AMICUS CURIAE COLORADO STATE PUBLIC DEFENDER'S REPLY TO PEOPLE'S ANSWER TO SHOW CAUSE

Transcription

1 SUPREME COURT, STATE OF COLORADO Certification of Word Count 2, West Colfax A venue, Suite 800 Denver, Colorado Original Proceeding District Court, El Paso County Case No. 1 OCR2496 Honorable Victor I. Reyes, District Court Judge THE PEOPLE OF THE STATE OF COLORADO Plaintiff v. BRUCE J. NOZOLINO Defendant Attorneys for Amicus Curiae Colorado State Public Defender Case Number: 12SA189 Douglas K. Wilson, Colorado State Public Defender FRANCES SMYLIE BROWN# Chief Deputy Public Defender 1290 Broadway, Suite 900 Denver, CO Frances.Brown@coloradodefenders.us (303) (Telephone) (303) (Fax) AMICUS CURIAE COLORADO STATE PUBLIC DEFENDER'S REPLY TO PEOPLE'S ANSWER TO SHOW CAUSE

2 TABLE OF CONTENTS STATEMENT OF THE ISSUE STATEMENT OF THE CASE S~ft)T OF THE AftCJ~NT AACJ~NT... 4 CONCULUSION

3 TABLE OF AUTHORITIES CASES People v. Shari, 204 P.3d 453, 459, ns.5,6 (Colo. 2009)... 5,8,9,11 People v. Samuels, 228 P.3d 229, n.4 (Colo. App. 2009)... 5 Rodriquez v. District Court, 719 P.2d 699 (Colo. 1986)... 9, 10 Anderson v. Commissioner ofcorrection,15 A.3d 658,665 (Conn. App. 2011) State v. Kinkennon, 275 Neb. 570, 577, 747 N.W.2d 437 (2008) State v. Mark, 123 Hawai'i 205,215 n. 16,231 P.3d 478 (2010) RULES AND AUTHORITIES Colo. R.P.C. Rule ,3,4,5,6,7,8,9,10,12 Colo. R.P.C. Rule ,4,5 Colo. R.P.C. Rule 1.10(a)... 5 Colo. R.P.C. Rule 1.10(d)...4 Colo. R.P.C. Rule Colo. R.P.C. Rule ,10 Colo. R.P.C. Rule l.o(a)... 6 Colo. R.P.C. Rule 1.11(d)... 7 Colo. R.P.C. Rule 1.9(c)(l) and (2) lll

4 STATEMENT OF THE ISSUE Amicus Curiae Colorado State Public Defender, in this reply, will address only the issue of whether public defenders are subject to the provisions of Colo. R.P. C. Rule 1.11, governing imputation of conflicts for government lawyers, and, if so, was it error for the trial court to hold that the conflicts of one public defender were automatically imputed to all other public defenders in the office. All other issues in the State's Answer To Show cause will be addressed by Mark Walta, counsel for Mr. Nozolino, in his discretion. STATEMENT OF THE CASE As a preliminary matter, the Colorado State Public Defender concedes that under the specific and unique facts of this case, public defender Carrie Thompson developed a personal conflict with continuing her representation of Mr. Nozolino and that it was necessary for her to withdraw from representation of Mr. Nozolino. However, under Colo. R.P.C. Rule 1.11, this personal conflict was not imputed to the rest of the Colorado Springs Public Defenders (Office) and therefore the trial court erred in determining the entire Office was conflicted. In granting the prosecutions' motion to disqualify the entire Office as counsel for Mr. Nozolino, the trial court ruled that "under these circumstances it is 2

5 not a waivable conflict because of the fact that an attorney is involved who is a member of the same firm within the same office, and understanding it IS a governmental agency." (Answer, p5, n. 1, citing Transcript p. 28, lines 3-7). The State argues that the court, by this ruling, "suggested that the conflict was imputed to the entire public defender's office." (Answer, p5, n. 1, emphasis added) Then the State, adopting the argument of Justice Coates in his dissent/concurrence in People v. Shari, 204 P.3d 453 (Colo. 2009), argues that since public defenders are not "government attorneys" under Rule 1.11, the court was correct in ruling that Ms. Thompson's conflict was imputed to the rest of the Office. (Answer, pp13-15). The State does not address the fact that the trial court specifically found that the Colorado Springs Public Defender Office was a "governmental agency" and hence, by implication, found that public defenders are "government attorneys". SUMMARY OF THE ARGUMENT A Colorado State Public Defender is a "lawyer currently serving as a public officer or employee" as contemplated by Colo. R.P.C. Rule 1.11 and therefore is exempt from the imputation provisions found in Colo. R.P.C. Rule

6 ARGUMENT Effective, January 1, 2008, this Court repealed and reenacted the Rules of Professional Conduct. The new rules were based substantially on the 2002 amendments to the American Bar Association Model Rules of Professional Conduct. New to the Rules were provtswns in Rules 1.10 and 1.11 that specifically excluded lawyers who were current or former government officers and employees from the general imputation rules of Rule Specifically, Rule 1.1 0( d) stated that the "disqualification of lawyers associated in a firm with former or cunent government lawyers is govetned by Rule 1.11." Rule 1.11, entitled Special Conflicts of Interest for Former and Current Officers and Employees, stated in part (d) that lawyers currently serving as public officers or employees must comply with Rules 1.7 (current conflicts) and 1.9 (former conflicts) but did not contain any provisions that automatically imputed the conflicts of one government lawyer to other government lawyers. Comment 2 of Rule 1.11 explained the change by stating: "Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government 4

7 to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers." In People v. Shari, 204 P.3d 453, 459, ns.5,6 (Colo. 2009), this court acknowledged the language in Rule 1.11 and proceeded to decide the case on the assumption that Rule 1.11 applied to public defenders. See also, People v. Samuels, 228 P.3d 229, n.4 (Colo. App. 2009) (The rule of imputed disqualification in Rule 1.1 0( a) does not automatically apply to government attorneys such as those employed by the Public Defender's Office) citing Shari, id. Justice Coates, in his concurrence/dissent in Shari, took issue with this Court's assumption and contended that Rule 1.11 did not apply to public defenders because: "it is clear to me that the rules of Professional Conduct contemplate, with good reason, that deputy public defenders be treated as lawyers associated in firms rather than as public officers." Shari, 204 at 464. Justice Coates concluded that since public defenders are members of "firms" and not members of a government agency, they were subject to the provisions of Rule 1.10 and are precluded from the exemptions from imputation in Rule 1.11.!d. In the case before the court now, the State has adopted, in toto, Justice Coates' position in Shari and argues that Rule 1.11 does not apply to public defenders. 5

8 Unfortunately for the State, the fact that public defenders are considered members of a government law "firm" as opposed to a government law "agency" does not negate the application of Rule 1.11 and, in fact, suppmts Amicus' position that Rule 1.11 applies to public defenders. First, there is probably little question that public defenders are members of a "finn" as that term is used in Rules of Professional Conduct. The tenn "firm" is defined in Rule l.o(a) as: "Firm" or "law firm" denotes a partnership, professional company, or other entity or a sole proprietorship through which a lawyer or lawyers render legal services; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. As Comment 3 to that section states: "With respect to the law department of an organization, including the government, there is ordinary no question that the members of the depmtment constitute a firm within the meaning of the Rules of Professional Conduct." (emphasis added) But more importantly, Justice Coates' argument that because public defenders are members of a government law "firm" as opposed to a government law "agency", they are not covered under Rule 1.11, overlooks the plain language of Rule 1.1 0( d) that specifically says that former or current government attorneys "associated in a firm" are governed by Rule (emphasis added). In light of 6

9 this language, there is simply no basis for the argument that Rule 1.11 somehow excludes attorneys in a government law firm. Furthermore, even assuming there is some difference between government lawyers who represent clients and those who represent entities, the fact remains that the language of Rule l.ll(d) is so incredibly broad, "a lawyer cunently serving as a public officer or employee", that the only logical presumption the Rule "contemplates", to use Justice Coates word, is that all lawyers who are current government officials or employees are covered by Rule 1.11 (d). An additional argument raised by Justice Coates and adopted by the State, is that Rule 1.11 should not apply to public defenders because they have a duty of loyalty to their clients and therefore to allow public defenders to be "governed by a rule permitting the waiver of their personal conf1icts" would be "completely anomalous" to this duty. Shari, 204 at 464. He supports this argument by citing a portion of Comment 3 to Rule 1.11 (mis-cited in his dissent as Comment 2) which says that the purpose of sections (a)(2) and (d)(2) is "to prevent a lawyer from exploiting public office for the advantage of another client" and Comment 4 which clarifies Comment 3 by stating that a lawyer should not be in a position "where benefit to a client might affect a lawyer's professional functions on behalf of the government." However, section (a)(2) deals with forn1er government attorneys 7

10 who go into private practice and section ( d)(2) deals with attorneys going from private practice to government practice or who are trying to get private sector jobs while working for a government agency. Since there are no successive government/private employment or financial incentive issues involved in this case (nor were there any involved in Shari) these sections and cited Comments are inapplicable. The Comment that actually applies to the situation at hand says that "[b]ecause of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be ptudent to screen such lawyers." (emphasis added). In fact, this case is a perfect exan1ple of the "special problems" that the rule was intended to avoid and amply demonstrates the necessity and wisdom of the Rule against automatic imputation for govemn1ent attorneys. The best answer to this argument is that applying the imputation exception in Rule 1.11 does not allow any public defender to "waive" personal conflicts nor would any public defender unilaterally do so. Indeed, this case demonstrates that fact since Ms. Thompson, who developed a personal conflict during the 8

11 representation of Mr. Nozolino, withdrew from representing Mr. Nozolino and only conflict free attorneys continued to represent him. Finally, the State adopts Justice Coates' argument that if Rule 1.11 applied to public defenders, then clients would be deprived of "any right to object on the grounds of concurrent conflict to representation by any deputy public defender other than one with a current or former client having adverse interests." Shari, 204 at 464. However there is nothing in the Rule or this court's decision in Shari that would prevent a client or a prosecutor or the court from raising the issue that under the circumstances of the case before the com1, the conflict might be imputed to other public defenders in an office. What it does prohibit is a ruling by the court that one government attorney's conflict is "automatically" imputed to other government lawyers by virtue of them being in the same office - which is what appears to have happened here. Notably, all authority cited by Justice Coates to support his dissent pre-dates the implementation of the new provisions of Rule In fact, Rodriquez v. District Court, 719 P.2d 699 (Colo. 1986), upon which he relies heavily, was decided under the old Code of Professional Responsibility before the implementation of even the first set of the Rules of Professional Conduct in Colorado (1993). Under the old Code, which contained no rules specifically 9

12 addressing conflicts, a lawyer was unquestionably conflicted between his/her duty of loyalty to former clients and the duty to zealously represent a new client. A lawyer simply had no guidance in what to do if s/he had confidential information from a former client" that could aid a new client. That conflict was eliminated when the Rules were enacted by Rule 1.9(c)(1) and (2) which simply told the lawyers/he had no choice - s/he had to preserve the confidences of the former client. In order for the Rodriquez ethical dile1mna to apply to the case before the court now, the court would have to presume that a public defender had confidential information from a former client that s/he intended to use to the detriment of the former client and the benefit of the new client in violation of Rule 1.9 AND the possession of this information WITH the intent to violate the ethical rules was imputed to all other public defenders. It is one thing to impute possession of confidential information; it is quite another to impute unethical behavior. Although there is a death of authority on interpreting Rule 1.11, what little case law exists supports the finding that public defenders come under Rule In Anderson v. Commissioner of Correction, 15 A.3d 658, 665 (Conn. App. 2011), the Connecticut Court of Appeals, in determining the issue of whether public defenders came under Rule 1.11, held: 10

13 Colorado and Nebraska, however, have adopted rules that are identical in relevant part to Connecticut's Rules of Professional Conduct 1.10 and 1.11 and have had occasion to interpret them. In People v. Shari, 204 P.3d 453 (Colo.2009), the Supreme Court of Colorado stated that "[t]he comments to Rule 1.11 make clear that a government attorney's individual conflicts are not imputed to the entire government agency for which he works." Id., at 459 (declining to disqualify public defenders although associates from their office had previously represented prosecution's main witnesses). Similarly, the Supreme Court of Nebraska rejected a per se imputed disqualification rule for prosecutors on the ground that "we recently endorsed a more flexible rule by adopting the Nebraska Rules of Professional Conduct." State v. Kinkennon, 275 Neb. 570, 577, 747 N.W.2d 437 (2008) (declining to disqualify prosecutor although associate in his office had previously represented defendant while in private practice). Citing the commentary to Nebraska rule 1. 11, the court stated that "[t]his rule recognizes the distinction between lawyers engaged in the private practice of law, who have common financial interests, and lawyers in a prosecutor's office, who have a public duty to seek justice, not profits." Id. Additionally, the Supreme Court of Hawaii apparently decided to put the matter beyond dispute by promulgating an extended version of rule 1.1 0( d} that provides: "The disqualifications of Rules 1.7, 1.9(a), 1. 9(b ), or 1.11 (c)( 1) shall not be imputed to government lawyers provided the disqualified government lawyer has been screened from participation in the matter." (Internal quotation marks omitted.) State v. Mark, 123 Hawai'i 205,215 n. 16,231 P.3d 478 (2010). 11

14 On the basis of the language of the applicable rules and the sound reasoning of sister states that have confronted this issue, we conclude that the Rules of Professional Conduct do not require the imputation of conflicts of interest among public defenders working in the same office on the basis of reasoning that they are members of the same firm. (emphasis added) CONCLUSION For the foregoing reasons and authorities, Amicus Curiae the Colorado State Public Defender requests a determination by this court that public defenders are subject to the provisions of Colo.R.P.C. Rule 1.11 and that the trial court erred in automatically imputing one public defender's conflict to all other members of the office. DOUGLAS K. WILSON Colorado State Public Defender Chief Deputy Amicus Curaie 1290 Broadway, Suite 900 Denver, Colorado (303)

15 CERTIFICATE OF SERVICE I certify that a copy of this Amicus Curiae has been mailed by United States Postal Service mail as indicated below to: Office of the District Attorney Attn: Donna Billek, Deborah Pearson, Doyle Baker Fourth Judicial District 105 East Vemijo A venue, Suite 500 Colorado Springs, CO Mark G. Walta Walta LLC Race Street Denver, CO The Colorado Bar Association Chuck Turner, Executive Director 1900 Grant St. Ninth Floor Denver, CO Office of the Alternative Defense Counsel Lindy Frolich, Director 1580 Logan #330 Denver, CO Tina L. Tussay-Cooper 200 S. Wilcox Street Castle Rock, CO Honorable Victor I. Reyes El Paso County Judicial Building 370 South Tejon Street Colorado Springs, CO John W. Suthers Office of the Attorney General 1525 Sherman Street, ih Floor Denver, CO