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GLERK QFCOURT CLERJ{ OF gum
1 202~ (ACT 2821: OCT I I PH
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5
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
28
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
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
27
28
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
27
28
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
27
28
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
22
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
11 11
12 12
13 13
14 14
15 15
16 16
17 17
18 18
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
24
25 25
26
27 27
28
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