Metropolitan News-Enterprise


Thursday, July 6, 2006


Page 1


Court Reverses Order Disqualifying P.D. Over Prior Representation


By TINA BAY, Staff Writer


A trial judge may not automatically disqualify a public defender for conflict of interest simply because that public defender’s office has previously represented a prosecution witness, the Fourth District Court of Appeal ruled yesterday.

Acting in a pair of unrelated but factually similar cases, Div. Two unanimously vacated orders by Riverside Superior Court Judges Robert J. McIntyre and W. Charles Morgan disqualifying the Riverside County public defender from representing Gerald Anthony Rhaburn and Noel Baez. The panel ordered new hearings in both cases.

In the Rhaburn case, the district attorney moved to disqualify the public defender because his office had represented prosecution witness Cary Barnett Sr. in a 1996 criminal proceeding. Barnett had been convicted of an offense whose underlying conduct involved moral turpitude, and the public defender would therefore have a conflict in using information about the offense to impeach him, prosecutors argued.

The deputy public defender assigned to Rhaburn’s case objected on the bases that the 1996 case files were kept off-site in a location unknown to him; he did not join the Riverside Public Defender’s Office until 2000; the prior representation would not affect his cross-examination; and Rhaburn did not want to change counsel.

Totality of Circumstances

In the Baez case, the district attorney’s disqualification motion involved Elizabeth C., as she was identified, whom Baez was accused of attempting to kidnap. Elizabeth C. had been represented around 1993 by the Riverside public defender on forgery and grand theft charges. 

The deputy public defender assigned to Baez’s case said his office’s representation of Elizabeth C. would not affect his trial performance or strategy.

Writing for the appellate panel, Justice Barton C. Gaut concluded that McIntyre and Morgan erred in applying a “rigid rule of vicarious disqualification” to Rhaburn’s and Baez’s attorneys.

Instead of ordering mandatory disqualification in these types of cases, Gaut said, trial courts should evaluate the totality of the circumstances to determine whether there is a reasonable possibility that the assigned deputy public defender either has obtained confidential information from his office about the prosecution witness, or may inadvertently acquire such information through means such as file review or office conversation.

No Presumption

Among the factors courts must consider, Gaut wrote, are the amount of time that has elapsed since the public defender’s office represented the witness; the nature and notoriety of the witness’ case; whether the assigned deputy was a member of the office at the time of the witness’ case; whether the assigned deputy for the witness’ case is still with the office; and the nature and extent of any measures and procedures to ensure that information acquired by one deputy in a previous case is shielded from the deputy in the current case.

The justice explained that reasons for the rule against successive representation of adverse interests in civil cases did not apply in the criminal context.

A court need not presume that a deputy public defender possesses confidential information from the office’s prior representation, Gaut said, because the public defender’s office does not have a financial interest in breaching confidentiality with ex-clients, and handles too many cases for its attorneys to recall them all in detail.

 “There is good reason to assume that the average public defender is unlikely to remember any confidential information imparted by the average past client without a great deal of coaxing, and no reason to suppose that such information remains permanently floating in the office ether or is the subject of repeated conversations,” the justice opined. “The risk that confidential information will be passed through casual ‘watercooler’ conversations is substantially less than in the private sector.”

Moreover, he noted, fashioning a mandatory disqualification rule would result in frequent disqualifications, increasing the public defender’s costs.

In directing reconsideration of the disqualification orders, the panel held that the public defender must be allowed to represent Rhaburn unless the trial judge determines that there is a reasonable possibility that confidential information may be acquired and used by counsel.

In Baez’s case, Gaut said, the public defender’s showing that it could represent the defendant without exploiting confidential information was less clear, but sufficient to require a new hearing.

“We do not believe that a simple statement that ‘the file is in storage’ will always be sufficient to negate any realistic suspicion that confidential information may be available to trial counsel,” the justice wrote. “The Baez case is also potentially more difficult than the Rhaburn case because Elizabeth C. was apparently represented by several deputy public defenders. But as we have suggested, the not-so-deliberate speed with which the proceedings were accomplished in large part excuses the deficiencies in the showing by petitioner Baez.”

The case is Rhaburn v. Superior Court (People), 06 S.O.S. 3463.


Copyright 2006, Metropolitan News Company