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6 IN IN THE THE SUPERIOR COURT OF GUAM GUAM 7 PEOPLE OF GUAM, GUAM, )) CRIMINAL CRIMINAL CASE NO. NO. CF0203-23 CF0203-23 8 )) GPD Report No. No. 23-08090 23-08090 )) 9 vs. )) 10 10 ) DECISION AND AND ORDER AUGUSTO ACFALLE, AUGUSTO ACFALLE, JR.,JR., ) RE. APPOINTED COUNSEL'S MOTION MOTION 11 aka Augusto Augusto Junior JuniorAcfalle, Acfalle, aka aka Junior, Junior, ) TO TOWITHDRAW WITHDRAWAND ANDFOR FOR APPOINTMENT DOB: DOB:07/17/1995 0711711995 ) OF OTHER COUNSEL 12 12 )) 13 13 Defendant. Defendant. ) _ _ _ _ _ _ _ _ _ _)) 14 14 INTRODUCTION 15 15
16 16 This matter came before This before the the Honorable Honorable Judge Judge Maria Maria T. T. Cenzon Cenzonon onJuly July 2, 2, 2024, 2024, upon upon the
17 17 filing filing of ofAppointed Appointed Counsel's Counsel's Motion Motionto toWithdraw Withdrawand and for for Appointment Appointment of ofOther Other Counsel Counsel (the 18 18 "Motion"). "Motion").Representing RepresentingDefendant Defendant Augusto Acfalle, Acfalle,Jr. Jr. (hereinafter "Defendant" or or "Defendant 19 19 Acfa1Ie") in Acfalle") in this this criminal criminal matter is Attorney matter is Attorney Charles Charles H. H. McDonald, McDonald, II (hereinafter (hereinafter "Attorney 20 20 McDonald" or or "McDonald"). "McDonald").The TheCourt Courtook tookthe theMotion Motionunder underadvisement advisement on onJuly July 15, 15, 2024, 2024, 21
22 pursuant 22 totoCVR pursuant CVR7.7.l(e)(6)(A) 1(€)(6)(A) ofof thethe LOCAL RULES LOCAL OF RULES OFTHE SUPERIOR COURT THESUPERIOR oF GUAM. COURT OF GUAM.
23 23 After reviewing After reviewingthe theMotion Motionand andthe theapplicable statutesand applicablestatutes and case case law, law, the the Court Court now now issues issues 24 24 this Decision Decision and and Order DENYING Defendant's Motion. 25 25 II // 26 27 27 N II
People v. Acfalle, Jr., Criminal v. Acfalle, Criminal Case Case No. No. CF0203-23 CF0203-23 Decision Decision and and Order Re. Re. Appointed Appointed Counsel's Motion MOtion to Withdraw ithdraw and for Appointment Appointment of of Other Other Counsel Counsel Page Page 1 of of9 1 PROCEDURAL AND FACTUAL FACTUAL BACKGROUND
2 On On March 27, 2023, the People 2023, the People filed aa Magistrate's Magistrate's Complaint Complaint charging charging Defendant Defendant with wit
3 3 the the following offenses: offenses: the the First First Charge Charge of of Burglary Burglary to a Motor Vehicle (As (As aa Second Second Degree Degre 4 . . Felony), the Felony), the Second Charge Charge of of Theft Theft (As (As aa Thlrd Third Degree Felony), Felony), the the Thlrd Third Charge of Theft of a Theft of 5 Firearm (As aa Third Third Degree Degree Felony), Felony),the the Fourth Fourth Charge Charge of ofPossession Possession of ofaa Firearm Firearm Without Without a 6 6 7 Firearms ID (As Firearms ID (As aa Third Third Degree Degree Felony), Felony),and the Fifth and the Fifth Charge Charge of ofPossession Possession of ofan an Unregistered Unregistere 7
8 8 Firearm (As Third Degree (As aa Third Degree Felony). Felony).See See Maris. Magis.Con pl. (Mar. Compl. (Mar.27, 27,2023). 2023).On OnMarch March31, 31, 2023, 2023, a 9 9 grand jury jury returned an Indictment returned an in this Indictment in this matter matter charging charging the the Defendant Defendant with with the the same same offenses. offenses. 10 10 See IndiCtment (Mar. 31, Indictment (Mar. 31, 2023). 2023). 11
In brief, as as set set forth forth in in the the Declaration Declaration of ofProbable ProbableCause, Cause, the the charges charges in in the the Indictment Indictmen 12 12
13 1 stem from an alleged alleged incident incident that that occurred on March 25, 2023, wherein 25, 2023, wherein the the Defendant Defendant allegedl allegedly
14 14 stole items from a truck located in Talofofo Talofofo --such suchitems itemsincluded includedaa Louis LouisVuitton Vuittonbranded branded purse, purse, 15 15 a Glock Glock .43 .43 pistol, pistol, an an iPod iPad tablet, tablet, Airpods Airpods earbuds, earbuds, and and other other items. items. See See Declaration, Maris. Magis. 16 16 Con Compl. (Mar. 27, 27, 2023). 2023). The Defendant was identified Defendant was identified upon uponthe theuse useof ofthe theAirpods' Airpods' "pinging' "pinging" 17 17 18 feature that that located located the the Defendant Defendant along along with with the the stolen items. items. Id. Id. 18
19 19 A. Defendant's Defendant's History History of of Representation. Representation.
20 20 Alternate Public Alternate Public Defender Defender ("APD") ("APD") was was initially initially appointed appointed as as defense defense counsel counsel for fo 21 Defendant on March 27, 27, 2023. 2023.See SeeNtc. Nth.OfCrt. Of Cit. Appointed Appointed Counsel Counsel (Mar. (Mar. 27, 2023). On 27, 2023). On April April 12, 12, 22 2023, dueto 2023, due to aaconflict conflict of of interest, APD withdrew withdrewfrom fromrepresentation, representation, and and Attorney James Spivey James Spive 23
24 thereafter as was appointed thereafter asdefense defense counsel. counsel.See See Withdrawal Withdrawal and and Order Order(Apr. (Apr. 12, 12, 2023), 2023); see also 24
25 25 Ntc. of ofCit. Crt.Appointed AppointedCounsel Counsel(Apr. (Apr.12, 12,2023). 2023).Attorney AttorneyJames James Spivey Spiveycontinued continuedrepresentation representatio 26 26 until his eventual passing on October 18, 2023. eventual passing 2023. Thereafter, the Court appointed Public Defender 27 27 Service Corporation ("PDSC") asasdefense Corporation ("PDSC") defensecounsel. counsel. However, However,PDSC PDSCwithdrew withdrewrepresentation representation due du 28
People People v. Acfalle, Jr., v. Acfalle, Jr., Criminal Criminal Case Case No. No. CF0203-23 CF0203-23 Decision Decisionand and Order Order Re. Appointed Counsel's Counsel's Motion Motionto to Withdraw Withdrawand and for for Appointment Appointment of of Other Counsel Counsel Page Page 2 of 9 interest, and to a conflict of interest, and APD APD was was reappointed reappointed as defense defense counsel on December December 29, 29, 2023. See l 22 Mot. and Order to Permit Permit Withdrawal of of Counsel Counsel Due Due to to aa Conflict Conflict of ofInterest Interest (Jan. (Jan. 16, 16, 2024). 2024).
3 Again, on January 12, 2024, APD withdrew representation due due to to aa conflict conflict of of interest. interest. See Mot. 4 . . . Withdraw as to Withdraw as Court-Appolnted Court-Appointed Counsel Counsel (Jan. (Jan. 12, 12, 2024). 2024). Thereafter, Thereafter, the the Court Court appointed appointe 5 Attorney McDonald Attorney McDonaldasasdefense defense counsel counsel on on February February 1, 1, 2024. 2024. See Order Granting See Order Granting Withdrawal Withdrawal and an 6 7 Appointment of ofCounsel (Feb. 1, 2024). 7
8 B. The Motion and the grounds for withdrawal. withdrawal.
9 Attorney McDonald McDonald filed filed the the instant instant Motion Motion on on the the following following grounds grounds: 10 10 1. The Firm's Firm's practice practice includes criminal defense and and prosecution, prosecution, where its compliance 11 with its its obligations obligations to clients clients are are assessed, assessed, monitored, monitored, continually continually modified, and an 12 12 adapted to ensure inter alia that, that, the the representation representation of one client will not be directly direct! 13 adverse to another client, client; and that, there is insignificant risk that the representation of 14 14 one or or more clients will be materially limited by the lawyer's lawyer's responsibilities responsibilities to to another 15 15 client, a former client client or or a third person or or by a personal interest of of the lawyer lawyer (the latter
16 16 referred to hereinafter referred to as as "GRPC "GRPC l.7(a)(2) risk"), through a program implemented at a
17 17 the Firm. 2. As part of the Firm's Firm's compliance compliance program, program, individual individual requests for engagement and an 18 appointments to criminal defense representation representation are are evaluated for GRPC l.7(a)(2) risks 19 19 among relevant risks. risks. The Firm's policy policy isis to to mitigate mitigate GRPC GRPC 1.7(a)(2) l.7(a)(2) risk risk through throug 20 20 policies, procedures and controls so that the Firm's Firm's risk risk profile attains lower and lower 21 levels of of insignificance at individual case and criminal practice levels. Where possible 22 a standard is is imposed imposed greater than what what is is required required by by the the rules. rules. Eliminating Eliminating foreseeabl foreseeable 23 risk to to the the lowest lowest level level isisconsistent consistentwith withevaluation evaluationofrisk risk of of noncompliance noncompliance with law. 24 Et. ComTran E.g. ComTranGroup, Group, Inc. Inc. Dept. Dept. of of Labor, 722 F.3d 1304 1304 (11th ltd Cir. 2013). 25 3. One of of the Firm's risk mitigants litigants isisto tolimit limitrepresentation representation of ofcriminal criminal defendants defendants to the 26 strictest extent practicable. practicable. Where Where the the engagement engagement arises arises because of of an appointment appointment by
People v. v. Acfalle, Acfalle, Jr., Jr., Criminal Criminal Case Case No. CF0203-23 Decision Decision and Order Re. Re. Appointed Appointed Counsel's Counsel's Motion Motion to Withdraw ithdraw and and for Appointment Appointment of ofOther Other Counsel Page Page 33 of9 of f a court, court, Firm Firm policy policy is 1s to to ensure ensure that that GRPC l.7(a)(2) 1.7(a)(2) risk risk when when accepting accepting the 1
appointment. appointment. 2 4. The Theundersigned undersigned(a) (a)has hasnot nothad had any any privileged privilegedor orconfidential confidentialcomrmuiications communications with wit 3 Defendant, (b) has Defendant; (b) has not reviewed reviewed discovery discovery materials, materials; (c) has has not not investigated investigated or o 4 evaluated the factual evaluated the factual basis basis for for the the charges, charges; and and (d) has has not not analyzed analyzed the the charging chargin 5 instrument. instrument. 6 5. GRPC GRPC6.2 6.2limits limitsgood goodcause causetotoavoid avoidappointment appointmenttotothree threesituations. situations. Because Because of the 7 Firm's Firm's compliance compliance program, the likelihood of aa violation program, the violation of ofthe the professional professional rules rules or 8 other law is as as low as is foreseeable. foreseeable.
9 6. Nevertheless, Nevertheless,because because the the Firm Firm continuously monitors its continuously monitors its risk risk profile, profile, its its policy policy is to
10 10 drive drive risk risk lower lower and and lower lower levels levels ofofinsignificance. insignificance. For Forthis this matter, matter, despite despite the th undersigned's belief belief that there there isis insignificant insignificant GRPC GRPC l.7(a)(2) l.7(a)(2)risk, risk,the theprudent prudent course cours 11 11 of ofaction action is is to to move move for for withdrawal withdrawal from fromthe the undersigned's undersigned's appointment. appointment. 12 12
13 13 Mot. Mot. at at pp. 1-2 (emphasis inoriginal). emphasis in original). 14 14 DISCUSSION 15 15
16 16 Rule 1.16 1.16 of ofthe the Guam Guam Rules Rules ofofProfessional ProfessionalConduct Conduct dictates dictates when when counsel counsel may may
17 17 withdraw from representation of a client client and and provides as follows: follows : 18 18 Rule 1.16: 1.16: Declining or Terminating of of Representation Representation 19 19 (a) Except Exceptas as stated stated in paragraph (c), a lawyer paragraph (c), lawyer shall shall not represent a client or, where 20 representation has hascommenced, commenced,shall shallwithdraw withdraw from from the the representation representationofof a client if: 21 (1) the the representation representation will will result result in violation of of the the rules rules of ofprofessional professional 22 22 conduct or other law; law, (2) thethe lawyer's lawyer's physical physical orormental mentalcondition condition materially materially impairs impairs the the 23 23 lawyer's lawyer's ability abilityto to represent represent the client; client, or (3) the the lawyer lawyer is is discharged. discharged. 24 24 (b) except except asas stated stated inin paragraph paragraph ((e), a lawyer lawyer may may withdraw withdraw fromfrom representing representing a 25 client if: if: (1) withdrawal withdrawal can can bebe accomplished accomplished without material adverse effect on material adverse on the 26 26 interests interests of of the client 27 27 (2) the the client client persists course of persists in a course of action involving involving the the lawyer's services services that the the lawyer lawyer reasonably reasonably believes believes is criminal or or fraudulent, fraudulent; 28
People v. v. Acfalle, Acfalle, Jr., Jr., Criminal Criminal Case Case No. CF0203-23 Decision Decision and and Order Re. Re. Appointed Appointed Counsel's Counsel's Motion Motion to W ithdraw and and for Appointment Appointment of ofOther Other Counsel Counsel Page 4 of of9 (3) the client has used the lawyer's lawyer's services services toto perpetrate perpetrate aa crime or or Haud, fraud; 1 (4) the client insists upon taking action that the lawyer considers repugnant 2 or with which the lawyer has a fundamental fundamental disagreement; disagreement, (5) (5) the the client client fails fails substantially substantially toto fulfill fulfill an obligation obligation to to the lawyer lawyer 3 regarding the lawyer's lawyer's services services and and has has been given given reasonable warning that 4 the lawyer will withdraw unless the obligation is iiilfilled, fulfilled; (6) the representation will result in an unreasonable financial burden on the 5 lawyer or has been rendered unreasonably difficult difficult by the client, client; or (7) other good cause for withdrawal exists. 6 (c) A lawyer must comply comply with applicable applicable law requiring notice to or permission of a tribunal tribunal when when terminating a representation. When ordered ordered to to do do so so by by aa tribunal, 7 a lawyer shall continue representation notwithstanding good cause for terminating 8 the representation. (d) Upon termination termination ofof representation, representation, a lawyer shall take steps shall take steps to the extent extent 9 reasonably practicable to reasonably practicable to protect protect a client's interests, interests, such as giving giving reasonable reasonable 10 notice to the client, allowing time for employment employment of of other other counsel, counsel, surrendering surrendering papers and property papers and property toto which the client client is is entitled entitled and and refunding refunding any any advance advance 11 payment ofof fee or expense that has not been earned earned oror incurred. The lawyer may retain papers relating toto the the client to to the the extent permitted by other law. 12
13 of Prof. Conduct, Rule 1.16, GU ST SUPER CT RPC Rule 1.16. Rules of
14 14 The Sixth Amendment Amendment guarantees guarantees that that "[i]n "[i]n all all criminal criminal prosecutions, prosecutions, the accused accused shall shal 15 15 enjoy the right...to to have have the the Assistance Assistance of of Counsel Counsel for for his defense." defense." See See U.S. Const. amend. VI. 16 16 The Supreme Court Court of of the United United States States has declared that the right to counsel is not a mechanical 17
8 requirement but requirement but includes includes "the right to "the right effective assistance to effective assistance of counsel." counsel." See See Strickland Strickland v. v. 118
19 19 Washington, Washington, 466 U.S. 668,684 684 (1984). (1984). Following Following this precedent, the Supreme Court of of Guam has
20 20 ruled that "[w]hile the constitutional guarantee guarantee of counsel is a fundamental right, a defendant is 21 'not 'not entitled entitled to a particular lawyer lawyer whom whom he can, in his view, have a 'meaningful 'meaningful attorney-client attorney-clien 22 22 relationship.' relationship.' Rather, Rather, a defendant defendant is entitled to adequate and 'conflict 'conflict free representation under the 23 23 24 Amendment. 777 See People v. Sixth Amendment."' v. Libby, 2021 Guam 27,-i1]17 17(citing (citing United United States v.v. Moore, Moore, 159 24
25 25 F. 3d ad 1154-1157, 1158 (9th Cir. Cir. 1998) (quoting Morris v. v. Slappy, Sloppy, 461 U.S. 1, 1, 3-4 (1983)). 26 26
People v. Acfalle, Jr., Criminal Criminal Case Case No. No. CF0203-23 CF0203-23 Decision and Decision and Order Re. Appointed Order Re. Appointed Counsel' Counsel's s Motion Motionto Withdrawand toWithdraw forAppointment and for Appointment of ofOther Other Counsel Counsel Page Page 5 of 9 5 of9 McDonald McDonald does does not not base his withdrawal on incompetency incompetency or or unavailability unavailability to represent the 1
22 Defendant Defendant in in this this matter. matter. Thus, Thus, the the Court Court Tums toward the question of turns its analysis toward of authority to pass
33 or refuse an appointment. 4 I. "Pass" or Authority to "Pass" or Refuse under MR Refuse an Appointment under MR 1.1.3(b)(4)(A) 1.l.3(b)(4)(A) of the 5 Local Rules of the Superior Court of Guam.
6 Under the the unusual unusual circumstances circumstances precipitating the issuance precipitating the issuance of of Promulgation Promulgation Order Orde 7 PRM06-006-25 (Nov. 15, 2023), PRM06-006-25 (Nov. 2023), MR 1.1.3(a)(3) was amended, l.l.3(a)(3) was amended, and all appointments from the 8 Private Attorney Panel for all criminal cases was suspended until May 1, 1, 2024, and, instead active 9
10 members of members ofthe Guam Bar Bar Association, Association, from a membership membership list list as as approved by the Supreme Court,
11 were appointed after PDSC and APD APO attorneys attorneys Were were permitted to withdraw. This Court is well 12 12 aware that MR 1.1.3(b)(4)(A) l.l.3(b)(4)(A) of ofthe the Local Local Rules Rules technically technically applies applies to PAP attorneys, attorneys; however, 13 1 nothing in the Rule nor in the Promulgation Promulgation Order Order prohibits the application of of the "Pass" to active 14 of the members of the bar bar who who have have been beenappointed appointed during during the the suspension suspension of of the the rule rule relating relating to the th 15 15
16 16 Private Attorney Panel. As such, the Court shall apply .1 apply MR 11.1.3(b)(4)(A) to determine whether
17 17 McDonald (and the Firm) may Fe request a "pass" under the circumstances. circumstances. The Rule provides as quest a 's Pass'} 18 follows: follows: 19 19 PAP attorneys attorneys may refuse or "pass" an appointment when unavailable to assume 20 the case due to scheduling conflicts, conflicts, workload, or other good cause. cause. Reasons for passing appointment shall be given to the the...Judge Judge of of the Superior Court overseeing 21 passing may the case, and passing may not be done more than three times during a calendar calendar year. 22 Id. (emphasis ( emphasisadded). added). The Thegrounds groundsfor for this this case case fall fall under under the "other "other good good cause" provision provision of of MR 23 23 1.1.3(b)(4)(A). McDonald has not indicated specific grounds for withdrawal, such as scheduling, 1.l.3(b)(4)(A). McDonald 24 24
25 25 conflicts, workload, existing conflicts, workload, existing conflicts conflicts of interest, interest, or other specific grounds constituting constituting "good 26
People v. Acfalle, Jr., Criminal v. Acfalle, CriminalCase Case No. No. CF0203-23 CF0203-23 Decision and Order Re. Re. Appointed Appointed Counsel's Counsel's Motion Motion to Withdraw and for Appointment Appointment of ofOther Other Counsel Counsel Page Page 6 of of99 cause" cause" to exercise exercise the "pass". 1 McDonald the "pass".1 McDonald submits submits very very generally generally and and ambiguously ambiguously that that an a 1
2 implemented program at implemented program at the the Firm Firm assesses assessesappointments appointmentsfor for"GRPC "GRPC 1.7(a)(2.) risk," and 1.7(a)(2) risk," and in in an a
3 effort effort to to maintain maintain low levels levels of ofrisk, risk, withdrawal withdrawalin inthis this case case is is necessary. necessary. 4 McDonald McDonald cites cites to the Guam Guam Rules Rulesof of Professional Professional Conduct ConductRule Rule 1.7(a)(2), l.7(a)(2), which whichreads reads as as 5 follows follows:: 6
Rule 1.7: 1.7: Conflict Conflictof ofInterest: Interest:CLnTent Current Clients 7
8 (a) Except Except as as provided provided in in paragraph paragraph (b(b), ), aa lawyer lawyer shall shall not not represent represent aa client client if the th representation involvesaa concurrent representation involves concurrentconflict conflictof of interest. interest. A A concurrent conflict of concurrent conflict 9 interest exists exists if: if: 10 10 (1) 1) the the representation representation ofof one client will will bebe directly directly adverse adverse to to another client, or another client; (2) there there is is significant significant risk risk that that the the representation representation of ofone one or or more more Clients clients will 11 1 be materially materially limited limited by the the lawyer's lawyer's responsibilities responsibilities toto another another client, client, a former client client or a third person or by by aa personal personal interest interest of the lawyer. lawyer. 12 12
13 1 GRPC GRPC 1.7(a)(l-2) 1.7(a)(l-2)(emphasis (emphasisadded). added). McDonald McDonaldcites citesto to the the lowering lowering I the the risk of violating this rul mle
14 14 as a basis basisfor ,r 6. McDonald for withdrawal. See Mot. at1]6. McDonaldadmits admits that he he "(a) "(a) has has not had had any anyprivilege privileged
15 15 or confidential communication with Defendant; Defendant, (b) (b) has not not reviewed reviewed discovery materials, materials; (c) has ha 16 16 not investigated investigated or or evaluated evaluated the the factual factual basis for for the the charges, charges; and and (d) has has not analyzed the charging 17 17 instrument." atfl,r4. instrument." Id. at 4. Without Without engaging engaging with with Defendant Acfalle to Defendant Acfalle to determine determine whether whether a conflict 18 18
19 19 exists and materially limits his responsibilities to another another existing client client based based upon the the specifics
20 20 of ofthis this case, case, the Court finds that that McDonald McDonald has hasnot notprovided provided the the Court Courtwith with sufficient sufficient basis to find 21
23 23 |1 Compare People v. Mendiola People v. Mendiola Jr., CF0240-23, Decision and Order Decision and Order Re. Motion Motion toto Withdraw Withdraw as Counsel and Appointing Appointing New Counsel (May (May 17, 17, 2024) (This Court Court granted granted withdrawal withdrawal on on the the basis that defense defense counsel's counsel's specifi specific 24 24 practice required practice required her her to to be be off-island off-island several several times times aa year, and she was a solo solo practitioner without without any any partner to assist in in providing providing counsel, counsel, constituting constituting"good "goodcause" cause"ininapplying applyingthe the"pass" provisionofofMR "pass"provision MR 1.1.3(b)(4)(A)); l.l.3(b)(4)(A)), 25 25 compare also People People v. Tedtaotao, CF0495-21, Decision v. Tedtaotao, Decision and and Order Order Re. Re. Motion Motion toto Withdraw Withdraw as Counsel and Appointing Appointing New Counsel (May (May 17, 17, 2024) 2024) (This (This Court Court granted granted withdrawal withdrawal on on the the basis that defense defense counsel's counsel's firm firm 26 26 had been appointed 16 criminal felony had felony cases, cases, and a potential conflict conflictof ofinterest interest may may exist exist between between members of of the and government firm and government witnesses, witnesses,constituting constituting"good "goodcause" cause"ininapplying applyingthe the"pass" "pass"provision provisionofofMRMR1.1.3(b)(4)(A). l.l.3(b)(4)(A). 27 27 However, because However, because this Court Court granted granted withdrawal for for good good cause cause in in aa prior prior case, case, this withdrawal withdrawal counted counted asas the second "pass" of2024). 2024). 28 28
People People v. Aefalle, Jr., v. Acfalle, Jr., Criminal CaseNo. Case No. CF0203-23 CF0203-23 Decision Decision and and Order Order Re. Appointed Counsel's Counsel's Motion Motionto to Withdraw Withdrawand and for for Appointment Appointment of of Other Counsel Counsel Page Page 7 of of9 that that continued representationofofDefendant continued representation DefendantAcfalle Acfalle would would violate. violate. Additionally, Additionally, McDonald McDonal l
2 admitted that that he he has has not not discussed discussedthe thematter matterwith with the the Defendant Defendant nor nor investigated the matter to
3 ascertain whether a potential potential conflict conflict of ofinterest interest exists exists to to warrant warrant withdrawal, which which is is inconsistent inconsisten 4 with an an attorney's duty duty of of communication communication with his client under the the Guam Guam Rule Rule of Professional 5 Conduct Rule 1.3 1.3 (diligence) and and 1.4 1.4 (communication), which require: require: 6
Rule 1.3: 1.3: Diligence. 7
8 A lawyer lawyer shall shall act actwith withreasonable reasonable diligence diligenceand andpromptness promptness in in representing representing aa client. 9
10 10 Rule 1.4: 1.4: Communication. Communication.
11 (a) AA lawyer lawyer shall: shall: (l)1)promptly promptlyinform informthe theclient clientofofany anydecision decisionororcircumstance circumstance with 12 12 respect respect to to which which the theclient's client's informed consent, consent,as asdefined definedininRule Rule1.0(e), l.0(e), is 13 13 required by the the Rules; Rules, (2) (2) reasonably reasonably consult consult with with the the client clientabout about the the means means by which the 14 14 client's client's objectives objectives areare to to be be accomplished, accomplished; (3) (3) keep keep the the client clientreasonably reasonablyinformed informedabout aboutthe the status of the status of the matter, matter; 15 (4) (4) promptly promptly comply complywith withreasonable reasonable requests requests for for information; and and 16 16 (5) (5) consult consult with with the the client client about about any any relevant limitation on the the lawyer's lawyer's conduct when the the lawyer lawyer knows knows that the client client expects expects assistance assistance not permitted by 17 17 the Rules of Professional Conduct Conduct or other law. (b) (b) AAlawyer lawyershall shallexplain explainaamatter matterto tothe theextent extentreasonably reasonably necessary necessary to permit 18 the client to make informed decisions regarding the the representation. 19 19 GRPC 1.3 1.3 & 1.4.2 As such, & 1.4.2 such, the the Could finds that Court finds thatthe the "other "other good good cause" cause" provision provisionof of MR 20
1.1.3(b)(4)(A) 1.1.3(b 4)(A)isisnot notsatisfied satisfiedeither eitheron onthe thegrounds groundsadvanced advanced by by Attorney AttorneyMcDonald McDonaldororpursuant pursuan 21
22 to the "pass" provisions provisions in in this this matter. matter.
23 23 // II 24 24
25 25 2 Attorney McDonald does not indicate whether Defendant Acfalle has been informed of the instant Motion to 2 Attorney indicate whether Defendant Acfalle has been informed of the instant Motion 26 26 Withdraw and whether whether he he consents consentstotothe thebringing bringingofofthis Motion by thisMotion by his his appointed appointedcounsel. counsel.See, See,GRPC GRPCRule Rule 1(e) (e ('"Informedconsent"' ("'Informed consent"'denotes denotes the the agreement agreement by by aa person to aaproposed person to proposed course course of ofconduct conduct after after the the lawyer lawyer has ha 27 27 communicated adequate adequate information information and and explanation explanation about about the the material materialrisks risksof of and andreasonably reasonablyavailable available alternatives to the proposed course courseof of conduct.") conduct.") and and GRPC GRPC Rule 1.4. 1.4. 28
People v. Acfalle, Jr., v. Acfalle, Jr., Criminal Criminal Case Case No. No. CF0203-23 CF0203-23 Decision Decision and and Order Counsel's Motion Order Re. Appointed Counsel's Motionto to Withdraw Withdrawand and for for Appointment Appointment of of Other Counsel Counsel Page Page 8 of of9 CONCLUSION 1
2 For the above reasons, reasons,Attorney Attorney Charles CharlesH. H.McDonald, McDonald, H's ITs Motion Motion to Withdraw and for Withdraw and
3 Appointment of of Other Other Counsel is DENIED. 4 A Pre-Trial Pre-TrialConference Conferenceininthis thismatter matteris is scheduled November12, for November scheduled for 2024, 9:00 AM. 12, 2024, Jury AM. Jury 5 Selection Selection and Trial is is scheduled for November November 20, 20, 2024, :30 PM. 2024, 1:30 PM. 6
SO ORDERED this nth SO ORDERED 2024. October, 2024. dayofofOctober, 11thday 7
8 I
9 HONORABLE MARIA T. CENZON 10 Judge, Guam Judge, Superior Court of Guam
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19 19 slnvlce SIIIVICI!vIA VIA I-MAIL l!-MAIL acknowledge acknow1edge tt,af tnav an eleclvomc electron1t 20 Cows co tt'le CoP\t of Me onglna° o"g1ria1 was was ee 'walled to ma,•ea to
IIGII /'1(,Pu,-.,,td M &P0*0/J , 21
22 wh/21 Dat~/6f Date. 1 /1.y fume.'I r,me, 'f ~'Up,.._ 1 UA. .. lhh-tA /H644 (,,t,/w 0,FM WEtJv1. 1 23 Deputy Deputy clerk clerk,. Superior Superior(.ourt Coin of of Guam Guam
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People People v. v. Acfalle, Jr., Criminal CriminalCase Case No. No. CF0203-23 CF0203-23 Decision Decision and Appointed Counsel's and Order Re. Appointed Counsel's Motion Motion toto Withdraw Withdraw and and for for Appointment Other Counsel ofOther Appointment of Page 9 of9 of