ADES v. Hon. Udall/Cristina L.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. THE HONORABLE DAVID UDALL, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, CHRISTINA L. and ELLEN L., Real Parties in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05-13-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-SA 10-0080 DEPARTMENT B MARICOPA COUNTY Superior Court No. JD 507867 DECISION ORDER Judges Patricia K. Norris, Maurice Portley, and John C. Gemmill have received the special action filed by Petitioner Arizona Department of Economic Security (ADES), the answer to the petition for special action filed by Real Party in Interest Christina L. ( Mother ), ADES s reply, each side s appendices, and Mother s notice of intent to seek attorney s fees. also received oral argument of counsel on May 11, 2010. We have After consideration, we decide in our discretion to exercise special action jurisdiction and grant relief as follows. We accept jurisdiction because the Petitioner does not have a plain, adequate, or speedy remedy by appeal, see Ariz. R.P. Spec. Act. 1(a), and because this is an issue that is likely to arise again, see Demarce v. Willrich, 203 Ariz. 502, 504, ¶ 5, 56 P.3d 76, 78 (App. 2002). ADES s claim has been We reject Mother s argument that waived on the basis of laches. The petition was timely filed. The trial court ordered that the Assistant Attorney General assigned to the case, Karin Cather, be recused and assistant Attorney General assigned to the matter. another It found: (1) Cather had a conflict of interest under Ethical Rule ( ER ) 1.7 of the Arizona Rules of Professional Conduct because Mother s counsel, Anne M. Williams, represented Cather s former husband during the Cathers divorce proceedings; (2) Cather has a personal interest with Ms. Williams over their previous litigation ; and (3) allowing Ms. Cather to continue as the assigned Attorney General on this case has the appearance of impropriety. The court further stated, however, that it did not find Ms. Cather had acted inappropriately in any way. We vacate this order because we believe the trial court erred in finding a conflict of interest under ER 1.7 and an appearance of impropriety sufficient to warrant disqualification of one party s choice of counsel. Generally, every party has 2 a right to counsel of its choice. See Sec. Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 335, 718 P.2d 985, 988 (1986). Motions by opposing counsel to disqualify a party s attorney based on the appearance of impropriety must be viewed with considerable suspicion. Gomez v. Superior Court, 149 Ariz. 223, 226, 717 P.2d 902, 905 (1986). to An appearance of impropriety may be a sufficient basis disqualify counsel but only in the rarest of cases, and disqualification is unnecessary when the conflict is so remote that there is insufficient appearance of wrongdoing. Id. at 225, 717 P.2d at 904. This record does not contain the type of evidence that would support a finding Cather has a personal interest under ER 1.7(a)(2) sufficient counsel for ADES. to warrant her disqualification as Any potential problem arising from Cather s representation of ADES in this matter is a concern belonging primarily to ADES, and it is primarily for ADES to determine whether Cather appropriately. is performing her duties professionally and See generally In re Shannon, 179 Ariz. 52, 61, 876 P.2d 548, 557 (1994) (client loyalty is at heart of ER 1.7); Pmbl. ¶ 20, Ariz. R. Prof l Conduct (purpose of Rules can be subverted when invoked as procedural weapons by opposing parties). A personal interest under ER 1.7 is normally a financial or business interest or some kind of close familial relationship. 3 See Ariz. R. Sup. Ct. 42, ER 1.7 cmts. 10, 11. Neither alleged nor actual animosity between adverse attorneys, however, is in itself sufficient to constitute the type of personal interest warranting disqualification of opposing counsel. See, e.g., Franklin v. Clark, 454 F. Supp. 2d 356, 368-70 (D. Md. 2006). Our legal system successfully will move to not function disqualify properly opposing if counsel counsel on can such ground, especially in the absence of any improper conduct. a The trial court expressly found Cather had not acted improperly.1 Accordingly, IT IS discretion, ORDERED accepts that the special court, in the exercise action jurisdiction and of its grants relief. IT IS FURTHER ORDERED vacating that specific portion of the superior court s Order filed March 8, 2010 that disqualifies Assistant Attorney General Cather from representing ADES in this proceeding. IT IS FURTHER ORDERED denying Mother s request for an award of attorney s fees. ____/s/___________________________ JOHN C. GEMMILL, Presiding Judge 1 We also note that the court did not conduct an evidentiary hearing prior to making its decision. 4

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