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2 252% llflb* 25 18g 2: l.,!
3 GPD REPORT no. 23-10760
REPORT NO. 23-10760
8 ).
)·
9 vs. )
) DECISION
DECISION AND ORDER
ORDER
10 ) RE. THE THE OAG'S
OAG'S MOTION
MOTION TO
THERESA MARIE MARIE AFLLEJE BLAS, ) DISQUALIFY DISQUALIFYDEFENSE
DEFENSE COUNSEL
11 DOB: DOB:07/08/1971 0710811971 )
12 12 )
Defendant. )
13 w 14 INTRODUCTION
15 This matter is before
matter is before the
the Honorable
HonorableMaria
Maria T.
T. Cenzon upon
uponthe
theOffice
Office of the
the Attorney
16 16 General's ("OAG") Motion General's ("OAG") Motion to Disqualify Disqualify Defense
Defense Counsel
Counsel (the "Motion")
"Motion")filed
filedon
onJuly
July 5, 2024.
17 17
18 Representing Theresa Marie Representing Defendant Theresa Marie Aflleje AfllejeBlas
Blas("Defendant")
("Defendant")isisAttorney AttorneyThomas
ThomasJ.
J. Fisher
Fisher
19 (hereinafter "Attorney Fisher"
(hereinafter "Attorney or "Fisher").
Fisher" or "Fisher").Assistant Assistant Attorney
Attorney General
General JoAnna
JoAnna P. Dearing
Deering filed
20 20 the the Motion on behalf of the OAG. The Court Court took
took the
the Motion
Motionunder
under advisement
advisement without oral -
21 argument pursuant pursuant to
to Supreme
SupremeCourt
Courtof
ofGuam
GuamAdministrative
Administrative Rule 06-001 06-001 and
andCVR
CVR 77.1(e)(6)(E)
.1 (e)(6)(E)
22 22 of ofthe the Local Local Rules
Rules of
ofthe
the Superior
Superior Court of
of Guam.
Guam.
23 23
24 24 After reviewing reviewing the
the OAG's
OAG'sMotion,
Motion,the
theDefendant's
Defendant'sOpposition,
Opposition, and
and the
the applicable
applicable
25 25 statutes andcaselaw, statutes and caselaw,the theCourt
Courtnow
now issues
issuesthe
thefollowing
following Decision
Decision and
and Order
Order DENYING the
26 26 Motion Motion to to Disqualify
Disqualify Defense
Defense Counsel.
Counsel.
27 27 II // 28 28
// II
People v.
v. Blas,
Blas, Criminal Case No, CF0334-23-01 Case No. CF0334-23-0l
Decision Decision and Order Re.
Re. The
The OAG's
OAG's Motion
Motion toto Disqualify
Disqualify Defense
Defense Counsel
Counsel
Page 11 of 12
1 FACTUAL BACKGROUND PROCEDURAL AND FACTUAL
2 19, 2023, a grand jury
On May 19, the following of the
Defendantof
jury indicted Defendant charges: Promoting following charges:
3 Maj Prison Contraband or Prison Major (AsaaSecond Contraband(As Degree Felony)
SecondDegree Promoting of Prison Felony) and Promoting Contraband (As Prison Contraband (As
4 19, 2023).
a Misdemeanor). Indictment (May 19, Before Defendant's 2023). Before arraignment on Defendant'sarraignment September 6, on September
5
6 2023, several 2023, motions for several motions withdrawal of representation for withdrawal were lodged until representation were Fisher's until Attorney Fisher's
7 25, 2023.
August 25,
appointment on August Withdraw as Appointed to Withdraw
Motion to
GrantingMotion
OrderGranting SeeOrder
2023.See Appointed Counsel 8 (Aug. 25,2023);
25, 2023); see also Nth. (Aug. 25,2023). At Counsel (Aug.
Court Appointed Counsel of Court
Ntc. of arraignment, her arraignment, At her
9 appeared with Attorney Fisher the Defendant appeared Benjamin s.
Fisher before the Honorable Benjamin and S. Sison and
10 10
11 11 asserted her speedy asserted her speedy trial trial rights
rights under
under 88 GCA §§80.60
80.60 and
and continues
continues to assert
assert her
her speedy
speedy trial
trial
12 12 rights.11 rights.
13 13 On November 2023, the Defendant 3, 2023,
November 3, Motion to Defendant filed a Motion DisqualifyaaProsecutor, to Disqualify and the Prosecutor, and
14 14 OAG OAGtimely timelyopposed motionon the motion
opposedthe November17, onNovember 2023. On
17,2023. April3,3,2024, On April the Court 2024, the issued its Court issued
15 15 Decision Decision and Order granting and Order grantingDefendant's Defendant's»Motion
Motion toto Disqualify
Disqualify aa Prosecutor.
Prosecutor.The
TheOAG
OAG filed
16 16
17 17 subsequent Motionsfor subsequent Motions of Court Leave of forLeave to file Court to Counsel on April file a Motion to Disqualify Defense Counsel April
18 18 5, 2024, andtotofile 2024, and 8, 2024.
Motion for Reconsideration on April 8, file a Motion The Defendant 2024. The timely filed Defendant timely filed
19 19
20
21
22 11 During During the the first Pre-Trial
Pre-Trial Conference
Conference in October 17, on October
case on
asserted case
thisasserted inthis counsel raised defense counsel
2023, defense
17, 2023, raised an oral objection objection toto Mr.
Mr. McDonald
McDonaldserving
servingas as aa Special
Special Assistant Attorney General,but Assistant AttorneyGeneral, butagreed that Defendant's agreed that speedy trial Defendant's speedy
23 clock clock was tolled tolled during the pendency during the pendencyof Defendant's Motion. Pre-Trial of Defendant's Conference -Asserted Pre-TrialConference Asserted at 11 :16:52 AM at 11:16:52 AM to
11:21 11 :07 AM. The :07AM. issuedits The Court issued Decisionand itsDecision OrderRe.
andOrder Def's Mot. to Disqualify Re.Defs Prosecutor on Disqualify aa Prosecutor April 3, on April 2024,
3, 2024,
24 and on the sameday the same issuedits day issued AmendedCriminal itsAmended Trial Scheduling CriminalTrial SchedulingOrder [Asserted] scheduling Order[Asserted] trialfor schedulingtrial for April 17, April 17,
2024. On April April 9, 9, 2024, conference in this asserted matter, the Court addressed during the second pre-trial conference in this asserted matter, the Court addressed the OAG's 2024, during the OAG's 25 filing of ofits
its Motion
Motion for for Leave
Leave ofofCourt AllowingPlaintiff Court Allowing FileMotion PlaintifftotoFile DisqualifyDefense MotiontotoDisqualify Counsel on April 5, Defense Counsel
2024. During that 2024. During hearing,the thathearing, foundthat Courtfound
theCourt thatthe filingof filing the theOAG's
ofthe OAG's Motion Disqualify Defense Motion to Disqualify Counsel was Defense CounSel
26 based upon upon an analleged
alleged conflict of that purportedly interest that
ofinterest Prevented Defense purportedly prevented Counsel from serving as Defendant's Defense Counsel
court-appointed attorney. The court-appointed attorney. The Court found that because Defendant is entitled under because Defendant under the Constitutionof the Constitution of the United 27 and the States and laws of thelaws conflict-freecounsel, of Guam to conflict-free counsel,that theCourt thatthe Courthad duty to had aa duty address the Motion to address and found Motion and that found that
the pendency pendency of of the
the OAG's
OAG's Motions
Motionsagain tolledthe againtolled speedytrial thespeedy clock;the trialclock, defense counsel thedefense agreed. Pre-Trial counsel agreed.
28 Conference Conference -Asserted -Asserted on April
April 9,9, 2024, :30:25 AM 2024, at 11:30:25 AM to 11 :31:
to 11:3 12AM
l :12 (Apr. 9, 2024).
AM(Apr.
People v. People Blas, CriMinal v. Blas, CF0334-23-01 No. CF0334-23-01
Case No.
Criminal Case
Decision Decision and Order
Order Re.
Re. The
The OAG's
OAG's Motion
Motion to Disqualify Defense to Disqualify Counsel Defense Counsel
12
Page 2 of 12
12
1 her Oppositions Oppositionsto tothe
theMotion
Motionfor
forLeave
Leave of Court to
to file a Motion
Motion for
for Reconsideration
Reconsideration on April
April
2 16, 2024, and 16, 2024, andto tothe
theMotion
Motion to
to Disqualify Defense
Defense Counsel
Counsel on
on May
May3, 2024. 2
3,2024.2
3 The Court granted the
theMotions
Motionsfor
for Leave
Leave of Court on June
of Court June19,
19,2024,
2024,and
andordered a briefing
ordered briefing
4
5 schedule for the parties schedule parties to submit their to submit their motions. See Decision motions. See Decision and and Order
Order Granting
GrantingMotion
Motion for
6 Leave of Leave of Court Court (Jun.
(Jun. 19,
19, 2024).
2024). The
The OAG
OAGcontemporaneously
contemporaneously filed their Motion filed their Motion for
for
7 Reconsideration to Disqualify Reconsideration Disqualify aa Prosecutor Prosecutor and Motion Disqualify Defense Motion to Disqualify Defense Counsel Counsel on
on July
July 5,
8 2024. The 2024 The Defendant Defendant filed
filed an
an Opposition
Opposition to the Motion on July Motion on July 19,2024.
19, 2024.
9 LAW
10 10
11 11 A.
A. Camacho Establishes The Barrett-Anderson v. Camaeho Proper Test .for The Proper for Attorney Attorney
Disqualification Under The Guam Guam Rules
Rules of
of Professional Conduct
12 12 The Court reiterates the proper test test for attorney disqualification disqualification in
in this
this jurisdiction as set
jurisdiction as
13 13
14 14 forth in in its April
April 2,
2, 2024
2024 Decision and
and Order
OrderRe.
Re. Defendant's
Defendant's Motion
Motion to Disqualify
Disqualify aa Prosecutor.
15 15 The Guam Guam Supreme Supreme Court
Court has
has declared
declaredthat
that"[t]he
"[t]he proper test for attorney attorney disqualification in 16 16 Guam is whether. an an attorney!s
attorney's continued
continued representation
representationor
or participation
participation in
in aa matter
matter violates
violates or
17 17 significantly risks violating significantly risks violating the the Guam
Guam Rules of
of Professional
Professional Conduct."
Conduct." Barrett-Anderson v.
v.
18
Camacho, Camacho, 2018 Guam 20.
20.
19
20 20 Prior to Barrett-Anders0n Barrett-Anderson and the
the adoption
adoption of the
the 2003
2003 Guam Rules
Rules of
of Professional
Professional
21 Conduct, the standard inattorney standard in disqualification was the "appearance of impropriety" measure attorneydisqualification measure 22 22 articulated in inPeople
People v.
v. Tennessee,2009
Tennessen, Guam 3. There, the Supreme Supreme Court
Court disqualified
disqualified the entire
23 23 Attorney General's General's office
office in
inaacriminal
criminalprosecution
prosecution "when
"when aapersonally-conflicted personally-conflicted Attorney Attorney
24
25 25 General General breached breached a previously-imposed conflict wall." Barret_-Anderson previously-imposed conflict Barrett-Anderson at 1 16.
at 11 16. Since
Since
26 Tennessee,Guam Tennessen, the2003 adopted the 2003Guam
GuamRules
Rulesof
ofProfessional
Professional Conduct,
Conduct, thereby
thereby eliminating
eliminating the
27
28 22 The The Court Court incorporates
incorporates the
the Procedural
Procedural and
and Factual
Factual Background forth in Background as set forth in its its Decision
Decision and
and Order
Order Re.
Re. the
the OAG'
OAG's
Motion for for Reconsideration of of Decision and Order Order Disqualifying a Prosecutor Prosecutor filed concurrently herewith.
People v. Blas, People Criminal Case Blas, Criminal Case No. CF0334-23-01 Decision and Order Re. Decision Re. The The OAG's Motion to
OAG's Motion to Disqualify Disqualify Defense Counsel Page 33 of Page of 12 1 "appearance of •impropriety"
"appearance of impropriety" standard in favor standard in favor of establishing one requiring establishing one requiring aa showing showing of
of a
2 violation of violation ofor or significant
significant risk
risk of
of violating
violating the
the Rules of
of Professional Conduct before before disqualifying
3 attorney. 3 It the attomey.3 It is, however, noteworthy that that despite overruling Tennessee, Tennessen, the Gaunt
Gaum Supreme
4
Court declared that that its decision therein is not not inconsistent
inconsistent with Barrett-Anderson Barrett-Anderson "as
"as it is
is a
5
6 disqualification disqualification case case concerning personal cOnvicts conflicts incriminal cases."
cases." Id. (emphasis
( emphasis added).
added).
7 B. Rule Rule 1.7 of the
the Guam
Guam Rules of Professional Conduct requires the OAG OAG toto show show that
8 Fisher's appointment
Attorney Fisher's in aa "significant"
appointment results in "significant" risk" of ofviolating
violating the
the Rules
of Professional Conduct. '
9 Rule 1.7 of the Guam Rule·l.7 GuamRule
Ruleof
of Professional
Professional Conduct
Conduct(GRP)
(GRP) provides,
provides, as
asfollows:
follows:
10 10
11 1 Rule Rule 1.7:
1.7: Conflict of Interest:
Interest: Current
Current Clients.
12 12 (a)
(a) Except
Exceptas as provided
provided in in paragraph paragraph (b), aa lawyer
lawyer shall
shall not
not represent a client
client if the
representation involves aa concurrent representation involves concurrentconflict conflictofof interest.
interest.AA concurrent conflict of concurrent conflict of 13 13 interest exists
exists if:
if:
14 14 (1)
(1) the
the representation
representation of one client will will be be directly
directly adverse
adverse to
to another client,
another client;
or
15 15 (2)
(2) there
there is is aa significant significant risk
risk that
that the
the representation
representation of of one or more clients clients
will be will be materially
materially limited
limited byby the
the lawyer's
lawyer's responsibilities responsibilities toto another another client, a former
16 16 client client or
or aa third person or by a personal personal interest
interestof of the
the lawyer.
lawyer.
17 17 (b) Notwithstanding
Notwithstanding the the existence existence of aa concurrent concurrent conflict
conflict of
ofinterest
interest under
under
18 18 paragraph (a), a lawyer may represent paragraph (a), represent aaclient client if:
if:
(1) the
the lawyer
lawyer reasonably
reasonably believes that the lawyer that the lawyer will
will be able to provide
19 19 competent and
and diligent
diligent representation
representationto to each eachaffected
affected client;
client,
20 20 (2) the representation (2) the representation is not prohibited by law, by law;
(3) (3) the
the representation involve the representation does not involve the assertion of a claim by one client 21 against anotherclient against another client represented representedby bythethelawyer lawyer in in the
the same
same litigation or other
other
proceeding before
before aa tribunal,
tribunal; and
22 (4) each
each affected
affected client
client gives
gives informed
informed consent,
consent, confirmed in writing.
23 23 The Court
Court is
is not
not aware
aware of
ofany
anysubsequent
subsequent Guam
Guam Supreme Court case addressing attorney 24 24
25 25 disqualification disqualification under Rule 1.7 1.7 since Barrett-Anderson, See Dec. and Order (Apr.
(Apr. 2,
2, 2024)
2024) at
at p.
26
e
27 27
28 3 Barrett-Anderson atl118 ("[W]e find that the "appearance of impropriety" standard ceased to be the standard for 3 Barrett-Anderson atl 118 ("[W]e find that the "appearance of impropriety" standard ceased to be the standard attorney .disqualification disqualification after
after the 2003
2003 adoption
adoptionof
of the
the Guam
GuamRules
RulesofofProfessional
Professional Conduct
Conductfor for criminal
criminal actions
actions file
filed
after after the rules' effective date rules' effective date and and for
for all
allsubsequent conductin subsequent attorney conduct inpending pendingcivil
civil cases).
People People v. Bias,Criminal
v. Blas, Criminal Case
Case No.
No. CF0334-23-01
CF0334-23-01
Decision Decision and Re. The and Order Re. The OAG's
OAG's Motion
Motion toto Disqualify
Disqualify Defense Counsel Defense Counsel
Page Page 4 of
of 12
1 of context of
7, nor have the parties cited to any Guam authority following Barrett-Anderson in the context 2 aa criminal criminal case.
case. Consequently,»the Court's analysis Consequently,. the Court's analysis begins begins with
with Barrett-Anderson.See Dec.
Dec. and
3 Order (Apr. 2, 2024) at p. 7.
4
Barrett-Anderson requires of more requires a showing of than "an more than appearance of "an appearance impropriety" to of impropriety"
5
66 disqualification of the disqualification
justify the justify an attorney.
of an However, the attorney. However, Guam Supreme Court did not wholly the Guam
77 reject attorney considering attorney
in considering
impropriety" in
of impropriety"
"appearance of
the "appearance
of the
consideration of
Court's consideration
reject a Court's 8 disqualification, but merely disqualification, but requires that merely requires finding disqualification that before finding warranted, the disqualification is warranted, 9 appearance of impropriety appearance of must be impropriety must coupled with an additional be coupled attorney's additional showing "that the attorney's 10
11 11 representation risks representation violating the risks violating of Professional the Rules of Conduct." Barrett-Anderson at Professional Conduct." ,r 17.
at 11
12 12 Mackler, 623 (quoting Bergeron v. Mackler, (Conn. 1993)
623 A.2d 489, 493 (Conn. ("Although considering the 1993) ("Although
13 13 appearance of impropriety may be part of the inherent power of the court to regulate the conduct power of
14 14 of attorneys, it will of to disqualify an attorney in the absence of will not stand alone to indication that of any indication
15 15 16 the attorney's attorney's representation violating the risks violating
representation risks Professional Conduct.")
of Professional
the Rules of (emphasis Conduct.") (emphasis
16
17 17 added)).
added)).
18 Moreover, Moreover, in
in determining
determining whether of one risk that the representation of significant risk
"thereisisaa significant
whether"there
19 1 or more will be clients wllI
more chants limitedbyby materiallyhalted bematerially the the lawyer's
lawyer's responsibilities to respons1b1l1t1es another client, to another chert, a
20 client or a third person or by aa personal former client interest of the lawyer"
personal interest under Rule lawyer" under 1. the Rule 1.7,
21 "significant risk" does not not allow for disqualification allow for for aa potential disqualification for conflict, but for "inevitable potential conflict,
22 22
23 23 and material conflicts." Id (citing Bottoms v. Stapleton, conflicts." Id. (Iowa 2005)). In 411,417 (Iowa
Stapleton, 706 N.W.2d 411,
24 24 considering appropriate formula, the Court considers the analysis by the Iowa Supreme Court considering the appropriate 25 | . . o in Bottoms, which in reasoning was which reasoning adopted by the was adopted Barrett-Anderson.
the Guam Supreme Court in Barret_-Anderson.
26 Although Bottoms, like Barrett-Anderson, does not criminal proceeding, the involve aa criminal
not involve
27
28 28 principles are are articulated
articulated clearly
clearly therein
therein and
and Iowa
Iowa Rule Professional Conduct 32:
Rule of Professional 1. mirrors 32:l.7
People People v.
v. Etas,
Blas, Criminal Case No. CF0334-23-01 CF0334-23-0l
Decision and OrderRe.
and Order Re.The
TheOAG's
OAG's Motion
Motion to
to Disqualify
Disqualify Defense
Defense Counsel
Counsel
Page 5 of 12
1 Guam's Rule Guam's 1.7 in Rule 1.7 in all
allapplicable respects. 4 Consequently, applicable respects.4 Consequently, the its analysis the Court finds its analysis 'm in
2 determining whether there determining whether there exists exists a disqualifying conflict conflict both
both persuasive
persuasive and
and appropriate.
appropriate. The
3 Iowa Supreme Iowa Supreme Court reasoned reasonedas
asfollows:
follows:
4
5 The question toto be
be answered
answeredunder
underrule
rule32:l.7(a)(2)
32:l.7(a)(2) is whether there there isis "a
"asignificant
significant
risk" that counsel's risk" representationof counsel'srepresentation ofone oneclient
client"will
"will be materially
materially limited by [his 6 or her]
her] responsibilities to
to another
anotherclient."
client." See
See id.
id r.
r. 32:1.7(a)(2).
32:l.7(a)(2). Although
Although related
related
to the old
old "appearance
"appearance ofof impropriety"
impropriety" test,
test, the
the modem
modem approach
approach focuses on the
7 ofrisk degree of risk that a lawyer lawyer will be unable
will be unable to fulfill fulfill his
his or
orher
her duties
duties to both clients.
8 See generally
generally l1The
The Law
Law of
ofLawyering
Lawyering§ 10.4, at § 10-12 10.4, at§ to 10-13 10-12 to (noting the 10-13 (noting the old old
standard was standard was"too
"too vague
vague and
andsubjective"
subjective" and
andwaswasdropped
droppedfrom
fromthetheABA ABA Model
9 Rules of Professional Conduct).
10 10 comment to rule 32:l.7 A comment 32:1.7 sheds sheds light
light on
on when
whenaaconflict
conflict of interest will will materially
11 11 limit an limit an attorney in
in the performance ofofthe the attorney's
attorney's responsibilities responsibilities::
12 12 [A] conflict [A] conflictofofinterest interestexists
exists ififthere
thereisisaasignificant
significantrisk
risk that
that aa lawyer's
lawyer's
to consider,
ability to consider, recommend, recommend, or or cony
cony out
out an course of an appropriate course of action 13 13 the client
for the client will
will bebe materially
materially limited
limited asas aa result ofthe result of the lawyer's
lawyer's other
other
14 14 .... The mere possibility of responsibilities.... ofsubsequent subsequent harmharm doesdoes not not itself
itself
require disclosure and consent.
consent.The critical
criticalquestions
questions are
are the
the likelihood
likelihood that
15 a deference difference inin interests interests will eventuate
eventuate and,and, ifif it does, whether it will does, whether will materially materiallyinterfere
interferewith
withthe
the lawyer's
lawyer's independent_professionaljudgment independent professional in in
16 16 considering alternatives
alternatives or foreclose courses courses of action action that
that reasonably
reasonably
17 17 should bebepursued pursuedon onbehalf
behalfofthe
of client.
18 Bottoms Bottoms at 416 (quoting (quoting Iowa R. of
of Prowl
Profl Conduct
Conduct 32:1.7 cut. [8])
32:1.7 cmt. [8]) (emphasis (emphasis added).
19 19
20 20
21 4 Iowa R. of Prowl Conduct 3211.7 mirrors Rule 1.7 of the Guam Rules of 4 Iowa of Prowl Conduct 32:1.7 mirrors Rule 1.7 of the Guam Rules of Professional Responsibility in in all all relevant
relevan
22 22 aspects, and aspects, and provides:
provides:
(a) Except (a) Exceptas as provided providedininparagraph
paragraph(b),
(b ),aalawyer
lawyershall
shallnot
notrepresent
represent aa client
client ififthe
the representation
representation involves
involves aa concurrent
concurren
23 23 conflict of conflict ofinterest.
interest. A concurrent
concurrent conflict
conflict ofof interest
interest exists if:
(1) the (1) the representation representation ofone client will one client will bebe directly directly adverse
adverse toto another
another client,
client; oror
24 24 (2) there is (2) there risk that significant risk
is aa significant that the the representation
representationof ofone
one or
or more
more clients
clients will
will be
be materially
materially limited by the lawyer's responsibilities to responsibilities to another another client, a former client, client, or
or a third person or.by by a personal interest of of the the lawyer.
lawyer.
25 25 (b) Notwithstanding (b) Notwithstanding the the existence existence ofofaaconcurrent concurrent conflict
conflictofofinterest
interest under
under paragraph
paragraph (a),
(a), aa lawyer
lawyer may
may represent
represent a
client if:
26 (1) the lawyer (1) the reasonably believes lawyer reasonably believes that that the lawyer
lawyer will
will be
beable
abletotoprovide
providecompetent
competentandanddiligent
diligentrepresentation
representation to
each affected client, client;
27 27 (2) the (2) the representation representation is not not prohibited prohibited by by law;
law,
(3) the (3) the representation representation does does not involvethe not involve the assertion assertion of
ofaa claim
claim bybyone
oneclient
clientagainst
againstanother
another client
client represented
represented by the
th
28 28 lawyer in lawyer in the same litigation or other proceeding before before aa tribunal, tribunal; and
(4) each (4) each affected client givesgives informed informed consent,
consent,confirmed
confined in in writing.
c) In (c) In no no event
event shall
shall aa lawyer
lawyer represent
represent both parties in in dissolution dissolution of of marriage proceedings.
proceedings.
v. Blas,
People v. Blas, Criminal
Criminal Case
Case No. CF0334-23-01
CF0334-23-0l
Decision Decision and Order Re.
Re. The
The OAG's
OAG's Motion
Motion to
to Disqualify
Disqualify Defense
Defense Counsel
Page of 12 Page 6 of 12
12
1 In Barrett-Anderson, the Guam Supreme Court In Court noted noted Bottoms
Bottoms as
asfinding
finding that the "concept "concept
2 of a potential of potential conflict of interest is is foreign
foreign to
to the
the new
new ethical rule." The entire portion of the Iowa's 3 court's discussion about potential conflict is important to consider, so it is replicated here:
4
5 this ruling [of
In considering this [of the dissect district court
court that "there is a significant potential divergence of"
for divergence of' the the interests
interests of
of the
the attorney's
attorney's clients],
clients], we first
first note that the
6 of a potential conflict of concept of of interest is foreign to the new ethical ethical rule. That is
because rule 32:l.7(a)(2) because 32:l.7(a)(2) states states that
that a conflict of of interest "exists if theree is a interest "exists
7 significant risk significant risk that
that the representation of the representation of one one or more clients
clients will be materially materially
8 limited by limited by the lawyer's responsibilities responsibilities to another another client."
client." Iowa
Iowa R.R. of
of Profl
Prof'l Conduct
32:l.7(a)(2) (emphasis 32:l.7(a)(2) added). In (emphasis added). In other other words,
words, if there is aa significant significant risk that
that
9 representation of representation of one client client will materially limit limit the representation of of another client, of interest
a conflict of exists; it is not merely potential. See l1 The Law of interest actually exists; of 10 10 Lawyering 10.4, at 10-13. Lawyering§ 10-13. Thus, Thus, only
only an actual
actual conflict of interest, interest, as
as defined
defined in
11 11 rule 32:l.7(a), will justify justify disqualification.
12 Bottoms at 411. The Court interprets this finding in Bottoms as standing for the proposition that this finding
13 13
14 14 the existence of of a significant risk that the the representation
representation of
of one client will materially limit the
15 15 representation of another client is representation is in and of itself an an actual
actual -- not potential - conflict conflict of
of interest
interest
16 16 which requires disqualification.
17 17 DISCUSSION
18 18 OAG contends
The OAG contends that Attorney Fisher's Fisher's role
role as
as a member
member of
of the
the Guam
Guam Legislature
Legislature is a
19 19
20 20 conflict of interest prohibiting his representation representation of
of the
the Defendant
Defendant as
as defense counsel and argue
21 sitting senator, that Fisher's role as a sitting senator, including including serving
serving as
as aa member
member of the
the Committee on Public
22 22 Safety which votes to appropriate funds for law enforcement, the Office of the Attorney General, law enforcement,
23 23 and the Department Department of
of Corrections, gives rise to the conflict necessitating his disqualification in 24
25 this case. See Ppl.
Pp/. 's Mot. 3-4. In Mot. at pp. 3-4. In support, support, the
the OAG cites to the case of of of Georgia Dept. of
26 Human Svgs. v. Sistrunlq Svcs. v. Sistrunk, 291
291 S.E.2d 524,
524, 528-529
528-529 (Ga.
(Ga. 1982)
1982) for
for the
the proposition
proposition that
that Attorney
Attorney
27 27 Fisher Fisher cannot cannot serve
serve both
both as
as a servant of
of the
the People
People of
ofGuam
Guam as
as aa sitting
sittingsenator,
senator, and
and as
as defense
defense
28 attorney who purportedly purportedly "1itigat[es]
"litigat[es] against the
the people's interest." Mot.
people's interest." Mot. at at p. 6.
People v.
v. Blas,
Bias, Criminal
Criminal Case
Case No. CF0334-23-01
CF0334-23-0l
Decision Decision and
and Order Re.
Re. The
The OAG's
OAG's Motion
Motion to
to Disqualify
DisqualifyDefense
Defense Counsel
Counsel
Page 7 of
of 12
1 A. The OAG's OAG's reliance
reliance on Georgia Department on Georgia Human Resources Department of Human Resources v. Sistrunk is v. Sistrunk
improper improperas
as ititwas
was subsequently
subsequently abrogated.
2
3 In In Georgia
Georgia Department
Departmentof
ofHuman
Human Resources,
Resources, supra, the Supreme Court Court of Georgia held
4 a legislator is prohibited "from representiNg prohibited "from representing aa client, client, for
for his
his own financial
financial gain,
gain, in
in any
any civil
5 transaction or matter transaction or matterwherein whereinthe
theState
Stateof
of Georgia shall
shall be an opposing
opposing party."
party." Ga.
Ga. Dept.
Dept. of
of
6 Human Resources, 249 Ga. 543, Human 543,547 S.E.2d 524 (1982). The Georgia Georgia court
court reasoned:
reasoned:
7
8 'Either 'Either he
he must violate the
must violate the duty which he owes to his principal, or exercise a virtue rare amongst men rare amongst men-- that that is,
is, sacrifice his
his own interest to that interest to that of
of another.
another.To To avoid
9 this collision collision of
ofinterest,
interest, and
and to prevent
pi:event aa temptation
temptation to infidelity
infidelity in
in his
his trust,
trust, the
law imposes upon him a positive positive prohibition.
prohibition.'
10 10
11 11 Id. (quoting (quoting Harrison
Harrison v.
v. McHenry, 9 Ga. 164 (1850)).
164 (1850)).
12 12 However, the Could Court finds that the
finds that the OAG's
OAG's reliance
reliance on
on Georgia
Georgia Department
Department of
ofHuman
Human
13 1 Resources Resources is misplaced, misplaced, particularly
particularly because the holding therein has since been abrogated because the abrogated by 14 14 Georgia Georgia Ports Ports Authority
Authority v. 95. 6 In Georgia v. Harris, 146 S.E.2d 95.6 Georgia Ports Ports Authority,
Authority, the Georgia
Georgia
15 15 Supreme Courtrecognized Supreme Court recognized the the overarching
overarching issues
issuesin
inrending
rendingaa"blanket
"blanketrule
ruleof
of disqualification"
disqualification"
16 16
17 17 in the earlier case case of
of Georgia
Georgia Department
Departmentof
of!-Iuman
Human Resources
Resources while also
also recognizing
recognizing that
that the
18 18 prior decision decision placed Georgia
Georgia in
in the
the minority
minority among
among states.
states. Ga.
Ga. Ports
Ports Auth.
Auth. at 146. 7 The
at 146.7 The Court
19 19 finds finds worthy worthy to repeat
repeat here
here what
what the
the Georgia
Georgia Supreme
Supreme Court
Court repeated
repeated from the
the Georgia
Georgia
20 Legislature: Legislature:
21
[It [It is]
is] also
also essential
essential to
to the
the proper
proper operation
operation of
ofgovernment
government that
that those best
best qualified
qualified
22 22 be encouraged
encouraged to serve serve thethe government.
government. Accordingly,
Accordingly, legal
legalsafeguards
safeguards against
against
23 23 conflicts conflicts of interest must be so designed as not unnecessarily or unreasonably to of interest must be so designed as not unnecessarily or unreasonably impede the recruitment and and retention retentionbyby the
the government
government of those men and women 24 24 who are best best qualified qualified to to serve it. An An essential underlying the essential principle underlying the staffing staffing of
of
25 our government structure
structure isis that
thatits
itselected
elected officials
officials and
and employees
employees should
should not be
26 66 In Georgia Ports Ports Authority, the Georgia Ports Authority filedfiled aa motion motion to
to disqualify
disqualify Harris's
Harris's counsel,
counsel, Thomas C.
27 Bordeaux, Jr., aamember Bordeaux, Jr., memberofof the the Georgia
Georgia House
House of
of Representatives,
Representatives, on groundsof the grounds
on the of aa conflict conflict of
ofinterest.
interest. See
See Ga.
Ports Ports Auth.
Auth. atat 151.
151.
28 7 7 The Georgia The Georgia Supreme Court observed Supreme Court observed how how comparatively "draconian" the the rule prohibiting legislators from from taking
takin
on private clients to the majority ofof states.
states. Id Additionally,
Additionally,the
thecourt
courtobserved
observedaa reduction
reduction ofoflawyer-representatives lawyer-representative
in the legislature.
legislature. Id at
at 146-147.
146-147.
People v.
v. Blas,
Blas, Criminal
Criminal Case
Case No. CF0334-23-01
CF0334-23-0l
Decision Decision and
and Order Re.
Re. The
The OAG's
OAG's Motion
Motion to
to Disqualify
DisqualifyDefense
Defense Counsel
Counsel
Page Page 8 of
of 12
1 denied the opportunity, available to all other other citizens,
citizens, to acquire
acquire and retain private economic economic and other interests, except where conflicts with the responsibility ofof such 2 elected officials and employees to the public cannot be avoided.
3 Id Id. atat 147 147 (quoting
(quoting OGCA
OGCA§45-10-21(b)).
§ 45-10-21(b)).As
Assuch,
such,the
theGeorgia
Georgiacourt
court adopted
adopted an
an ad
ad hock conflicts
hoc8 conflicts
4
5 of interest standard standard in
in line
line with the
the majority
majority of states.
states. Id.
Id at
at 148
148 (citing
(citing to Thompson
Thompson v. State,
State,
6' supra, 254 Ga. at 396(2), 330 S.E.2d 348)
348) ((declining
declining to impose per se rule of disqualification on
7 part-time part~time solicitors and requiring ad hoc analysis to determine whether actual conflict of interest 8 existed to justify justify disqualification).
9 As the
the Georgia
GeorgiaSupreme Court in Georgia Ports Authority v.
SupremeCou1"t v. Harris has since determined 10 10
11 11 that the rule in Georgia Department of of Human Resources expressed the position of of a minority of
12 12 overbroad, this jurisdictions and was overbroad, this Court Court rejects
rejects the
the OAG's
OAG's plea to find
find Georgia Department
13 13 of]-Iuman ofHuman Resources persuasive.
14 14 c. C. Attorney Fisher's disqualification disqualification is not warranted in this matter.
15 15 The Court now Tums tothe turns to themain
mainissue
issueof
ofAttorney
AttorneyFisher's
Fisher's disqualification. The question 16 16
17 17 before the Court is one of of first
first impression.
impression. Guam caselaw is silent as to whether a conflict conflict of
of
18 18 interest under Rule 1.7 of the the Guam Rules
Rules of
of Professional
Professional Conduct exits when a sitting senator in 19 19 including criminal defendants, during their term.
the continues to represent clients, including 20 The Court, therefore, turns again to Barrett-Anderson for guidance, although the facts of 21
that case are distinguishable: Barrett-Anderson dealt with the issue of of the proper disqualification 22 22
23 23 of the OAG from from a civil matter
matter-- in
in this case,
case, the issue lies with Attorney Fisher's dual dual role as a
24 lawmaker and and as a criminal defense defense lawyer. Nonetheless, Nonetheless, the
the Court
Court first
first turns to the issue of of the
25 77 "appearance of impropriety" before addressing "significant "significant risk."
26 26
27 27
28 88 Meaning Meaning "when "when necessary or needed."
People v.
v. Blas,
Blas, Criminal
Criminal Case
Case No. CF0334-23-01
CF0334-23-0l
Decision Decision and Re. The and Order Re. The OAG's
OAG's Motion
Motion to
to Disqualify
DisqualifyDefense
Defense Counsel
Counsel
Page 9 of 12
1 a. The Court Court rejects
rejects aa finding of the "appearance "appearance of impropriety"
impropriety" in
in light of the
history history of practicing attorneys also serving as a member of the G uam prac tic ing attorne y s also se rving as a me mbe r of 2 Legislature.
3 Absent any applicable
applicable caselaw
caselawproffered
profferedby
bythe
theOAG
OAGfor
for the
the Court
Court to consider, the Court 4
the history
looks to the history of this this jurisdiction
jurisdiction and past
past members
members of Legislature who of the Guam Legislature who were were also
also·.
5
6 active members of of the Guam Bar
Bar Association
Association during
during their
their public
public service.
service. In
In particular, the Court
7 to the
looks to the past past administration
administration of
ofAttorney
AttorneyGeneral
GeneralDouglas
DouglasB.
B.K.
K.Moylan
Moylan ("AG
("AG Moylan")
Moylan") from
8 2003 2003 - 2007.
2007. During
Duringthat
thatterm
termthe
the following
followingGuam
Guamsenators
senatorswere
were also
also attorneys
attorneys as members of
as members of
9 the Guam Bar Association:
10 10
111 1 11. F. Randall Cunliffe (active (active member
member ofof the Guam Bar since August 24, 1978, 1978; 27th
Guam Legislature, 2003);
2003),
12 12 2. Robert W. Klitzkie inactive, member K.litzkie (currently inactive; member since December December 23, 1974,
1974; 27th &
28th Guam Legislature, 2003 & 2005);
13 13 3. Benjamin
Benjamin J.F. Cruz
Cruz (active member
member of of the Guam Bar Bar since December 12, 1975, 1975;
9
. 14 14 28th Guam Legislature, 2005).9
15 15 This Court's survey survey of
of the
the record
record does not indicate
indicate any motions
motions to
to disqualify aa sitting
sitting
16 16 Guam senatorwho who isis also
also an
an active
active member
member of
of the
the Guam
Guam Bar,
Bar, let
let alone
alone any
any disqualification
disqualification of
of
17 17 the members listed above.
above. The Court finds
finds no factual distinction between factual distinction between AG AG Moylan's
Moylan's past
18 18 administration during 2003 administration during 2003 -- 2007 and this current administration. From 2003 administration. From 2003 -- 2007, three three
19 19
20 sitting members of the the Guam Legislature were still members of of the Guam Bar Association and
21 routinely appeared appeared before the Superior Superior Court for criminal and and civil
civil matters.
matters. On
On information and
22 . . . .. | .
belief, Attorney Fisher Fisher is a current-sitting member member of the Guam
of the Guam Legislature
Legislature and an active active member
member
23 23 Bar. 10 Additionally,
of the Guam Bar.10 Additionally, Attorney Attorney Fisher
Fisher has
has numerous
numerous cases before
before this Court,
Court, all
24 24
25 criminal criminal cases, cases, without
without any
any pending
pending motion
motion for
for his
his disqualification
disqualification other
other than
than the
the one at bar.
26 26
27 27 9 Information 9 Information cross-referenced cross-referencedfrom
fromwww.guamlegislature.com www.guamlegislature.com & & www.guambar.org.
10 The Court takes judicial notice of the official 10 The Court akes judicial notice of the official results of the 2024 election, wherein Attorney Attorney Fisher
Fisher was
was unsuccessful
28 28 in in his his bid
bidfor
forreelection.
reelection.See
See 2024
2024 General
General Election Official OfficialResults
Results Reports,
Reports, Guam Election Commission (Nov. 21, 2024) at https://gee.guam.,qov/2024-,qenerallelection-oHicial-results-reports/.
https://gec.guam.gov/2024-general~election-official-results-reports/. However, However, at the time of this Decision
People People v.
v. Blas,
Blas, Criminal Case No. CF0334-23-01 CF0334-23-0l
Decision Decision and Order
OrderRe.
Re.The
The OAG's
OAG's Motion
Motion to
to Disqualify
Disqualify Defense
Defense Counsel
Counsel
10 ofl2
Page 10 of 12 ·
For these reasons,
reasons, the
the Court
Courtdoes
doesnot
notfind
find an
an "appearance
"appearanceof
of impropriety"
impropriety" exists in
in this
this
2 case, considering Guam's history. The The Court
Court now turns to the
turns to theissue
issueof "significant risk.as"
of"significant
3 b. b. The OAG
OAGhashasfailed
failedto
to show
show that
that Attorney
Attorney Fisher's
Fisher's role
roleas
as aa sitting
sitting senator of
4 the the Guam
Guam Legislature
Legislature while
while representing
representing a criminal
criminal defendant
defendant poses
poses a
5 significant risk of violating the rules rules of
of Professional Conduct.
6 Pursuant Pursuant to Barrett-Anderson, the Court must consider any any showing "that
"that the
the attorney's
7 representation risksviolating representation risks violating the theRules
Rulesof
of Professional
Professional Conduct."
Conduct." Barrett-Anderson Barrett-Anderson at ,r 17.
at 1] 17. The
8
11
OAG OAG proffered proffered P.L. 33-0811 regarding regardingthe
theoffense
offenseof
of Promoting Prison Contraband. Ppl.s Mot. at Prison Contraband.Ppl.s
9 p. 3. The OAG OAG iilrther
further proffers Attorney Attorney Fisher's
Fisher's "privilege"
"privilege" of voting to appropriate of voting appropriate public 10
l11l moneys for agencies, as well as for various agencies, as sitting on on the Committee of
ofPublic
Public Safety
Safetythat
that introduced
introduced
12 12 P.L. 33-08, P.L. 33-08, and and argue
argue that Attorney Fisher's Fisher's heightened
heightened responsibilities as aa sitting responsibilities as sitting senator senator is at
at
13 13 odds with his requirement odds with to zealously requirement to zealously advocate for for his 's 1J1ot.
his clients.Ppl. 's Mot. atat pp. 3-6, 9.
/
14 14 The Court is not
not persuaded
persuaded by
by these
these arguments.
arguments.P.L.
P.L. 33-08
33-08 was
was signed
signed into
into law in
in 2015,
15 15 seven (7) years years before
before Attorney
Attorney Fisher
Fisher was
was elected
elected -- thus,
thus, Attorney
Attorney Fisher
Fisher had
had no
no part
part in
in the
the
16 16
17 17 enactment of that enactment of thatlaw.
law.The
The OAG
OAG has failed to show what, if if any,
any, law
law upon
upon which Attorney Fisher
18 18 has participated in that thathas
hasaffected
affected his
his interests
interestswith
with his
his clients.
19 19 Further, the Further, theOAG
OAG fails
fails to
to articulate
articulateeffect
effect disqualifying Attorney Fisher's would would have on
20 mitigating mitigating or or eliminating any
any "significant
"significantrisks."
risks."In
Inthis
this Court's
Court's April
April2,
2,2024
2024 Decision
Decisionand
and Order
21
disqualifying disqualifying Special Assistant Attorney Special Assistant Attorney General GeneralJoseph
JosephMcDonald
McDonald("SAAG
("SAAG McDonald"), the
the
22
23 23 Court made made the
thefollowing inquiry:
following inquiry:
24 24 [SAAG [SAAGMcDonald]
McDonald]will willwork
workclosely
closelywith
withan
an OAG
OAG Investigator,
Investigator, with police police officer
officer
25 witnesses, with witnesses, with victim
victim witnesses all in
in service
service to
to the public interest.
interest. Will
Will he
he be able
to impeach the
the same
samepolice
police officer
officer or
or investigator
investigator witnesses the cases witnesses in the casesinvolving involving
26 26
27 27 , and Order's issuance, Attorney Fisher issuance, Attorney Fisher is still sewing serving as
as aaGuam
Guam senator
senator and
and an
an active member
member of
ofthe
the Guam
Guam Bar
Ba
28 Association.
11 11 ThePeople The People miscite
misciblethe
thePublic
PublicLaw,
Law,erroneously
erroneouslyindicating
indicating"P.L.
"P.L. 33-008.';
33-008."
People v.
v. Blas,
Bias, Criminal
Criminal Case
Case No. CF0334-23-01
CF0334-23-0l
Decision Decision and Re. The and Order Re. The OAG's
OAG's Motion
Motion to
to Disqualify
DisqualifyDefense
Defense Counsel
Counsel
Page 11 of
of 12
his clients? Are the same Chief and Deputy Chief Prosecutors going to evaluate the pleas involved in the McDonald's criminal defendant client's cases?
2
3 Dec. and Order Re. Defendant's Mot. to Disqualify a Prosecutor (Apr. 2, 2024) at p. 16. In that
4 decision, the Court was concerned with the conflict of interests between SAAG McDonald's 5 representation of current clients and his role as prosecutor. This instant case is distinguishable 6 from SAAG McDonald's role as prosecutor against criminal defendants while also serving as 7
8 criminal defense counsel. Attorney Fisher's role as a lawmaker does not present a significant risk
9 of violating the Professional Rules. There has not been showing that he works closely, in his 10 capacity as a lawmaker, with prosecutors, investigators, and police officers in criminal cases. As 11 such, the Court finds that the OAG has not satisfied its burden of showing "significant risk" of a 12 violation of Rule 1.7 of the Guam Rules of Professional Conduct as set forth in Barrett-Anderson.
13
14 CONCLUSION
15 For the reasons set forth herein, the Court hereby DENIES the OAG's Motion to 16 Disqualify Defense Counsel.
17 As Defendant has continued to ASSERT her right to a speedy trial, the Court must take 18 the matter to trial within 14 days, which is the remainder of the 60 days mandated for this Court 19
20 to take the matter to trial pursuant to 8 GCA § 80.60(a)(3). An [Asserted] Criminal Trial
21 Scheduling Order shall be issued concurrently with this Decision and Order scheduling trial 22 within no less than five (5) days of the date of this Decision and Order, pursuant to 8 GCA § 80.40 23 ("The defendant is entitled to at least five (5) days after entering his plea to prepare for trial .... ").
24
25 SO ORDERED this 25th day of November, 2024.
~0-~
SERV[CE VIA EMAIL
26 Iacknowledge that an electronic copy o.l.tbe onginat was e-mailed to;
27 0 B L E MARIA T. CENZON
28 Judge, Superior Court of Guam
People v. Blas, Criminal Case No. CF0334-23-01 Decision and Order Re. The OAG's Motion to Disqualify Defense Counsel Page 12 of 12