethical Rule 1.10(d) only applies when a lawyer

becomes associated with a firm. 14 See Eberle, 354 F.Supp.2dat 1095; Ariz. Ethics Op. 04–04. According to Ethical Rule1.10(d)(1), screening is available unless: (1) the disqualifiedlawyer either switched sides in the current representationor the current representation necessarily requires relitigatinga particular aspect of a prior representation; (2) the priorrepresentation was a proceeding before a tribunal; and (3)the disqualified lawyer played a substantial role in that priorproceeding.

[8] Ethical Rule 1.10(d)(1) forecloses screening as a meansof curing Derouin's conflict. Derouin represented Honeywellin the initial stages of this very case, and in this capacity,Derouin met with counsel for RID on Honeywell's behalf,analyzed two of RID's draft complaints for Honeywell,conferred with Honeywell's experts to review RID's proposal,and communicated with other defendants named in RID'sdraft complaint. Accordingly, Derouin plainly representedHoneywell in connection with the instant action, and byjoining G & K, Derouin switched sides in this lawsuit. RIDstresses, however, that because it did not file the complaint inthis suit until after Derouin's representation of Honeywell hadended, there was no proceeding before a tribunal for purposes

of Ethical Rule 1.10(d)(1). 15 (RID's Consolidated Opp'n at37–38.) In making this argument, RID overlooks that Derouinswitched sides in the instant action, which is currently aproceeding before a tribunal. It does not matter that RIDhad not yet filed its complaint when Derouin's representationof Honeywell ended because the current representation“involves” Derouin's prior representation of Honeywell.

Derouin also had a substantial role in this proceeding. TheCourt has reviewed Derouin's billing records for the RIDmatter, submitted in camera (see Troy Kennedy Decl. II¶¶ 3–5), as well as the documents and communicationshe generated during the course of this representation, andconcludes that Derouin had a “material and weighty” role inthis proceeding. See Eberle, 354 F.Supp.2d at 1097 (citingEthical Rule 1.0(l )). Unlike in Eberle, where the court

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determined that the lawyer in question, who billed 9.2 hoursto a *953 case over a period of 9 days for drafting voirdire questions, did not play a “substantial” role in the formerclient's representation, here, Derouin was actively involvedin analyzing RID's allegations and developing a strategyfor Honeywell to defend the instant lawsuit. Accordingly,because Derouin switched sides in the RID matter, which isbefore a tribunal, and in which Derouin played a substantialrole, G & K cannot avail itself of the screening provision inEthical Rule 1.10(d). Derouin's Ethical Rule 1.9(a) conflict ofinterest is therefore imputed to G & K.

2. Hallman

As with Derouin, Honeywell asserts that Hallman ispersonally disqualified from representing RID and that thisdisqualification is imputed to G & K. Because of itsconclusion that Derouin's Ethical Rule 1.9(a) conflict ofinterest is imputed to G & K pursuant to Ethical Rule 1.10, theCourt need not address this argument. The Court nonethelessanalyzes whether Hallman's purported conflict can provide anindependent basis for G & K's disqualification, and concludesthat it does.

a. Ethical Rule 1.9

It is undisputed that Honeywell is Hallman's former clientand that Hallman served as Honeywell's in house litigationcounsel from 1987 to 1999, when he joined G & K. (HallmanDecl. ¶ 5; Troy Kennedy Decl. I ¶ 21.) Additionally,the current representation—the RID matter—is materiallyadverse to Honeywell's interests because RID has namedHoneywell as a defendant in the instant lawsuit. As withDerouin, the third prong of the Ethical Rule 1.9(a) analysis—whether the RID matter is the same or substantially relatedto Hallman's prior representation of Honeywell—is the mostcontentious.

In his capacity as in house litigation counsel for Honeywell,Hallman represented Honeywell's interests in the BakerAction and United States v. Motorola (the “MotorolaAction”), which both involved alleged contamination fromthe Honeywell Facilities and the resulting commingledplume. (Troy Kennedy Decl. I ¶ 21.) The Baker Action wasa private toxic tort suit, which arose from, inter alia, theplaintiffs' exposure to past groundwater contamination fromthe commingled plume in the M–52 Site. (Id. ¶¶ 21–22;

Corning's Mot. Ex. J.) Honeywell contends, and the in cameramaterials confirm, that Hallman was directly involved in thelitigation strategy and analysis of the commingled plume forthe Baker Action. (Troy Kennedy Decl. I ¶¶ 22–27.) By virtueof his participation in this action, Hallman was also privy toconfidential technical information regarding, and discussionsrelating to potential liability for, the alleged commingledplume. (See id.)

Additionally, in the mid–1990s, Hallman negotiated withother PRPs, on behalf of Honeywell, to resolve contributionallocation issues relating to the remedial actions and othercosts associated with clean up of the past contamination.(Id. ¶ 28.) When the parties could not resolve thedispute, the United States filed the Motorola Action againstMotorola, Honeywell, and the City of Phoenix, seeking torequire contribution by those parties. (Id. ¶ 29.) The incamera materials demonstrate that, during his work on theMotorola Action, Hallman sent and received correspondence:(1) regarding confidential technical information and legalstrategies relating to contribution for the commingled plumeand PRP relationships; (2) discussing meetings betweenHoneywell, government agencies, and PRPs regarding thecommingled plume; and (3) developing legal strategyconcerning the commingled plume. (See id. ¶¶ 30–40.)Hallman worked on the Motorola Action until he leftHoneywell in 1999 to join G & K. (Id. ¶ 41; Hallman Decl.¶ 6.) Hallman has been screened from the RID matter sinceJune 2010. (Hallman Decl. ¶ 5; see also *954 Kimball Decl.I ¶¶ 40–41; Michael Kennedy Decl. ¶¶ 15–17.)

On these facts, the Court concludes that Hallman's priorrepresentation of Honeywell is the same or substantiallyrelated to the instant matter. As with Derouin, Hallmanreceived confidential information regarding potential liabilityfor the commingled plume, participated in negotiationswith other PRPs and governmental agencies, and wasinstrumental in developing legal strategy for the Bakerand Motorola Actions, which both involved the samecontamination and commingled plume at issue here. Thereis undoubtedly a “substantial risk” that confidential factualinformation as would normally have been obtained inHallman's representation of Honeywell would “materiallyadvance” RID's position in the instant matter. See ER 1.9cmt. 3; see also Trone, 621 F.2d at 998–99. The in cameramaterials reaffirm this determination. Accordingly, based onhis prior representation of Honeywell, Ethical Rule 1.9(a)would bar Hallman from representing RID in the instantaction.

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b. Ethical Rule 1.10

RID contends that even if Hallman has an Ethical Rule 1.9(a)conflict of interest, screening applies and the conflict cannotbe imputed to G & K. The Court is not persuaded.

[9] At the outset, the Court has grave concerns as to whetherscreening is even available for Hallman's conflict of interest.Ethical Rule 1.10(d) states that screening may be utilized“[w]hen a lawyer becomes associated with a firm,” the plainterms of which indicate that screening is available if it iseffectuated at the time that a lawyer joins a law firm. See ER1.10(d) (emphasis added). This interpretation is corroboratedby Arizona Ethics Opinion 04–04, which makes clear thatscreening “is only appropriate in circumstances in which anew or lateral hire has represented a former client, and maynot be employed in circumstances involving a former clientwhen the lawyer was already a member of the ‘firm.’ ” Ariz.Ethics Op. 04–04 (emphasis added); see also Eberle, 354F.Supp.2d at 1096–97 (discussing Ethical Rule 1.10(d) in thecontext of a lawyer “joining” a law firm). Here, Hallmanbecame a shareholder at G & K in 1999, and the Ethical Rule1.9(a) conflict at issue did not arise when Hallman joined G &K. To the contrary, Hallman already had been a shareholderat G & K for nearly ten years when RID engaged the firm.Because Hallman was associated with G & K for such alengthy period of time prior to the existence of the conflictat hand, it is unclear whether screening is available here. TheCourt need not resolve this issue, however, because even ifscreening is available in this scenario, G & K cannot satisfythe requirements of Ethical Rule 1.10(d).

Honeywell's primary argument against the efficacy of G& K's screen is that it was not timely implemented inaccordance with Ethical Rule 1.10(d)(2). (Honeywell's Mot.at 14.) As noted, Ethical Rule 1.10(d)(2) requires that the“personally disqualified lawyer [be] timely screened from anyparticipation in the matter.” ER 1.10(d)(2). The commentselaborate that “to be effective, screening measures must beimplemented as soon as practical after a lawyer or law firmknows or reasonably should know that there is a need forscreening.” ER 1.0 cmt. 10. Here, although Hallman becamea shareholder at G & K in 1999, and RID engaged G & K inOctober 2008, G & K did not screen Hallman from the RIDmatter until June 2010. G & K explains that it did not enterHallman's prior employment and experience at Honeywellinto its conflicts database when Hallman joined the firm.

(Michael Kennedy Decl. ¶ 15.) Hallman's name therefore didnot appear when G & K ran its conflicts check for Honeywellin July 2009. (Id. ¶ 16; see Kimball Decl. I ¶ 18; RID's *955Consolidated Opp'n at 39.) Honeywell notified G & K of theconflict with a letter dated May 18, 2010 (Michael KennedyDecl. ¶ 11, Ex. A), and G & K screened Hallman in June2010 (Hallman Decl. ¶ 5). G & K therefore did not screenHallman until nearly one year after it performed its initialconflict check for Honeywell and nearly two years after RIDretained the firm for this matter. Such a delay in implementingan ethical screen is not reasonable. G & K implicitly admitsthat but for its error in not properly entering Hallman's priorrepresentation of Honeywell into its conflicts database, itwould have recognized the conflict in July 2009 when it ranits initial conflicts check. Thus, G & K should have known ofthe conflict when it ran this initial check, and Hallman shouldhave been screened at least from this point in time onward. G& K's assertion that it “had no reason to know of [Hallman's]potential conflict until it learned of it in May 2010” (see RID's

Consolidated Opp'n at 40), is simply incorrect. 16

RID emphasizes that Hallman works in a different departmenton a different floor from the attorneys handling the RIDmatter, that Hallman did not discuss the RID matter withanyone before G & K imposed the screen, and thatHallman did not bring any relevant environmental files fromHoneywell to G & K. (Id. at 39; see also Hallman Decl.¶¶ 6, 11–12; Michael Kennedy Decl. ¶ 18.) The Court'scurrent focus, however, is on whether implementation ofthe ethical screen was timely. Although these facts maypertain to the effectiveness of the screen, they do not relateto the timeliness of that screen. An untimely screen cannotbe cured by the affected attorney's assurances that, in theabsence of the screen, he did not reveal any confidentialinformation. Similarly, the Arizona Court of Appeals hasfound that a failure to fully comply with the ethical rulescannot be cured by an affected attorney's attestations that hemaintained the former client's confidences. In Towne, decidedbefore Ethical Rule 1.10 permitted screening, an attorneywho represented one party in a lawsuit left his law firm tojoin the firm representing the opposing side. Towne, 842P.2d at 1378. Although the court credited the trial court'sdetermination that the affected attorney and his new firm had“scrupulously maintained” the ethical screen, it nonethelessconcluded that screening would not suffice because EthicalRule 1.10(d) at the time did not permit its use. Id. at 1381–82.In another analogous case, the defendant moved to disqualifythe plaintiff's counsel after the defendant's legal secretarybegan working for the plaintiff's law firm sixty days before

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trial. Smart Indus. Corp. Mfg. v. Superior Court, 179 Ariz.141, 876 P.2d 1176, 1177–79 (1994). The court “accept[ed]as true” that the plaintiff's attorney had insulated himself fromany possible disclosure of confidences, but it still determinedthat, because the legal secretary had not complied with theapplicable screening requirements, plaintiffs' counsel must

be disqualified. 17 Id. at 1184–86. Likewise, here, EthicalRule 1.10(d)(2) requires *956 that, for screening to beavailable, the screen must be timely implemented. G & Kcannot circumvent this requirement by baldly asserting that,even without a screen, Honeywell's confidences have been

maintained. G & K's argument to the contrary is inapposite. 18

In sum, G & K erred when it failed to input Hallman'sprior work for Honeywell into its conflicts database. Hallmanwas not timely screened from the RID matter, in accordancewith Ethical Rule 1.10(d)(2), and screening is therefore

unavailable. 19 *957 Accordingly, Hallman's Ethical Rule1.9(a) conflict of interest is imputed to G & K.

3. Honeywell's Conflict Waiver

RID contends that it obtained a waiver from Honeywell thatprecludes Honeywell from seeking disqualification of G & Kin the instant matter. (RID's Consolidated Opp'n at 34–35.)The Court is not persuaded.

G & K shareholder James Busby represented Honeywell in atax matter from 2008 to 2009. (Kimball Decl. I ¶ 19.) The taxmatter was opened on May 8, 2008, the final bill was sent andpaid in February 2009, and the matter was formally closed inDecember 2009. (Id.)

On July 17, 2009, G & K provided written notice toHoneywell that G & K was representing RID in the instantmatter and that it could create a current conflict withHoneywell. (Id. ¶ 18; see also Kimball Decl. I Ex. A (“WaiverLetter”).) G & K's letter itself was addressed to “Mr. PaulH. Brownstein, Associate General Tax Counsel, HoneywellInternational Inc.” (Waiver Letter at 1.) The letter explainedthat G & K's environmental practice group had undertakenrepresentation of RID in connection with remedial actionsfor certain RID wells. (Id.) The letter sought waiver fromHoneywell, stating as follows:

[U]nder the ethical rules governing lawyers, G & K andits attorneys may not oppose a current client (such asHoneywell), even on an unrelated matter, without full

disclosure and consent.... At this time, G & K is seekingHoneywell's waiver and approval to allow G & K to pursuesettlement negotiations with Honeywell on behalf of RIDin this matter. If litigation becomes necessary, RID wouldengage separate counsel to pursue the litigation, unless G& K's conflict is waived by Honeywell at that time.

....

G & K appreciates the current work it performs on behalf ofHoneywell. However, our current legal services are limitedto an unrelated tax issue.... Unless companies are willingto be flexible about waiving conflicts, it would be difficultfor any company to obtain legal counsel and for law firmsto comply with the rules of ethics.

(Id. at 1–2.) Honeywell conditionally waived this conflict onJuly 20, 2009. (Id. at 2; Kimball Decl. I ¶ 20.)

Ethical Rule 1.10(c) provides that “[a] disqualificationprescribed by this Rule may be waived by the affectedclient under the conditions stated in [Ethical Rule] 1.7.”Ethical Rule 1.7 states that the affected client must give“informed consent, confirmed in writing” to waive a conflictof interest. ER 1.7(b); see also ER 1.10 cmt. 6 (“Theconditions stated in [Ethical] Rule 1.7 require the lawyer todetermine that the representation is not prohibited by [EthicalRule] 1.7(b) and that each affected client or former clienthas given informed consent to the representation, confirmedin writing.”). Informed consent “denotes the agreement by aperson to a proposed course of conduct after the lawyer hascommunicated adequate information and explanation aboutthe material risks of and reasonably available alternatives tothe proposed course of conduct.” ER 1.0(e). The commentselaborate as follows:

The lawyer must make reasonableefforts to ensure that the client orother person possesses informationreasonably adequate to make aninformed decision. Ordinarily, thiswill require communication thatincludes a disclosure of the *958facts and circumstances giving riseto the situation, any explanationreasonably necessary to inform theclient or other person of the materialadvantages and disadvantages of theproposed course of conduct and adiscussion of the client's or other

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person's options and alternatives.In some circumstances it may beappropriate for a lawyer to advisea client or other person to seekthe advice of other counsel. Alawyer need not inform a client orother person of facts or implicationsalready known to the client or otherperson; nevertheless, a lawyer whodoes not personally inform the clientor other person assumes the riskthat the client or other person isinadequately informed and the consentis invalid. In determining whether theinformation and explanation providedare reasonably adequate, relevantfactors include whether the clientor other person is experienced inlegal matters generally and in makingdecisions of the type involved, andwhether the client or other personis independently represented by othercounsel in giving the consent.

ER 1.0 cmt. 6 (emphasis added); see also ER 1.7 cmt.18 (“Informed consent requires that each affected client beaware of the relevant circumstances and of the material andreasonably foreseeable ways that the conflict could haveadverse effects on the interests of that client.”).

[10] RID's argument fails for multiple reasons. First, thewaiver, by its plain terms, was limited to the “unrelated taxissue.” (See Waiver Letter at 2.) Indeed, the letter stated that“G & K and its attorneys may not oppose a current client(such as Honeywell), even on an unrelated matter, withoutfull disclosure and consent.” (Id. at 1 (emphasis added).) Theunderstanding was plainly that G & K sought waiver withrespect to the tax matter only. This conclusion is bolstered bythe fact that the letter was addressed to “Associate GeneralTax Counsel” at Honeywell. (Id.)

Second, the plain terms of the letter make clear that G &K sought Honeywell's waiver and approval “to allow G& K to pursue settlement negotiations with Honeywell onbehalf of RID in this matter.” (Id.) It specifically providedthat “[i]f litigation becomes necessary, RID would engageseparate counsel to pursue the litigation, unless G & K's

conflict is waived by Honeywell at that time.” 20 (Id.)Accordingly, the waiver was only applicable to the extent

that G & K sought to settle with Honeywell on RID's behalf.The agreement explicitly did not contemplate the waiver'scontinued effectiveness through the litigation stage of the

proceedings. 21

Finally, even assuming G & K intended that the waiver wouldapply beyond the tax matter, Honeywell simply never gave itsinformed consent. As discussed, informed consent “denotesthe agreement by a person to a proposed course of conductafter the lawyer has communicated adequate information andexplanation about *959 the material risks of and reasonablyavailable alternatives to the proposed course of conduct.”ER 1.0(e). Here, the letter only states that “Jim Derouin ofSteptoe & Johnson has been representing Honeywell on thegroundwater contamination issue for years.” (Waiver Letterat 1.) There is no discussion about Hallman or the possibilitythat Derouin would leave Steptoe and join G & K. Nor is thereevidence that G & K made “reasonable efforts to ensure thatthe client or other person possesses information reasonablyadequate to make an informed decision.” See ER 1.0 cmt.6. In short, G & K never obtained informed consent fromHoneywell sufficient for the Court to find that Honeywellwaived its conflicts with respect to either Derouin or Hallman.

D. Corning's Motion to DisqualifyCorning asserts that because Derouin represented it forseveral years in the 1990s with regard to the allegedcontamination that emanated from the West OsbornComplex, which is at issue here, Derouin's presence at G &K creates an impermissible conflict of interest that cannot becured by screening.

1. Ethical Rule 1.9

As discussed, for an Ethical Rule 1.9(a) conflict to exist, themoving party must show: (1) the existence of an attorney-client relationship; (2) that the former representation was “thesame or substantially related” to the current litigation; and (3)that the current client's interests are “materially adverse” tothe former client's interests. Foulke, 784 P.2d at 726–27. Onceagain, the parties do not dispute that Corning is Derouin'sformer client (Derouin Decl. I ¶¶ 5–8; Geiger Decl. ¶¶ 3, 5,9), and it is readily apparent that G & K's representation ofRID is materially adverse to Corning because Corning is adefendant in the instant action. The Court therefore focuseson whether the RID matter is the same or substantially relatedto Derouin's representation of Corning.

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Derouin represented Corning from 1990 to 1995 with regardto the alleged groundwater contamination attributed to theWest Osborn Complex. (Derouin Decl. I ¶¶ 5–8; Geiger Decl.¶¶ 3, 5, 9.) The Geiger Declaration asserts, and the in cameramaterials confirm, that Derouin played a leadership role in theWest Osborn Complex matter, and that in this capacity, he: (1)consulted with in house engineering experts at Corning andretained outside experts on Corning's behalf to investigate andanalyze current and historical conditions at the West OsbornComplex; (2) participated in a steering committee with otherPRPs to coordinate site investigations and negotiations withADEQ; and (3) interacted with ADEQ on Corning's behalf.(See Geiger Decl. ¶ 6.) The in camera materials reflectthat Derouin was essential in formulating strategy, analyzingpotential liability, and developing settlement positions forthe West Osborn Complex matter as well as meeting andnegotiating with other PRPs and generating strategies forcleanup.

When negotiations with ADEQ and the other PRPs provedunsuccessful, the matter moved into litigation and Corningengaged Derouin to assist with several lawsuits involvingeither Corning or its subsidiary, Components. (Id. ¶¶ 7–8.) In 1991, Components moved to intervene in a lawsuitentitled State v. Nucor, to block ADEQ's approval of aconsent decree with Nucor, another prior owner of the WestOsborn Complex. (See id. ¶ 7.) The in camera materialsdemonstrate that Derouin reviewed the legal issues presentedby Components' attempt to intervene, assisted in developingthe legal strategy for the case, and participated in a subsequentappeal of the district judge's order. (See id.)

*960 Derouin subsequently assisted with the United

Industrial and Baker Actions. 22 (Id. ¶ 8.) The UnitedIndustrial Action was a CERCLA cost recovery action,concerning alleged contamination from the West OsbornComplex, filed by the State of Arizona against UnitedIndustrial, Corning, and Components. (Corning's Mot. Ex.B.) As discussed, the Baker Action was a private toxic tortsuit alleging, with regard to Corning and Components, thatthe plaintiffs had been injured by groundwater contaminationattributable in part to the West Osborn Complex. (Id.Ex. J.) In this capacity, as confirmed by the in cameramaterials, Derouin participated in discussions concerningcase management and litigation strategy as well as potentialapportionment and liability. Richard D. Geiger, a consultantfor Corning, also attests that Derouin assisted in selecting thelitigation team to defend these lawsuits and that he advised

Corning on strategic questions in the lawsuits and regardingits relationship with ADEQ. (Geiger Decl. ¶ 8.)

[11] After reviewing the in camera materials, the Courtdetermines that Derouin's prior representation of Corningis the same or substantially related to the instant matter.In this lawsuit, RID asserts that hazardous substancesused and disposed of at the West Osborn Complex—the same facility and the same contamination at issueduring Derouin's representation of Corning—contributed tothe groundwater contamination of its wells. (FAC ¶ 33.)Moreover, as counsel for Corning, Derouin spearheadedthe investigation into the possible sources of the potentialgroundwater contamination, analyzed information generatedby technical experts, negotiated extensively with ADEQregarding potential settlement, and formulated litigationstrategy. Indeed, Derouin either produced himself or wascopied on a voluminous number of documents relating to theWest Osborn Complex and the contamination that allegedlyemanated therefrom. There is undoubtedly a “substantialrisk” that confidential factual information as would normallyhave been obtained in Derouin's representation of Corningwould “materially advance” RID's position in the instantmatter. See ER 1.9 cmt. 3; see also Trone, 621 F.2d at 998–99. Accordingly, based on his prior representation of Corning,Ethical Rule 1.9(a) would bar Derouin from representing RIDin this lawsuit.

2. Ethical Rule 1.10

Derouin's Ethical Rule 1.9(a) conflict of interest will beimputed to G & K, in accordance with Ethical Rule 1.10(a),unless the screening provisions of Ethical Rule 1.10(d) apply.As noted, Ethical Rule 1.10(d) only applies when a lawyer

becomes associated with a firm. 23 See Eberle, 354 F.Supp.2dat 1095; Ariz. Ethics Op. 04–04. According to Ethical Rule1.10(d)(1), screening is available unless: (1) the disqualifiedlawyer either switched sides in the current representationor the current representation necessarily requires relitigatinga particular aspect of a prior representation; (2) the priorrepresentation was a proceeding before a tribunal; and (3)the disqualified lawyer played a substantial role in that priorproceeding.

[12] Ethical Rule 1.10(d)(1) forecloses screening as ameans of curing Derouin's conflict. As already discussed,this lawsuit and the United Industrial and Baker Actionsall concern potential liability for the *961 same alleged

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contamination emanating from the West Osborn Complex.As in the United Industrial Action, here RID seeks toestablish CERCLA liability and recover response and cleanup costs for the contamination allegedly generated by theWest Osborn Complex. (See FAC ¶¶ 106–16; Corning'sMot. Ex. B ¶¶ 33–38.) Similarly, the plaintiffs in the BakerAction asserted nuisance and trespass claims for the purportedcontamination from the West Osborn Complex, and here,RID asserts nuisance and trespass claims for the same allegedcontamination that purportedly emanated from the WestOsborn Complex. (See FAC ¶¶ 122–32; Corning's Mot. Ex.J ¶¶ 113–21.) The current lawsuit will therefore requirerelitigating certain aspects of the United Industrial and BakerActions, particularly due to the considerable overlap in thefactual and legal issues presented.

Additionally, the United Industrial and Baker Actions wereboth proceedings before a tribunal in which Derouin—the personally disqualified lawyer—had a substantial role.Unlike in Eberle, where the affected attorney “assumedno client responsibility and ... never communicated withthe client or opposing counsel,” Eberle, 354 F.Supp.2d at1097, here Derouin's role in the United Industrial and BakerActions can only be described as “material and weighty,” id.(citing ER 1.0(l )). Derouin was the lead force in negotiatingwith ADEQ and once litigation started, he continued toparticipate in strategy, discussions, and receipt of confidentialinformation. This is more than sufficient to constitute asubstantial role. Accordingly, Derouin's Ethical Rule 1.9(a)conflict of interest, which arose from his representation ofCorning, is imputed to G & K in accordance with Ethical Rule

1.10(a). Ethical Rule 1.10(d) does not change this result. 24

III. Joint Defense Group Motions to DisqualifyUnivar, SRP, Dolphin, and Arvin and Cooper all argue thatthey have implied attorney-client relationships with current G& K attorneys by virtue of their participation in myriad jointdefense groups.

A. Joint Defense Agreements and Conflicts of Interest[13] [14] Courts have carefully considered the extent

to which an attorney owes a duty to a former client'sco-defendant when the former client and the co-defendant

executed a joint defense agreement. 25 *962 “A jointdefense agreement establishes an implied attorney-clientrelationship with the co-defendant.” United States v. Henke,222 F.3d 633, 637 (9th Cir.2000) (per curiam) (citing United

States v. McPartlin, 595 F.2d 1321, 1337 (7th Cir.1979);Wilson P. Abraham Constr. Corp. v. Armco Steel Corp.,559 F.2d 250, 253 (5th Cir.1977) (per curiam)). Generally,courts agree that a traditional attorney-client relationship isnot established between an attorney and his client's former co-defendant via a joint defense agreement, but the attorney maynonetheless owe a duty of confidentiality to the former co-defendant. See United States v. Stepney, 246 F.Supp.2d 1069,1080 (N.D.Cal.2003) (“Courts have consistently viewed theobligations created by joint defense agreements as distinctfrom those created by actual attorney-client relationships.”);see also In re Gabapentin Patent Litig., 407 F.Supp.2d 607,612 (D.N.J.2005) (concluding that working together pursuantto a joint defense agreement “could create implied attorney-client or fiduciary obligations under certain circumstances”);GTE North, Inc. v. Apache Prods. Co., 914 F.Supp. 1575,1579–80 (N.D.Ill.1996) (describing the duty). To determinewhether such a duty exists, a court must consider whetherthere was an actual exchange of confidential information;courts do not presume that this exchange occurred. See,e.g., Wilson P. Abraham, 559 F.2d at 253 (“[T]here is nopresumption that confidential information was exchanged asthere was no direct attorney-client relationship.”); Stepney,246 F.Supp.2d at 1080 (“[Per a joint defense agreement,] noconflict of interest arises unless the attorney actually obtainedrelevant confidential information.”); GTE North, 914 F.Supp.at 1580 (“[T]here must actually have been an exchange ofconfidential information.”).

[15] [16] If confidential information has been obtainedby an attorney pursuant to a joint defense agreement, theattorney must maintain that confidence. See Wilson P.Abraham, 559 F.2d at 253 (“[A]n attorney who is the recipientof [confidential information pursuant to a joint defenseagreement] breaches his fiduciary duty if he later, in hisrepresentation of another client, is able to use this informationto the detriment of one of the co-defendants.”). As a result, anattorney may be disqualified from a proceeding if the attorneyis both in actual possession of confidential information, andby virtue of having this information, is either incapable ofadequately representing the new client or will breach theduty of confidentiality owed to the former co-defendant. Seeid.; Henke, 222 F.3d at 637 (“This privilege can also *963create a disqualifying conflict where information gained inconfidence by an attorney becomes an issue.” (emphasisadded)); Henke, 222 F.3d at 638 (“There may be cases inwhich defense counsel's possession of information abouta former co-defendant/government witness will not impair

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defense counsel's ability to represent the defendant or breachthe duty of confidentiality to the former co-defendant.”).

In Henke, for instance, the Ninth Circuit held that the districtcourt erred by not allowing defense counsel to withdrawwhen the government produced a witness with whomdefense counsel had previously executed a joint defenseagreement. Henke, 222 F.3d at 638. There, three defendants,Desaigoudar, Henke, and Gupta, were indicted on chargesof conspiracy, making false statements, securities fraud,and insider trading. Id. at 636. Central to the prosecution'stheory of the case was whether the defendants had advanceknowledge of a false revenue reporting scheme and whetherthey traded stock because of it. Id.

Desaigoudar, Henke, and Gupta had participated in jointdefense meetings during which confidential informationwas exchanged and discussed among their counsel. Id.“Communications made during these pre-trial meetings wereprotected by the lawyers' duty of confidentiality imposed bya joint defense privilege agreement.” Id. Shortly before trial,Gupta accepted a plea agreement and agreed to testify for thegovernment against Desaigoudar and Henke. Id.

Counsel for Desaigoudar and Henke moved for a mistrialand filed motions to withdraw, arguing that their dutiesof confidentiality owed to Gupta precluded them fromeffectively cross-examining him. Id. The district courtdisagreed. At trial, counsel for Desaigoudar and Henke“conducted no cross examination [of Gupta] for fear that theexamination would lead to inquiries into material covered bythe joint defense privilege.” Id.

On appeal, the Ninth Circuit reversed. The Ninth Circuitfound that “a joint defense agreement establishes an impliedattorney-client relationship with [co-defendants]” and that“[t]his privilege can also create a disqualifying conflict whereinformation gained in confidence by an attorney becomes anissue.” Id. at 637. The court continued:

“Just as an attorney would not beallowed to proceed against his formerclient in a cause of action substantiallyrelated to the matters in which hepreviously represented that client, anattorney should also not be allowedto proceed against a co-defendant ofa former client wherein the subjectmatter of the present controversy issubstantially related to the matters

in which the attorney was previouslyinvolved, and wherein confidentialexchanges of information took placebetween the various co-defendants inpreparation of a joint defense.”

Id. (quoting Wilson P. Abraham, 559 F.2d at 253).Importantly, the Ninth Circuit did not rely on the any ethicalrules governing attorney's conduct in reaching this decision.

Applying these principles to the facts before it, the NinthCircuit easily concluded that the district court erred.Counsel for Desaigoudar and Henke claimed there wasa discrepancy between what Gupta stated at the jointdefense meetings and his testimony at trial. Id. This put theattorneys in an impossible position. “Had they pursued thematerial discrepancy ..., a discrepancy they learned aboutin confidence, they could have been charged with usingit against their one-time client Gupta.” Id. Indeed, Gupta'sattorneys sent a letter threatening Desaigoudar's and Henke'sattorneys with legal action if they failed to protect Gupta'sconfidences. Id. at 638.

*964 The Ninth Circuit, however, carefully qualified itsholding as follows:

Nothing in our holding today isintended to suggest ... that jointdefense meetings are in and ofthemselves disqualifying.... There maybe cases in which defense counsel'spossession of information abouta former co-defendant/governmentwitness learned through joint defensemeetings will not impair defensecounsel's ability to represent thedefendant or breach the duty ofconfidentiality to the former co-defendant.

Id.

The district court in Stepney subsequently explored theboundaries of this qualification. In Stepney, the governmentcharged nearly thirty defendants with over seventysubstantive counts relating to the operation of a gang overa period of several years. Stepney, 246 F.Supp.2d at 1072.In an effort to prepare coherent defenses, various defensecounsel sought to enter into a joint defense agreement thatwould allow the defendants to share factual investigations

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and legal work product. Id. The court in Stepney requiredthat the proposed joint defense agreement be submitted forin camera review, and it ultimately rejected it for creating“a general duty of loyalty to all participating defendants.” Id.at 1072, 1079. The Stepney court explained that “[s]uch aduty has no foundation in law and, if recognized, would offerlittle chance of a trial unmarred by conflict of interest anddisqualification.” Id. at 1079.

[17] [18] In reaching this conclusion, the court observedthat “[j]oint defense agreements are not contracts whichcreate whatever rights the signatories chose, but are writtennotice of defendants' invocation of privileges set forth incommon law. Joint defense agreements therefore cannotextend greater [or fewer] protections than the legal privilegeson which they rest.” Id. at 1079–80 (footnote omitted). Thecourt continued:

Courts have consistently viewed theobligations created by joint defenseagreements as distinct from thosecreated by actual attorney-clientrelationships.... As discussed above,courts have also consistently ruledthat where an attorney representsa client whose interests divergefrom a party with whom theattorney has previously participatedin a joint defense agreement, noconflict of interest arises unless theattorney actually obtained relevantconfidential information. This positionis inconsistent with a general dutyof loyalty owed to former clients,which would automatically precludean attorney from subsequentlyrepresenting a client with an adverseinterest.

Id. at 1080 (emphasis added) (footnote and citations omitted).Accordingly, the duty of confidentiality imposed by a jointdefense agreement “is limited in that the showing required toestablish a conflict of interest arising from prior participationin a joint defense agreement is significantly higher thanrequired to make out a conflict based on former representationof a client.” Id. at 1076. “[D]isqualification is [therefore]proper where a party seeking disqualification can show thatan attorney for another defendant actually obtained relevantconfidential information through a joint defense agreement.”Id. at 1082; see id. at 1082 n. 7 (characterizing Henke and

Wilson P. Abraham as embracing the rule that “the lawdoes not trust an attorney who actually possesses relevantconfidences to proceed without using or disclosing them”).“[J]oint defense meetings in and of themselves [, however] arenot [automatically] disqualifying.” Id. at 1082 (citing Henke,

222 F.3d at 638). 26 Again, *965 Stepney did not rely onany ethical rules or statutes governing lawyers conduct inreaching this conclusion.

RID asserts that because “the [ethical rules] make[ ]no mention of joint defense arrangements or conflicts orobligations related thereto,” a client must establish that anactual attorney-client relationship exists before the ethicalrules can apply. (RID's Consolidated Opp'n at 17–22.) TheCourt is not here suggesting that ethical rules are the sourcepursuant to which privileges and protections associatedwith joint defense agreements attach. Rather, the duty ofconfidentiality imposed by joint defense agreements, andassociated with participation in joint defense groups, stemsfrom the case law surrounding joint defense agreementjurisprudence. See, e.g., Henke, 222 F.3d at 637 (“A jointdefense agreement establishes an implied attorney-clientrelationship with the co-defendant.”); Stepney, 246 F.Supp.2dat 1079–80 (“Joint defense agreements are not contractswhich create whatever rights the signatories chose, but arewritten notice of defendants' invocation of privileges set forthin common law.” (emphasis added)).

RID's reliance on various out of district ethics opinionsis similarly unpersuasive. As RID points out, the thrustof D.C. Ethics Opinion 349 is that “[b]y its own terms,Rule 1.9 creates no obligations with respect to a person orentity who was never a client.” D.C. Ethics Op. 349, at 5(Sept. 2009). According to this ethics opinion, as a result,there is nothing to impute to the firm pursuant to D.C.'sEthical Rule 1.10. Id. This same ethics opinion recognizes,however, that participation in joint defense groups may giverise to obligations arising under some law other than theethical rules. Id. at 2 (“[O]ne must distinguish betweenobligations imposed by the [Ethical] Rules and obligationsarising under other law.”). RID's reliance on ABA FormalOpinion 95–395 is also misplaced. In that opinion, as RIDpoints out, the American Bar Association concludes that“[a] lawyer who has represented one, but only one, ofthe parties in a joint defense consortium does not therebyacquire an obligation to the other parties to the consortiumthat poses an ethical bar to the lawyer thereafter takingon a related representation adverse to any of the otherparties.” ABA Formal Op. 95–395, at 1. The opinion clarifies,

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however, that an attorney who participated in a joint defenseconsortium, and received confidential information from theother members, “would almost surely have a fiduciaryobligation to the other members of the consortium, whichmight lead to [the attorney's] disqualification.” Id. at 3 (citingWilson P. Abraham, 559 F.2d at 253). These ethics opinionstherefore support the conclusion that participation in a jointdefense group can give rise to duties and obligations thatarise outside of the ethical rules. Accordingly, and contraryto RID's assertion, the ethical rules need not specificallymention joint defense agreements for a disqualifying conflictof interest to arise from such an agreement or participation in

a joint defense group. 27

*966 [19] Accordingly, the Court finds that joint defenseagreements do give rise to an implied attorney-clientrelationship, which may include a duty of confidentiality.This relationship can lead to a disqualifying conflict ofinterest where information gained in confidence by anattorney “becomes an issue”—specifically when the formerrepresentation was “the same or substantially related” to thecurrent litigation and when the current client's interests are“materially adverse” to the interests of the party asserting the

conflict of interest. 28 See Henke, 222 F.3d at 636; Stepney,246 F.Supp.2d at 1080; see also Restatement (Third) of theLaw Governing Lawyers § 132 cmt. g(ii) (“A lawyer wholearns confidential information from a person representedby another lawyer pursuant to a common interest sharingarrangement is precluded from a later representation adverseto the former sharing person when the information actuallyshared by that person with the lawyer or the lawyer's clientis material and relevant to the matter.”). Unlike an actualattorney-client relationship, however, courts do not presumethe exchange of confidential information. Instead, there mustbe an actual transfer of relevant confidential information to

create a disqualifying conflict. 29

B. Imputation to a Law FirmOnce the court determines that a disqualifying conflict ofinterest exists by virtue of an attorney's participation in a jointdefense group, the court must determine whether that conflictcan be imputed to an entire law firm. Courts have carefullyconsidered this question and answered in the affirmative.

In Gabapentin, two attorneys represented a defendant ina patent infringement case. Gabapentin, 407 F.Supp.2d at608–09. During that representation, they executed a jointdefense agreement on behalf of the defendant and participated

regularly in joint defense meetings, wherein they were privyto confidential work product and privileged informationrelating to all of the defendants who participated in thejoint defense group. Id. at 609. The attorneys then joined adifferent law firm, and shortly thereafter, that firm becamelead plaintiffs' counsel against the attorneys' former client inthe same patent litigation. Id. at 609–12. The attorneys weretimely screened and obtained waivers from their former clientsufficient to prohibit imputation of a conflict between the lawfirm and the former client. Id. at 610. The attorneys, however,failed to obtain *967 waivers from their former client's co-defendants, who were involved in the joint defense group. Id.The co-defendants subsequently filed a motion to disqualifyplaintiffs' counsel, premised upon the two lateral attorneys'participation in the joint defense group. Id. at 611.

The court first found that because relevant confidentialinformation was exchanged in the joint defense meetings, andbecause the joint defense agreement “clearly established theintent that shared information would remain confidential andprotected under the attorney-client privilege,” the attorneyshad an implied attorney-client relationship with the co-defendants of their former client. Id. at 613–15 (analyzingWilson P. Abraham and GTE North ). The court nextdetermined that, despite the screen, the lateral attorneys'conflict was imputed to the entire law firm, pursuant to NewJersey's Ethical Rule 1.10. Id. at 615–16. As a result, the entirelaw firm was disqualified from continuing to represent theplaintiffs in the litigation. Id.

In GTE North, the court reached a similar result. In thatcase, the EPA gave notification of PRP status to variouscompanies, resulting from the cleanup of a superfund site.GTE North, 914 F.Supp. at 1577. GTE North, Chrysler, andother PRPs subsequently formed a committee and executed ajoint remedial cost sharing agreement, the purpose of whichwas to “allocate each member's share of shared responsecost, cooperate in investigating and identifying additionalPRPs, and to pursue cost recovery activities against anyadditional PRPs.” Id. (footnote omitted). The agreement alsoincluded confidentiality provisions, which provided that “allshared information between the members and their counselshall ‘be held in strict confidence by the receiving memberand by all persons to whom such confidential informationis revealed by the receiving member.’ ” Id. The membersof this committee who had elected to pursue cost recovery,including Chrysler and GTE North, entered into a separateagreement implementing a joint investigation of additionalPRPs who had not participated in the cleanup of the superfund

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site. Id. at 1577–78. This agreement also contained severalconfidentiality provisions. Id. at 1578. At the time of theseagreements, Chrysler was represented by Jon S. Faletto andthe law firm Howard & Howard. Id. at 1577–78.

Thereafter, counsel for each member, including Faletto,jointly met on several occasions to discuss strategyfor conducting the investigation, the investigation resultsthemselves, the relative legal merit of proceeding againstcertain defendants, and the legal strategy for bringing the costrecovery action. Id. at 1578. GTE North ultimately brought aCERCLA cost recovery action against Dean Foods and otherPRPs. Id. Faletto, who was still with Howard & Howard,appeared on behalf of Dean Foods to defend it in this costrecovery action. Id. Although Faletto obtained Chrysler'sinformed consent to represent Dean Foods in the matter, GTENorth moved to disqualify Faletto and his law firm on thebasis that his participation in the joint presuit investigationhad given rise to an implied attorney-client relationship. Id.

Faletto, for his part, did not contest that the matters were“the same or substantially related” nor that the positionwas “materially adverse.” Id. at 1579. Instead, Falettoargued that because GTE North was not a former client,there could not be a disqualifying conflict of interest. Id.The court disagreed. First, the court acknowledged thatbecause there was no express attorney-client relationship,there was no presumption that confidential informationhad been exchanged. Id. at 1580 (“[T]here must actuallyhave been an exchange of *968 confidential information.Thus, GTE's assertion that there is a presumption thatconfidential information was exchanged is in error, asthis presumption exists only where there is an expressattorney-client relationship and the matters are substantiallyrelated.” (citing Wilson P. Abraham, 559 F.2d at 253)). Thecourt therefore reviewed the record and concluded that anexchange of confidential information took place betweenGTE North and Chrysler and their respective counsel. Id.at 1580–81. Next, the court considered the circumstancesunder which these exchanges occurred, and determined that“[t]he disclosures by GTE via its counsel to Faletto, Chrysler'scounsel, were made with the expectation that they would notbe disclosed to the targets of the investigation.” Id. at 1581.The court ruled that receipt of such disclosures obligatedFaletto to refrain from appearing on the opposite side ofthe same litigation to which such information was highlypertinent. Id. Accordingly, the court disqualified Faletto fromappearing on behalf of Dean Foods in GTE North's CERCLAcost recovery action. Id. Because Faletto was at all relevant

times a member of Howard & Howard, the court found thatthis was “not a situation of imputed disqualification where anattorney has changed firms” and could have been screenedin accordance with the applicable Ethical Rule 1.10. Id.The GTE North court therefore imputed Faletto's conflict ofinterest to Howard & Howard and disqualified the entire firm

from representing Dean Foods. 30 Id.

[20] These cases make clear that conflicts of interest arisingfrom joint defense agreements, and participation in jointdefense groups, can be imputed to an entire law firm inaccordance with the applicable ethical rules. See Gabapentin,

407 F.Supp.2d at 615; GTE North, 914 F.Supp. at 1581. 31

*969 C. The WVB Group—Univar and DolphinUnivar and Dolphin contend that G & K should bedisqualified from representing RID in the instant actionbecause current G & K attorneys Wallis, Curry, andMoellenberg represented Reynolds in the WVB Group,creating an implied attorney-client relationship with Univarand Dolphin, who also participated in the WVB Group.

In 1992, ADEQ notified Univar, Dolphin, and several otherPRPs that they might be liable for groundwater contaminationoriginating from the WVBA WQARF Site. (Grotheer Decl. ¶2; Lagas Decl. ¶ 3.) In response, Univar, Dolphin, Reynolds,Maricopa County, and American Linen Supply Companyformed a joint defense group, the WVB Group, whoseprimary purpose was to jointly negotiate a consent decreewith ADEQ for performance of a RI/FS in the WVBA Site.(Grotheer Decl. ¶ ¶ 3–4; Lagas Decl. ¶ 4.) During the WVBGroup's existence, Reynolds was represented by current G &K attorneys Wallis, Curry, and Moellenberg. (Grotheer Decl.¶ 6; Lagas Decl. ¶¶ 13–14.)

The parties executed the joint defense agreement in 1993,and the in camera materials demonstrate that the group meton a near weekly basis from 1993 until approximately June1996, when the group suspended negotiations with ADEQ.During this time, G & K attorneys received communicationsregarding committee and subcommittee meetings on anaverage of five to six times per month.

Univar represents that, during the WVB Group meetings,the group members “openly and routinely discussed issuesrelated to [their] technical and legal defenses to the scope andnature of liability.” (Grotheer Decl. ¶ 6.) These discussionsalso included the members' “frank assessments of the

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strengths and weaknesses of the various defenses” (id.), aswell as legal strategies and possible settlement terms (LagasDecl. ¶ 12). The in camera materials are in accord.

Dolphin also asserts that the WVB Group specificallydiscussed RID and its agricultural irrigation wells, evaluatedthe effects of RID's pumping of those wells, and haddiscussions about the potential of RID asserting claimsagainst members of the WVB Group. (Id. ¶¶ 8–9, 17–18.)The in camera materials substantiate these claims. Myriadcommittee reports, subcommittee reports, and confidentialgroup communications took place on all of these topics.Indeed, from 1993 until 1996 no fewer than seven documentssubmitted for in camera review mentioned RID and potentialtheories of liability relating to RID, particularly in 1994.The WVB Group also considered potential EPA liabilityin these meetings as well as ADEQ liability, and itdiscussed models of groundwater flow and contamination,defenses and legal strategies, possible settlement terms, andotherwise prepared for contingencies relating to the allegedgroundwater contamination. Strategic discussions took placeregularly, and technical details relating to the spread ofpotential contaminants were exchanged freely between andamong the WVB Group participants.

A large portion of the in camera documents relate todeveloping a groundwater flow model. In June 1993, theWVB Group presented to ADEQ a good faith offer for phasedperformance of the RI/FS. (Grotheer Decl. ¶ 7.) Univarasserts that an important element in performance of the RI/FS was the use of a groundwater flow model (the “model”),developed by Univar through its consultant, Harding Lawson& Associates (“Harding Lawson”). (Id.) The in cameramaterials confirm that both Univar and Harding Lawsonmade *970 detailed presentations regarding the model tothe WVB Group, addressing the underlying assumptionsand judgments that form the technical foundation for themodel. As suggested by the Grotheer Declaration, the groupmembers questioned these assumptions and judgments inan effort to evaluate the model's strengths and weaknesses,and in response, Univar and its consultants answered thesequestions “honestly and candidly.” (Id.)

ADEQ purchased the model from Univar in 1999, andin October 2006, Univar and Reynolds entered into anagreement that ultimately led to Reynolds purchasing themodel from Univar. (Id. ¶¶ 9–11.) Univar states that, althoughit sold the model, it did not disclose to ADEQ the WVBGroup's prior discussions regarding the model's strengths

and weaknesses. (Id.) Univar claims that it plans to use theupdated model in connection with the instant action andthat “most, if not all, of the underlying assumptions andjudgments that formed the technical foundation of the initialmodel remain the same.” (Univar's Mot. Ex. D, Declarationof Edward Nemecek (“Nemecek Decl.”) ¶ 3.)

Wallis, Curry, and Moellenberg, the three G & K attorneyswho represented Reynolds in the WVB Group, all attest thatthey were screened from the RID matter “shortly” after RIDengaged G & K in October 2008. (Wallis Decl. ¶¶ 4–5; CurryDecl. ¶¶ 4–5; Moellenberg Decl. ¶¶ 4–5; see also KimballDecl. I ¶ 7.)

1. Implied Attorney–Client Relationship

As noted, for a potentially disqualifying conflict stemmingfrom a duty of confidentiality created by a joint defenseagreement to exist, the moving party must show: (1) the actualexchange of relevant confidential information; (2) the formerrepresentation was “the same or substantially related” to thecurrent litigation; and (3) the current client's interests are“materially adverse” to interests of the party claiming to beprotected by the joint defense agreement. See Henke, 222 F.3dat 636; Stepney, 246 F.Supp.2d at 1080.

As a preliminary matter, it is undisputed that RID's interestsare materially adverse to Univar and Dolphin—the partiesclaiming to be protected by participation in the WVB Group—because RID has named them as defendants in the instantaction.

[21] The matters are also substantially related. Matters aresubstantially related “if they involve the same transactionor legal dispute or if there otherwise is a substantial riskthat confidential factual information as would normally havebeen obtained in the prior representation would materially

advance the client's position in the subsequent matter.” 32

ER 1.9 cmt. 3; see also Trone v. Smith, 621 F.2d 994,998–99 (9th Cir.1980). At issue in the former representationwas Univar and Dolphin's potential liability for groundwatercontamination existing within the WVBA WQARF Site.(Grotheer Decl. ¶ 2; Lagas Decl. ¶ 3.) Similarly, here,RID alleges that Univar's Facilities and Dolphin's Facilitiescontributed to the groundwater contamination of its wells,located in the WVBA WQARF Site. (FAC ¶¶ 36, 79.) Theunderlying nucleus of facts that give rise to the former matterand the instant matter are therefore nearly identical. The in

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camera documentation submitted to the Court substantiatesthis conclusion. The operative facts so overlap that the WVBGroup candidly discussed RID and potential theories ofliability *971 relating to RID. The Court can only concludethat the former matter and the instant matter are substantiallyrelated because there is undoubtedly a “substantial risk”that confidential factual information as would normally havebeen obtained from participation in the WVB Group would“materially advance” RID's position in the instant matter.”See ER 1.9 cmt. 3.

[22] Not only was there a substantial risk that confidentialinformation, which materially advances RID's position wouldbe exchanged, but that information was in fact exchanged.The Court therefore finds that the third and final prong ofthe test has been satisfied. As outlined above, the WVBGroup recognized and assessed potential impacts to RIDand discussed RID and its pumping in confidential andprivileged communications transmitted between and amongthe group members. Both Univar and Dolphin also engagedin frank discussions regarding their individual liabilities aswell as the group's collective liabilities. Indeed, a 1993memorandum was drafted, which discussed both Univar's andDolphin's potential liabilities and was circulated to currentG & K attorneys. The memorandum discussed specificallywhat the WVB Group could argue to avoid liability andthe potential impact of a CERCLA lawsuit. The Groupanalyzed relevant case law and suggested different argumentsthat could be made before a court. Similarly, the WVBGroup exchanged documentation that involved site-specificgroundwater investigations on the WVB Group members'sites, and the parties also discussed flow model information.

The relevance of this material cannot be understated. Thein camera documentation makes plain that Univar andDolphin operated under the assumption that they were sharinginformation in confidence, and Paragraph 20 of the jointdefense agreement contains a confidentiality provision. Thediscussions in which the WVB Group engaged go the heartof the instant litigation. Theories of liability discussed by thegroup are now being asserted against Univar and Dolphin.With respect to the model that Univar sold to ADEQ andReynolds, the underlying assumptions and judgments thatformed the technical foundation of the initial model were notsold and are nonpublic in nature. As the in camera documentsmake clear, however, Univar discussed these assumptionscandidly with the WVB Group. The Court therefore finds thatall three prongs of the implied attorney-client relationship testoutlined supra have been satisfied with respect to Univar and

Dolphin. Accordingly, Wallis, Curry, and Moellenberg, thethree G & K attorneys who represented Reynolds in the WVBGroup, have a duty of confidence that must be maintained

with respect to Univar and Dolphin. 33

2. Imputation to G & K

This duty of confidence owed by Wallis, Curry, andMoellenberg is imputed to G & *972 K. As Gabapentinand GTE North make clear, duties established by a jointdefense agreement can be imputed to an entire law firm viathe applicable ethical rules. See Gabapentin, 407 F.Supp.2d at615; GTE North, 914 F.Supp. at 1581. Although RID assertsthat Wallis, Curry, and Moellenberg were all screened shortlyafter RID retained G & K, the screening mechanism set forthin Ethical Rule 1.10(d) is only available when the personallydisqualified lawyer joins a new law firm. See Eberle, 354F.Supp.2d at 1095; Ariz. Ethics Op. 04–04. Here, Wallis,Curry, and Moellenberg all worked for G & K at the time ofthe former representation and still work for G & K. Screeningtherefore offers G & K no refuge—G & K owes Univar andDolphin a duty of confidence that must be maintained.

D. The M–52 Group—SRP and HoneywellSRP contends that G & K should be disqualified fromrepresenting RID because current G & K attorneys Derouinand Curry participated in the M–52 Group, in which SRPwas also involved, on behalf of Honeywell and APS,

respectively. 34

By 2003, the EPA had identified SRP, APS, and Honeywellas PRPs in connection with alleged contamination in OU–3 of the M–52 Site. (Wanttaja Decl. ¶¶ 5–6.) These partiessubsequently formed the M–52 Group and executed a jointdefense agreement effective March 1, 2008. (Id. ¶ 9.) Derouinparticipated in the M–52 Group meetings on behalf ofHoneywell, and Curry participated on behalf of APS, whowas represented by G & K in the matter. (Id. ¶¶ 11, 13;Derouin Decl. I ¶ 21.) SRP withdrew from participation in theM–52 Group in December 2008. (SRP's Mot. at 6.)

According to SRP, the M–52 Group engaged in confidentialdiscussions regarding the potential contamination at OU–3, possible sources of the contamination, feasibility andcosts of certain cleanup plans, and potential allocation ofliability. (Wanttaja Decl. ¶¶ 14, 18.) SRP claims that it alsodisclosed to the other group members its position on its own

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alleged liability, including information regarding its allegedcontribution to the OU–3 contamination. (Id. ¶ 17.)

SRP's in camera documentation substantiates theseassertions. From June 2008 until November 2008, SRP'sattorneys exchanged myriad information with G & K'sattorneys who participated in the M–52 Group. As assertedin the Wanttaja Declaration, discussions between SRPrepresentatives and current G & K attorneys Derouin andCurry touched on a potential AOC with the EPA related to theOU–3. In discussing this, SRP revealed information regardingits liability, its views on the scope of the contamination inOU–3, and the feasibility and costs of cleanup plans. Theparties also discussed the potential retention of a commonconsultant and proposed investigations. In the process, SRPagain revealed its views regarding its potential contributionto the contamination in OU–3, the source of the allegedcontamination, the potential costs and feasibility of thecleanup plan, and any potential allocation of liability for thealleged contamination.

Succinctly stated, the in camera documentation entirelysupports the declaration that SRP provided to the Court.(See Wanttaja Decl. ¶ 18 (asserting that the records reflect“discussions between SRP and G & K attorneys ... regarding,among other things: 1) SRP's position on *973 participatingin a potential AOC with EPA related to the OU–3 site,2) SRP's confidential position on critical provisions ofthe AOC with EPA, 3) SRP's position with regard tocertain agreements, including a site participation agreement,a confidentiality agreement and consulting agreement, 4) theretention of a common consultant and proposed investigationsto be performed by that consultant, 5) allocation of SRP'salleged liability, 6) concerns of SRP's Board on certain issuesand 7) other sensitive and confidential information”).)

Honeywell's in camera documentation also makes clear that

it shared information with SRP and APS. 35 In connectionwith the same topics outline above, Honeywell provideddocumentation that suggests it revealed theories relatingto the potential contamination at OU–3, the sources ofthe contamination, Honeywell's potential liability for thecontamination, discussions surrounding investigations, andHoneywell's positions on participating in the AOC.

In sum, the in camera documents make clear that Honeywell,SRP, and APS, consistent with the terms of their joint defenseagreement, exchanged an abundance of information relatingto alleged contamination in OU–3 of the M–52 Site.

Of the attorneys who participated in the M–52 Group,Derouin and Curry are the only two currently employed byG & K. As noted, Derouin was hired by G & K in January2010, and he states that he did not “transfer or take anyfiles, documents, or materials” related to his representation ofHoneywell to G & K. (Derouin Decl. I ¶¶ 27, 31.) Derouinattests that he has been screened from the RID matter sincehis arrival at G & K. (Id. ¶¶ 32–35; see also Kimball Decl. I ¶¶30–31; Michael Kennedy Decl. ¶¶ 5–9.) Additionally, Curryrepresents that he was screened from the RID matter “shortly”after RID engaged G & K in October 2008. (Curry Decl. ¶¶4–5; see also Kimball Decl. I ¶ 7.)

1. Implied Attorney–Client Relationship

As noted, for a potentially disqualifying conflict stemmingfrom a duty of confidentiality created by a joint defenseagreement to exist, the moving party must show: (1) the actualexchange of relevant confidential information; (2) the formerrepresentation was “the same or substantially related” to thecurrent litigation; and (3) the current client's interests are“materially adverse” to interests of the party claiming to beprotected by the joint defense agreement. See Henke, 222 F.3dat 636; Stepney, 246 F.Supp.2d at 1080.

As a preliminary matter, it is undisputed that RID's interestsare materially adverse to SRP and Honeywell—the partiesclaiming to be protected by participation in the WVB Group—because RID has named them as defendants in the instantaction.

The matters are also substantially related. At issue in theformer representation was SRP's and Honeywell's potentialliability for alleged groundwater contamination in OU–3of the M–52 Site. (See Wanttaja Decl. ¶¶ 7–8.) At issuein the instant litigation is also SRP's and Honeywell'spotential liability for alleged groundwater contamination inOU–3 of the M–52 Site. Specifically, RID alleges thatalleged contamination from SRP's Facilities and Honeywell'sFacilities contributed to the groundwater contamination ofits wells. (FAC ¶¶ 41, 66.) As with Univar and Dolphin,the underlying nucleus of facts that gave rise to the formermatter and the instant matter are nearly identical. The incamera documentation, as discussed, *974 substantiates thisdetermination. Therefore, the Court can only conclude thatthe former matter and the instant matter are substantiallyrelated because there is undoubtedly a “substantial risk”

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that confidential factual information as would normally havebeen obtained from participation in the M–52 Group would“materially advance” RID's position in the instant matter.”See ER 1.9 cmt. 3.

Not only was there a substantial risk that confidentialinformation, which materially advances RID's positionwould be exchanged, but that information was in factexchanged. Accordingly, the Court finds that the third andfinal prong of the test has been satisfied. As outlinedabove, relevant confidential information was exchangedbetween and among all members of the M–52 Group.Indeed, the M–52 Group engaged in numerous phoneconversations, meetings, and e-mail exchanges. Topics ofthese discussions included negotiations surrounding theterms of the joint defense agreement, the potential AOC,litigation strategies, and potential claims against other parties.During these discussions, the in camera documentationmakes clear that SRP and Honeywell engaged in frankconversations regarding their potential liability and strategiesfor circumventing it.

The relevance of this material cannot be understated. Thein camera materials demonstrate that SRP and Honeywelloperated under the assumption that they were sharinginformation in confidence, and the joint defense agreement

itself plainly states as much. 36 Moreover, the M–52 Group'sdiscussions relate directly to the instant litigation—potentialliabilities discussed between and among the M–52 Groupmembers now form, in part, the underpinning of RID's claimsagainst SRP and Honeywell, and the same strategies thatthe M–52 Group discussed for avoiding liability could beat play here as well. This material is plainly relevant andadvantageous to RID. The Court therefore finds that all threeprongs of the joint defense group test outlined supra havebeen satisfied with respect to SRP and Honeywell. Curryand Derouin, the two remaining G & K attorneys whichrepresented APS and Honeywell, respectively, in the M–52Group, have a duty of confidence that must be maintainedwith respect to SRP and Honeywell.

2. Imputation to G & K

This duty of confidence owed by Curry to Honeywell and

SRP is imputed to the entire G & K law firm. 37 AsGabapentin and GTE North make clear, duties established bya joint defense agreement are imputed to an entire law firm viathe applicable ethical rules. See Gabapentin, 407 F.Supp.2d

at 615; GTE North, 914 F.Supp. at 1581. As with Univarand Dolphin, it does not matter that Curry was screenedshortly after RID retained G & K because, pursuant to EthicalRule 1.10(d), screening is only available when the personallydisqualified lawyer joins a new firm. See *975 Eberle,354 F.Supp.2d at 1095; Ariz. Ethics Op. 04–04. Here, Curryworked for G & K at the time of the former representation andstill works for G & K. Screening therefore offers G & K nohelp and Curry's conflict is imputed to the entire firm.

E. The AdobeAir–Arvin and Arvin–Cooper GroupsFinally, Arvin and Cooper contend that Derouin'semployment by G & K creates an impermissible conflict ofinterest that is not subject to screening. The Court disagrees.

AdobeAir, Arvin, and Cooper are all former successiveowners of the South 15th Street Facility. (Furlough Aff. ¶2.) In May 1987, the EPA placed the South 15th StreetFacility on CERCLIS. (Id. ¶ 5.) In connection with thismatter, AdobeAir entered into a joint defense agreementwith Arvin in October 2002. (Furlough Aff. ¶ 7; DerouinDecl. II ¶ 3.) The in camera documentation reveals that theAdobeAir–Arvin Group agreement has specific provisionsrelating to joint and cooperative defenses between Arvin andAdobeAir concerning the South 15th Street Facility as well asprovisions concerning the confidentiality of the joint defensematerials and protection of all correspondence, documents,and technical documents. Derouin, who was at the time apartner at Steptoe, represented AdobeAir and was the partnerprimarily responsible for this matter. (Derouin Decl. II ¶ 3.)

Effective November 25, 2002, Arvin and Cooper enteredinto a Tolling, Standstill and Cooperation Agreement.(Odenweller Aff. ¶ 7.) The in camera documentationreveals that the Arvin–Cooper Group agreement has specificprovisions relating to joint and cooperative defenses betweenArvin and Cooper concerning the South 15th Street Facilityas well as provisions concerning the confidentiality of thejoint defense materials and protection of all correspondence,documents, and technical documents. AdobeAir was not aparty to the Arvin–Cooper Group agreement.

In September 2004, representatives from AdobeAir, Arvin,and Cooper signed the AOC titled “In the Matter of: Motorola52nd Street Superfund Site, U.S. EPA Docket No. 2004–18,” which was negotiated with the EPA and prescribedthat an RI/FS was to be performed of the South 15th StreetFacility. (Furlough Aff. ¶¶ 8–11; Derouin Decl. II ¶ 3.)AdobeAir, Arvin, and Cooper have been cooperating in the

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technical investigation on the South 15th Street Facility by anenvironmental consultant, Arcadis U.S., Inc., which is beingreviewed by the EPA. (Furlough Aff. ¶ 13.) The AOC is stillin effect to date. (Id.)

Derouin withdrew from representing AdobeAir in April 2009,before the RI/FS had been completed. (Derouin Decl. II¶ 5.) Derouin attests that after his withdrawal, he had noinvolvement in AdobeAir's matters, including those related tothe AOC, the RI/FS, and the AdobeAir–Arvin Group. (Id.)Prior to his employment at G & K, Derouin was advised of G& K's representation of RID, and arrangements were made forhim to be screened “immediately and completely” from thismatter upon his arrival at the firm. (Id.; Kimball Decl. II ¶ 11.)Derouin attests that he does not have physical or electronicaccess to the files and communications related to the RIDmatter, and that he has not received any direct compensationfrom this matter. (Derouin Decl. I ¶¶ 8–9, 12; see also KimballDecl. II ¶ 11.) Additionally, when Derouin left Steptoe, hedid not retain any files pertaining to his representation ofAdobeAir. (Derouin Decl. II ¶ 11.)

1. Arvin and Cooper's Preliminary Arguments

Arvin and Cooper make three preliminary arguments, none ofwhich are persuasive.

*976 a. Ethical Rule 1.7

First, Arvin and Cooper claim that Ethical Rule 1.7 barsG & K from representing RID. (A & C's Mot. at 11–13.)Ethical Rule 1.7(a) provides that “a lawyer shall not representa client if the representation involves a concurrent conflictof interest.” ER 1.7(a). A concurrent conflict of interestexists when “the representation of one client will be directlyadverse to another client.” ER 1.7(a)(1). Pursuant to EthicalRule 1.7(a)(2), a concurrent conflict of interest also existsif “there is a significant risk that the representation of oneor more clients will be materially limited by the lawyer'sresponsibilities to another client, a former client or a thirdperson or by a personal interest of the lawyer.” ER 1.7(a)(2). Under certain circumstances, the affected clients maywaive the conflict if they give informed consent, confirmedin writing. ER 1.7(b).

[23] Ethical Rule 1.7(a)(1) is not implicated here. As thecomments explain, “[l]oyalty to a current client prohibits

undertaking representation directly adverse to that clientwithout that client's informed consent.” ER 1.7 cmt. 6. Thus,absent consent, “[a] lawyer may not act as an advocate inone matter against a person the lawyer represents in someother matter, even when the matters are wholly unrelated.”Id. Even if Arvin and Cooper did have an express attorney-client relationship with Derouin by virtue of the joint defenseagreements, which they did not, that relationship ended whenDerouin withdrew from representing AdobeAir in April 2009.Furthermore, G & K does not currently, and has not formerly,represented either Arvin or Cooper as clients. (Kimball Decl.II ¶ 16.) Because Arvin and Cooper are not Derouin's currentclients, and because Derouin is not presently representingRID, there does not exist a concurrent conflict of interestas defined by Ethical Rule 1.7(a)(1). Indeed, this is not asituation where Derouin currently represents both Arvin andCooper and RID.

Arvin and Cooper also argue that Ethical Rule 1.7(a)(2)disqualifies Derouin from representing RID. (Mot. at 11–13.)The purpose of this rule, however, is to protect a current clientfrom material limitation in its representation, caused by itslawyer's responsibilities to another client, a former client, or athird person. See E.E.O.C. v. Luby's, Inc., 347 F.Supp.2d 743,746 (D.Ariz.2004); see also ER 1.7 cmt. 8 (“[A] conflict ofinterest exists if there is a significant risk that a lawyer's abilityto consider, recommend or carry out an appropriate courseof action for the client will be materially limited as a resultof the lawyer's other responsibilities or interests.” (emphasisadded)). Arvin and Cooper are not Derouin's current clients,and therefore they simply are not the parties meant to beprotected by this rule. RID is the only current client in thismatter, but even then, Ethical Rule 1.7(a)(2) is not implicatedbecause Derouin is not representing RID. In fact, Derouin hasbeen completely screened from this matter. On these facts,there is simply no violation of Ethical Rule 1.7.

b. Ethical Rule 1.9

Second, Arvin and Cooper contend that they are Derouin'sformer clients, pursuant to Ethical Rule 1.9. As outlinedsupra, joint defense agreements do not create a traditionalattorney-client relationship such that Ethical Rule 1.9 isapplicable; instead, there exists a distinct implied attorney-client relationship. See Stepney, 246 F.Supp.2d at 1080(“Courts have consistently viewed the obligations created byjoint defense agreements as distinct from those created byactual attorney-client relationships.”); see also Gabapentin,

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407 F.Supp.2d at 612 (concluding that when parties worktogether pursuant to a joint defense agreement, *977 it“could create implied attorney-client or fiduciary obligationsunder certain circumstances”); GTE North, 914 F.Supp. at1579–80. Additionally, Derouin did not have a traditionalattorney-client relationship with either Arvin or Cooper;rather Derouin only had an actual attorney-client relationship

with AdobeAir. 38 (Derouin Decl. II ¶¶ 3, 13.) Arvin andCooper's claim that they are Derouin's former clients pursuantto Ethical Rule 1.9 is therefore unpersuasive.

c. Appearance of Impropriety

Third, Arvin and Cooper contend that G & K's representationof RID creates a general impermissible appearance ofimpropriety. (Mot. at 12–13.) The Arizona Supreme Courthas held that an appearance of impropriety, which waspreviously prohibited by Canon 9 of the Code of ProfessionalResponsibility, “should be enough to cause an attorney toclosely scrutinize his conduct.” Gomez, 717 P.2d at 904.However, it is “simply too slender a reed on which torest a disqualification order except in the rarest of cases.”Sellers v. Superior Court, 154 Ariz. 281, 742 P.2d 292, 300(Ariz.Ct.App.1987); Romley v. Superior Court, 181 Ariz.378, 891 P.2d 246, 251 (Ariz.Ct.App.1995). Any conflict ofinterest in this case, as to Arvin and Cooper, is too remoteto create an appearance of impropriety that would requiredisqualification of G & K. See Amparano, 93 P.3d at 1094.

2. The AdobeAir–Arvin and Arvin–Cooper Groups

Arvin and Cooper next assert that G & K should bedisqualified because of Derouin's affiliation with the certainjoint defense groups.

a. Implied Attorney–Client Relationship

As discussed, for a potentially disqualifying conflictstemming from a duty of confidentiality created by a jointdefense agreement to exist, the moving party must show:(1) the actual exchange of relevant confidential information;(2) the former representation was “the same or substantiallyrelated” to the current litigation; and (3) the current client'sinterests are “materially adverse” to interests of the partyclaiming to be protected by the joint defense agreement. See

Henke, 222 F.3d at 636; Stepney, 246 F.Supp.2d at 1080.The Court has carefully reviewed the in camera materialssubmitted by Arvin and Cooper and concludes that they havefailed to demonstrate that there was an actual exchange ofrelevant confidential information.

[24] Courts do not presume an exchange of confidentialinformation when parties collaborate pursuant to a jointdefense agreement. See, e.g., Henke, 222 F.3d at 637 (“Thisprivilege can also create a disqualifying conflict whereinformation gained in confidence by an attorney becomesan issue.” (emphasis added)); Wilson P. Abraham, 559F.2d at 253 (“[T]here is no presumption that confidentialinformation was exchanged as there was no direct attorney-client relationship.”); Stepney, 246 F.Supp.2d at 1080 (“[Pera joint defense agreement,] no conflict of interest arisesunless the attorney actually obtained relevant confidentialinformation.”); GTE North, 914 F.Supp. at 1580 (“[T]heremust actually have been an exchange of confidentialinformation.”). For the Court's in camera review, Arvinand Cooper submitted copies of the two joint defenseagreements, one declaration, one affidavit, *978 and fiveother documents. The joint defense agreements do notthemselves demonstrate that an actual exchange of relevantconfidential information took place. Of the remainingdocuments, none illustrate that there was an exchange ofconfidential information in connection with the prior matter.The first document is Derouin's letter advising the EPA thathe no longer represents AdobeAir. The second document isa recent e-mail exchange between Worsham and G & K, inwhich the parties discuss Derouin's potential conflict and G& K's decision to remove AdobeAir as a defendant in theinstant proceedings. The third is a letter written by Worsham,addressed to an attorney at G & K, explaining why Worshambelieves there is a conflict. None of these three documentsdirectly relate to Derouin's representation of AdobeAir.Moreover, none of these documents demonstrate that eitherArvin or Cooper actually provided relevant confidentialinformation to Derouin while he represented AdobeAir.

The two remaining documents are similarly unpersuasive.One is entitled “Roosevelt Irrigation District PotentiallyResponsible Party Fact Sheet.” This document containsa discussion of RID's strategies for dealing with thecontamination in its wells. At first blush, this seems to beconfidential and relevant, however, this document was anattachment to Worsham's letter to G & K and is widelyavailable to the public on a website. It therefore cannot beconsidered evidence of confidential information that Derouin

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learned from either Arvin or Cooper. The final document, aletter to Worsham from the EPA with a copy of the AOCattached, is also unpersuasive and not probative of an actualexchange of confidential information between Arvin, Cooper,and Derouin.

The Court is then left with Worsham's self-serving affidavitand declaration, submitted in camera, to establish that anactual exchange of confidential information took place. Thesedocuments alone do not suffice to show an exchange ofconfidential information. In his in camera affidavit, Worshamasserts nothing that has not already been asserted in thefour affidavits attached to Arvin and Cooper's Motion toDisqualify. For example, Worsham claims that he andDerouin together negotiated the terms and conditions of theAOC with EPA counsel, but this does not in and of itselfsuggest that Derouin was privy to confidential informationabout either Arvin or Cooper. Worsham also states thatDerouin, as counsel for AdobeAir, was privy to both technicaland legal confidential information for the joint defense of theSouth 15th Street Facility and the AOC, but Worsham doesnot provide a single example of such confidential informationbeing exchanged.

Similarly, in his declaration, Worsham is insufficientlyspecific for the Court to conclude that there was anactual exchange of confidential information. Worsham'sdeclaration, in substance, provides that the topics discussedinclude activities, facts, and legal issues associated witheach party's operation of the South 15th Street Facility, thelegal documents and contacts that are applicable between theparties, legal strategy regarding the decision to enter intothe AOC, regular updates on the EPA's developments andfilings, and the sharing of legal memorandums of counselrelated to liability. The declaration also asserts that the partiesshared legal strategy concerning the submission of documentsto the EPA and that they discussed legal strategy prior to

any meetings with the EPA. 39 Worsham does not, however,*979 elaborate or expand upon any of these assertions

and he provides the Court with no specific examples ordocumentation to substantiate these claims. Without anyevidence or documentary support, the Court cannot acceptthat an actual exchange of confidential information tookplace. The purpose behind the in camera submission wasto give Moving Defendants the opportunity to substantiatetheir claims that an actual exchange of relevant confidentialinformation took place. Aside from this blurb in Worsham'sin camera declaration, Arvin and Cooper have failed tomake any such showing. Moreover, in its Controverting

Statement of Facts, RID disputed the veracity of similarclaims submitted by Arvin and Cooper. (Doc. # 115 at 7(“It is unclear what alleged confidential information wasshared under the joint defense agreements, and whetherthat information, if any, remains confidential based on itsdisclosure to EPA, ADEQ, and the public as part of the workperformed under the AOC.”).); cf. GTE North, 914 F.Supp.at 1580 (concluding that because the parties did not contesteach other's statement of facts, the court could determinewhether there was an exchange of confidential informationbased on the undisputed facts in the parties' memorandums).Arvin and Cooper have therefore failed to carry their burdenin demonstrating that an actual exchange of confidentialinformation took place.

b. Screening

Even assuming Derouin had received relevant confidentialinformation, G & K timely and appropriately screened him.

As noted, Ethical Rule 1.10(d) only applies when a lawyer

becomes associated with a firm. 40 See Eberle, 354 F.Supp.2dat 1095; Ariz. Ethics Op. 04–04. According to Ethical Rule1.10(d)(1), screening is available unless: (1) the disqualifiedlawyer either switched sides in the current representationor the current representation necessarily requires relitigatinga particular aspect of a prior representation; (2) the priorrepresentation was a proceeding before a tribunal; and (3)the disqualified lawyer played a substantial role in that priorproceeding. As discussed, to be considered “substantial”within the meaning of this rule, the affected lawyer'srole in the former client's representation must have been“material and weighty.” Eberle, 354 F.Supp.2d at 1097 (citingEthical Rule 1.0(l )). Whether the lawyer had such a roledepends on “the nature and amount of work he performed,the responsibility he assumed, the degree to which theclient relied on him for managing the case, and similarconsiderations.” Id. (concluding that an attorney who billed9.2 hours to a case over a period of 9 days for drafting voirdire questions did not play a “substantial” role in the formerclient's representation).

[25] Here, Arvin and Cooper have once more providedonly self-serving declarations and affidavits, which do notdemonstrate that Derouin played a substantial role in the priormatter. For instance, Arvin and Cooper claim that Derouinparticipated in legal strategy with Worsham and receivedinformation from Arcadis concerning the ongoing South 15th

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Street Facility investigations and testing. (Furlough Aff. ¶¶ 7–8, 13–14; Odenweller Aff. ¶¶ 8–14; Mongrain Aff. ¶¶ 7–11.)These assertions no doubt establish that Derouin played somerole in the negotiations surrounding the South 15th StreetFacility, but they lack sufficient detail for the Court *980to conclude that Derouin's participation was “material andweighty” as in Eberle.

Moreover, in Eberle, the court based its decision on extensivein camera submissions. Eberle, 354 F.Supp.2d at 1094. Asreviewed supra, however, Arvin and Cooper's in camerasubmissions are devoid of any information concerning theextent of Derouin's participation; there are no billing recordsor submissions relating to whether Derouin participated indiscovery, court preparation, hearings, briefing or argument,or preparation of the AOC submission, all of whichwere included in Eberle. Id. at 1097 (“[The attorneyin question] recorded a total of 9.2 hours over a nine-day period drafting proposed voir dire questions. He tookno part in fact discovery, expert witness preparation ordiscovery, the Markman hearing, summary judgment briefingor argument, or preparation of the proposed pretrial order,motions in limine, or jury instructions. He assumed noclient responsibility and, so far as the Court can determine,never communicated with the client or opposing counsel. Hisname never appeared on a pleading and he never attendeda hearing.”). Without this information, the Court, as above,simply cannot conclude that Derouin played a substantial role

in the prior Arvin and Cooper matter. 41

Moreover, the record demonstrates that Derouin was timelyscreened, in accordance with Ethical Rule 1.10(d)(2). Derouinwas informed, prior to joining G & K, that the firmrepresented RID, and arrangements were made for himto be screened. (Derouin Decl. II ¶ 11; Kimball Decl. II¶ 11.) Kimball attests that Derouin has not received anycompensation from the RID matter and that Derouin hasnot shared with anyone at G & K confidential informationregarding AdobeAir, Arvin, or Cooper. (Kimball Decl. II¶¶ 10–11.) Also, Derouin states that he has not receivedor viewed any communications or files pertaining to RID,aside from communications and files related to his screenand potential future conflicts. (Derouin Decl. II ¶ 8.) Indeed,at G & K, access to RID workproduct “has been limitedto members of the RID Litigation Team and their supportstaff.” (Kimball Decl. I ¶ 53.) Electronic screens are in placeand “[a]ll written work product and copies of documents andinformation relating to the [l]itigation are in a locked storageroom.” (Id. ¶ ¶ 53–54.) Moreover, all files related to the

litigation have been appropriately labeled to ensure there isno confusion about the documentation. (Id. ¶ 55.) Becausethese steps were taken prior to Derouin's association with G& K, and because there is no evidence that the screen has inanyway been ineffective, the Court concludes that, assumingDerouin should be disqualified, G & K timely screened himfrom any participation in the matter. ER 1.10(d)(2); see alsoER 1.0 cmt. 9; Romley, 908 P.2d at 43.

Finally, G & K complied with the terms of Ethical Rule1.10(d)(3), which provides that written notice must bepromptly given “to any affected former client to enable it toascertain compliance with the provisions of this Rule.” ER1.10(d)(3). Here, G & *981 K's declaration submitted to theCourt makes clear that notice was provided to counsel forArvin and Cooper, (see Kimball Decl. II ¶ 19), and Arvin andCooper do not contest that this sufficed as notice under Rule10(d)(3). Accordingly, this final prong has been satisfied.

In sum, the Court concludes that, even assuming Derouin hada disqualifying conflict stemming from his representation ofAdobeAir, which participated in a joint defense agreement

with Arvin, 42 Derouin was properly screened as provided

by Ethical Rule 1.10(d). 43 Arvin and Cooper's Motion is

therefore DENIED. 44

IV. RID's Additional ArgumentsRID raises several additional arguments in opposition to theMotions to Disqualify. The Court addresses each in turn.

A. Allegation that the Former Matters Do Not Relate toRID or its WellsRID asserts generally that “none of the matters in which theDefendants have been involved, or currently are involved,involve RID or its wells.” (RID's Consolidated Opp'n at 25–26.) This assertion is belied by the record. The in cameradocumentation submitted by Honeywell, Univar, SRP, andDolphin all include confidential strategic discussions aboutRID and its wells.

RID also asserts that the earlier matters “address differentclaims for different liabilities between different parties ...in different geographic areas.” (RID's Consolidated Opp'nat 25.) This also is not persuasive. First, the geographicargument creates a false dichotomy. As RID makes clear inits closing argument brief:

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Unfortunately, RID's plight is notunique. The releases of hazardoussubstances from facilities ownedand/or operated by Defendantsand other PRPs over the yearshave contaminated the soils andthe groundwater beneath a morethan fifteen mile long stretch ofthe Phoenix area that is severalmiles wide. This groundwater plumeis a literal “toxic soup” ofcontamination, consisting primarily ofthe aforementioned [volatile organiccompounds], the exposure to which,according to the [EPA], can in certaincircumstances result in damage to thenervous system, reproductive system,respiratory system, liver, and kidneys,and result in cancer. For over twentyyears, [the] EPA and [ADEQ] haveengaged Defendants and other PRPsin separate legal matters in *982an attempt to investigate and addressdistinct geographical portions of thisgroundwater plume.

(RID's Closing Arg. Br. at 1–2 (footnote omitted).) Thus,RID in its own briefing admits the commonality of the toxicplume across a “fifteen mile long stretch of the Phoenix areathat is several miles wide.” (Id.) Asking the Court to drawdistinctions with respect to geographic subdivisions within

the plume is a nonstarter. 45

RID argues that the instant matter is distinct from theformer matters because they did not involve RID's wells.This is not persuasive. As a preliminary matter, the WVBGroup explicitly discussed potential liability relating to RID'swells. In any event, to establish liability, RID will have todemonstrate, in part, contribution to the contamination ofRID's wells based on the location of the contamination foundon Moving Defendants' properties, which was explicitly atissue in the prior matters. RID's argument that these mattersare not substantially related because the former matters didnot involve potential liability relating to RID's wells istherefore unpersuasive.

To the extent RID argues that the difference in timebetween the prior matters and its instant lawsuit rendersthe confidential information obsolete, the Court remains

unpersuaded. (See RID's Closing Argument Br. at 9.)Although the comments to the ethical rules provide that“[i]nformation acquired in a prior representation mayhave been rendered obsolete by the passage of time, acircumstance that may be relevant in determining whethertwo representations are substantially related,” here, theinformation remains relevant. See ER 1.9 cmt. 3. Asdiscussed, the in camera documentation submitted byMoving Defendants relates to potential liability stemmingfrom each Moving Defendant's respective properties. MovingDefendants discussed potential strategy for avoiding thisliability with current G & K attorneys, both in the context ofjoint defense agreements and former representation. RID nowseeks to establish liability once more based on contaminationat Moving Defendants' respective properties. The confidentialinformation acquired by G & K's various attorneys can onlybe considered relevant, irrespective of the time that haslapsed.

Moreover, this is not an instance where parties pollutedin the Phoenix area, cleaned, and then another spill tookplace at the same location. The prior matters do not involveseparate instances of polluting. Instead, RID seeks recoverycosts from Moving Defendants associated with the samepollutants related to the prior representations. Corning, forinstance, continues to interview employees to determine how,where, and when materials were disposed. Simply stated, thislitigation involves recovery costs for migration of pollutedgroundwater—the same contamination that gave rise to theprior representations. The former and present litigations aresubstantially related and involve necessarily relitigating thesame matters.

B. CERCLA Liability with Public InformationRID also contends that establishing Moving Defendants'liability will only involve the use of public information andtherefore any confidential information will not materiallyadvance RID's position as required by Ethical Rule 1.9 andthe joint defense agreement test outlined supra. *983 (RID'sConsolidated Opp'n at 23–25.) RID contends:

RID can easily establish ... CERCLAliability for Defendants using publicand non-privileged information....Facts supporting [whether therehas been a release of hazardoussubstances] for each of the Defendantsare readily obtainable from EPA or

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ADEQ, among other non-privilegedand/or public sources of information.

(Id. at 25.)

RID has oversimplified the showing it will have to make withrespect to CERCLA liability. As RID suggests, to prevail ina CERCLA cost recovery action, a plaintiff must prove:

(1) the site on which the hazardous substances arecontained is a “facility” under CERCLA's definition ofthat term; (2) a “release” or “threatened release” of any“hazardous substance” from the facility has occurred; (3)such “release” or “threatened release” has caused theplaintiff to incur response costs that were “necessary” and“consistent with the national contingency plan”; and (4)the defendant is within one of the four classes of personssubject to the liability provisions of Section 107(a).

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863,870–71 (9th Cir.2001) (quoting 3550 Stevens Creek Assocs.v. Barclays Bank, 915 F.2d 1355, 1357 (9th Cir.1990))(internal citations and quotation marks omitted). It is notyet clear to the Court, however, that Moving Defendants'liability under CERCLA is a “foregone conclusion.” (SeeRID's Consolidated Opp'n at 42 n. 3.) Nor is it apparent thatRID will be able to establish liability from the public recordalone.

In any event, RID's argument misses the larger picture. G& K attorneys, as outlined above, have knowledge relatingto Moving Defendants' potential liability. In other words,G & K attorneys, in effect, already know to what extentand for what amount Moving Defendants believe themselvesto be liable, if at all. The advantages associated with thatknowledge are nearly countless. From directed discoveryto strong-armed negotiations, G & K has the opportunityto use this information in a materially advantageous way.Moreover, G & K also has knowledge of Moving Defendantsstrategies for arguing against liabilities. This informationplaces RID “one step ahead” of Moving Defendants whenit comes to negotiating, trial strategy, and apportionment ofliability. In sum, RID's contention that it may be possibleto establish liability with nonconfidential information simplydoes not preclude the Court from finding that the confidentialinformation G & K has is materially advantageous to RID's

position in the litigation. 46

C. Waiver by Delay

Finally, RID contends that disqualification can be waivedwhen it is sought after months or years of representation ina complicated litigation. RID argues that Moving Defendantsfirst became aware of G & K's representation in August 2009,but despite this knowledge, Moving Defendants “engaged incommunications with G & K on behalf of RID, participatedin public meetings before ADEQ with G & K representingRID, and provided comments on submissions to ADEQ byG & K on behalf of RID from September 2009 to Spring2010.” (RID's Consolidated Opp'n at 43.) RID contends that,as a result, any *984 allegation of a conflict has been waived.(Id. at 44.) The Court is not persuaded.

RID did not file suit in this matter until February 2010. (SeeDoc. # 1.) Even then, RID did not serve its original complaint,but rather sought an extension of time for service in May2010. (Doc. # 8.) RID then filed a First Amended Complaintin July 2010 and served it on Moving Defendants in July andAugust 2010. (See Docs. 20, 28, 32, 53, 62, 79.) Six weekslater, on September 15, 2010, Moving Defendants filed theMotions to Disqualify. (See Docs. 120, 129, 131, 132, 133.)Even before then, Moving Defendants corresponded with G& K in an attempt to resolve the alleged conflicts of interest.(See Michael Kennedy Decl. Exs. A–M.) RID cannot claim tohave suffered any prejudice by Moving Defendants' failure toraise the conflict earlier, particularly because this litigation isstill only in the pleading stage. Indeed, it is hard to conceiveof how, exactly, Moving Defendants could have raised theirconcerns with this Court any earlier. Accordingly, the Courtcannot conclude that there has been waiver by delay. See,e.g., Iacono, 722 F.2d at 442–43 (concluding that “the districtcourt did not err in finding six weeks a reasonable time inwhich to seek a disqualification order”).

V. Appropriate RemedyRID asserts that, even if there is a technical violation ofthe ethical rules, the Court must engage in a balancingtest to determine whether disqualification is appropriate.(RID's Consolidated Opp'n at 41–43.) The Court will assumewithout deciding that applying a balancing test is appropriateand preferable to automatic disqualification for violationof the ethical rules. See Research Corp., 936 F.Supp.at 703 (examining cases and determining that automaticdisqualification for an ethical violation is not preferable).Courts have considered the following factors in such ananalysis: (1) the nature of the ethical violation; (2) theprejudice to the parties, including the extent of actual orpotential delay in the proceedings; (3) the effectiveness ofcounsel in light of the violations; (4) the public's perception

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of the profession; and (5) whether a motion to disqualify has

been used as a tactical device or a means of harassment. 47

Id.; see also Richards, 2009 WL 3740725, at *6 (stating thatthe district court should balance the following factors: “(1) theclient's interest in being represented by counsel of its choice;(2) the opposing party's interest in a trial free from prejudicedue to disclosures of confidential information; and (3) thepublic's interest in scrupulous administration of justice”).

*985 [26] The first factor, the nature of the ethicalviolation, plainly supports disqualification. RID and MovingDefendants are adverse parties. G & K as a firm owes a duty ofconfidence to each of the moving defendants on precisely thequestion at issue in the instant litigation. Moving Defendantshave not waived any conflict, and G & K's screen, for thereasons discussed supra, does not prevent imputation of thoseconflicts to the entire firm. There are no alternatives to G &K's disqualification. Because the ethical violations at issuerelate to, and could potentially have an impact on, the instantproceedings, the first factor favors disqualification.

[27] The second factor, prejudice to the parties, also favorsdisqualification. RID asserts that it will suffer prejudice if G& K is disqualified because it has worked with G & K sinceOctober 2008 investigating the releases, sources, and extentof contamination of RID's wells. (RID's Closing Arg. Br. at30.) RID objects that by forcing it to find new counsel it willhave to “begin anew.” (Id. at 31.) RID does not, however,explain how the investigative work done by G & K to datewould be undone. Moreover, there are dozens of defendantsin this action, and G & K will only be disqualified fromrepresenting RID against five of them. RID also complainsthat it will “continue to lose revenues from its users,” “itscost recovery action will probably be set back,” and its“ability to develop legal solutions will be impaired.” (Id.)Although resolution of this lawsuit could be further delayedby forcing RID to obtain new counsel, any such prejudiceresulting from this delay pales in comparison to the prejudicethat Moving Defendants would suffer were the Court toallow G & K to proceed as counsel for RID. As discussed,the in camera materials make plain that G & K attorneyshave knowledge of Moving Defendants' potential theories ofliability and trial strategies. G & K's attempts at screening areineffective in light of Arizona's ethical rules. Knowledge ofthis confidential information gives G & K an unfair advantagein this litigation. This prejudice outweighs any prejudice thatRID would suffer from delay in obtaining new counsel.

[28] The third factor, the effectiveness of counsel in lightof the violation, also weighs in favor of disqualification.G & K will be unable to effectively represent RID whilealso maintaining its confidences to the prevailing MovingDefendants. G & K is therefore in an impossible position;it must chose between divulging Moving Defendants'confidential information and effectively representing RID.This scenario requires G & K's disqualification. See Henke,222 F.3d at 637–38.

[29] The fourth factor, the public's perception of theprofession, also weighs in favor of disqualification. G & Khas confidential information relating to Moving Defendantsthat is substantive and materially relevant, and G & K has aduty to maintain these confidences. The public's expectationis that attorneys and law firms will not divulge confidentialinformation once obtained from former clients. The public'sfaith in the judicial process could be seriously underminedif G & K were allowed to represent RID against Honeywell,Corning, Univar, SRP, and Dolphin.

[30] The final factor, whether the motions to disqualify havebeen used as a tactical device or a means of harassment, doesnot weigh against disqualification. Moving Defendants filedtheir motions roughly one month after RID filed its complaint,and they also have a legitimate concern—they revealed tocurrent G & K attorneys confidential information regardingthe extent of their potential liability and strategies for dealingwith that liability. There is a very real risk that the confidentialinformation at issue could be *986 used against MovingDefendants in the instant proceedings.

[31] In sum, “[d]isqualification does not depend uponproof of the abuse of confidential information. Becauseof the sensitivity of client confidence and the profession'sinstitutional need to avoid even the appearance of a breach ofconfidence, disqualification is required when lawyers changesides in factually related cases.” Trone, 621 F.2d at 1001.After examining all the relevant factors, the Court findsthat disqualification is warranted. Accordingly, the CourtGRANTS Honeywell's Motion to Disqualify, GRANTSCorning's Motion to Disqualify, GRANTS Univar's Motionto Disqualify; GRANTS SRP's Motion to Disqualify, andGRANTS Dolphin's Motion to Disqualify. The Court furtherORDERS that no confidential information of any kindregarding Honeywell, Corning, Univar, SRP, and Dolphin, asdiscussed in this Order, shall be shared between new counselfor RID and G & K.

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CONCLUSION

For the reasons stated above, the Court GRANTSHoneywell's Motion to Disqualify (Doc. # 120); GRANTSCorning's Motion to Disqualify (Doc. # 129); GRANTS

Univar's Motion to Disqualify (Doc. # 131); GRANTS SRP'sMotion to Disqualify (Doc. # 132); GRANTS Dolphin'sMotion to Disqualify (Doc. # 133); and DENIES Arvin andCooper's Motion to Disqualify (Doc. # 423).

IT IS SO ORDERED.

Footnotes

1 AlliedSignal Inc. acquired and merged with Honeywell in 1999, and the newly formed company adopted Honeywell's name.

(Declaration of Kenneth J. Berke (“Berke Decl.”) ¶ 1, Doc. # 124.) For simplicity, the Court will refer to both AlliedSignal Inc. and

Honeywell as “Honeywell.”

2 Prior to his employment at G & K, Derouin was a partner at Steptoe & Johnson, LLP (“Steptoe”) for approximately fifteen years.

(Consolidated Opp'n Ex. 2, Declaration of James. G. Derouin (“Derouin Decl. I”) ¶ 3.) Before that, Derouin was a partner at Meyer,

Hendricks, Victor, Osborn & Maledon, which dissolved in 1995. (Id. ¶¶ 4, 7.)

3 In the early 1990s, Honeywell, Corning, United Industrial Corp., which was represented by G & K, and others participated in a joint

defense group (the “Baker/Lofgren Group”) to coordinate their defense of three lawsuits: (1) State v. United Industrial Corp. et al.

(the “United Industrial Action”); (2) Baker v. Motorola et al. (the “Baker Action”); (3) and Lofgren v. Motorola, Inc. et al. (the

“Lofgren Action”). (See Moving Defs.' Closing Arg. Br. at 23–26.) Because Honeywell's and Corning's Motions to Disqualify can

be granted solely on the alleged former client conflicts, the Court need not address their alternative argument that G & K should be

disqualified by virtue of its participation in the Baker/Lofgren Group.

4 Univar was previously known as Van Waters & Rogers, Inc.

5 American Linen Supply Co. was previously known as Maryatt Industries.

6 Cameron Chandler also participated in the WVB Group's meetings, but he is no longer employed by G & K.

7 Univar filed an Errata on September 16, 2010, clarifying that it filed its motion to disqualify only on behalf of Univar, rather than all

nine of the defendants represented by Quarles & Brady LLP in this matter. (Doc. # 139.)

8 James Hamula and Jefferson Reynolds also participated in the M–52 Group's meetings, but they are no longer employed by G & K.

9 RID named AdobeAir as a defendant in the Complaint, but not in the First Amended Complaint. Kimball attests that RID removed

AdobeAir “out of an abundance of precaution pertaining to potential conflicts, and because it was discovered that Adobe[Air] was

defunct and insolvent.” (Opp'n to A & C's Mot. Ex. C, Declaration of David P. Kimball, III (“Kimball Decl. II”) ¶ 17.)

10 Michael K. Kennedy, Esq., Bradley Joseph Glass, Esq., and David DePippo, Esq., appeared at the hearing on behalf of RID; Jerry

D. Worsham, II, Esq., appeared at the hearing on behalf of Arvin and Cooper. Myriad additional attorneys were present either by

videoconference or by telephone.

11 According to Former Ethical Rule 1.10, when a lawyer, who had acquired protected information about a matter, changed firms,

the receiving firm would be automatically disqualified from the matter unless the lawyer's former client waived or consented to the

conflict. See Towne Dev. of Chandler, Inc. v. Superior Court, 173 Ariz. 364, 842 P.2d 1377, 1381 (Ariz.Ct.App.1992).

12 In the absence of controlling statutory authority or case law, Arizona courts follow the Restatement of the Law. Wetherill v. Basham,

197 Ariz. 198, 3 P.3d 1118, 1123 (Ariz.Ct.App.2000); see also Paradigm Ins. Co. v. Langerman Law Offices, P.A., 200 Ariz.

146, 24 P.3d 593, 595–96 (2001) (referencing the Restatement (Third) of the Law Governing Lawyers in determining whether an

express agreement is required to form an attorney-client relationship). The Restatement is not helpful here, however, because its

provision regarding the applicability of screening materially differs from Ethical Rule 1.10(d)(1). See Restatement (Third) of the

Law Government Lawyers § 124.

13 The comments indicate that this definition of screened “applies to situations where screening of a personally disqualified lawyer is

permitted to remove imputation of a conflict of interest under [Ethical Rules] 1.11, 1.12 or 1.18.” ER 1.0 cmt. 8. The Court nonetheless

utilizes this definition because it is instructive here and there is no reason to adopt a different definition of the term.

14 This threshold requirement is satisfied because it is undisputed that Derouin is a lateral attorney at G & K.

15 On December 9, 2009, Derouin gave Honeywell notice that he was joining G & K. (Derouin Decl. I ¶¶ 28–29; Byrne Decl. ¶ 2.)

Derouin was employed by G & K effective January 2010 (Derouin Decl. I ¶ 27; Kimball Decl. I ¶ 30), and RID filed its Complaint

in this action in February 2010 (Doc. # 1).

16 In February 2009, G & K circulated the RID matter in one of its weekly conflict notices (Michael Kennedy Decl. ¶ 2), but Honeywell

had not yet been identified as a PRP when G & K distributed this notice (RID's Consolidated Opp'n at 40 n. 34). When G & K

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identified Honeywell as a PRP a few months later, it rechecked its conflicts database, but it did not circulate a firm-wide conflicts

notice. (Id.; see Michael Kennedy Decl. ¶ ¶ 15–17.) Had G & K taken this step, and distributed a conflicts notice for Honeywell

when it was identified as a PRP, it likely would have learned of the conflict. It is unclear why G & K did not take this step in July

2009 when it rechecked its conflicts database.

17 In Smart Industries, the Arizona Court of Appeals cited with approval the Seventh Circuit's decision in LaSalle National Bank v.

County of Lake, 703 F.2d 252 (7th Cir.1983). See Smart Indus., 876 P.2d at 1185. In LaSalle, the attorney in question joined a law

firm four months before that firm filed suit against the affected attorney's former client, but the attorney was not screened until six

months after he joined the firm. LaSalle, 703 F.2d at 253–54, 259. Upon review, the Seventh Circuit affirmed the district court's order

imputing the attorney's conflict of interest to the entire law firm on the basis that the ethical screen had not been timely implemented.

Id. at 259. The Seventh Circuit found unpersuasive the affected attorney's affidavit stating that he did not disclose any information

to his new law firm. Id. (emphasizing that “no specific institutional mechanisms were in place to insure that ... information was not

shared, even if inadvertently,” in the six months between when the affected attorney joined the firm and the time he was screened).

The Seventh Circuit's reasoning is persuasive, particularly because Hallman was a shareholder at G & K for more than a decade

before G & K implemented the ethical screen.

18 Moreover, RID's reliance on Lutron Electronics Co., Inc. v. Crestron Electronics, Inc., 2010 WL 4720693 (D.Utah Nov. 12, 2010)

is misplaced. (See RID's Opp'n to Supp. Br. at 11.) Not only is Lutron mere persuasive authority entitled to little weight, but it is also

readily distinguishable. In that case, which applied the Utah Ethical Rules, an attorney engaged in document review for Lutron for

eight months as a first year associate at a large law firm. Lutron, 2010 WL 4720693, at *1. A couple years later, Lutron filed suit against

Creston. Id. The affected attorney, however, switched law firms at roughly the same time and joined the firm that Creston ultimately

hired to perform its defense. Id. Less than one month after this firm entered its notice of appearance on behalf of Creston, Lutron sent

a letter alerting the firm of the conflict, and the firm “immediately” screened the affected attorney. Id. at *1–*2. Lutron subsequently

filed a motion to disqualify counsel, which the district court denied, concluding that any violation of Utah's Ethical Rule 1.10 was

not egregious and that there was no prejudice to Lutron. Id. at *5–*6. In reaching this determination, however, the district court

emphasized that the affected attorney was only a first year associate when he performed work for Lutron and that he was not involved

in litigation strategy. Id. at *6. Moreover, the court found that the affected attorney's new law firm did not have actual knowledge

of the conflict until it received the letter from opposing counsel. Id. at *5. Because Utah's Ethical Rule 1.10 prohibits “knowingly”

undertaking a representation subject to a conflict, where “knowingly” means actual knowledge, the district court determined that if

there was any violation of Utah's Ethical Rule 1. 10, it was not egregious. Id. Conversely, here, Hallman was intimately involved

with Honeywell's legal strategies regarding the alleged contamination for several years. Moreover, G & K did not screen Hallman

until nearly two years after RID engaged G & K, but in Lutron, the attorney was screened within six months of the firm undertaking

the representation. See id. at *1. Finally, unlike Utah's ethical rules, Arizona's ethical rules make clear that knowledge can be inferred

from circumstances and that the screen must be implemented as soon as practical after a lawyer or law firm knows or reasonably

should know that there is a need for screening. See ER 1.0(f) & cmt. 10. Here, as discussed, G & K should have known of Hallman's

conflict at least by July 2009 when it performed its initial conflicts check for Honeywell, yet G & K did not implement its ethical

screen until June 2010. Lutron is therefore factually and legally distinguishable, and RID's reliance on this case is inapposite.

19 The Court also has serious doubts as to whether Ethical Rule 1.10(d)(1) could be satisfied in this scenario because the RID matter

necessarily requires relitigating aspects of the Baker and Motorola Actions, which were proceedings before tribunals, and Hallman

played a substantial role in those lawsuits during his representation of Honeywell. The Court need not resolve this issue, however,

due to its determination that G & K did not timely screen Hallman from the RID matter.

20 RID argues that this statement “was included to account for a potential [Ethical Rule] 1.7 conflict because Honeywell was a current

client at the time the letter was drafted.” (RID's Consolidated Opp'n at 35 n. 28.) Even assuming this is true, the Court nonetheless

cannot conclude that Honeywell gave its informed consent to the conflicts with Derouin and Hallman.

21 RID implicitly acknowledges as much in it's Consolidated Opposition. (See RID's Consolidated Opp'n at 8 (“As a current client (on

the tax matter), G & K sought, and Honeywell provided, its consent to G & K's representation of RID in so much as it involved

developing RID's remedy and engaging in discussions with Honeywell regarding RID's remedy, including any settlement discussions

related thereto.”).)

22 Corning and Components were also involved in the Lofgren Action, which asserted similar claims. (Corning's Mot. Ex. I.)

23 As with Honeywell, this threshold requirement is satisfied because it is undisputed that Derouin is a lateral attorney at G & K.

24 Because the former client conflicts asserted by Honeywell and Corning are imputed to G & K, the Court need not consider their

alternative argument that G & K must be disqualified because of its participation in the Baker/Lofgren Group on behalf of United

Industrial. (See Honeywell's Mot. at 10 n. 7; Corning's Mot. at 4, 10–14; Corning's Reply at 9–11.)

25 RID and Moving Defendants spend much of their briefing addressing whether federal or state law governs resolution of this matter.

(See, e.g., Moving Defs.' Supp. Br. at 8–12; RID's Opp'n to Supp. Br. at 2–4; Moving Defs.' Supp. Br. Reply at 7–8.) “It is inherently

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the duty of the district court to control and supervise the conduct of the attorneys who appear before it.” Erickson v. Newmar Corp., 87

F.3d 298, 303 (9th Cir.1996). The District of Arizona has adopted the Arizona Ethical Rules, see Research Corp., 936 F.Supp. at 700,

and to the extent that they are involved, the Court will plainly apply them. As discussed infra, however, the privileges and protections

associated with execution of a joint defense agreement, and participation in a joint defense group, do not stem from the ethical rules.

It is therefore unclear whether federal or state law governs. The Court need not resolve this issue, however, because even assuming

that Arizona law applies in totality, there is a complete dearth of authority in Arizona determining whether a joint defense agreement,

or participation in a joint defense group, creates an implied attorney-client relationship. Indeed, RID's primary Arizona “authority”

is dicta that is only tangentially related to the issue at hand. See Towne, 842 P.2d at 1380 (“We are reluctant to hold that a privileged

relationship arises between one party and counsel for a co-party merely through discussions of common strategy.”). Not only was this

finding wholly irrelevant for the decision in Towne, but at issue in that case was the existence of a common defense privilege, which

purportedly arose from a “lunchtime strategy session.” Id. The parties here allege much more than discussions of mere common

strategy and they assert more than just the joint defense privilege; rather, they contend that they are protected by an implied attorney-

client relationship that arose from their participation in various joint defense groups. RID's other piece of Arizona authority is even

less relevant because it concerns whether the common interest doctrine shielded from disclosure the communications at issue in that

case. See Ariz. Indep. Redistricting Comm'n v. Fields, 206 Ariz. 130, 75 P.3d 1088, 1099–1101 (Ariz.Ct.App.2003). Accordingly,

because there is no Arizona authority on point, even assuming that Arizona law applies, it is appropriate to rely on “non-Arizona

cases” to resolve this matter. See In re Kirkland, 915 F.2d 1236, 1238 (9th Cir.1990) ( “In the absence of [a state decision on point], a

federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions

from other jurisdictions, statutes, treatises, and restatements as guides.”).

26 District Courts within the Ninth Circuit have subsequently found the Henke court's holding applicable in civil cases as well. See,

e.g., All Am. Semiconductor, Inc. v. Hynix Semiconductor, Inc., 2008 WL 5484552 (N.D.Cal. Dec. 18, 2008) (disqualifying plaintiffs'

counsel when a partner at that law firm obtained relevant confidential information from a former client's co-defendant in accordance

with a joint defense agreement).

27 Indeed, as RID asserts throughout its briefing, the obligations created by the ethical rules are generally only applicable to a traditional

attorney-client relationship. What RID overlooks, however, is that an implied attorney-client relationship, which imposes similar

ethical duties may arise from a source other than the ethical rules. As RID states in its briefing, “courts ‘have consistently viewed

the obligations created by joint defense agreements as distinct from those created by actual attorney-client relationships.’ ” (RID's

Consolidated Opp'n at 19 (quoting Stepney, 246 F.Supp.2d at 1080).) RID's insistence that the totality of its ethical obligations arise

from Arizona's ethical rules is therefore unpersuasive.

28 This is nearly identical to an Ethical Rule 1.9 analysis. However, rather than demonstrate the existence of an attorney-client

relationship as under Ethical Rule 1.9, see Foulke, 784 P.2d at 726–27, the moving party must instead demonstrate the actual transfer

of relevant confidential information.

29 Despite RID's protestations, this conclusion is actually quite consistent with Towne, which was concerned with imputing a privileged

relationship where mere “common strategy” was discussed. See Towne, 842 P.2d at 1380 (“We are reluctant to hold that a privileged

relationship arises between one party and counsel for a co-party merely through discussions of common strategy.” (emphasis added)).

Under the test outlined by the Court, a much greater showing than that discussed in Towne is required. Moreover, RID seemingly

concedes the propriety of the Court's test by noting that “RID's position is consistent with, and not undermined by [Henke ].” (RID's

Closing Arg. Br. at 22.) RID goes on to quote Henke and concludes that “it was the lawyer's unique position in that case that generated

the conflict.” (Id. at 23.) The Court agrees with this conclusion. RID, however, goes on to assert that the conflict was generated by

contract. (Id.) For the reasons already discussed, this assertion is not persuasive.

30 In City of Kalamazoo v. Michigan Disposal Service Corp., a case that involved a motion to disqualify plaintiff's counsel in a CERCLA

contribution action, the court found GTE North to be significant for several reasons: “First, it demonstrates that ... an attorney in a joint

defense situation may find an attorney-client relationship arise with co-defendants as the result of sharing confidential information.

Second, the case demonstrates that the confidential information may consist of thoughts, mental impressions and strategies regarding

a claim against another party. Finally, the confidential information may be conveyed by the attorney for the co-defendant, rather than

the client itself.” City of Kalamazoo v. Mich. Disposal Serv. Corp., 125 F.Supp.2d 219, 235 (W.D.Mich.2000) (internal citations

omitted).

31 RID argues that the Restatement prohibits imputation of a nontraditional attorney-client relationship to an entire law firm. (RID's

Consolidated Opp'n at 21; RID's Closing Arg. Br. at 19–20.) The Restatement comment upon which RID relies provides as follows:

(g)(ii) Duties to a person about whom a lawyer learned confidential information while representing a former client. A lawyer

might have obligations to persons who were not the lawyer's clients but about whom information was revealed to the lawyer under

circumstances obligating the lawyer not to use or disclose the information. Those obligations arise under other law, particularly

under the law of agency .... An important difference between general agency law and the law governing lawyers is that general

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agency law does not normally impute restriction to other persons. Thus, when a lawyer's relationship to a non-client is not that of

lawyer-client but that, for example of sub-agent-principal, imputation might not be required under the law governing subagents.

See Restatement (Third) of the Law Governing Lawyers § 132 cmt g(ii) (emphases added). The Court is not persuaded. First, this

comment only states that “imputation might not be required,” which suggests that there may be times when it is so required. Further,

the comment is plainly considering agency law when discussing nonimputation, not an implied attorney-client relationship, which

a joint defense agreement establishes. Finally, the weight of authority outlined supra suggests that the privileges associated with

an implied attorney-client relationship stemming from a joint defense agreement are imputed to an entire law firm. The Court

therefore does not find this comment persuasive.

32 As discussed, the analysis for determining whether an implied attorney-client relationship arises from participation in a joint defense

group is nearly identical to the analysis for deciding whether there is a violation of Ethical Rule 1.9. Because both tests require the

Court to determine whether the prior matter and the current matter are substantially related, the comments and case law related to

Ethical Rule 1.9 are instructive here.

33 RID also relies upon Paragraph 11(b) and (c) of the WVB Group's joint defense agreement to argue that it contracted away any

attorney-client relationship that may have stemmed from the agreement. (RID's Consolidated Opp'n at 13–14; RID's Closing Arg.

Br. at 16–17.) The Court is not persuaded. Paragraph 11(b) is an attestation that no party entering the agreement was represented by

another party's counsel. Paragraph 11(c) states that “no attorney-client relationship is intended to be created between representatives

on any Committee or subcommittee and the Members.” Neither provision speaks to whether the agreement generally imposes a duty

of confidentiality on the attorneys representing the various parties. In any event, as the court in Stepney discussed, the rights created

by joint defense agreements are not established by contract. Stepney, 246 F.Supp.2d at 1079–80 (“Joint defense agreements are not

contracts which create whatever rights the signatories chose, but are written notice of a defendants' invocation of privileges set forth

in common law.”).

34 Honeywell also raised this argument as an alternative basis for G & K's disqualification. (Honeywell's Mot. at 10 n. 7.)

35 Honeywell only submitted invoice summaries from Derouin in connection with its participation in the M–52 Group. In conjunction

with SRP's in camera documentation, however, it is plain that Honeywell shared confidential information with the M–52 Group as

summarized in the invoices.

36 RID complains that it was provided with only a redacted version of the M–52 Group's joint defense agreement. (RID's Closing Arg.

Br. at 15–16 & n. 17.) This is not grounds for denying either SRP's or Honeywell's motion. The Court has reviewed the unredacted

agreement in its entirety and is satisfied with its terms and conditions.

37 Because Curry's duty of confidence is imputed to G & K the Court need not consider the efficacy of G & K's screen with respect to

Derouin. The Court also need not consider SRP's argument that Ethical Rule 1.7(a)(2) compels G & K's disqualification (SRP's Mot.

at 15; SRP's Reply at 5–7) or its argument that the joint defense agreement by its terms creates a duty of confidence as to the entire

G & K firm, rather than just the attorneys who participated in the M–52 Group (SRP's Mot. at 14; SRP's Reply at 8).

38 Arvin and Cooper's argument to the contrary (see, e.g., A & C's Reply at 3–4) is unpersuasive for the reasons already discussed.

However, even if Derouin had a traditional attorney-client relationship with Arvin and Cooper, the Court would nonetheless deny

their motion because this conflict is subject to screening pursuant to Ethical Rule 1.10(d), as analyzed infra.

39 Although submitted in camera, there is plainly nothing confidential about these assertions because they mirror earlier declarations

submitted by Arvin and Cooper to this Court. (See Furlough Aff. ¶¶ 7–8; Odenweller Aff. ¶¶ 7–8; Mongrain Aff. ¶ 11.)

40 As with Honeywell, this threshold requirement is satisfied because it is undisputed that Derouin is a lateral attorney at G & K.

41 Nor can the Court conclude that the proceedings took place before a tribunal as required by the rule. As explained supra, a “tribunal”

includes proceedings before administrative agencies “acting in an adjudicative capacity.” ER 1.0(m). An administrative agency “acts

in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will

render a legal judgment directly affecting a party's interest in a particular matter.” Id. The AOC was not the product of legal arguments

or adjudication. It was a negotiated settlement to conduct an RI/FS and did not adjudicate Arvin, Cooper, or AdobeAir's liability

under CERCLA. (See Kimball Decl. II Ex. A., AOC ¶ 84 (stating that the AOC is not an admission of liability).)

42 One omission from Arvin and Cooper's papers, which this Court need not reach, is how, precisely, AdobeAir's participation in a joint

defense agreement with Arvin results in Derouin owing Cooper a duty of confidentiality. It is clear from the record that AdobeAir and

Cooper never entered into a joint defense agreement. Accordingly, Derouin never agreed to maintain any confidences on Cooper's

behalf.

43 Arvin and Cooper rely on All American Semiconductor for the proposition that “ ‘where an attorney is disqualified from representing

a client because that attorney had previously represented a party with adverse interests in a substantially related matter, that

attorney's entire firm must be disqualified as well, regardless of efforts to erect an ethical wall.’ ” (A & C's Reply (quoting All

Am. Semiconductor, 2008 WL 5484552, at *8).) The All American Semiconductor court, however, was clearly applying California's

ethical rules, which reject ethical walls. All Am. Semiconductor, 2008 WL 5484552, at *8. Here, as discussed, the District of Arizona

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has adopted the Arizona Ethical Rules, and the Court must therefore apply Arizona's Ethical Rule 1.10(d), which permits screening

in certain situations. Accordingly, Arvin and Cooper's reliance on All American Semiconductor is misplaced.

44 Because the Court here concludes that Arvin and Cooper have not prevailed on their motion, the Court will no longer include Arvin

and Cooper in its definition of Moving Defendants.

45 Even if the Court were to acknowledge that differences among the geographic subdivisions of the toxic plume could create distinct

legal issues to be litigated, the exact same subdivisions at issue in all of the prior matters are again at issue in this matter.

46 Indeed, the instant case is remarkably close to GTE North where the district court found that there was an exchange of confidential

information relevant for purposes of a motion to disqualify counsel in a CERCLA cost recovery action. See GTE North, 914 F.Supp.

at 1580–81.

47 The Arizona Supreme Court identified the following four factors for a court to consider when ruling on a motion to disqualify counsel:

“(1) whether the motion is being made for the purposes of harassing the defendant, (2) whether the party bringing the motion will

be damaged in some way if the motion is not granted, (3) whether there are any alternative solutions, or is the proposed solution the

least damaging possible under the circumstances, and (4) whether the possibility of public suspicion will outweigh any benefits that

might accrue due to continued representation.” Alexander, 685 P.2d at 1317. Although this test expressly applied only to motions

to disqualify counsel based on an appearance of impropriety, the Arizona Supreme Court subsequently expanded the application

of these so-called Alexander factors to cover challenges to opposing counsel on other grounds, such as a conflict of interest. See

Gomez, 717 P.2d at 905; see also Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734, 738 (Ariz.Ct.App.1990) (discussing the

evolution of the Alexander test); Sellers, 742 P.2d at 301 (noting that the first three considerations in Alexander applied to discussion

of disqualification based on other ethical rules). The Court addresses these factors in its analysis of the five factors identified by

Research Corp.

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14

Rusinow v. Kamara, 920 F.Supp. 69 (1996)

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920 F.Supp. 69United States District Court,

D. New Jersey.

George RUSINOW, et al., Plaintiffs,v.

Abu KAMARA, et al., Defendants.

C.A. No. 94–1958. | March 25, 1996.

In action arising out of motor vehicle collision, counselfor plaintiffs filed motion to withdraw. The District Court,Orlofsky, J., held that counsel was not entitled to withdrawafter being notified by insurer and counsel for defendant ofevidence involving plaintiff which would potentially impeachcredibility and possibly constitute insurance fraud or perjury.

Motion denied.

West Headnotes (5)

[1] Attorney and ClientAct of parties

Whether to permit attorney to withdraw underlocal rule is within discretion of court.U.S.Dist.Ct.Rules D.N.J., Rule 18.

1 Cases that cite this headnote

[2] Attorney and ClientAct of parties

In granting or denying motion to withdraw,court will consider such factors as: reasons whywithdrawal is sought; prejudice withdrawal maycause to other litigants; harm withdrawal mightcause to administration of justice; and degree towhich withdrawal will delay resolution of case.U.S.Dist.Ct.Rules D.N.J., Rule 18.

19 Cases that cite this headnote

[3] Attorney and ClientAct of parties

In addition to local rule governing withdrawalof attorneys, district court must consider criteria

set forth in New Jersey Rules of ProfessionalConduct in deciding whether to grant attorneyleave to withdraw. U.S.Dist.Ct.Rules D.N.J.,Rule 18; N.J.RPC 1.16.

4 Cases that cite this headnote

[4] Attorney and ClientAct of parties

Criteria such as proximity to trial and possibilityfor substitute counsel are relevant considerationsdetermining whether to grant attorney leave towithdraw. U.S.Dist.Ct.Rules D.N.J., Rule 18.

2 Cases that cite this headnote

[5] Attorney and ClientAct of parties

Counsel for plaintiff in motor vehicle accidentwas not entitled to withdraw after beingnotified by insurer and counsel for defendantof evidence involved plaintiff which wouldpotentially impeach plaintiff's credibility andpossibly constitute insurance fraud or perjury;counsel did not demonstrate availability ofsubstitute counsel to represent clients, or thatsubstitute counsel could effectively prosecuteaction in timely fashion, and trial was scheduledto begin in less than two weeks and allowingwithdrawal would significantly interfere withcourt's scheduling of action and delay resolutionof case. U.S.Dist.Ct.Rules D.N.J., Rule 18.

Cases that cite this headnote

Attorneys and Law Firms

*69 David M. Taus, Francis J. DeVito, Hackensack, NJ,David J. Berg, Latti Associates, Boston, MA, for Plaintiffs.

*70 Thomas A. Zammatore, Garrabrandt & Andolino,Little Falls, NJ, for Defendants, Abu Kamara and BaramiEnterprises, Inc.

Christine Sullivan, Law Office of Gregory Jaeger, NorthBrunswick, NJ, for Defendants, George Williams and BillyLove.

Rusinow v. Kamara, 920 F.Supp. 69 (1996)

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OPINION

ORLOFSKY, District Judge.

This matter comes before the Court on the motion of the lawfirms of Latti Associates and the Offices of Francis J. DeVito,attorneys for Plaintiffs, George Rusinow, Artur Jedrych andMichael Trucking Corporation, to withdraw as counsel forall Plaintiffs. In support of their motion, Plaintiffs' counselhave submitted the Certification of David J. Berg, Esq., datedMarch 14, 1996 (“Berg, March 14, Certification”), as well asthe Affidavit of David J. Berg, Esq., dated March 18, 1996,to which six exhibits are attached, which has been submitted

to me for in camera review. 1

Oral argument was heard on this motion by telephoneconference call on the record on March 22, 1996. The trialof this matter is scheduled to begin on April 1, 1996, and theparties have been directed to submit Trial Briefs, Requests toCharge and proposed Voir Dire questions by March 25, 1996.Moreover, the Final Pretrial Order was filed in this case onJune 2, 1995, almost ten months ago.

The issue presented in this case is two-fold: (1) whethermovants can establish good cause to withdraw as Plaintiffs'counsel pursuant to Rule 1.16(b) of the New Jersey Rulesof Professional Conduct; and (2) assuming a showing ofgood cause, whether the withdrawal of Plaintiffs' counselcan be accomplished without a material adverse effect onthe interests of their clients, the interests of the other partiesto this action, and the administration of justice. See Lite,N.J. Federal Practice Rules, (1996 Ed.), Comment to Rule18 at 116, citing Avante–Garde Computing Inc. SecuritiesLitigation, Civ. No. 85–4149 (D.N.J. letter op. and order filedAugust 31, 1989) (Simandle). Because this Court finds thatmovants' withdrawal as counsel for Plaintiffs will adverselyaffect the interests of both their clients and the Defendants,and that their withdrawal will significantly interfere with thetimely adjudication of this action, their motion will be denied.

FACTUAL AND PROCEDURAL HISTORY

This action, originally filed by Plaintiffs on April 29, 1994,arises out of a motor vehicle accident which occurred onthe New Jersey Turnpike on February 21, 1994, involvingPlaintiff, George Rusinow, and Defendant, Abu Kamara.

At the time of the accident, Mr. Rusinow was driving amotor vehicle owned by Plaintiffs, Artur Jedrych and MichaelTrucking Corp., and Mr. Kamara was driving a motor vehicleowned by Defendant, Barami Enterprises, Inc.

As noted above, a Final Pretrial Stipulation and Order (“FinalPretrial Order”) was entered on June 2, 1995. On February22, 1996, Defendants, Abu Kamara and Barami Enterprises,Inc., filed a Motion to Amend the Pretrial Order to name anadditional fact witness, John W. Betzold, Jr., and to include asan additional exhibit the Driving Record Report of Plaintiff,George Rusinow, issued by the State of Maine. Defendants,George Williams and Billy Love, informally joined in themotion. In an Opinion and Order, dated March 11, 1996,this Court granted Defendants' Motion to Amend the PretrialOrder.

On March 15, 1996, the law firms of Latti Associates and theOffices of Francis J. DeVito, attorneys for Plaintiffs, GeorgeRusinow, Artur Jedrych and Michael Trucking Corporation,filed a motion to withdraw as counsel for all Plaintiffs. Thismotion is presently before this Court.

DISCUSSION

[1] [2] Rule 18 of the General Rules of the United StatesDistrict Court for the District of New Jersey (“General Rule18”) provides in relevant part that “[a]fter a case has been*71 first set for trial, substitution and withdrawal shall

not be permitted except by leave of Court.” Whether topermit an attorney to withdraw is within the discretion ofthe court. See Streetman v. Lynaugh, 674 F.Supp. 229, 234(E.D.Tex.1987). In granting or denying a motion to withdraw,a court will consider factors such as: (1) the reasons whywithdrawal is sought; (b) the prejudice withdrawal may causeto other litigants; (c) the harm withdrawal might cause tothe administration of justice; and (d) the degree to whichwithdrawal will delay the resolution of the case. See Lite, N.J.Federal Practice Rules, Comment Rule 18, citing Avante–Garde Computing Inc. Securities Litigation, Civ. No. 85–4149 (D.N.J. letter op. and order filed August 31, 1989)(Simandle). See also Haines v. Liggett Group, Inc., 814F.Supp. 414, 423 (D.N.J.1993).

[3] In addition to General Rule 18, this Court must considerthe criteria set forth in RPC 1.16 of the New Jersey Rules ofProfessional Conduct (“RPC 1.16”), in deciding whether togrant an attorney leave to withdraw. The New Jersey Rules

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of Professional Conduct are made applicable in this Court by

General Rule 6. 2 Haines v. Liggett Group, Inc., 814 F.Supp.at 422. The provisions of RPC 1.16 are consistent with thecriteria embodied in General Rule 18. Haines, 814 F.Supp. at423. See also Lite, N.J. Federal Practice Rules, (1996 Ed.),Comment to Rule 18 at 116.

RPC 1.16 governs the termination of an attorney'srepresentation of a client. In particular, RPC 1.16(a)(1) statesthat a lawyer shall withdraw from representing a client where“the representation will result in violation of the Rules ofProfessional Conduct or other law.” In addition, RPC 1.16(b)permits a “lawyer [to] withdraw from representing a clientif withdrawal can be accomplished without material adverseeffect on the interests of the client, or if” any of the criteria

enumerated in (b)(1)–(6) is met. 3

[4] Withdrawal pursuant to both RPC 1.16(a) and (b) islimited by RPC 1.16(c) which states that “[w]hen required todo so by rule or when ordered to do so by a tribunal, a lawyershall continue representation notwithstanding good cause forterminating the representation.” RPC 1.16(c) recognizes thenotion that “even if withdrawal is otherwise appropriate,other considerations must sometimes take precedence, suchas maintaining fairness to litigants and preserving a court'sresources and efficiency.” Haines v. Liggett Group, Inc., 814F.Supp. at 423. Criteria such as the proximity to trial and thepossibility for a client to obtain substitute counsel are alsorelevant considerations. Jacobs v. Pendel, 98 N.J.Super. 252,255, 236 A.2d 888 (App.Div.1967).

[5] In support of the motion to withdraw in the instant case,Mr. Berg states that on February 21, 1996, he was notifiedby the insurer and the counsel for Defendants, Kamara andBarami, “of certain evidence involving Plaintiff Rusinowwhich would potentially impeach his credibility and possiblyconstitute insurance fraud or perjury, if proven.” (Berg,March 14, Certification ¶ 8). Mr. Berg further states thathe informed his clients of the information he learned fromthe *72 insurer and Defendants' counsel, and based uponhis clients' responses to that information, he is seeking towithdraw as counsel based upon RPC 1.16(b)(1), (3), (5)

and (6), 4 and RPC 3.3(a)(2), and (4). 5 (Berg, March 14,Certification ¶¶ 7, 8).

Mr. Berg has also submitted an affidavit dated March 18,1996, for my in camera review in support of the motionto withdraw. Based upon the information contained in thisaffidavit, as well as in his March 14, Certification, the Court

concludes that Plaintiffs' counsel have not established goodcause to withdraw pursuant to RPC 1.16(b). See Haines v.Liggett Group, Inc., 814 F.Supp. at 423.

Even assuming that counsel had been able to demonstrategood cause to withdraw from the representation of Plaintiffs,equitable factors would preclude this Court from grantingtheir motion. Once an attorney “agrees to undertake therepresentation of a client, he or she is under an obligationto see the work through to completion.” Id. at 424; see alsoStreetman v. Lynaugh, 674 F.Supp. 229, 234 (E.D.Tex.1987).

Plaintiffs' counsel have not demonstrated the availabilityof substitute counsel to represent their clients, or that anysubstitute counsel could effectively prosecute this actionin a timely fashion. In cases where withdrawal wouldsignificantly impair a party's ability to maintain the action,the court has not permitted counsel to withdraw. SeeHaines v. Liggett Group, 814 F.Supp. at 425; Kriegsman v.Kriegsman, 150 N.J.Super. 474, 479–480, 375 A.2d 1253(App.Div.1977). As counsel for Plaintiffs in this action foralmost two years, movants are uniquely aware of the facts,documents, and legal issues relating to Plaintiffs' case. TheFinal Pretrial Order was entered in this case on June 2, 1995.The trial in this action is scheduled to begin on April 1,1996, less than two weeks away. In addition, this Court hasordered trial briefs, requests for charge and proposed voir direquestions to be submitted by counsel on March 25, 1996.

To allow Plaintiffs' counsel to withdraw at this time wouldsignificantly interfere with this Court's scheduling of thisaction for trial and will certainly delay the resolution of thiscase. Their withdrawal not only would prejudice their clients'rights to representation, but would also interfere with therights of the Defendants in this action, who have been waitingfor the final resolution of this matter since April 29, 1994, thedate of the filing of the complaint.

Plaintiffs' counsel have not presented this Court with anycompelling reasons to justify their withdrawal. It is they whochose to file this action, and therefore, they who must beprepared to see it to completion. This case has been dormantsince the entry of the Final Pretrial Order in June, 1995. Thefrenetic flurry of activity by counsel to withdraw shortly afterthe entry of this Court's Order granting Defendants' Motionto Amend the Final Pretrial Order to include an additional

fact witness and exhibit, 6 on the eve of trial, will not becountenanced by this Court. A sudden disenchantment witha client or a cause is no basis for withdrawal. Those who

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cannot live with risk, doubt and ingratitude should not betrial lawyers. A lawyer's duty to his or her client cannot besacrificed to ambivalence.

For the foregoing reasons, the motion of the law firms of LattiAssociates and the Offices of Francis J. DeVito to withdrawas counsel for Plaintiffs will be denied. This Court will enteran appropriate order.

ORDER

This matter having come before the Court upon the oralapplication of David J. Berg, *73 Esq., of the law firmof Latti Associates, for permission to submit in support ofthe motion of the law firms of Latti Associates and the

Offices of Francis J. DeVito, attorneys for Plaintiffs, GeorgeRusinow, Artur Jedrych and Michael Trucking Corporation,to withdraw as counsel for all Plaintiffs, his affidavit, datedMarch 18, 1996, to which Exhibits A,B,C,D, and E areattached, in camera, and for it to remain under seal; and

The Court having considered Mr. Berg's application;

IT IS HEREBY ORDERED this 25th day of March, 1996,that Mr. Berg's application to submit his affidavit, datedMarch 18, 1996, with attached exhibits in camera is granted;and

IT IS HEREBY FURTHER ORDERED that Mr. Berg'sMarch 18, 1996, affidavit with attached exhibits shall remainunder seal until further order of this Court.

Footnotes

1 This affidavit, which contains privileged communications between Mr. Berg's law firm and Plaintiffs, has been filed under seal.

2 General Rule 6 provides, in relevant part, that:

(A) The Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court shall govern

the conduct of the members of the bar admitted to practice in this Court, subject to such modifications as may be required or

permitted by federal statute, regulation, court rule or decision of law.

3 RPC 1.16(b) states, in relevant part, that except as stated in paragraph (c), a lawyer may withdraw from representing a client if

withdrawal can be accomplished without material adverse effect on the interest of the client, or if:

(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or

fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable

warning that the lawyer will withdraw unless the obligation is fulfilled;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult

by the client; or

(6) other good cause for withdrawal exists.

4 See Footnote 2, supra.

5 RPC 3.3(a) states, in relevant part, that a lawyer shall not knowingly:

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent

act by the client;

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity,

the lawyer shall take reasonable remedial measures.

6 Indeed, this amendment to the Final Pretrial Order did not affect the preparation of this case for trial. Plaintiffs' counsel declined the

opportunity to depose the new fact witness, or take any discovery whatsoever with respect to the amendment to the Final Pretrial

Order.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

15

State v. Sustaita, 183 Ariz. 240 (1995)

902 P.2d 1344

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

183 Ariz. 240Court of Appeals of Arizona,

Division 1, Department A.

STATE of Arizona, Appellee,v.

Paul SUSTAITA, Appellant.

No. 1 CA–CR 93–0575. | Feb. 7,

1995. | Review Denied Sept. 26, 1995. *

Defendant was convicted of aggravated assault by theSuperior Court, Maricopa County, No. CR 93–02504,Michael D. Ryan, J. Defendant appealed, arguing that publicdefender's office's representation of victim in unrelatedcriminal prosecution constituted conflict of interest sufficientto require disqualification of another attorney in publicdefender's office from representing defendant. The Courtof Appeals, Jacobson, P.J., held that: (1) representation ofdefendant by victim's prior counsel would not have violatedethical rule prohibiting representation when interest of formerclient would be adversely affected, and (2) representationof defendant by public defender's office did not createappearance of impropriety requiring withdrawal based onprior representation of victim by different attorney in office.

Affirmed.

West Headnotes (5)

[1] Criminal LawRight of defendant to counsel

Criminal LawWithdrawal by Counsel

Decisions on motions by counsel to withdraw areleft to discretion of trial court and will not beoverturned absent abuse of that discretion.

4 Cases that cite this headnote

[2] Criminal LawPrevious or concurrent representation of

witness or other party

Representation of defendant charged withaggravated assault by counsel who had defended

victim of assault on theft charges two yearsearlier would not violate ethical rule whichprohibits representation when interests of aformer client would be adversely affected;victim's prior conviction on theft charge had norelation to offense with which defendant wascharged, and superior court limited impeachmentof victim by prior conviction to its mereexistence, which was matter of public record.A.R.S. § 13–1204, subd. A, par. 2; 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.9.

Cases that cite this headnote

[3] Attorney and ClientRepresenting Adverse Interests

Phrase “appearance of impropriety” remainsviable ethical principle for courts to considerwith regard to conflict of interest claims, eventhough it is not included within current Rules ofProfessional Conduct. 17A A.R.S. Sup.Ct.Rules,Rule 42, Rules of Prof.Conduct, ER 1.9, ER 1.10.

Cases that cite this headnote

[4] Criminal LawPartners and associates; public defenders

Representation of defendant charged withaggravated assault by public defender's office didnot create appearance of impropriety requiringwithdrawal, based on representation of victimof assault on theft charges two years earlier bydifferent attorney in public defender's office;there was no attempt to use information obtainedfrom prior representation of victim, and onlyevidence ruled admissible for impeachmentpurposes related to matters of public record.17A A.R.S. Sup.Ct.Rules, Rule 42, Rules ofProf.Conduct, ER 1.10, ER 1.10(a).

Cases that cite this headnote

[5] Criminal LawPartners and associates; public defenders

Something more than mere showing of priorrepresentation of victim is required before entirepublic defender's office is disqualified from

State v. Sustaita, 183 Ariz. 240 (1995)

902 P.2d 1344

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

representing defendant, although “appearance ofimpropriety” is relevant inquiry. 17A A.R.S.Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct,ER 1.10.

2 Cases that cite this headnote

Attorneys and Law Firms

**1344 *240 Grant Woods, Atty. Gen. by Paul J.McMurdie, Chief Counsel, Crim. Appeals Section, and DianeM. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

John M. Antieau, Phoenix, for appellant.

OPINION

JACOBSON, Presiding Judge.

Paul Sustaita (defendant) appeals from his conviction foraggravated assault and the **1345 *241 sentence imposed.The sole issue raised is whether the representation by thepublic defender's office of the victim in an unrelated criminalprosecution constituted a sufficient conflict of interest torequire the disqualification of another attorney from thepublic defender's office from representing the defendant. Forthe reasons that follow, we hold that the trial court did notabuse its discretion in denying a motion raising the allegedconflict of interest, and affirm.

FACTS AND PROCEDURAL HISTORY

On March 17, 1993, P.R., the victim in this case, had beenat defendant's apartment for two days using crack cocaine.Over defendant's objection, she left to return to a nearby motelwhere she had been living previously. Later that evening,defendant approached P.R. while she was standing on thestreet speaking with an acquaintance who was a drug dealer.Defendant was angry that P.R. was talking with this person,dragged her into a nearby alley, and stabbed her in theshoulder with a knife. Defendant then apologized for what hehad done, and took P.R. to a neighbor's house to call for thepolice and an ambulance. P.R. and defendant initially agreedto tell the police that P.R. had been stabbed by an unknownblack man. After being placed in the ambulance, however,

P.R. informed the police that defendant was the person whostabbed her.

Defendant was indicted on one count of aggravated assault, aclass 3 dangerous felony. See A.R.S. § 13–1204(A)(2). Thestate further alleged that defendant had eight prior felonyconvictions, and that he committed the charged offense whileon parole, in violation of A.R.S. § 13–604.02.

Prior to trial, the deputy public defender appointed torepresent defendant moved for a redetermination of counselon the grounds that a conflict of interest existed in hisrepresentation of defendant. The claimed conflict of interestwas based on the fact that another attorney in the publicdefender's office represented P.R. two years earlier in acriminal case that resulted in her conviction for theft, andthen again in two probation revocation proceedings relatingto that conviction. The trial court denied the motion upona finding that no conflict of interest was created by theprior representation. The trial court explained its reasoning asfollows:

I don't find that it is substantial—that itis substantially related, and it does notbear on this case, and anything that canbe used for impeachment is a matter ofpublic record, and that therefore, thereis no substantial reason for grantingthe motion to withdraw, as I don't findthat there is any conflict, as the mattersare not substantially related, so Mr.Burns will remain as counsel for thedefendant.

On other pretrial motions, the trial court ruled that defendantcould impeach P.R. and another prosecution witness withtheir respective prior convictions, but prohibited any mentionof P.R.'s probation status or the revocation proceedings. Thetrial court further limited the state to impeaching defendantwith only his two most recent felony convictions.

Upon trial to a jury, defendant was found guilty of aggravatedassault. The jury further found the offense to be dangerous.In exchange for the state's withdrawal of the allegation thatdefendant committed the offense while on parole, defendantadmitted to two prior felony convictions. The trial courtsentenced defendant to an aggravated term of 15 years inprison with credit for 161 days of presentence incarceration.

State v. Sustaita, 183 Ariz. 240 (1995)

902 P.2d 1344

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Defendant filed a timely notice of appeal. This court hasjurisdiction pursuant to A.R.S. §§ 12–120.21, 13–4031, and13–4033.

DISCUSSION

Defendant contends that his representation at trial by thepublic defender's office constituted a conflict of interest orpresented at least the appearance of impropriety and requiresthat he be granted a new trial with new counsel. We disagree.

[1] Decisions on motions to withdraw are left to thediscretion of the trial court and will not be overturnedabsent an abuse of that discretion. Okeani v. Superior Court,178 Ariz. 180, 181, 871 P.2d 727, 728 (App.1993). Inreviewing the trial court's ruling, we are guided by the Rulesof Professional **1346 *242 Conduct, Rule 42, Rulesof the Arizona Supreme Court. As this case involves theissue of a possible conflict of interest arising from anotherdeputy public defender's representation of a former client, theapplicable ethical rules are ER 1.9 and 1.10. ER 1.9 prohibitsrepresentation when the interests of a former client would beadversely affected as follows:

A lawyer who has represented a client in a matter shall notthereafter:

(a) represent another person in the same or a substantiallyrelated matter in which that person's interests are materiallyadverse to the interest of the former client unless the formerclient consents after consultation; or

(b) use information relating to the representation to thedisadvantage of the former client except as ER 1.6 wouldpermit with respect to a client or when the information hasbecome generally known.

The assistant public defender who previously representedP.R. is not the attorney who represented defendant inthis case. This case, therefore, raises the issue of imputeddisqualification under ER 1.10, that is, if the attorney whorepresented P.R. would have had a conflict had he representeddefendant, whether this conflict is imputed to all attorneys inthe public defender's office. ER 1.10 imputes an individuallawyer's ethical conflicts to all members of that lawyer's firmas follows:

While lawyers are associated in afirm, none of them shall knowingly

represent a client when any oneof them practicing alone would beprohibited from doing so by ER 1.7,1.8(c), 1.9 or 2.2.

ER 1.10(a). This case, therefore, raises two issues: (1)whether P.R.'s lawyer would have had a conflict, and, if so,(2) whether this conflict is imputed to defendant's counsel.

[2] We agree with the trial judge that ER 1.9 was notviolated in this case. P.R.'s prior conviction on the theft chargetwo years earlier had no relation to the offense with whichdefendant was charged. Therefore, the representation ofdefendant by P.R.'s prior counsel would not violate subsection(a) of ER 1.9. Furthermore, as the trial court limited anyimpeachment of P.R. by her prior conviction to its mereexistence, there is no violation of subsection (b) because theconviction is a matter of public record.

[3] [4] Defendant implicitly acknowledges that there isno actual conflict of interest as he focuses his argumenton whether the motion to withdraw should have been

granted on the basis of the “appearance of impropriety.” 1

He contends that the public defender's office's mere priorrepresentation of P.R. is sufficient to create an appearanceof impropriety requiring withdrawal because his currentrepresentation placed his counsel in the position of having toimpeach the office's former client with a conviction obtainedduring the prior representation. Although there might havebeen an appearance of impropriety had P.R.'s former counselrepresented defendant, we find insufficient ground in thiscase to impute any such appearance of impropriety to everymember of the public defender's office.

Defendant's reliance on Okeani and Rodriguez v. State,129 Ariz. 67, 628 P.2d 950 (1981), as support for hisargument is misplaced. Both are distinguishable as theyinvolved situations where the public defender's office had anactual conflict when representing two adverse defendants. InRodriguez, one deputy public defender wanted to defend hisclient by incriminating another client of the public defender'soffice. Rodriguez, 129 Ariz. at 70–72, 628 P.2d at 953–55.The Arizona Supreme Court, analyzing the former Code ofProfessional Responsibility, found this gave an appearance ofimpropriety that required withdrawal of the public defender'soffice. Id. at 74, 628 P.2d at 957. In Okeani, this court founda conflict of interest under the current Rules of ProfessionalConduct where the deputy public defender who representeda defendant in a sexual assault case obtained confidential

State v. Sustaita, 183 Ariz. 240 (1995)

902 P.2d 1344

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information about the victim from the victim's file at thepublic defender's office on an unrelated juvenile matter wherethe victim was represented by another deputy public defender.**1347 *243 Okeani, 178 Ariz. at 181, 871 P.2d at 728.

The conflicts of interest at issue in Rodriguez and Okeaniare not present in this case, which involves no attempt toincriminate P.R. and no allegation that the public defenderobtained confidential information about the victim from thepublic defender office's files that would be used to the victim'sdetriment.

[5] We decline to adopt a rule disqualifying the entirepublic defender's office any time that office has represented

the victim of a crime. 2 Although the “appearance ofimpropriety” is a relevant inquiry, something more than amere showing of prior representation of a victim is requiredbefore the entire public defender's office is disqualifiedfrom representing a defendant. In this case, there was noattempt to improperly use information obtained from the priorrepresentation of P.R. The only evidence ruled admissible forimpeachment purposes related to matters of public record. Cf.Comment to ER 1.9 (“Information acquired by the lawyerin the course of representing a client may not subsequentlybe used by the lawyer to the disadvantage of the client.However, the fact that a lawyer has once served a clientdoes not preclude the lawyer from using generally known

information about that client when later representing anotherclient”). To the extent one could view this situation as givingthe appearance of a conflict of interest, we conclude that it isso remote that disqualification was not required. See Gomezv. Superior Court, 149 Ariz. 223, 225–26, 717 P.2d 902, 904–05 (1986); State v. Harrison, 165 Ariz. 557, 559–60, 799 P.2d898, 900–01 (App.1990).

CONCLUSION

Under the circumstances, we find neither a conflict of interestnor an appearance of impropriety that would require thatthe entire public defender's office withdraw as counsel fordefendant. Thus, the trial court did not abuse its discretion indenying defendant's motion for redetermination of counsel.

We have reviewed the record for error pursuant to A.R.S.§ 13–4035 and have found none. Accordingly, defendant'sconviction and sentence are affirmed.

CONTRERAS and TOCI, JJ., concur.

Parallel Citations

902 P.2d 1344

Footnotes

* Corcoran, J., of the Supreme Court, did not participate in the determination of this matter.

1 Although the phrase “appearance of impropriety” is not included within the current Rules of Professional Conduct, it still remains

a viable ethical principle for the courts to consider with respect to conflict of interest claims. Gomez v. Superior Court, 149 Ariz.

223, 225, 717 P.2d 902, 904 (1986).

2 It can be argued that ER 1.10, imputed disqualification, does not apply to the public defender's office. See ER 1.10, Comment at 365–

66 (definition of “firm” does not include governmental offices such as the public defender's office; imputed disqualification applies to

lawyers in a “firm”); Turbin v. Superior Court, 165 Ariz. 195, 197–98, 797 P.2d 734, 736–37 (App.1990) (ER 1.10 applies to private

law firms, not government law offices). See also Gregory G. Sarno, Annot., Circumstances Giving Rise to Prejudicial Conflict of

Interests Between Criminal Defendant and Defense Counsel—State Cases, 18 A.L.R.4th 360 (1982 and 1994 supp.). Because we

find that ER 1.10 was not violated in this case, we need not reach this issue.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

16

U.S. v. Executive Recycling, Inc., 908 F.Supp.2d 1156 (2012)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

908 F.Supp.2d 1156United States District Court,

D. Colorado.

UNITED STATES of America, Plaintiff,v.

1. EXECUTIVE RECYCLING, INC., 2. BrandonRichter, and 3. Tor Olson, Defendants.

Criminal Case No. 11–cr–00376–WJM. | Dec. 11, 2012.

SynopsisBackground: In criminal prosecution of recycling companyand two of its officers for violation of Resource Conservationand Recovery Act (RCRA), attorneys for defendants movedto withdraw.

Holdings: The District Court, William J. Martínez, J., heldthat:

[1] inability to utilize confidential information about non-client co-defendant was not a conflict of interest warrantingwithdrawal, but

[2] even if conflict existed, it did not detrimentally affectattorney's ability to represent her clients.

Motion denied.

West Headnotes (9)

[1] Attorney and ClientWhat constitutes a retainer

A joint defense agreement (JDA) providing thatmaterials shared between counsel will remainsubject to attorney-client, work-product, andother applicable privileges does not create anattorney-client relationship between an attorneyand a co-defendant.

Cases that cite this headnote

[2] Attorney and Client

Nature of attorney's duty

An attorney owes no duty of loyalty to her client'sco-defendant under a joint defense agreement(JDA).

Cases that cite this headnote

[3] Attorney and ClientClient's confidences, in general

An attorney who learns confidential or privilegedinformation as a result of a joint defenseagreement (JDA) has a duty to maintain theconfidentiality of such information, even afterthe JDA is no longer in force.

Cases that cite this headnote

[4] Criminal LawAdequacy of Representation

A defendant's Sixth Amendment right to counselincludes the right to the effective assistance ofcounsel. U.S.C.A. Const.Amend. 6.

Cases that cite this headnote

[5] Criminal LawConflict of Interest

Right to effective assistance of counsel underSixth Amendment includes the right to counselfree from conflicts of interest. U.S.C.A.Const.Amend. 6.

Cases that cite this headnote

[6] Criminal LawConflict of Interest

If court is satisfied that attorney's conflict ofinterest does not risk compromising defendant'srepresentation, it need not require substitution ofcounsel. U.S.C.A. Const.Amend. 6.

Cases that cite this headnote

[7] Criminal LawPrejudice and harm in general

To succeed on a motion to withdraw, counselmust show an actual conflict of interest that

U.S. v. Executive Recycling, Inc., 908 F.Supp.2d 1156 (2012)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

detrimentally affects her ability to represent herclient. U.S.C.A. Const.Amend. 6.

1 Cases that cite this headnote

[8] Criminal LawParticular cases

Defense attorney's claim that she could noteffectively represent her clients because sheknew confidential information about a co-defendant pursuant to joint defense agreement(JDA), and, if he chose to testify, she wouldnot be permitted to examine him about thisinformation, was not a “conflict of interest”warranting withdrawal on fifth day of jurytrial in Resource Conservation and RecoveryAct (RCRA) suit; the mere inability to utilizeprivileged communication was not itself amanifestation of a conflict of interest, becauseno lawyer in the world could utilize suchcommunications. U.S.C.A. Const.Amend. 6;Resource Conservation and Recovery Act of1976, § 2(d)(4), 42 U.S.C.A. § 6928(d)(4).

Cases that cite this headnote

[9] Criminal LawParticular cases

Even if conflict of interest existed, in prosecutionfor violation of Resource Conservation andRecovery Act (RCRA), based on defensecounsel's knowledge of confidential informationabout a co-defendant obtained through jointdefense agreement (JDA), conflict did not sodetrimentally affect attorney's ability to representher clients as would warrant withdrawal on fifthday of jury trial; case had been pending for overa year, charges had been unchanged since grandjury handed down indictment, case involvedfraudulent scheme perpetrated by recyclingcompany's officers and given the relationshipbetween the defendants, it should not havecome as a surprise that there was potential forconflict, government lacked any culpability withrespect to bringing about alleged conflict, andgovernment would suffer prejudice if counselwas permitted to withdraw, since it had alreadypresented three-quarters of its case. U.S.C.A.

Const.Amend. 6; Resource Conservation andRecovery Act of 1976, § 2(d)(4), 42 U.S.C.A. §6928(d)(4).

Cases that cite this headnote

Attorneys and Law Firms

*1158 Lillian Louisa Alves, Suneeta Hazra, U.S. Attorney'sOffice, Denver, CO, for Plaintiff.

Cleo J. Rauchway, Pamela Robillard Mackey, Haddon,Morgan & Foreman, P.C., Lucy Deakins Arnold, WilliamJ. Leone, Fulbright & Jaworski, LLP, Denver, CO, forDefendants.

ORDER DENYING COUNSEL FOREXECUTIVE RECYCLING AND BRANDON

RICHTER'S MOTION TO WITHDRAW

WILLIAM J. MARTÍNEZ, District Judge.

Before the Court is Attorneys Pamela Mackey and CleoRauchway's Motion to Withdraw (“Motion”). (ECF No. 250.)As stated on the record, and for the reasons set forth below,the Court denies the Motion.

I. FACTUAL BACKGROUND

In this action, the Government charges Executive Recycling,Brandon Richter, and Tor Olson with one count charginga violation of the Resource Conversation and RecoveryAct (“RCRA”) (42 U.S.C. § 6928(d)(4)), one count ofsmuggling (18 U.S.C. § 554), eleven counts of wire fraud(18 U.S.C. § 1343), two counts of mail fraud (18 U.S.C. §1341), and one count of obstruction of justice (18 U.S.C. §1519). (ECF No. 1.) In short, the Government charges thatDefendants (1) illegally transported and exported a shipmentof electronic waste that included cathode ray tubes (“CRTs”)containing lead; (2) falsely represented to various businessesand government entities in Colorado that Defendants woulddispose of the entities' electronic waste in an environmentallyfriendly manner and in compliance with all applicable local,state, and federal laws and regulations; and (3) knowinglyaltered, destroyed, mutilated or concealed evidence with theintent to impede the Government's investigation of them. (Id.)

U.S. v. Executive Recycling, Inc., 908 F.Supp.2d 1156 (2012)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Defendants Executive Recycling and Brandon Richter

retained attorney Pamela Mackey to represent them. 1 (ECFNo. 10.) Defendant Tor Olson retained attorney William

Leone. 2 (ECF No. 11.) These attorneys have continuedto represent the same clients throughout this case and arecurrently representing the same clients.

In October 2011, Defendants entered into a Joint Defense

Agreement (“JDA”). (ECF No. 246–1 3 .) The JDA providedthat materials shared between counsel would remainsubject to attorney-client, work-product, and other applicableprivileges. (Id.) The JDA allowed any party to withdraw uponnotification to all other signatories and, upon withdrawal,all communications and information covered by the JDAand disclosed to the withdrawing party prior to the party'snotification of withdrawal would remain confidential. (Id.)

After a lengthy discovery process and a hard fought pre-trialmotions practice, a jury trial commenced on December 3,2012. (ECF No. 239.) On the afternoon of the fourth dayof trial, the Government *1159 introduced Exhibit 14.18,which is a series of invoices created by Executive Recycling'saccounting program. An employee of Executive Recyclingtestified that it appeared one portion of Exhibit 14.18 had beenaltered as the invoice number was out of sequence. Exhibit14.18 is the invoice for the shipment charged in Counts 14and 15 of the Indictment.

On morning of the fifth day of trial, defense counsel requestedan ex parte hearing with the Court to discuss an ethical issue.The merits of the ethical issue were resolved by the Courtand are not germane here. However, during this ex partediscussion, Ms. Mackey orally moved to sever this actionon behalf of her clients. The Motion to Sever was joined byDefendant Olson. The basis for the Motion to Sever was that,if the Government was going to pursue a theory that invoiceshad been altered or manipulated, it would place DefendantsRichter and Olson at odds with each other because only alimited number of employees at Executive Recycling hadaccess to the company's accounting software. (ECF No. 245at 2–3.) As Defendant Olson alleged in his later briefing:“the Defendants may be forced into a position where theyhave no choice but to claim that neither of them altered theaccounting record in question, and to cross examine the other,if he testifies, about that defendant's motive and opportunityto have performed the action in question.” (Id. at 3.)

At the same time they filed their brief on the Motion to Sever,Defendants Executive Recycling and Brandon Richter filed aMotion to Withdraw. In the Motion to Withdraw, Defendantsallege that Ms. Mackey received information on the morningof the fifth day of trial, from Defendant Olson and/or hiscounsel in accordance with their JDA, that has lead her toconclude that she has a conflict of interest which interfereswith her ability to continue to represent her clients in this case.Defendants Richter and Olson withdrew from the JDA as ofthe morning of the fifth day of trial.

The Court denied the Motion to Sever based on its findingthat Defendants had failed to show mutually antagonisticdefenses. Trial continued into the sixth day and, after thejury was sent home, the Court heard argument from theparties on the Motion to Withdraw. A portion of this argumentwas conducted outside the presence of counsel for theGovernment so as to allow defense counsel the opportunityto raise issues ex parte. However, the Government waspermitted to make its own argument and also permitted to filesupplemental briefing.

On the morning of the seventh day of trial, the Court heardadditional argument on the Motion to Withdraw. Followingthis argument, the Court informed the parties that it wasdenying the Motion to Withdraw. The purpose of this Orderis to set forth the Court's rationale behind this decision.

II. ANALYSIS

[1] [2] [3] The conflict at issue here arises out of the JDAentered into by defense counsel. This Court has described the“joint defense privilege” as follows:

The joint defense privilege preservesthe confidentiality of communicationsand information exchanged betweentwo or more parties and their counselwho are engaged in a joint defenseeffort. Waiver of the joint defenseprivilege requires the consent ofall parties participating in the jointdefense. [T]he joint defense privilegeis merely an extension of the attorney-client privilege and the work-productdoctrine.

Static Control Components, Inc. v. Lexmark Intern., 250F.R.D. 575, 578 (D.Colo.2007). A joint defense agreement

U.S. v. Executive Recycling, Inc., 908 F.Supp.2d 1156 (2012)

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does not create an attorney-client relationship between*1160 an attorney and the co-defendant. United States v.

Stepney, 246 F.Supp.2d 1069, 1080 (N.D.Cal.2003). Thus, anattorney owes no duty of loyalty to her client's co-defendant.United States v. Almeida, 341 F.3d 1318, 1323 (11thCir.2003). However, an attorney who learns confidential orprivileged information as a result of a JDA has a duty tomaintain the confidentiality of such information, even afterthe JDA is no longer in force. United States v. Gonzalez, 669F.3d 974, 982 (9th Cir.2012).

[4] [5] [6] A defendant's Sixth Amendment right tocounsel includes “the right to the effective assistance ofcounsel.” Strickland v. Washington, 466 U.S. 668, 686, 104S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Winkle,722 F.2d 605, 609 (10th Cir.1983). “The constitutionalstandard for attorney performance is that of reasonablyeffective assistance ... which we have defined as the ‘exercise[of] the skill, judgment and diligence of a reasonablycompetent defense attorney.’ ” United States v. Burney,756 F.2d 787, 790 (10th Cir.1985) (quoting Dyer v. Crisp,613 F.2d 275, 278 (10th Cir.1980)). This right to effectiveassistance of counsel includes the right to counsel free fromconflicts of interest. Strickland, 466 U.S. at 692, 104 S.Ct.2052. However, if the Court is satisfied that a conflict does notrisk compromising the defendant's representation, it need notrequire substitution of counsel. See United States v. Solomon,42 Fed.Appx. 88, 91 (10th Cir.2002).

At argument on the Motion, Ms. Mackey acknowledged thatshe owed no duty of loyalty to Mr. Olson. However, shemaintains that her ability to effectively represent her clientswould be so impaired by information that she gained underthe JDA that she is compelled to withdraw. Ms. Mackeyhas explained her position to her clients and they have“reluctantly agreed” to her Motion to Withdraw.

A. Actual Conflict of Interest[7] [8] To succeed on the Motion to Withdraw, counsel

must show an actual conflict of interest that detrimentallyaffects her ability to represent her client. Strickland, 466U.S. at 692, 104 S.Ct. 2052. Ms. Mackey contends that herconflict arises out of confidential information that she learnedduring the JDA. Essentially, Ms. Mackey contends that shecannot effectively represent her clients because she knowsconfidential information about co-Defendant Olson and, if hechooses to testify, she will not be permitted to examine him

about this information. 4

The Tenth Circuit has yet to address a case with facts suchas those present here. However, in a similar action, theEleventh Circuit held that “[t]he mere inability to utilize theprivileged communication is not itself a manifestation of aconflict of interest, because no lawyer in the world couldutilize those communications.” Almeida, 341 F.3d at 1323.The Court agrees with Almeida's rationale and finds that thefacts presented here do not rise to the level of an actualconflict of interest. If the Court were to grant the Motionto Withdraw, Defendant Richter's and Executive Recycling'snew counsel would likewise be unable to examine Mr. Olsonabout any confidential information. Indeed, new counselwould not likely have access to such confidential information.Therefore, as the Government contends, if anything, *1161new counsel would be less able to provide an adequatedefense for Mr. Richter and Executive Recycling. Thus, theCourt fails to see how Mr. Richter and Executive Recyclingare prejudiced by Ms. Mackey's continued representation ofthem.

Pursuant to Almeida, the Court finds that Ms. Mackey hasfailed to show an actual conflict of interest in this case.This fact alone is reason to deny the Motion to Withdraw.See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708,64 L.Ed.2d 333 (1980) (defendant must show an “actualconflict of interest” which “adversely affected his lawyer'sperformance” to warrant substitution of counsel).

B. United States v. Henke, 222 F.3d 633 (9th Cir.2000)Defendants Richter and Executive Recycling argue that thisCourt should follow the reasoning in United States v. Henke,222 F.3d 633 (9th Cir.2000) and find that the conflict ofinterest here necessitates withdrawal of counsel. In Henke,three co-defendants were indicted together and their attorneysentered into a JDA. 222 F.3d at 636. Shortly before trial, onedefendant pled guilty and agreed to testify at trial on behalf ofthe government. The cooperating defendant's attorney sent aletter to counsel for the remaining defendants that specificallyinvoked the cooperating defendant's privilege with respect toall information learned during joint defense strategy sessions.Id. at 638. The cooperating defendant's attorney threatenedlegal action if the remaining defendants' attorneys did notadequately protect the privilege. Id.

Counsel for the remaining defendants moved to withdrawand argued that they could not effectively represent theirclients because they would not be able to adequately cross-examine the cooperating defendant. The district court denied

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the motion to withdraw. Id. at 637. At trial, the cooperatingdefendant's testimony was inconsistent with what he had saidin confidence during pre-trial joint defense meetings. Id. at638. Defense counsel conducted no cross-examination forfear that the examination would lead to inquiries into materialcovered by the joint defense agreement. The Ninth Circuitheld that it was error to deny the motions to withdraw. Id.

Defendants Richter and Executive Recycling argue that,based on Henke, it would be error for the Court to refuse toallow Ms. Mackey to withdraw as counsel. For the reasonsexplained below, the Court finds not only that Henke isreadily distinguishable from the facts of this case, but alsothat the factors considered in Henke actually lead the Court toconclude that the Motion to Withdraw should be denied.

1. Government's role in procuring the conflict[9] The Ninth Circuit was compelled by the fact that

the government was, in that case, receiving a significantbenefit from the testimony of the cooperating defendant:“By choosing to convert [the cooperating defendant] into aprospective witness shortly before the trial was scheduledto start, the government ... caused this problem, and shouldnot now be heard to complain.” Id. at 638. In this case, theGovernment has done nothing to encourage or bring about thesupposed conflict. The Government did not engage Mr. Olsonto cooperate against Mr. Richter or Executive Recycling, andthe Government will receive little, if any, benefit should Mr.Olson choose to testify on his own behalf. The Court findsthat this fact is a significant reason for distinguishing thiscase from Henke and supports the Court's conclusion that theMotion should be denied.

2. Severity of the alleged conflictThe Court finds that the severity of the alleged conflictat issue here is much less *1162 significant than theconflict in Henke. There, the conflict (coupled with thecooperating defendant's counsel's threatening letter) causedcounsel for the remaining defendants to decline to conductany cross-examination of the testifying co-defendant. As thecooperating defendant was a key witness in the government'scase, the failure to cross-examine such witness caused theremaining defendants significant prejudice. Henke, 222 F.3dat 638.

In this case, should Mr. Olson choose to testify, he willbe testifying on his own behalf and not on behalf of theGovernment. Aside from the obstruction of justice count,

there has been no indication that Defendants' interestsare adverse to each other. Therefore, the extent to whichMr. Olson's testimony will be adverse to Mr. Richteror Executive Recycling is far less significant than thecooperating defendant in Henke. Moreover, given the limitednature of the conflict alleged here, the Court has a hard timebelieving that Ms. Mackey will be wholly unable to examineMr. Olson, should he choose to take the stand. Thus, theCourt finds that the conflict alleged here is not so significantthat it warrants allowing counsel to withdraw. See Barham v.United States, 724 F.2d 1529 (11th Cir.1984) (where conflictof interest affected only one witness's cross-examination, itwas deemed so insignificant that it did not effect counsel'sability to provide adequate representation).

Rather than lead the Court to conclude that the Motion toWithdraw should be granted, the Court finds that Henkeactually suggests that the Motion should be denied. TheNinth Circuit stated: “There may be cases in which defensecounsel's possession of information about a former co-defendant/government witness learned through joint defensemeetings will not impair defense counsel's ability to representthe defendant or breach the duty of confidentiality to theformer co-defendant.” Id. at 638; see also Almeida, 341F.3d at 1323 (where a conflict arising out of confidentialinformation learned as a result of a JDA is “de minimis ” itmay not interfere with counsel's ability to provide effectiverepresentation). The Court finds that, to the extent there is anyactual conflict of interest, it is so minimal that it will not affectCounsel's ability to adequately represent her clients' interests.

The Court acknowledges that the Supreme Court has heldthat the attorney “is in the best position professionally andethically to determine when a conflict of interest exists orwill probably develop in the course of a trial.” Hollowayv. Arkansas, 435 U.S. 475, 485, 98 S.Ct. 1173, 55 L.Ed.2d426 (1978). However, the majority of cases discussing thisprinciple involve an attorney who owes a duty of loyaltyto two clients whose interests are adverse. In this case, Ms.Mackey owes no duty of loyalty to Mr. Olson, and Mr. Olson'sinterests are not, for the most part, adverse to her clients.Also, most cases discussing this principle are addressing amotion to withdraw or a motion to disqualify an attorney earlyon in a case, or certainly before trial has commenced. Atthis point in these proceedings, the Court has presided oversix days of trial testimony and reviewed innumerable legalissues that have arisen both before and during trial. The Courthas a solid grasp of the legal issues governing this case, theGovernment's theory of the case, and the defenses proffered

U.S. v. Executive Recycling, Inc., 908 F.Supp.2d 1156 (2012)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

by the Defendants. Thus, more so than in a typical case, theCourt is well positioned to judge the extent to which theconflict alleged here will affect counsel's ability to represent

her clients. 5

*1163 3. Equitable ConsiderationsFinally, the Court finds that the timing of the Motion toWithdraw and the circumstances surrounding the Motiondistinguish this action from Henke. In that case, defensecounsel moved to withdraw as soon as the co-defendant begancooperating with the government and before trial started. TheHenke court noted that there was “nothing in the record tosuggest that the attorneys [in making the motion to withdraw]were doing anything other than attempting to adhere to theirethical duties as lawyers.” 222 F.3d at 638. The Court cannotsay the same here.

This case has been pending for over a year and the chargeshave been unchanged since the Grand Jury handed downthe Indictment. This case was indicted as a fraudulentscheme perpetrated by the President and Vice–President ofa corporation. Given the nature of these charges and therelationship between the Defendants, it should not have comeas a surprise that there was a potential for conflict. Yet, despitethis potential, Defendants and their Counsel made a tacticaldecision to enter into a JDA. Given the experience of DefenseCounsel in this case, the Court has a hard time believing thatCounsel was unaware that the JDA could result in the preciseconflict at issue here.

Moreover, the Court fails to see how the testimony thatoccurred on the fourth day of trial could have so suddenly

created the alleged conflict. 6 The Government produced alldiscovery, including the invoices contained in Exhibit 14.18,nearly a year before trial commenced. The Government alsodisclosed its trial exhibits to Defendants nearly two weeksbefore trial. A close examination of the invoices containedin Exhibit 14.18 would have revealed to the Defendants thatthe Government was going to pursue a theory of alteration ormanipulation of documents, as they had explicitly charged inCount 16 of the Indictment. Thus, Counsel should have, orat least easily could have, known of the conflict alleged herebefore trial started, and yet failed to raise any issue of effectiverepresentation with the Court. See United States v. Martinez,455 F.3d 1127, 1130 n. 2 (10th Cir.2006) (noting that a partyshould not wait to raise an issue with the court “until the onlymeaningful remedy would be a mistrial” because a mistrial isa “drastic sanction”).

The Government has vehemently argued that DefenseCounsel should not be permitted to engineer a conflict atthis late stage in the game and then benefit from the sameconflict. The Court agrees. Defendants and their Counselmade a tactical decision to enter into a JDA and, while itwas advantageous for them, continued to operate within theconfines of the JDA. On the fifth day of trial, after theGovernment offered evidence to prove its case precisely asit was alleged in the Indictment, the JDA suddenly becamea detriment to Counsel such that it prompted her to make amotion to withdraw. The Court cannot permit Counsel to usethe JDA as both a *1164 sword and a shield. See UnitedStates v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991) (courtshould not permit privilege to be used as a sword and a shield).

The Court does not mean to suggest that the Motion toWithdraw is brought in bad faith or that Defense Counselhas been less than forthcoming with the Court. It is obviousthat Counsel struggled with the decision to bring the Motionto Withdraw. However, the Court cannot say that DefenseCounsel guarded against a conflict of interest and the Courtcannot turn a blind eye to the fact that Defendants and theirCounsel are the sole cause of the alleged conflict here. Incontrast to the cases cited by Defendants, the Governmenthere has done nothing to bring about alleged conflict. TheGovernment has been diligently presenting its case, marchingthrough witness after witness and document after document.Only after the Government has revealed nearly its entirehand do Defendants come forward with a conflict that couldhave been predicted at the outset of this case. The Court isconcerned that, if it allows defense counsel to withdraw inthis case, when the conflict alleged is so minor and impactssuch a small portion of the case, then any multi-defendantcase in which the parties have entered into a JDA could besuddenly derailed by a “surprise” conflict of interest on thepart of defense counsel which materializes in the middle oftrial. Such a development would, of course, be to the greatcost, delay, and inconvenience of both the Government andthe Court.

The Court recognizes that Defense Counsel are in an awkwardsituation now that the JDA has been dissolved. However, thissituation is one of their own creation. The Supreme Court hasrecognized that, where the equities weigh against allowingcounsel to withdraw, the Court is justified in denying therequest for new counsel. See Holloway v. Arkansas, 435 U.S.475, 486–87, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (“Whenan untimely motion for separate counsel is made for dilatory

U.S. v. Executive Recycling, Inc., 908 F.Supp.2d 1156 (2012)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

purposes, our holding does not impair the trial court's abilityto deal with counsel who resort to such tactics.”)

Given the lack of a significant conflict here, the advancednature of these proceedings, the lack of culpability on the partof the Government with respect to bringing about the allegedconflict, and the prejudice that the Government would sufferif the Court were to allow Ms. Mackey to withdraw at this

juncture, 7 the Court concludes that the Motion to Withdrawmust be denied. The Court is confident that an attorney ofMs. Mackey's caliber will be able to effectively represent her

clients despite her ethical duty to maintain the confidentialityof the privileged information that she obtained during theJDA.

III. CONCLUSION

For the reasons set forth above, Defendant Brandon Richterand Executive Recycling's Motion to Withdraw (ECF No.250) is DENIED.

Footnotes

1 The Court notes that attorney Cleo Rauchway later entered an appearance on behalf of Executive Recycling and has been Ms.

Mackey's co-counsel throughout these proceedings. For clarity purposes, the Court refers only to Ms. Mackey as counsel for Executive

Recycling and Brandon Richter. However, the Court's analysis with respect to Ms. Mackey applies equally to Ms. Rauchway.

2 Attorney Lucy Deakins also represents Mr. Olson. However, for the sake of brevity, the Court will refer only to Mr. Leone as counsel

for Mr. Olson.

3 The Joint Defense Agreement was filed under restriction and, therefore, the Court will paraphrase its contents rather than directly

quoting therefrom.

4 Ms. Mackey has also alleged that her examination of one other witness may be impacted by the confidential information that she

gained during the JDA. However, Ms. Mackey stated only that she would structure her argument differently given the confidential

information that she is now aware of. She did not indicate that her ability to examine the witness would be detrimentally impacted.

Accordingly, the Court will limit the conflict in this case to only Mr. Olson's supposed testimony.

5 The Court also notes that Mr. Leone, counsel for Mr. Olson, is subject to the same ethical obligation to maintain the confidentiality

of communications learned under the now-defunct JDA. However, upon questioning by the Court, Mr. Leone represented that he

believed he could continue to represent Mr. Olson, despite the confidential information he gained while the JDA was in place. This

also signals that the alleged conflict is not so significant that the Court must permit Ms. Mackey to withdraw.

6 The Court notes that the alleged conflict arose out of one witness's testimony with respect to one exhibit. In the context of a case of

this scope—with hundreds of exhibits, dozens of witnesses, and a trial scheduled for 13 days—it is difficult to see how one exhibit

and examination of one witness could create such a significant conflict so as to require the Court to find that Counsel cannot provide

constitutionally sufficient representation of her clients.

7 At argument on the Motion, the parties were in agreement that, if the Court permits Ms. Mackey to withdraw, it should declare a

mistrial and convene a new jury to retry this action after new counsel has had adequate time to prepare. As the Government presented

well over three-quarters of its case at this point, the Government would be significantly prejudiced by having to start over.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

17

Vachula v. General Elec. Capital Corp., 199 F.R.D. 454 (2000)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

199 F.R.D. 454United States District Court,

D. Connecticut.

Richard P. VACHULAv.

GENERAL ELECTRIC CAPITAL CORPORATION.

No. 3:96CV1979(RNC). | May 2, 2000.

On motion of plaintiff's attorneys to withdraw as counsel, theDistrict Court, Martinez, United States Magistrate Judge, heldthat fact that plaintiff was a difficult client, and that plaintiffmight have compromised his case by failing to file his federalincome tax returns, did not warrant withdrawal of plaintiff'scounsel just days before jury selection.

Motion denied.

West Headnotes (5)

[1] Attorney and ClientAct of Parties

Fact that plaintiff was a difficult client, and thatplaintiff might have compromised his case byfailing to file his federal income tax returns, didnot warrant withdrawal of plaintiff's counsel justdays before jury selection.

1 Cases that cite this headnote

[2] Attorney and ClientAct of Parties

In deciding whether plaintiff's attorney shouldbe granted permission to withdraw, district courtmust consider whether the prosecution of the suitis likely to be disrupted by the withdrawal ofcounsel.

8 Cases that cite this headnote

[3] Attorney and ClientAct of Parties

Where an attorney moves to withdraw on the eveof trial, courts generally deny such a motion.

3 Cases that cite this headnote

[4] Attorney and ClientAct of Parties

Withdrawal of plaintiff's counsel not warrantedbecause of the plaintiff's failures to respond to hisattorney's requests for information.

Cases that cite this headnote

[5] Attorney and ClientAct of Parties

Plaintiff's failure to produce documentsrequested by his attorney did not justify counsel'swithdrawal from the case on the eve of trial.

4 Cases that cite this headnote

Attorneys and Law Firms

*455 Scott R. Lucas, Gary A. MacMillan, Mary Alice S.Canaday, MacMillan & Lucas, Westport, CT, for plaintiff.

John W. Hamlin, Patrick W. Shea, Paul, Hastings, Janofsky& Walker, Stamford, CT, for defendant.

RULING ON MOTION TO WITHDRAW AS COUNSEL

MARTINEZ, United States Magistrate Judge.

Currently pending before this court is the motion of theplaintiff's attorneys to withdraw as counsel (doc. # 75). Themotion is DENIED for the reasons that follow.

I. PROCEDURAL HISTORYThe plaintiff filed his complaint on September 25, 1996.His case is nearly 4 years old and the litigation has beenprotracted. Discovery initially was scheduled to end on March27, 1997. Both parties requested and were given a numberof extensions of time to complete discovery. A review of thedocket reveals that the pretrial deadlines for completion ofdiscovery were changed 5 times.

The trial also has been delayed. Jury selection originally wasset for December 14, 1999; it was postponed to February 8,

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

2000; again, it was postponed until May 8, 2000, the date stillin place. Yet another motion for continuance was filed anddenied this week.

The docket reflects that Attorney Gary A. MacMillan, as wellas other members of his firm, filed appearances on behalf ofthe plaintiff. On April 12, 2000, the plaintiff filed a pro seappearance. On April 19, 2000, the plaintiff's attorneys fileda motion to withdraw as counsel. Oral argument was heldbefore the undersigned on April 28, 2000.

II. FACTSIn their motion to withdraw as counsel, the plaintiff'sattorneys assert the following grounds:

1. The plaintiff has failed and refused to heed the adviceof counsel concerning actions to be undertaken inpreparation for the trial in this matter, despite repeatedassurances that he would do so.

2. There is a difference of opinion between counsel andthe plaintiff concerning case risk analysis and case

valuation. 1

*456 3. The plaintiff has failed to date, despite assurancesto the contrary, to meet his financial obligations to histrial damages expert. Plaintiff has also failed, despiterepeated assurances to the contrary, to supply documentsrequested by the expert and the defendant.

4. Plaintiff has accused counsel of placing counsel'sfinancial interest ahead of plaintiff's interests andexpressed loss of confidence in counsel.

5. The plaintiff insists upon pursuing a course ofconduct that counsel considers imprudent.

6. The representation has been rendered unreasonablydifficult by the plaintiff.

7. Continuing the representation could result inprejudice to the plaintiff's interests or a violation ofthe Rules of Professional Conduct.

8. Counsel believes that the client's ability to makeadequately considered decisions in connection withthe representation is impaired.

Doc. # 75.

In support of the motion, Attorney MacMillan submitted anaffidavit under seal. Appended to the affidavit are a seriesof letters between Attorney MacMillan and the plaintiff.Because these documents were filed under seal, their contentwill not be discussed in this ruling. See Doc. # 76.

At oral argument, Attorney MacMillan further explained hisreasons for seeking to withdraw. He said that, in his view,the plaintiff has engaged in conduct which makes his case“untriable” as well as “unwinnable.” Attorney MacMillanasserted that the plaintiff has failed to produce for discovery

and to his expert certain documents relevant to damages. 2 Healso said that the plaintiff has failed to file income tax returnsfor years during which the plaintiff claims damages from thedefendant. Attorney MacMillan complains that he is facedwith a “Hobson's choice”-as he views the case, he cannot putthe plaintiff on the stand to testify because of his “problems”with the IRS, but at the same time, he cannot establish theplaintiff's prima facie case without the plaintiff's testimony.Moreover, if the plaintiff does take the stand, he may invokehis Fifth Amendment rights against self-incrimination when

testifying about damages. 3 If that occurs, counsel apparently

fears either an “adverse inference” charge, 4 a directed verdictor a mistrial. For these reasons, as well as those set forth in thesealed papers appended to the motion, Attorney MacMillanstated that he believes that plaintiff is not acting rationally noris he able to appreciate the consequences of his actions.

The plaintiff's counsel conceded that any ethical problemshe faces in representing the plaintiff at trial may well beconfronted by any attorney who represents the plaintiff. Onthe other hand, counsel believes that the plaintiff is incapableof trying his own case.

The plaintiff, who said he reviewed the submissions to thecourt made by his attorney, was present at oral argument. Theplaintiff explained that he filed a pro se appearance at thebehest of his attorney when his attorney told him he was goingto withdraw from the case. Despite the pro se appearance, theplaintiff is opposed to his attorney's withdrawal from the case.The plaintiff stated that he does not wish to represent himself,nor does he feel capable of handling such a task. If his lawyerwere permitted to withdraw, he said he would ask the courtfor a continuance to try and find other counsel.

*457 The defendant did not take a position as to whetherthe motion to withdraw should be granted. Defense counselstated, however, that the defendant is ready to proceed totrial as scheduled and that any further delay would cause the

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

defendant to suffer prejudice. The defendant explained that itfears that its witnesses might become unavailable if there areany further delays of the trial.

III. DISCUSSIONRule 15 of the local civil rules of this district provides:

Withdrawal of appearances may beaccomplished only by leave of Courton motion duly noticed, and normallyshall not be granted except upona showing that other counsel hasappeared or that the party has electedto proceed pro se, and that the partywhose counsel seeks to withdraw hasreceived actual notice by personalservice or by certified mail of themotion to withdraw. In cases wherethe party has failed to engage othercounsel or file a pro se appearance,where good cause exists for permittingthe withdrawal by the appearingcounsel, the Court may grant themotion to withdraw the appearanceafter notice to the party that failure toeither engage successor counsel or filea pro se appearance will result in thegranting of the motion to withdraw andmay result in a dismissal or defaultbeing entered against the party.

D. Conn. L. Civ. R. 15.

Although the plaintiff filed a pro se appearance in this case,he did so only because his attorney sent him an appearanceform when informing him that he intended to withdraw. Theplaintiff stated in open court that he does not wish to proceedpro se.

The court has a great deal of discretion in deciding a motionfor withdrawal of counsel. See Whiting v. Lacara, 187 F.3d317, 320 (2d Cir.1999). As a first step in considering counsel'srequest, the court looks to the Rules of Professional Conductas approved by the Judges of the Connecticut Superior Court;see D. Conn. L. Civ. R. 3(a); to determine whether withdrawalis permissive or mandatory given the facts presented.

Attorney MacMillan did not file a brief in support of hismotion to withdraw and has failed to provide the court with

legal authority to support his application. At oral argument,Attorney MacMillan argued that his withdrawal in thiscase is mandatory. He fails, however, to direct the court'sattention to any case law, disciplinary rule or provision inthe Code of Professional Responsibility which supports thisassertion. The court's research reveals that the argument isunpersuasive.

Rule 1.16(a) of the Rules of Professional Conduct providesthat withdrawal is mandatory where

(1) The representation will result in violation of the Rulesof Professional Conduct or other law;

(2) The lawyer's physical or mental condition materiallyimpairs the lawyer's ability to represent the client; or

(3) The lawyer is discharged.

Subsection (b) provides the grounds for permissivewithdrawal. An attorney may withdraw where:

(1) The client persists in a course of action involving thelawyer's services that the lawyer reasonably believes iscriminal or fraudulent;

(2) The client has used the lawyer's services to perpetratea crime or fraud;

(3) The client insists upon pursuing an objective that thelawyer considers repugnant or imprudent;

(4) The client fails substantially to fulfill an obligation tothe lawyer regarding the lawyer's services and has beengiven reasonable warning that the lawyer will withdrawunless the obligation is fulfilled;

(5) The representation will result in an unreasonablefinancial burden on the lawyer or has been renderedunreasonably difficult by the client; or

(6) Other good cause for withdrawal exists.

The crux of counsel's argument is that his client'sconduct has rendered counsel's representation *458

unreasonably difficult. 5 Such a complaint provides groundsfor “permissive withdrawal.” See id.; see also Whiting,187 F.3d at 321 (citing the Model Code of ProfessionalResponsibility, DR 2-110(C)(1)(d)).

Vachula v. General Elec. Capital Corp., 199 F.R.D. 454 (2000)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

[1] It is obvious that the plaintiff is a difficult client. Itis also obvious that the plaintiff might have compromisedhis case by failing to turn over documents and by failingto file his federal income tax returns. The plaintiff's actionshave indeed rendered it difficult for his attorney to carryout his representation in an effective manner. These factors,however, do not warrant withdrawal at this late date, just daysbefore jury selection.

[2] [3] In deciding whether plaintiff's attorneys shouldbe granted permission to withdraw, this court must considerwhether “the prosecution of the suit is [likely to be] disruptedby the withdrawal of counsel.” Id., (citing Brown v. NationalSurvival Games, Inc., No. 91-cv-221, 1994 WL 660533, at* 3 (N.D.N.Y. Nov. 18, 1994)(brackets in original)). Wherean attorney moves to withdraw on the eve of trial, courtsgenerally deny such a motion. See Malarkey v. Texaco,Inc., 1989 WL 88709, at * 2 (S.D.N.Y. July 31, 1989)(denying counsel's motion to withdraw where case wasready for trial); Rophaiel v. Alken Murray Corp., 1996 WL306457, at * 2 (S.D.N.Y. June 7, 1996) (denying motionto withdraw where the granting of such would render iteasy for the defendant to stall proceedings). Cf. Brown v.National Survival Games, Inc., 1994 WL 660533, at * 3(N.D.N.Y. Nov. 18, 1994) (allowing counsel to withdrawwhere discovery was commenced but case had not beenscheduled for trial). Undoubtedly, counsel's withdrawal at thisstage will disrupt the proceedings. The plaintiff indicated thatif his attorney's application is granted, he intends to request acontinuance. If the court allows him time to try to retain new

counsel, a substantial continuance will be necessitated. 6

Granting the plaintiff's motion would do more than interruptonly the prosecution of the plaintiff's case-it also wouldprejudice the defendant. The defendant's attorney representedin open court that he is concerned that an additional delaywill impair his ability to work effectively with certain of thedefendant's witnesses. He explained that several witnesses areformer employees of the defendant who voluntarily agreed totestify on the defendant's behalf. They are taking time awayfrom their new employers to participate and already havemade the arrangements to be present at trial in May. Defensecounsel is concerned that he may lose their confidence andthat his credibility in their eyes may suffer if he is forced toreschedule their appearances yet another time.

In reaching the conclusion that withdrawal is inappropriatehere, it is helpful to compare this case to cases in which amotion to withdraw was granted. This is not a case where

the plaintiff is demanding that his attorney make frivolousclaims and arguments. Cf. Whiting v. Lacara, 187 F.3d at323 (granting withdrawal where the plaintiff insisted thatlawyer make arguments which would have subjected him toRule 11 sanctions.) Rather, plaintiff's counsel agrees that theplaintiff's claims are meritorious.

This also is not a case where the plaintiff has threatened alegal malpractice action. Cf. id. (plaintiff clearly indicatedhis intent to sue his attorney if he did not follow plaintiff'sproposed strategies). In response to questioning by theundersigned, the plaintiff indicated that he had some concernsabout working *459 with his counsel in light of AttorneyMacMillan's comments about the plaintiff, but that up untilthe time that Attorney MacMillan expressed his desireto withdraw as counsel, the plaintiff was pleased withMacMillan's performance. The plaintiff explained that whenhe received MacMillan's letter which detailed the reasonshe was seeking to withdraw, the plaintiff was “shocked,angry and insulted.” It is only in this regard that the plaintiffexpressed doubts as to his attorney's performance.

[4] [5] Moreover, withdrawal is not warranted because ofthe plaintiff's failures to respond to his attorney's requestsfor information. This is not a case where the client hasrefused to answer any of counsel's phone calls or attemptsto reach him to discuss the case. Cf. Tower Factory Outletv. Textilimpex-Tricot, 1994 WL 411528 (N.D.N.Y. August2, 1994) (withdrawal granted where client completely failedto communicate with counsel for nine preceding months);Statue of Liberty v. Int'l United Indus., Inc., 110 F.R.D.395, 397 (S.D.N.Y.1986) (withdrawal granted where clientrefused to answer phone calls and letters and failed topay attorney's fees). The plaintiff's failure to produce thedocuments Attorney MacMillan requested may very well

result in the imposition of sanctions 7 but the failure toproduce documents here does not justify counsel's withdrawalfrom the case on the eve of trial.

As a final note, the court addresses Attorney MacMillan'sclaim that he is faced with a situation where he might beasked to violate Rules 3.3 and 3.4 of the Rules of ProfessionalConduct (which mandate candor towards the tribunal andfairness to opposing counsel). This argument is addressed inan addendum to this ruling which is filed under seal on today'sdate.

IV. CONCLUSION

Vachula v. General Elec. Capital Corp., 199 F.R.D. 454 (2000)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

For all these reasons, as well as those in the sealed Addendum,the motion of the plaintiff's attorneys to withdraw as counsel

(doc. # 75) is DENIED. The Clerk of the Court shall strikethe plaintiff's pro se appearance.

Footnotes

1 During oral argument, Attorney MacMillan conceded that this is not an adequate ground to justify his withdrawal. He said that a

difference of opinion between him and his client about settlement alone would not lead him to seek withdrawal.

2 The documents in question are verification that the plaintiff received a raise from his present employer several months ago.

3 The plaintiff's attorney apparently believes that the plaintiff might invoke the Fifth Amendment because if he were to testify he would

be put into the position of making statements that might be used against him in a prosecution for violations of the tax laws. See e.g.,

26 U.S.C. § 7203 (failure to file a tax return) and 26 U.S.C. § 7201 (income tax evasion). At oral argument, Attorney MacMillan

expressed his concern that “the trial may stop in the middle with a referral to the U.S. Attorney's Office by the judge.”

4 See e.g. LiButti v. United States, 107 F.3d 110, 121 (2d Cir.1997); United States v. Ianniello, 824 F.2d 203, 208 (2d Cir.1987); see

also L. Sand, et al., Modern Federal Jury Instructions, Instr. 75-5 (Aug.1994).

5 The court is aware that a client's failure to pay attorneys' fees is a permissive ground for withdrawal. See Federal Home Loan Mort.

Corp. v. 41-50 78th St. Corp., 1997 WL 177862 (E.D.N.Y. April 4, 1997). In this case, the plaintiff's attorney claims only that the

plaintiff has failed to pay his expert witness, not that he has failed to pay attorneys' fees. The plaintiff himself insists that he has paid

the expert witness. In any event, Attorney MacMillan does not rely on this ground in pursuing his motion. Rather, he argues that the

plaintiff's failure to pay the expert is one of the things that makes counsel's representation unreasonably difficult.

6 Allowing the plaintiff's attorneys to withdraw at this late date would interfere not only with the court's scheduling of this case, but

would also interfere with the court's ability to manage its complicated docket in an efficient and orderly fashion.

7 Rule 37 permits the court to impose sanctions for discovery abuses. Available sanctions include precluding evidence, dismissing the

case and contempt. See Fed.R.Civ.P. 37(b).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

18

Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081 (1982)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

694 F.2d 1081United States Court of Appeals,

Seventh Circuit.

William WASHINGTON and JudyWashington, Plaintiffs-Appellants,

v.SHERWIN REAL ESTATE, INC., an Illinois

corporation; Michigan Avenue Bank, an IllinoisBanking corporation, U/T # 2056; SherwinManagement, Inc., an Illinois corporation;

and Unknown Owners, Defendants-Appellees.

No. 82–1184. | Argued Sept.16, 1982. | Decided Dec. 8, 1982.

Plaintiffs appealed from a judgment of the United StatesDistrict Court for the Northern District of Illinois, EasternDivision, J. Sam Perry, Senior District Judge, which wasentered in favor of defendants in a housing discriminationsuit. The Court of Appeals, Coffey, Circuit Judge, held that:(1) in suit which had been pending for over three yearsand had been set for trial on a two-day notice for over twoyears, district court did not abuse its discretion by allowingplaintiffs' attorney, whose advice to settle the case hadbeen declined, to withdraw while at the same time directingplaintiffs to proceed pro se without a recess or a continuancewhere plaintiffs did not object or express disagreement withattorney's withdrawal or direction to proceed pro se and wheretrial judge relaxed the formal rules of procedure and evidenceto aid plaintiffs in presenting their case, and (2) trial court'sfinding that defendants did not refuse to rent the premises toplaintiffs because they were black but, instead, refused to rentthe premises to them because of belligerent conduct of oneplaintiff when he appeared at rental office of defendants wasnot clearly erroneous.

Affirmed.

West Headnotes (6)

[1] Attorney and ClientRights of litigants to act in person or by

attorney

Attorney and Client

Act of parties

In a housing discrimination suit which hadbeen pending for over three years and hadbeen set for trial on a two-day notice forover two years, district court did not abuse itsdiscretion by allowing plaintiffs' attorney, whoseadvice to settle the case had been declined,to withdraw while at the same time directingplaintiffs to proceed pro se without a recess ora continuance where plaintiffs did not object orexpress disagreement with attorney's withdrawalor direction to proceed pro se and where trialjudge relaxed the formal rules of procedure andevidence to aid plaintiffs in presenting their case.

9 Cases that cite this headnote

[2] Attorney and ClientAct of parties

Federal CourtsCounsel

Grant or denial of an attorney's motion towithdraw in a civil case is a matter addressedto discretion of trial court and will be reversedon appeal only when trial court has abused itsdiscretion.

65 Cases that cite this headnote

[3] Federal CourtsAbuse of discretion in general

Under abuse of discretion standard of review,relevant inquiry is not how the reviewing judgeswould have ruled if they had been consideringthe case in the first place, but rather, anabuse of discretion is established only where noreasonable man could agree with district court;if reasonable man could differ as to propriety ofcourt's action, no abuse of discretion has beenshown.

19 Cases that cite this headnote

[4] Attorney and ClientAct of parties

Where an attorney feels he will be unablefor health reasons or otherwise to adequately

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represent his client he has the duty to withdrawfrom the case.

2 Cases that cite this headnote

[5] Federal CourtsProperty in general

In housing discrimination suit, trial court'sfinding that defendants did not refuse to rent thepremises to plaintiffs because they were blackbut, instead, refused to rent the premises to thembecause of belligerent conduct of one plaintiffwhen he appeared at rental office of defendantswas not clearly erroneous. Civil Rights Act of1968, § 804, 42 U.S.C.A. § 3604.

3 Cases that cite this headnote

[6] Civil RightsProperty and housing

To establish a cause of action under Title VIII, aparty must prove that he or she was discriminatedagainst because of race. Civil Rights Act of 1968,§ 804, 42 U.S.C.A. § 3604.

1 Cases that cite this headnote

Attorneys and Law Firms

*1082 F. Willis Caruso, Leadership for Metropolitan OpenCommunities, Chicago, Ill., for plaintiffs-appellants.

Joel J. Sprayregen, Aaron, Schimberg, Hess, Rusnak, Deutsch& Gilbert, Chicago, Ill., for defendants-appellees.

Before ESCHBACH and COFFEY, Circuit Judges, and

DUMBAULD, Senior District Judge. *

Opinion

COFFEY, Circuit Judge.

This is an appeal from a judgment of the District Court for theNorthern District of Illinois, Eastern Division, the HonorableJ. Sam Perry presiding. The district court rendered judgmentin favor of the defendants in this housing discriminationaction after a bench trial in which the plaintiffs Judy andWilliam Washington proceeded pro se. We agree that the

district court did not abuse its discretion by allowing theplaintiffs' attorney to withdraw and by then directing theplaintiffs to present their case pro se without a continuance.We further agree that the district court's finding of noactionable discrimination under the facts of this case is notclearly erroneous. Accordingly, the judgment of the districtcourt is affirmed.

The plaintiffs in this action, Judy and William Washington,are a black couple who allege the defendants discriminatedagainst them by refusing to rent them an apartment. Theplaintiffs brought suit against Sherwin Real Estate Inc. (therental agent for the apartment), Sherwin Management, Inc.(the manager of the apartment complex), and the MichiganAvenue *1083 Bank (the owner of the apartment), allegingviolations of the Civil Rights Act of 1866 (42 U.S.C. § 1982)and the Fair Housing Act of 1968 (42 U.S.C. § 3601 et seq.).

This suit arises from the defendants' refusal to rent atownhouse apartment located in the Colonial InvestmentApartment project in Evanston, Illinois to the Washingtons.The Colonial Investment project, consisting of a total ofthirty-eight apartment units, is subdivided into two groupsof buildings located on opposite sides of Ridge Avenuein Evanston. According to evidence introduced at trial, theColonial Investment project was racially integrated; duringthe period in controversy, 1978 to 1979, at least half of theproject's thirty-eight units were rented to blacks.

In May of 1978, the defendant Sherwin Real Estate rana newspaper advertisement listing as for rent a townhouseapartment in the Colonial Investment project. Responding tothis notice, the Washingtons arranged to see the townhousewith a Sherwin representative. On June 1, 1978, theWashingtons were shown one of the townhouse units, locatedat 729 Dobson Street in Evanston. Arlyne Saskill, a whitewoman also interested in renting the townhouse, viewed theapartment at the same time as the Washingtons. Saskill andthe Washingtons both filled out applications for the 729Dobson Street townhouse after viewing the premises. Whileviewing the apartment, Saskill apparently told the SherwinReal Estate representative that she was a former client ofSherwin Real Estate and that she was a social acquaintance ofSamuel Sherwin, president of Sherwin Real Estate, althoughshe did not list Mr. Sherwin as a reference on her application.The Washingtons, on the other hand, had had no priordealings with Sherwin Real Estate and were not personallyacquainted with any Sherwin Real Estate personnel.

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Samuel Sherwin, president of Sherwin Real Estate, testifiedat trial that it was company policy to give preference inrenting apartments to the firm's former clients. Accordingly,Mr. Sherwin, after being told that Saskill had applied for thetownhouse, directed that Saskill be allowed to rent the unit.In fact, Mr. Sherwin testified that at the time the decision wasmade, he was not aware that the Washingtons were black.On June 9, 1978, the Washingtons were informed that thetownhouse for which they had applied had been rented tosomeone else.

During July 1978, Sherwin Real Estate ran several morenewspaper advertisements describing the availability ofa townhouse in Evanston. The Washingtons, apparentlybelieving that the townhouse described in the advertisementswas the same unit they had been shown on June 1, 1978,called Sherwin Real Estate and were told that a townhousewas available. Actually, the townhouse now advertised asavailable for rental was located at 731 Dobson Street, nextdoor to the townhouse the plaintiffs had been shown on June1.

On July 21, 1978, the plaintiff William Washington againvisited the Sherwin Real Estate office to inquire as to theavailability of the townhouse advertised. Leonette Lindwall,a secretary who was present in the Sherwin Real Estate officethat day, testified that Mr. Washington acted in a rude andbelligerent manner during his visit to the real estate office.Her testimony recited the following:

“Q All right. Directing your attention to about the 21st dayof July in the year 1978, did you have occasion to observein your offices the Plaintiff, Mr. William Washington?

“A Yes, he walked right into my office, my back office.

“Q Is that a private office?

“A Yes, it is.

“Q All right. Will you describe to the Court what ifanything you observed?

“A He said he wanted to see an apartment or a townhouse.I don't remember exactly. And I said, ‘The gentleman overthere on the telephone will help you as soon as he isfinished. Could you please wait?’ And he went right overto Mr. Oakland's desk and stood over there and—while Mr.Oakland was on the telephone.

*1084 “Q And could you hear anything about theconversation the two of them had?

“A Well, I was on the telephone at the time, and I did heara commotion of—loudness I guess you would call it.

“Q Coming from whom?

“A Coming from the outer office. And it disturbed mewhile I was on my phone conversation.

“Then after the noise was gone, I walked out and said to Mr.Oakland, ‘What was going on here? It was very disturbingto me.’ And that was it. And then he just told me about thetownhouse.”

Oakland, a Sherwin Real Estate representative, described theincident as follows:

“Q Would you describe your first meeting with Mr.Washington to the Court?

“A Well, I was in a phone conversation at my desk, and Iseen Mr. Washington come in. I had never seen this manbefore. And he went by the receptionist into Lee's office,the secretary.

“I was still talking on the phone, and I came out and he toldme that he wanted to see a townhouse. And I said, ‘I willbe with you in just a moment.’

“Q You were still talking on the telephone, is that correct?

“A Yes, and when I finished that conversation I got up andwalked over to him and asked him if I could help him. Andhe said he wanted to see, ‘That townhouse.’ And I said,‘Which townhouse?’ And he said, ‘The one in the EvanstonReview.’ And I said, ‘It is rented.’

“Q Was there any further conversation at that time?

“A Well, he became perturbed and—

THE COURT: What did you say?

THE WITNESS: Well, it is hard for me, your Honor, toremember exactly all the words.

THE COURT: Not the exact words but in substance.

BY MR. SPRAYREGAN:

“Q Would you describe—

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“A He became—during the conversation he becamebelligerent and it is hard for me to—

“Q Can you give the Court, Mr. Oakland, your bestrecollection of what he said to you?

“A He said at one point that he had to move and he had tomove in a hurry.

“And I told him if I did have something for him to rent, Icouldn't rent to him because it would take maybe a weekfor a credit check. And then he told me that he was losingtoo much time from work and he couldn't afford runningout there all the time.

“And then I offered him my—I figured—I believed that hewas interested in townhouses. I had a townhouse at HibbardStreet.

“Q In what town?

“A In Wilmette, and I offered to show him that, and hesaid he didn't want it. He didn't want a so-and-so house inWilmette, he wanted that one in Evanston.

“Q Was there any further conversation between the two ofyou at that time that you recall?

“A Well, I remember at one point he asked me the questionwho the hell I thought I was dealing with, some monkey?He told me he was a bus driver, his wife was in businesswith himself, and also said that he received money from thegovernment to go to school on.

“Q When you offered to show him a townhouse inWilmette, did he accept that invitation?

“A No, he said he didn't want anything in Wilmette.

“Q Now, did you form any opinion during the course ofthis meeting as to whether or not Mr. Washington wouldmake a desirable tenant?

“A Well, yes, of course, I am trained to do that.

MR. WASHINGTON: Objection, your Honor.

THE COURT: He has a right to say what his opinion wasas to whether or not he was a desirable tenant.

BY THE WITNESS:

*1085 “A If I did have him askingto rent, I don't think I would rent tohim because I think he would be atroublesome tenant or be complainingor—I wasn't impressed at all.

BY MR. SPRAYREGAN:

“Q That was the opinion you formed at that time?

“A Yes.”

Oakland testified that after Washington left the Sherwin RealEstate office, Oakland learned for the first time from hissecretary Lindwall that the 731 Dobson Street townhousehad in fact not been rented and was available, contraryto his previous understanding. However, Oakland did notsubsequently contact Washington to rent the townhousebecause Oakland had reached the conclusion, based onWashington's conduct in the office, that Washington wouldbe a “troublesome tenant” and that it would not be in SherwinReal Estate's best interest to rent the townhouse to theWashingtons.

After the second incident in the Sherwin Real Estate office,Washington concluded that he and his wife were beingdiscriminated against because of their race. The Washingtonscontacted the Leadership Council for Metropolitan OpenCommunities, an organization dedicated to promoting openhousing opportunity in the Chicago area, to inform theCouncil that they believed that Sherwin Real Estate waspracticing housing discrimination. In an attempt to investigatethe accusations against Sherwin Real Estate, the Leadership

Council sent Joan Elbert, a white “tester” 1 to apply forthe townhouse. When Elbert contacted Sherwin Real Estate,she was told that the townhouse was available for herinspection. After viewing the townhouse on July 20, 1978,Elbert completed a rental application. Several days later,Sherwin Real Estate accepted her application.

On August 1, 1978, the Washingtons filed suit in the federaldistrict court alleging that the defendants had discriminatedagainst the Washingtons on the basis of race in violationof the Civil Rights Act of 1866, 42 U.S.C. § 1982, andthe Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq.In their suit, the plaintiffs sought a temporary restrainingorder and a preliminary injunction to direct the defendantsto rent the townhouse to the Washingtons. The plaintiffsalso filed a complaint seeking damages, attorneys' fees

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and costs. On August 4, 1978, the district court issueda preliminary injunction prohibiting the defendants fromrenting the townhouse to any persons other than the plaintiffsduring the pendency of the suit. On the same day, SherwinReal Estate allowed the Washingtons to rent the townhouseunder a one-year lease.

The plaintiffs continued to pursue their action for damagesagainst the defendants. During the ensuing months, the partiesconducted protracted discovery and both parties movedfor orders compelling discovery and for orders imposingsanctions for failure to comply with requests for discovery.These orders were continued by the court awaiting dispositionof the case on the merits.

On August 17, 1979, Judge Leighton determined the case tobe ready for trial and further ordered counsel to be preparedfor trial on two-day notice. The suit remained in this posturefor over two years until it was transferred to the HonorableJ. Sam Perry by order dated August 28, 1981. The case wasoriginally set for trial on December 1, 1982, but was reset forbench trial on January 5, 1982, by stipulation of the parties.

On the day of trial, the parties appeared in court with theirrespective counsel and the defendants' attorney answeredready for trial. However, the Washingtons' lawyer, CorneliusToole, informed the court that he wished to withdrawas counsel for the plaintiffs because of a “breakdown incommunications” with his clients. More *1086 specifically,Toole told the court that he had advised his clients to settle thecase; initially, the Washingtons apparently heeded his adviceand agreed to a settlement with the defendants. Later, theWashingtons changed their minds and, on the day of trial,advised Attorney Toole that in fact they did not wish to settlethe case but instead wanted to proceed to trial. Faced with theWashingtons' decision rejecting his advice, Toole, a lawyerwith extensive experience in the civil rights field, advised the

court that he wished to withdraw. 2

After being advised of the foregoing, the court grantedAttorney Toole permission to withdraw and directed theplaintiffs to present their case pro se. The Washingtons didnot object to Toole's withdrawal as counsel and did not at thistime request a continuance nor in any way object to their beingdirected to proceed with trial.

During the proceedings that morning, Mr. and Mrs.Washington began by giving an opening statement. Mrs.Washington then took the witness stand and answered

questions put to her by her husband, after which her husbandtook the stand and responded to his wife's interrogations.The Washingtons were cross-examined by the defendants'attorney. After the Washingtons' testimony was concluded,Mrs. Washington asked the court for a continuance for anindefinite period in order that the Washingtons could producethe testimony of Elbert, the white tester. The court denied therequest for a continuance but recessed for the lunch hour.

During the lunch hour, the Washingtons contacted anotherattorney, George Spataro, who accompanied them to the trialwhen it resumed after lunch. Spataro informed the court thathe would file an appearance on the Washingtons' behalf onlyif the court granted a continuance to allow him to review thecase file, as the Washingtons had contacted him less thanhalf-an-hour earlier, and he had not had an opportunity tofamiliarize himself with the facts of the case. The requestfor a continuance was denied, thus Spataro refused to file anappearance and the trial continued.

The next morning, January 6, 1982, the Washingtonspresented the testimony of Elbert, the Leadership Counciltester. After hearing the parties' closing arguments, the districtcourt entered judgment for the defendants, and made thefollowing findings of fact and conclusions of law:

“This action having come on for trial before the courtwithout a jury, and the court, having heard the testimony ofall of the parties and the argument of plaintiffs pro se andof counsel for defendants, now hereby makes the followingfindings of fact and conclusions of law herein:

“1. The court finds that defendants, Sherwin Real Estate,Inc., an Illinois corporation, Michigan Avenue Bank, anIllinois banking corporation, U/T # 2056, and SherwinManagement, Inc., an Illinois corporation, have a policyof open housing and no discrimination against minorities.The court further finds that at the time complained of in thecomplaint, the said named defendants followed that policyand that neither they nor their agents refused to rent thepremises involved herein to William and Judy Washingtonbecause they were black, but, instead, refused to rent thepremises to them because of the belligerent conduct ofplaintiff William Washington when he appeared at therental office of defendants.

“2. The agents of the defendants and the defendantsthemselves were justified in forming an opinion thatplaintiff William Washington would not be a desirabletenant; and they, therefore, were justified in refusing to rent

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to the plaintiffs; *1087 and they did not discriminate inany manner against plaintiffs.

“6. The court concludes defendants Sherwin RealEstate, Inc., Michigan Avenue Bank, an Illinois bankingcorporation, U/T # 2056, and Sherwin Management, Inc.should have judgment against both of the plaintiffs WilliamWashington and Judy Washington.”

On appeal, 3 the plaintiffs argue that the district court erred intwo respects. First, the Washingtons contend that the districtcourt abused its discretion by allowing the Washingtons'attorney to withdraw while at the same time directingthe Washingtons to proceed pro se without a recess orcontinuance. Second, the plaintiffs assert that the district courterred in finding no actionable discrimination under thesecircumstances. Although we, if acting as trial judges in similarcircumstances, may or may not have acted as the trial courtdid in this case, our role as an appellate court is limited andwe accordingly affirm the district court.

ISSUES

Issue 1: Did the district court abuse its discretion by allowingthe Washingtons' attorney to withdraw while at the sametime directing the Washingtons to proceed pro se withouta recess or a continuance?

Issue 2: Whether the trial court erred in finding noactionable discrimination?

II.

[1] The first issue as phrased by the plaintiffs, whetherthe district court abused its discretion by allowing theWashingtons' attorney to withdraw while at the same timedirecting the Washingtons to proceed pro se without a recessor a continuance, can be logically divided into two separateinquiries. The first inquiry involves the district court'sexercise of its discretion in permitting the plaintiff's attorneyto withdraw, while the second inquiry raises the questionof whether the court abused its discretion by directingthe plaintiffs to proceed pro se at trial without benefitof a continuance. These two subissues will be discussedseparately.

A. ALLOWING THE WASHINGTONS' ATTORNEYTO WITHDRAW.[2] [3] The grant or denial of an attorney's motion to

withdraw in a civil case is a matter addressed to the discretionof the trial court and will be reversed on appeal only whenthe trial court has abused its discretion. Moore v. SunbeamCorp., 459 F.2d 811, 829 (7th Cir.1972). Under the abuseof discretion standard of review, the relevant inquiry is not“how the reviewing judges would have ruled if they hadbeen considering the case in the first place.” Beshear v.Weinzapfel, 474 F.2d 127, 134 (7th Cir.1973). Rather, “anabuse of discretion is established only where no reasonableman could agree with the district court; if reasonable mencould differ as to the propriety of the court's action, no abuseof discretion has been shown.” Smith v. Widman Trucking& Excavating, 627 F.2d 792, 795–96 (7th Cir.1980); see alsoBeshear v. Weinzapfel, 474 F.2d 127, 134 (7th Cir.1973).Under the circumstances of this case, we decline to holdthat the district court abused its discretion by allowing theplaintiffs' attorney to withdraw from the case.

[4] Attorney Toole, the plaintiffs' lawyer, advised theWashingtons to accept the settlement offer tendered by thedefendants. Toole, an attorney with extensive experiencein discrimination cases, presumably believed that thedefendants' offer was fair and that going to trial with the casewould not be in his clients' best interest. The Washingtons,however, refused to accept Toole's advice and demanded thatthe case go to trial. Faced with his clients' rejection of hisadvice, Toole did not act improperly by seeking the court'spermission to withdraw as “[i]n private engagements counselmay withdraw if advice (even to settle) is not followed.”Spero v. *1088 Abbott Laboratories, 396 F.Supp. 321,323 (N.D.Ill.1975). In fact, Toole advised the court thatcommunications with his clients had deteriorated to the pointthat he could not, in good conscience, proceed with the case.Thus, Toole's motion to withdraw was properly granted sincewhere an attorney “feels he will be unable for health reasonsor otherwise, to adequately represent his client he has the dutyto withdraw from the case.” Green v. Forney Engineering

Co., 589 F.2d 243, 247–48 (5th Cir.1979). 4 Moreover, it iscrucial to point out that the Washingtons, who were presentwhen Toole advised the court of his desire to withdraw, at notime objected to or expressed any disagreement with AttorneyToole's request to withdraw. See Ma v. Community Bank,494 F.Supp. 252, 260 (E.D.Wis.1980). In fact, in light ofthe Washingtons' silence, it would have been reasonable forthe trial court to conclude that the Washingtons acquiesced

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in Toole's withdrawal. A finding of abuse of discretion isless likely where the clients do not object to or express anydisagreement with their attorney's request for permission towithdraw. Under these circumstances, we decline to hold thatthe district court abused its discretion by allowing AttorneyToole to withdraw where (1) the Washingtons declinedto follow Toole's advice to settle the case, and (2) theWashingtons did not object to or express disagreement withToole's withdrawal.

B. DIRECTING THE WASHINGTONS TO PROCEEDWITH TRIALThe plaintiffs next argue that the district court erred bydirecting them to present their case pro se without benefit ofa continuance or recess. We reject this argument and holdthat the trial court did not abuse its discretion by directing theplaintiffs to proceed pro se with their case.

In Grunewald v. Missouri Pacific Railroad Co., 331 F.2d983 (8th Cir.1964), the plaintiff argued that the district courterred by denying the plaintiff's motion for a continuance anddismissing the case for failure to prosecute. On appeal, theEighth Circuit affirmed and, Judge Blackmun, now JusticeBlackmun, writing for the court noted:

“It is equally well settled ... that in a civil case an attorney'swithdrawal does not give his client an absolute rightto a continuance. This, too, is a matter for the court'sdiscretion.... [A] trial court's refusal to grant a continuancewill not be disturbed on appeal unless abuse of discretionis demonstrated.

“The standard we must apply, however, as indicated above,is not what we as individual judges might have done underthe circumstances, but whether the district court's actionwas an abuse of its discretion. We cannot so conclude.”

Id. at 986–87. It is important to note that in Grunewald theEighth Circuit held that the district court, when presentedwith an attorney's last-minute withdrawal, did not abuse itsdiscretion by denying a continuance and dismissing the actionfor failure to prosecute. In the instant case, on the other hand,the plaintiffs ask us to find that the district court abused itsdiscretion by taking the far less drastic course of directingthe Washingtons to proceed pro se, where no request fora continuance was made until almost half-way through the

trial. We decline to find an abuse of discretion under thesecircumstances.

Several key factors support the conclusion that the districtcourt acted within the scope of its discretion in directing theWashingtons to proceed to trial pro se. First, at the time oftrial, the case had been pending for over three years and hadbeen set for trial on two-day notice for over two years. In lightof the protracted nature of the litigation and the overloadedcalendars of the federal court system, combined with the factthat this case had been pending for over three years, it wasnot unreasonable for the district court to conclude that no*1089 further delay could be tolerated and that the trial must

proceed. See Grunewald, 331 F.2d at 987.

Second, the defendants' attorney and four defense witnessesappeared in court ready to proceed with trial. We mustremember that the rights of the defendants must be consideredand weighed with the plaintiffs' rights in situations such asthis. Certainly, the defendants, as well as the plaintiffs, hadexpended considerable time and expense in preparing fortrial and thus it would have been unduly inconvenient tothe defendants and to the trial judge if a continuance hadbeen granted on the day of trial. Additionally, allowing acontinuance at such short notice would have impeded theefficient operation of our courts as it would have been almostimpossible for the court to have substituted another case fortrial that same day. One of the greatest criticisms directed atthe judicial system is the long delay in bringing cases to trial,and every effort should be made to expedite cases, consistentwith the rights of litigants.

Third, our review of the record reveals numerous instances inwhich the trial judge relaxed the formal rules of procedure andevidence to aid the plaintiffs in presenting their case. Becausethis was a bench trial rather than a jury trial, the trial judgewas able to go out of his way to aid the plaintiffs in presentingtheir case without prejudicing the trial and thus minimize therisk of prejudicial error.

Finally, the Washingtons did not object to being directed toproceed pro se nor did they request a continuance until nearlyhalf-way through the trial. Even then, Mrs. Washington onlyrequested a continuance for the purpose of securing thetestimony of Elbert, the white tester. Although this requestwas denied at the particular time, the Washingtons wereallowed to present Elbert's testimony the following day.Furthermore, Attorney Spataro's request for a continuancewas properly denied by the district court as Spataro refused

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even to enter an appearance on behalf of the Washingtons dueto his unfamiliarity with the case.

We hold that, under the totality of the circumstances,the district court did not abuse its discretion by allowingthe Washingtons' attorney to withdraw and directing theWashingtons to present their case pro se. While we asindividual judges may or may not have acted differently underthese circumstances, we find no abuse of discretion as wecannot say in this case that “no reasonable man could agreewith the district court.” Widman Trucking, 627 F.2d at 795–96.

III.

[5] [6] The Washingtons next argue that the trial courterred in finding no actionable discrimination in this case.More specifically, the plaintiffs attack as inadequate andclearly erroneous the trial court's finding that the defendantsdid not refuse:

“to rent the premises involved hereinto William and Judy Washingtonbecause they were black, but, instead,refused to rent the premises to thembecause of the belligerent conduct ofplaintiff William Washington whenhe appeared at the rental office ofdefendants.”

Title VIII of the Civil Rights Act of 1968 provides in pertinentpart:

“[I]t shall be unlawful—

“(d) To represent to any person because of race ... that anydwelling is not available for inspection, sale or rental whensuch dwelling is in fact so available.”

42 U.S.C. § 3604 (emphasis added). Thus, to establish acause of action under Title VIII, a party must prove that he

or she was discriminated against because of race. 5 Whilewe recognize that subjective reasons for refusing to rent tominority homeseekers *1090 are subject to close judicialscrutiny, Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032,1040–41 (2nd Cir.1979), we hold that in this case thedistrict court's finding that the Washingtons were not deniedhousing because of race is not clearly erroneous, as it isclear that the trial court credited Oakland's testimony that

the Washingtons were denied an apartment because Oaklandbelieved they would be undesirable tenants on the basis of Mr.Washington's rude and belligerent behavior in the real estateoffice.

The case of Hamilton v. Miller, 477 F.2d 908 (10th Cir.1973)is particularly relevant to the instant case. In Hamilton,the plaintiff, a black student, was told by the defendantlandlord that an apartment that had been advertised asavailable for rental had already been rented. The followingday, the defendant told a white “tester” that the apartmentwas still available. Later, on two separate occasions, theplaintiff was again told by the defendant that the apartmentwas not available. The plaintiff brought suit alleging racialdiscrimination, but the defendant successfully defendedat trial on the basis that the plaintiff had been deniedhousing because the defendant had concluded that, basedon the plaintiff's belligerent behavior, that he would bean undesirable tenant. On appeal, the plaintiff argued thatthe trial court's finding of no actionable discrimination wasclearly erroneous. The Tenth Circuit rejected this argument,affirmed the district court and held as follows:

“Concerning the two following incidents when Hamiltonwas told there was no apartment available defensewitnesses testified that Hamilton was extremelyaggressive, demanding that the apartment be rented to him.Miller testified that plaintiff's attitude and mannerisms ledhim to believe that Hamilton would be a troublesome tenantand that was the sole reason for his rejection. Miller stated,in effect, that he did not wish to personalize the rejectionbut preferred to deny the availability of the apartment.Miller's testimony was fully credited by the trial court andpremises the remaining findings that formed the judgmentbelow. Again, we cannot disturb the findings as a matterof law.

“As in any case where a determination of credibilitydictates a result the chance of an injustice is ever present.But we cannot, as we are here urged in effect to do, try thecase de novo. Such is not the function of an appellate court.The resolution of conflicting evidence, as exists in thiscase, is particularly within the province of the trial courtand findings must be given added weight when we considerthe opportunity of the trial judge to hear and observe thewitnesses.”

Id. at 910.

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The reasoning which guided the Tenth Circuit in Hamiltongoverns the result in the instant case. An appellate court'sfunction is limited. It is the trial court's function to hear andobserve the witnesses and to weigh the conflicting evidence.On appeal, we are not to decide a case based on what we,as individual judges, would have decided under the same orsimilar circumstances. Rather, we must accept the findingsof the trial court unless those findings are clearly erroneous.Based on our review of the record, we hold that the districtcourt's finding of no actionable discrimination is not clearlyerroneous.

CONCLUSION

Based on the foregoing, we hold that: (1) under thesecircumstances the district court did not abuse its discretion byallowing the plaintiffs' attorney to withdraw and directing theplaintiffs to proceed pro se; and (2) the district court's findingof no actionable discrimination is not clearly erroneous.Accordingly, the decision of the district court is AFFIRMED.

Footnotes

* The Honorable Edward Dumbauld, Senior Judge of the United States District Court, Western District of Pennsylvania, is sitting by

designation.

1 A “tester” is an individual who applies for an apartment, not with the desire to actually rent the apartment but instead for the purpose

of proving discrimination. Discrimination is more easily shown where a landlord who has previously advised a minority applicant

that the apartment is rented, later accepts a white “tester's” application.

2 Attorney Toole advised the court as follows:

“MR. TOOLE: Judge, I was instructed to advise the Court that the case was settled, and I advised Mr. Sprayregan of that and

when the client came into the courtroom he changed his mind and indicated that he didn't want that settlement.

“I don't feel that I can in good conscience proceed in this matter, and I am going to ask for permission to withdraw. There has

been a breakdown in communications.”

3 On appeal, the Washingtons are represented by an attorney.

4 This is not to say, of course, that Attorney Toole would have acted improperly had he not sought permission to withdraw. An attorney

is not compelled to withdraw if his or her client refuses proffered advice. See Model Code of Professional Responsibility EC 7–

5 (1979).

5 Contrary to the plaintiffs' contention, Haven Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), does

not create a categorical “right to truthful information about available housing.” Rather, Coleman, consistent with the plain language

of § 3604, states that it is unlawful to misrepresent, on the basis of race, that housing is unavailable.

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