Archuleta v. Turley
Filing
51
MEMORANDUM DECISION AND ORDER granting 41 Motion to Disqualify Counsel. Attorney Mark C. Field terminated. Signed by Judge Tena Campbell on 10/17/12 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MICHAEL ANTHONY ARCHULETA,
ORDER GRANTING MOTION TO
DISQUALIFY
Petitioner,
v.
STEVEN TURLEY, Warden, Utah State
Prison,
Respondent.
Case No. 2:07-MC-630
Judge Tena Campbell
On June 1, 2012, Petitioner Michael Anthony Archuleta filed what was incorrectly styled
as an Objection to Appearance of Mark Field as Counsel for Respondent and a Memorandum in
Support of Petitioner’s Objection to Appearance of Mark Field as Counsel for Respondent. 1
(See Dkt. No. 41 and 42.) After the court granted an extension of time to submit his response,
Respondent Steven Turley 2 filed his Response on July 3, 2012. (See Dkt. No. 47.) Mr.
Archuleta submitted his Reply on July 17, 2012. (See Dkt. No. 49.)
1
Given the nature of Mr. Archuleta’s objection, and that he filed it with a supporting
memorandum, the court concluded that Mr. Archuleta had filed a motion to disqualify Mr. Field
and made that change in the Docket. The court scheduled a hearing on Mr. Archuleta’s motion
for September 27, 2012. After carefully reviewing the parties’ submissions in preparation for the
hearing, the court concluded the hearing was not necessary.
2
Mr. Turley is the named Respondent for the State of Utah. The court will refer to him as the
state.
Mr. Archuleta argues that because Mr. Field handled his state habeas appeal as a law
clerk when the case was in the state court system, Rule 1.12 of the Utah Rules of Professional
Conduct bars Mr. Field from now representing the state in Mr. Archuleta’s federal habeas action
before the court. Rule 1.12 prohibits former judges and law clerks from later representing
anyone in connection with “a matter” on which they “personally and substantially” worked. See
Utah R. Prof’l Conduct 1.12(a). Mr. Archuleta contends that he will suffer prejudice in his
habeas proceedings before the court unless Mr. Field is disqualified because Mr. Field’s
violation of Rule 1.12 results in an unfair advantage for the state.
The state does not dispute that Mr. Field worked as a law clerk for state district court
judges with capital cases, or that Mr. Field was “personally and substantially” involved in Mr.
Archuleta’s habeas appeal when it was in state court. The state also agrees that the Utah
Attorney General assigned Mr. Field to work on federal capital cases, including Mr. Archuleta’s.
But the state takes the position that because Mr. Archuleta’s state habeas appeal is not the
same matter as his federal habeas appeal, Rule 1.12 does not prohibit Mr. Field from working on
the federal habeas case. The state also argues that even if Rule 1.12 prohibits Mr. Field’s
involvement in Mr. Archuleta’s case, that prohibition alone does not mean the court must
disqualify him. Finally, the state argues that motions to disqualify are granted rarely, and that
Mr. Archuleta has not shown how he will suffer prejudice by Mr. Field’s continued
representation of the state.
I.
BACKGROUND
Mr. Field worked for fifteen years as the capital litigation staff attorney for the Utah
Administrative Office of the Courts. During that time, he provided legal research, writing, and
2
other law clerk assistance to state district court judges with capital cases before them, including
Mr. Archuleta’s. (See Dkt. No. 42, Ex. D.)
The Utah Supreme Court issued its final decision regarding Mr. Archuleta’s state postconviction appeal on November 22, 2011. One month later, on December 21, 2011, the Attorney
General interviewed Mr. Field to work in the Criminal Appeals Division, and offered him a job
the next day. Mr. Field accepted the job offer immediately, and started work for the state on
January 17, 2012. (See Dkt. No. 47 at 3-5.)
On that date, the Attorney General established an ethics screen under Rule 1.12 to
prevent Mr. Field from working on Menzies v. State, which is still pending in Utah’s Third
District Court. 3 (See Dkt. No. 42, Ex. E.)
But the Attorney General’s Office did not establish an ethics screen between Mr. Field
and the other cases he worked on as a law clerk in state court. Instead, the Attorney General
assigned him to work on them in federal court.
On March 26, 2012, Mr. Field appeared as counsel for the state in Mr. Archuleta’s case.
(See Dkt. No. 35.)
On April 6, 2012, Mr. Archuleta’s federal habeas counsel sent a letter to Utah Attorney
General Mark Shurtleff expressing concern over Mr. Field’s appearance, and asking for
additional information about Mr. Field’s work as the capital litigation staff attorney in state
court, as well as information about Mr. Field’s current and anticipated work on federal capital
cases. (See Dkt. No. 42, Ex. C.)
3
The Attorney General provided late notice of this screen to Mr. Menzies’s counsel on May 1,
2012. (See Dkt. No. 42, Ex. F.) The ethics wall appears to extend only to Mr. Menzies’s state
court action; presumably Mr. Field is free to work on Mr. Menzies’s federal habeas action even
though the Attorney General did not list Mr. Menzies’s case as one Mr. Field would work on in
the future. (See Dkt. No. 42, Ex. D.)
3
On April 26, 2012, Mr. Shurtleff responded to Mr. Archuleta’s lawyer and stated that
“Mr. Field was not involved as a law clerk in the only matter you specifically reference – Mr.
Archuleta’s federal habeas action – because he did not work for the federal courts.” (Dkt. No.
42, Ex. D at 2.) Mr. Shurtleff also stated that, in addition to working as co-counsel on Mr.
Archuleta’s federal habeas appeal, Mr. Field would appear for the state “in the federal habeas
matters involving Messrs. Kell and Honie if those matters actually proceed.” (Id.)
II.
APPLICABILITY OF RULE 1.12
As the capital litigation staff attorney, Mr. Field was a lawyer who worked for the state
government. But he did not advocate on behalf of the state or serve in an official capacity for the
state, which would place him under Rule 1.11 of the Utah Rules of Professional Conduct.
Rather, Mr. Field was a specialized career law clerk for state district court judges with capital
cases, and the appropriate professional rule to consider is Rule 1.12.
Rule 1.12 states: “[A] lawyer shall not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge . . . or law clerk . . . unless
all parties to the proceeding give informed consent, confirmed in writing.” Utah R. Prof’l
Conduct 1.12(a).
The parties agree that Mr. Field was a law clerk who “participated personally and
substantially” in Mr. Archuleta’s state habeas appeal, as well as in subsequent motions to set
aside the district court’s post-conviction judgment. The parties also agree that Rule 1.11, which
is substantially the same rule as Rule 1.12, should be used to guide the court’s understanding of
the word “matter” in Rule 1.12.
Rule 1.11 defines “matter” to include “any judicial or other proceeding, application,
request for a ruling or other determination, contract, claim, controversy, investigation, charge,
4
accusation, arrest, or any other particular matter involving a specific party or parties.” Utah R.
Prof’l Conduct 1.11(e).
By choosing the word “matter” for Rule 1.11 and Rule 1.12, the Utah Supreme Court
intended the two rules to encompass more than just the same lawsuit. In the context of
interpreting “matter” for the purpose of understanding Rule 1.12, courts have held: “The same
lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the
same situation or conduct is the same matter. . . . [T]he same ‘matter’ is not involved [when] . . .
there is lacking the discrete, identifiable transaction of conduct involving a particular situation
and specific parties.” See Poly Software Int’l v. Datamost Corp, 880 F. Supp. 1487, 1492 (D.
Utah 1995) (citing Sec. Investor Protection Corp. v. Vigman, 587 F. Supp. 1358, 1365 (C.D. Cal.
1984) (holding two civil lawsuits, filed ten years apart with some identical and some different
claims, constituted the same matter because they addressed the same conduct involving a
particular situation and specific parties)).
But even when two matters are not the same as defined in Rule 1.11 and applied in Rule
1.12, a lawyer may be disqualified under Rule 1.12 if he received confidential information that
tainted the litigation and resulted in an unfair advantage for one party. See Poly Software, 880 F.
Supp. at 1494-1495. The court in Poly Software used Rule 1.12 to disqualify a lawyer who
mediated a dispute involving the parties who were then before the court in a legally distinct, but
substantially factually related case. The court interpreted “matter” under Rule 1.12 to include
not only the definition of Rule 1.11, but also the broader definition of “substantially factually
related matter” as understood in Rule 1.9 of the Utah Rules of Professional Conduct. See id. at
1491-1495.
5
No such broad interpretation is needed here. The “matter” before the court is the same
“matter” that Mr. Field worked on in state court: Mr. Archuleta’s case. Whether in state court or
federal court, the parties are the same: Mr. Archuleta and the state. The same parties are arguing
about “the same issue of fact” and the “same situation or conduct”: the same murder, the same
trial, and the same direct appeal. The constitutional issues in Mr. Archuleta’s state habeas appeal
are the same ones that will be before the court in his federal habeas appeal. Even the lead
attorneys are the same: Mr. Brunker for the state, and Mr. Murray for Mr. Archuleta.
Nevertheless, the state makes a temporal argument and a jurisdictional argument to
avoid the restrictions of Rule 1.12. The state contends that because Mr. Archuleta’s state habeas
action concluded, it is not the same matter as Mr. Archuleta’s federal habeas action. But Rule
1.12 and Rule 1.11 do not say anything about a matter being limited by time or final judgment,
nor would the underlying rationale for either rule be protected if they did. The prohibition of
Rule 1.11 and Rule 1.12 against subsequent representation of a client in a matter that a lawyer
worked on as a government lawyer, or as a judge or law clerk, “flows from the same public
policy imperative of preventing the abuse of public office or appointment.” See Poly Software,
880 F. Supp. at 1492 (citing Geoffry C. Hazard & W. William Hodes, The Law of Lawyering: A
Handbook on the Model Rules of Professional Conduct § 1.12:101 (2d ed. 1994)).
The state also makes a jurisdictional argument to avoid Rule 1.12, and contends that Mr.
Archuleta’s habeas appeal in federal court is a different proceeding before a different judge of a
different sovereign and is therefore a different “matter.” But, again, the definition of matter does
not include these considerations.
As a lawyer licensed to practice law in Utah, and as a lawyer making an appearance
before the court, Mr. Field is bound by the requirements of Rule 1.12. Mr. Field’s appearance in
6
Mr. Archuleta’s matter before the court violates Rule 1.12, even if unintentionally and even if
Mr. Field accepted employment and assignments from the Criminal Appeals Division in good
faith. 4
III.
MOTION TO DISQUALIFY
Judges have broad discretion, as part of their supervisory powers, to control and maintain
their courtrooms and to determine which lawyers are allowed to appear before them. See Cole v.
Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994). “Motions to disqualify are governed
by two sources of authority. First, attorneys are bound by the local rules of the court in which
they appear. Federal district courts usually adopt the Rules of Professional Conduct of the states
in which they are situated.” Id. The District of Utah has done so. See DUCiv R. 83-1.1(g).
Second, “because motions to disqualify counsel in federal proceedings are substantive
motions affecting the rights of the parties, they are decided by applying standards developed
under federal law . . . [and are thus] governed by the ethical rules announced by the national
profession and considered in light of the public interest and the litigants’ rights.” Cole, 43 F.3d
1373 at 1383 (internal quotation and citations omitted); see also Poly Software, 880 F. Supp. at
1489-90.
The state contends that motions to disqualify rarely should be granted, and cites three
unpublished opinions from this district to support that position: Nelson v. Supernova Media,
2011 WL 223797 (D. Utah 2011) (finding no ethical violation and denying motion to disqualify);
Johnson v. Salt Lake Comty. Coll., 2011 WL 2636840 (D. Utah 2011) (finding no ethical
violation and denying motion to disqualify); Evans v. Taylorsville City, 2007 WL 2892629 (D.
4
Mr. Field’s conduct also appears to violate the spirit of Rule 1.11, which exists to prevent
lawyers from exploiting public office for the advantage of subsequent clients, even if those
clients are other public entities. See Utah R. Prof’l Conduct 1.11, comments [3], [4] and [5].
7
Utah 2007) (finding no ethical violation and denying motion to disqualify). Each unpublished
opinion cited by the state relies upon Parkinson v. Phonex Corp., 857 F. Supp. 1474, 1480 (D.
Utah 1994), for the proposition that motions to disqualify are granted rarely.
The original point of authority for that proposition in Parkinson is Koller By and Through
Koller v. Richardson-Merrell, Inc. 737 F.2d 1038 (D.C. Cir. 1984), vacated and remanded on
other grounds 472 U.S. 424 (1985) (holding order disqualifying counsel in a civil case is not
collateral order subject to immediate appeal).
In Koller, the Court of Appeals for the District of Columbia Circuit reviewed, on
interlocutory appeal, the district court’s decision to disqualify two lawyers and their law firm.
Although Koller was vacated and remanded on jurisdictional grounds, the court’s summary of
how federal courts view motions to disqualify remains helpful because it provides context for the
principle that the state urges the court to follow here. The Koller court agreed with the Second
Circuit that motions to disqualify should be granted rarely because they are filed more frequently
than they are warranted, and are often wasteful, time-consuming, and used for tactical, not
substantive purposes. See Koller, 737 F.2d at 1055-1056 (citing Board of Educ. of N.Y.C. v.
Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979) (citations and footnotes omitted)).
But the better reference to Koller in Parkinson would have explained that motions to
disqualify are granted rarely unless an ethical violation has occurred that would taint the
underlying trial. Such ethical violations typically fall into two categories: (1) a conflict of
interest that prevents zealous advocacy or (2) the potential use of privileged or confidential
information about one party that would give an unfair advantage to a present client.
8
Viewed in this light, the motions to disqualify in the unpublished cases cited by the state
were not denied simply because such motions are rarely granted, but because no ethical
violations occurred in those cases.
Even when an ethical violation occurs, disqualification is not automatic. See Parkinson,
857 F. Supp. 1474, 1476 (D. Utah 1994); see also Utah R. Prof’l Conduct, Preamble at [20].
Rather, disqualification depends on whether a case is tainted by the ethical violation. See
Parkinson, 857 F. Supp. at 1476. “The essential issue to be determined in the context of
litigation is whether the alleged misconduct taints the trial.” Id. To that end, a court should
consider “[t]he egregiousness of the violation, the presence or absence of prejudice to the other
side, and whether and to what extent there has been a diminution of effectiveness of counsel. . . .
In addition, equitable considerations such as the hardship to the other side and the stage of trial
proceedings are relevant.” Id.
The Attorney General hired Mr. Field one month after Mr. Archuleta’s case concluded in
state court. Part of what made Mr. Field an attractive candidate was his intimate knowledge of
Mr. Archuleta’s case (and others). Mr. Field has a facility with the facts and law involved in Mr.
Archuleta’s case that no one else has, and because of that, he appears ideally suited to litigate
Mr. Archuleta’s federal habeas appeal on behalf of the state. The state represents that Mr. Field
“did not have access to any of [Mr.] Archuleta’s confidential information” and cannot exploit
any confidential information he may have received in state court about Mr. Archuleta’s case
because the court’s review is limited to the record. (See Dkt. 47 at 3 and 11.) Moreover, the
state contends that disqualifying Mr. Field would place an unnecessary restriction on a law
clerk’s transfer of employment. (See id. at 13.)
9
Despite these arguments, allowing Mr. Field to represent the state in Mr. Archuleta’s
federal habeas action would unmistakably taint the litigation. Mr. Archuleta is before the court
in an action for federal habeas relief from his death sentence. Based on the law and the facts, he
is arguing for his life and the state is arguing for his death. Mr. Field’s experience as a
specialized law clerk for capital cases in state court, as well as his specific work on Mr.
Archuleta’s state habeas appeal, “gives him an unfair advantage in the present case” that he will
leverage to the state’s advantage, even if unintentionally. See Poly Software, 880 F. Supp. at
1495.
More concerning is the risk to the integrity of the federal habeas proceeding created by
the fact that Mr. Field may well have confidential information related to Mr. Archuleta’s case
that he inadvertently may use for the state’s benefit.
Mr. Field was not only privy to judicial thinking about Mr. Archuleta’s case, but he also
had access to sealed ex parte filings and other confidential information in Mr. Archuleta’s case.
Rule 1.12 exists for precisely this reason. The ethical imperative against representing “anyone”
in a matter that the lawyer worked on “personally and substantially” as a judge or law clerk
guards against the possibility of abuse, and recognizes that lawyers themselves may not always
be the best guardians of the confidential information they obtained in such positions. The court
should not have to second-guess what Mr. Field knows, or parse through case histories and
docket reports to determine whether or not Mr. Field has confidential information that he is
going to use for the benefit his new client. Mr. Archuleta should not be asked to bear that risk.
Enforcing the strictures of Rule 1.12 against Mr. Field does not unduly prejudice him, the
Attorney General, or the state. Granting the motion to disqualify does not mean that Mr. Field
cannot work as a lawyer, or even as a lawyer in the Criminal Appeals Division of the Attorney
10
General’s office. What it does mean is that he cannot appear in federal court as an advocate for
one of the parties whose case he was “personally and substantially” involved with as a law clerk
in state court. To date, that would bar him from six cases in the District of Utah: Mr.
Archuleta’s and five others. The Criminal Appeals Division has many other cases that are open
to Mr. Field.
The Attorney General is also not unduly prejudiced by granting the motion to disqualify
Mr. Field. The Attorney General will not get the windfall of legal expertise and knowledge of
capital cases that it hoped to acquire via Mr. Field’s employment. But the Attorney General
undoubtedly has many other well-qualified lawyers who can assist Mr. Brunker in representing
the state’s interests in Mr. Archuleta’s federal habeas action.
Since this motion was filed in a timely manner at the beginning of federal litigation, the
state’s legal interests will not be harmed if another lawyer is substituted to work on Mr.
Archuleta’s case. This is especially true because, as the state noted, Mr. Archuleta’s petition has
not been filed and Mr. Field has not yet done any substantive work on Mr. Archuleta’s case.
(See Dkt. No. 43 at 2.)
Finally, the issues raised by Mr. Field’s employment by the Attorney General and his
involvement in Mr. Archuleta’s federal habeas case implicate larger social and public interests.
“[W]hen there is no claim that the trial will be tainted, appearance of impropriety is simply too
slender a reed on which to rest a disqualification order except in the rarest cases.” Nyquist, 590
F.2d at 1247.
When the case will be tainted without disqualification, the regularity of judicial
proceedings in state court, as well as the integrity and neutrality of the proceedings before the
federal court, weigh in favor of granting the motion to disqualify. See Erickson v. Newmar
11
Corp. 87 F.3d 298, 303 (9th Cir. 1996) (finding courts may disqualify attorneys not only for
acting improperly but also for failing to avoid the appearance of impropriety because courts have
responsibility to maintain public confidence in the legal profession); see also Kessenich v.
Commodity Futures Trading Comm’n, 684 F.2d 88, 97-99 (D.C. Cir. 1982) (holding a former
government lawyer should be disqualified even without evidence that he shared confidential
information because of appearance of impropriety).
For the foregoing reasons, Mr. Archuleta’s Motion to Disqualify Counsel is GRANTED.
SO ORDERED this 17th day of October 2012.
BY THE COURT:
________________________________________
Tena Campbell
United States District Judge
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