People v. Blas

Opinion

Fa L EQ FILED

SUPERQR COURT SUPERiOR CQUR?

1 OF GUAM 2 20214 gag - FW g: 0 7 3 oLE? OF COURT

\J

4

5 BY:---r------

¢vnu-q*5

6 IN THE SUPERIOR COURT COURT OF

OF GUAM

GUAM

7

8 PEOPLE OF OF GUAM,

GUAM, ) CRIMINAL CRIMINAL CASE

CASE NO.NO. CF0334-23-01

CF0334-23-01

)) GPD REPORT NO.

no. 23-10760

23-10760

9 )

vs. ))

10 10 ) 11 11 )) DECISION

DECISION AND

AND ORDER

ORDER RE.

THERESA MARIE AFLLEJE BLAS, )) DEFENDANT'S DEFENDANT'S MOTION TO

12 DOB:

DOB:07/08/1971 07/08/1971 )) DISQUALIFY DISQUALIFY A PROSECUTOR )

13 13 )) 14 14 Defendant. )

)

15 15 I. INTRODUCTION

INTRODUCTION

16 16

17 17 This matter This is before

matter is before the

the Honorable Maria T.

Honorable Maria T. Cenzon Cenzon on

on Defendant's

Defendant's Motion to

18 18 Disqualify Disqualify aa Prosecutor Prosecutor (the "Motion").

"Motion").Oral

Oralarguments

argumentson

onthe

theMotion

Motionwere

wereheard

heardon

01_1January

January

19 19 2024. Counsel 3, 2024. Counsel Tom Tom Fisher appeared

appeared on

on behalf

behalf of

of Defendant

Defendant Theresa

Theresa Marie

Marie Aflleje Blas

Aflleje Blas

20 ("Defendant" or or "Defendant

"Defendant BIas").

Blas"). Special

SpecialAssistant

Assistant Attorney

Attorney General

General Joseph

Joseph McDonald

McDonald

21 22 22 with the the Office

Office of the Attorney

Attorney General

General("McDonald"

("McDonald" or "SAAG

"SAAG McDonald")

McDonald")was

waspresent

present on

23 23 the People of behalf the Guam. Following ofGuam. Following the

the hearing

hearing on

on the

the Motion,

Motion, the

the Court

Court took

took the

the matter

matter

24 24 under advisement pursuant under advisement pursuantotoSupreme SupremeCourt

Courtof

of Guam

GuamAdministrative

Administrative Rule

Rule 06-001,

06-001, CVR

CVR

25 7.l(e)(6)(A) and 7.1(e)(6)(A) and CRl.1 of the CR1.1 of the Local

Local Rules

Rules of

ofthe

the Superior

Superior Court

Court of

of Guam.

Guam. Having

Having duly

duly

26 26 27 considered the parties' briefs, briefs, oral

oral arguments,

arguments, and the applicable law, the Court now issues issues the

27

28 28 following Decision Decision and OrderGRANTING and Order GRANTING the

the Defendant's

Defendant's Motion.

Decision Decision and Re. Defendant's Motion and Order Re. Motion to Disqualify Disqualify aa Prosecutor

Prosecutor

People v.

v. Etas,CF0334-23-01

Blas, CF0334-23-0l Page 1 of21

I of21

II. BACKGROUND 11. BACKGROUND AND

AND RELEVANT

RELEVANT FACTS

3 On May 19,

19, 2023,

2023, Defendant Theresa Aflleje Defendant Theresa Aflleje Blas Blas was

was charged

charged via

via Indictment

Indictment with

4

5 having "intentionally "intentionally introduced or attempt[ing]

introduced or attempt[ing] to introduce introduce major

major contraband" into the contraband" into the

5

6 6 Department of Corrections Department of Correctionsdetention detentionfacility

facilityininviolation

violationofof99GCA

GCA§§

§§58.60(a)(2)(a),

58.60(a)(2)(a),(c)(l)

(c)(1) or

or

7 (a)(1)

(a)(l) and and (b)(1),

(b)(l), and chargedwith:

and charged with:(1)

(1)PROMOTING

PROMOTJNGMAJOR

MAJORPRISON

PRISON CONTRABAND

CONTRABAND

8 2nd Degree

(As aa 2nd Felony), and Degree Felony); and (2)

(2) PROMOTING

PROMOTING PRISON

PRISON CONTRABAND

CONTRABAND (As aa

9 Misdemeanor). Indictment Misdemeanor). Indictment (May (May19, 2023). 1

19, 2023).1

10 10

11 11 Several Several hearings were held hearings were held in this this case

case at

at which

which the

the People

People were

were represented

represented by

12 12 different Assistant different AssistantAttorneys AttorneysGeneral

General(AAG),

(AAG), including

includingAAG Kristine Borja, AAG Kristine Borja, AAG Charles AAG Charles

13 13 Kinnunen, AAG Leah Diaz-Aguon, Kinnunen, AAG Diaz-Aguon, AAG AAG Matthew

Matthew Shuck,

Shuck, and AAG Ed

and AAG Ed Han,

Han, during

during the

the

14 14 ofMay

period of May11, 11, 2023,

2023, to

to September

September 6,

6, 2023.

2023.

15 15 A. McDonald

McDonaldEnters

Enters his asSAAG.

his Appearance as SAAG.

16 16

17 17 On October October 17,

17, 2023,

2023, aa Notice

Notice of

of Filing

Filing ofofChief

ChiefDeputy

DeputyAttorney

Attorney General's

General's

18 18 Designation of Designation Special Assistant of Special Assistant Attorney General for Trial and Attorney General and Related Related Proceedings

Proceedings (the

19 19 | -

"Notice")was "Notlce") was filed filed by

by the

the McDonald

McDonald Law

Law Office,

Office, LLC jointly with the LLC jointly the Office of of the

the Attorney

20 General signedby General signed byJOSEPH JOSEPHB.B.McDONALD

McDONALDOF

OFMCDONALD

MCDONALD LAW

LAW OFFICE,

OFFICE, LLC,

LLC, and

and by

21 .21

22 the OFFICE the OFFICE OF THE ATTORNEY ATTORNEYGENERAL

GENERALbyby JosephA.A.Guthrie, Joseph Guthrie, Chief ChiefDeputy

Deputy Attorney

22

23 23 General. The Notice Notice states:

states:

24 24 II N

25 25 UII 26 26

27 27

28 11 Blas Blas was was originally

originally charged

charged together

together with

with Defendant

Defendant Victoria

Victoria Benita

Benita Cabrera Agulto;

Agulto, however,

however, on

on January

January 10,

2024, Defendant Agulto 2024, Defendant Agulto was was severed

severed from

from Defendant

Defendant Blas thiscase Blas ininthis case and

and the

the matters

matters continue

continue as

as CF0334-23

CF0334-23

(Defendant (Defendant Agulto) and and CF0334-23-01 CF0334-23-01 (Defendant

(Defendant Blas),

Blas), respectively.

respectively. Order Severing Severing Defy.,

Defs., Jan.

Jan. 10, 2024.

2024.

Decision Decision and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v. Blas, People v. Blas, CF0334-23-01 CF0334-23-01

Page Page 22of21

of21

CHIEF DEPUTY ATTORNEY

ATTORNEY GENERAL

GENERAL DESIGNATION

DESIGNATION

3 ASSISTANT ATTORNEY OF SPECIAL ASSISTANT ATTORNEY GENERAL FOR TRIAL AND RELATED

RELATED PROCEEDINGS

4

5 The undersigned

undersigned Chief Deputy

Deputy Attorney

Attorney General

General having

having designated

designated Special

Special

Assistant Attorney

Attorney General

General Joseph B. McDonald Joseph B. McDonald as prosecuting attorney as prosecuting attorney for for trial

6 and related proceedings and related proceedings in in CF334-23,

CF334-23, acknowledges

acknowledges andand affirms affirms this

this entry

entry of

appearance appearance asasco-counsel co-counselofrecord

of recordfor

forPlaintiff

PlaintiffPEOPLE

PEOPLEOF OFGUAM.

GUAM.

7

8 Concurrently with the Concurrently with the Notice, Notice, McDonald

McDonald filed

filed his

his Entry

Entry of

ofAppearance

Appearance as

as aa Special

Special Assistant

Assistant

9 General (SAAG)

Attorney General (SAAG) with with the

the Office

Officeofofthe

theAttorney

AttorneyGeneral

General "for

"forpurposes

purposes of

oftrial

trial and

and

10 related proceedings and the instant and the instantmatter"

matter" and

andfurther

furthersought

soughtservice

serviceof

of "all papers,

papers, notices,

11 11 and orders filed and orders filed or related related to the

the instant case be also instant case also served served upon

upon the

the McDonald Law

12 12 Office...." Entry Entry of

ofAppearance

Appearance (Oct. 17, 2023).

13 13

14 14 B. Defendant Defendantseeks

seeks Disqualification of of SAAG

SAAG McDonald

McDonalddue

due to

to conflict.

conflict.

15 15 During During the Pre-Trial

Pre-Trial Conference

Conference held

held on

onOctober

October17,

17,2023,

2023, the

theDefendant,

Defendant, through

through

16 16 v , .

counsel, orally counsel, orally requested requested that

thatMcDonald

McDonald recuse

recusehimself

hunselfdue

dueto

to an

an "incurable

"incurable conflict

confect of

17 17 interest." Pre-trial Conf interest." Conf. Hrg.

Hrg. at

at 11:17:l5AM

ll:17:15AM (Oct.

(Oct. 17,

17, 2023).

2023). However,

However, the

the Court

Court ordered

ordered

18

19 the request that the request be be submitted

submitted in

in writing

writing as consistent with the Criminal Criminal Procedure

Procedure statutes

statutes and

19

20 20 rules regarding regarding Motions, which

which are all too often

often ignored

ignored in

in the

the criminal

criminal docket.2

docket.2

21 The Defendant Defendant subsequently filed the subsequently filed the Motion on on November

November 3,

3, 2023,

2023, arguing

arguing that

that

22 22 McDonald should should be precluded from sewing serving as

as both

both aa prosecutor

prosecutor in

in this

this case

case and

and a criminal

23 defense attorney attorney in

in other

other cases

casesbrought

broughtby

bythe

theOffice

Office of

of the

the Attorney

Attorney General

General on behalf of the

24 24

25 . ofGuam.

People of Mot. at Guam. Mot. at p.

p. 5,

5, Nov.

Nov.3,3,2023.

2023. The

Thegravamen

gravamenofofhis

hiscomplaint

complaintisisthat

that such

such dual

dual

26 26

27 Agulto waived waived her

her right

right to

to speedy

speedy trial and has been trial and been deemed deemed legally

legally eligible for

for Adult

AdultDrug

Drug Court

Court participation.

participation.

She does not She does notjoin join in

in the

theMotion

Motionto to Disqualify.

Disqualify. Id. at

at p.

p. 2.

28 2 2 See, 8 GCA § 65. 15 (Motions Which Must be Made Prior to Trial); 8 GCA §l.25(c); Local Rules of the Superior See, 8 GCA § 15 (Motions Which Prior to Trial); 8 GCA §l.25(c); Local Rules of the Superior Court of Com of Guam, Criminal Procedure Guam, Criminal ProcedureRules RulesCRCR1.1

1.1(CRl.l(b)(l)("An applicationtotothe (CRl.l(b)(l)("An application thecourt courtfor

for an

an order

order shall

shall be

be

by motion."

motion. (emphasis added)).

(emphasis added)).

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v.

v. Blas, CF0334-23-01

CF0334-23-01

Page 3 of211

1 roles cannot be be reconciled in

in aa criminal

criminal case

case because

because a prosecutor in a criminal prosecutor in criminal case case owes a

2 duty of of loyalty

loyalty to the state

state while aa defense

defense attorney

attorney owes the

the same duty to

same duty to his client in a

a

3 criminal case, case; therefore, the

the same

same individual carlnot

cannot serve two masters because to masters because to do

do so

so would

would

4

5 violate or or significantly

significantly risk

risk violating

violating the

the Rules

Rules of

ofProfessional

Professional Conduct.

Conduct. Mot. at

at pp. 3-5 ((citing

pp. 3-5

6 Barrett-Anderson Barrett-Anderson v. Camacho, 2018 Guam 20 ,r,r v. Camacho, 'lm 17-20).

7 In his Response, McDonald McDonald argues

argues that he

he has

has implemented

implemented aa "compliance "compliance program"

program"

8 to ensure there is no conflict conflict of

ofinterest,

interest, obtained

obtained waivers from existing clients clients in criminal

9 cases, sought to cases, sought to be be relieved

relieved as

as counsel

counsel in

in aa case in

in which

which he

he was

was appointed

appointed indigent counsel, 10 10

111 and thathis and that hisappointment appointmentisisaavery

verylimited,

limited, "narrow

"narrow engagement"

engagement" for the

the purpose

purpose of taking the

12 12 matter to trial. Moreover, Moreover,heheasserts

assertsthat

thatother

otherjurisdictions

jurisdictionspermit

permitsuch

such dual

dual roles

roles and

and that in

13 13 this case case no

noconflicts

conflicts exist.

14 14 III.DISCUSSION

15

A. The The Proper

Proper Test

Test for

forAttorney

Attorney Disqualification under the Disqualification under the Guam Guam Rules

Rules of

of

16 16 Professional Conduct.

17 17 The Guam The Guam Supreme

Supreme Court

Court has

has declared

declared that

that "[t]he proper

proper test

test for

for attorney

attorney

18

disqualification disqualification in in Guam

Guam is

is whether

whether an

an attorney's

attorney's continued

continued representation

representation or participation in a 19 19

20 20 matter violates or significantly matter violates significantly risks violating the Guam risks violating Guam Rules of ofProfessional

Professional Conduct."

Conduct."

21 21 Barrett-Anderson v. Camacho, Camacho, 2018 Guam 20.

2018 Guam 20. Prior to Barrett-Anderson Barrett-Anderson and

and the adoption

adoption of

22 22 the 2003 2003 Guam

GuamRules

Rules of

of Professional Conduct,

Conduct, the

the standard in attorney

standard in attorney disqualification disqualification was the

23 23 "appearance "appearance of impropriety"

impropriety" measure

measure articulated in People People v.

v. Tennessee,

Tennessen, 2009 Guam 3. There, Guam 3.

24 24

25 the the Supreme Court disqualified Supreme Court disqualified the theentire

entireAttorney

Attorney General's

General's office

office in

in aa criminal

criminal prosecution

prosecution

79

26 26 "when "when aa personally-conflicted personally-conflicted Attorney General General breached previously-imposed conflict breached a previously-imposed conflict wall."

27 27 Barrett-Anderson Barrett-Anderson at ,r 16.

at 1] 16. Since

Since Tennessee,

Tennessen, Guam

Guam adopted

adopted the 2003

2003 Guam

Guam Rules of

of

28 Professional Conduct, thereby thereby eliminating

eliminating the

the "appearance

"appearanceof

of impropriety" standard infavor standard in favor of

of

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualify aa Prosecutor

Prosecutor

People v.

v. Blas,

8la5, CF0334-23-0

CF0334-23-0ll

Page 21 Page 4 of21

1

establishing one establishing onerequiring requiringaashowing

showingof

of aaviolation

violation of

of or significant risk of violating the the Rules

Rules

2 of of Professional Professional Conduct Conduct before

before disqualifying

disqualifying the attorney. 3 It is, the attorney is, however, however, noteworthy

noteworthy that

that

3 despite ovenuling Tennessee, despite overruling Tennessen, the Guam Supreme Supreme Court declared that that its

its decision therein is not 4

5 inconsistent inconsistent with Barrett-Anderson Barrett-Anderson "as

"as it isis a adisqualification disqualification case

case concerning

concerning personal

personal

6 cases." Id. (emphasis conflicts in criminal cases." (emphasis added).

7 It It is

is important

important to note also

also that

that Barrett-Anderson

Barrett-Anderson is distinguishable on its facts from the 8 instant caseas instant case asitit concerned concernedwhether

whetherdisqualification

disqualificationof

ofthe

theOAG

OAG was proper in a civil matter matter

9 the OAG previously

when the previously represented the same represented the same government government entity

entity client

client in

in a civil

civil proceeding

10

11 11 through anAAG through an AAG who who had

had since

since retired. Barrett-Anderson Barrett-Anderson did not concern concern the disqualification

12 12 of of aa private attorney from sewing serving as

as aa SAAG

SAAGprosecutor

prosecutorin

inthe

the same

same jurisdiction

jurisdiction where

where he also

13 13 concurrently represents criminal concurrently represents criminal defendants defendantsagainst

againstthe

thePeople.

People. Thus,

Thus, while

while Barrett-Anderson

Barrett-Anderson

14 14 dictates the standard dictates the standardby by which

which this

this Court

Court determines

determineswhether

whetheraa conflict

conflict exists,

exists, it does

does not

not

15 15 supply the analysis supply the analysis relevant in this this case

case because

becausethe

theapplicable

applicableRule

Rule in

in determining

determining the

the conflict

conflict

16

17 17 in that that case casewas

wasRule

Rule l.9(c)

1.9(c) of

of the

the Guam Rules of

of Professional

Professional Conduct,

Conduct, not Rule 1.7,

1.7, which is

18 18 implicated here. 4 implicated here.4 19 19 In any

any event,

event, as

as dictated

dictated in Barrett-Anderson, we properly properly begin

begin the

the analysis

analysis of

20 20 Defendant's Defendant's instant Motion with instant Motion with Rule 1.7 1.7 of

of the

the Guam

Guam Rules of Professional Conduct.

21

22 // II

23 23 // II 24 24 // II 25 25

26 26 3 3 Barrett-Anderson at1118 Barrett-Anderson iTl 8 ("[W]e ("[W]e find

find that

that the

the "appearance

"appearance of

ofimpropriety"

impropriety"standard

standard ceased

ceased toto be

be the

the standard

standard for

27 attorney attorney disqualification after the the 2003 2003 adoption

adoption ofof the

the Guam

Guam RulesRules of

of Professional Conduct

Conduct for criminal

criminal actions

actions

filed filed after after thethe rules'

rules' effective

effectivedatedateand

and for

forall

allsubsequent

subsequent attorney conduct conduct in

in pending

pendingcivil

civil cases).

28 4 4 Barrett-Anderson at 1'If127 ("Now, ("Now, we we turn tum ourour attention to the singular to the singularrule

rulethat

thatisisimplicated

implicatedherehere- -Rule Rulel.9(c)

l.9(c).

...This . .This isis the the only

onlyapplicable

applicable rulerule because because the present

present suit

suitisis aa claim

claim between

betweenthe theoriginal

originallawyer

lawyer-- the Attorney

General General -- and andthetheformer formerclientclient

-DRT.").

DRT.").

Decision Decision and Re. Defendant's and Order Re. Defendant's Motion Motion to Disqualify

Disqualify aa Prosecutor

People People v.

v. Blas,

Blas, CF0334-23-01 Page 5 of21

of21

B. Rule 1.7 1. of the

the Guam

Guam Rules

Rules of

of Professional

Professional Conduct

Conduct requires

requires Defendant

Defendant to show

show

3 that McDonald's McDonald's. SAAG

SAAG appointment

appointment results in

in a "significant risk"

risk" of

of violating

violating the

Rules of Professional Conduct.

4

5 Rule 1.7

1.7 of the Guam

GuamRule

Rule of

of Professional

Professional Conduct

Conduct(GRP)

(GRP) provides, aS follows:

as follows:

6 Rule Rule 1.7:

7: Conflict of Interest:

Interest: Current

Current Clients.

7 (a) Except

Except as as provided

provided in in paragraph

paragraph (b),

(b), aa lawyer

lawyer shall

shall not

not represent

represent a

8 client ififthe

the representation

representation involves aa concurrent conflict of concurrent conflict of interest.

interest.

A concurrent conflict of interest exists if:

concurrent conflict if:

9 (1) the

the representation

representation of of one

one client

client will

will be

be directly

directlyadverse

adverse to

to another

another

10 10 client, client; or

11 (2) there there is

is aa significant

significant risk

risk that

that the

the representation

representation of oneone or more more

clients clients will be be materially materially limiter'

limited by by ire

thelawyer's

lawyer'sresponsibilities

responsibilities toto

12 12 another another client, a former

former client

client or

or aa third

thirdperson

person or

or by

by aa personal interest

interest

of ofthe lawyer.

13

14 14 (b) Notwithstanding the existence Notwithstanding the existence of of aa concurrent

concurrent conflict of

of interest

interest

under paragraph

paragraph(a),

(a), aalawyer

lawyer may

may represent

representaaclient

clientif:

if:

15 15 (1) the

the lawyer

lawyer reasonably

reasonably believes that the the lawyer lawyer will

will be able to provide

16 competent and diligent representation to and diligent to each eachaffected

affected client;

client,

17 17 (2) the the representation

representation is not prohibited by by law;

law,

(3) the

the representation

representation doesdoes not not involve

involve the

the assertion

assertion ofof a claim by one 18 18 client against another client against another client represented representedby by the

the lawyer

lawyer in thethe same

same

litigation litigation oror other

other proceeding

proceeding before

before aa tribunal,

tribunal; and

and

19 19 (4) 4) each

each affected

affected client

client gives

gives informed

informed consent,

consent, confirmed in writing.

20 Although Rule Although Rule 1.7

1. 7 is

is the

the starting

starting point

point in

in this

this case,

case, the

the question

question of

ofattorney

attorney

21

22 disqualification in in arase

a.casewhere

whereaaprivate

privateattorney

attorneywho

whorepresents

represents defendants

defendants in

in criminal

criminal cases

cases

22

23 23 is disqualified under Rule disqualified under Rule 1.7 1. 7 of the

the Guam

Guam Rules of

ofProfessional

Professional Responsibility Responsibility Hom

from also

also

24 24 prosecuting criminal defendants prosecuting criminal defendantsunder underthe

theSAAG

SAAG designation

designationisis one

one of

of first

first impression.

impression.

25 25 . . I . . n .

the dlsquahficatlon

Barrett-Anderson involved the disqualification of the the OAG

OAGinina c1v11

a civil matter.

matter. Tennessee

Tennessen

26 26 involved the involved the disqualification disqualification ofofthe

the Office

Office of the

the Attorney

Attorney General

General in

in aa criminal

criminal case

case

27 27

28 28 concerning personal conflicts concerning personal conflicts of of interest

interest involving then-Attorney then-Attorney General

General Douglas Moylan.

Decision Decision and OrderRe.

and Order Re.Defendant's Motion to Disqualify Disqualify aa Prosecutor

Prosecutor

People v.

v. Blas,CF0334-23-01

CF0334-23-0l

Page of21 Page 6 of21 1 at~ Tennessen at Tennessee 6, fn.

1] 6, fn. 2.

2. The

The Court is not aware

aware of

of any

any subsequent

subsequent Guam

Guam Supreme Court

Court case

case

2 addressing attorney disqualification addressing attorney disqualification under under Rule

Rule 1.7

1. since Barrett-Anderson Barrett-Anderson and

and neither party

party

3 has provided any has provided any Guam Guamauthority

authorityfollowing

following Barrett-Anderson Barrett-Anderson in

in the context of

of a criminal case.

4 4

Nevertheless, the

the parties

parties agree

agree that

that Barrett-Anderson

Barrett-Anderson requires showing of more requires a showing more than than

5

66 "an appearance "an appearance of of impropriety"

impropriety" to

to justify the

the disqualification

disqualificationof

of McDonald

McDonald as

as aa SAAG in this

SAAG in this

7 7 case. Mot. Hrg.

case. at 9:53:49 Hrg. at 9:53:49 AM to

to 9:58:25

9:58:25 AM

AM(Jan.

(Jan. 3,3, 2024).

2024). However,

However, the

the Guam

Guam Supreme

Supreme

8 Court did not wholly Court wholly reject reject aa Court's

Court's consideration

consideration of the

the "appearance

"appearance of impropriety"

impropriety" in

in

9 considering considering attorney but merely attorney disqualification, but merely requires requires that

thatbefore

before finding

finding disqualification is 10

11 warranted, the warranted, the appearance appearanceof

of impropriety

impropriety must

mustbe

be coupled

coupled with

with an

an additional

additional showing

showing "that the

12 12 attorney's representation risksviolating representation risks violating the the Rules

Rules of

of Professional Conduct."

Conduct." Barrett-Anderson Barrett-Anderson

13 1 at~ at 1117 17(quoting v. Mackler, 623 A.2d (quoting Bergeron v. 489,493 A.2d 489, 1993)("Although considering 493 (Conn. 1993)("Although considering 14 14 the appearance of impropriety may appearance of may be part of of the

the inherent

inherent power of

of the

the court

court to

to regulate

regulate the

the

15 15 16 conduct conduct of attorneys, attorneys, it

it will

will not

not stand

stand alone to disqualify disqualify an attorney

attorney in the absence

absence of any

any

16

17 17 indication that the indication that the attorney's attorney's representation risksviolating representation risks violating the the Rules

Rules of

of Professional

Professional

18 18 Conduct.")( emphasis added)).

Conduct.")(emphasis

19 19 Moreover, Moreover, in

in determining

determining whether

whether "there

"there isis aasignificant significantrisk

risk that

that the

the representation

representation of

20 20 one or more clients will be be materially

materially limited

limited by

by the

the lawyer's

lawyer's responsibilities responsibilities to

to another

another client,

21

a former client client or

or aa third

third person

person or by aa personal

personal interest

interest of the lawyer" under under Rule 1.7,

1. the

the

22 22

23 23 "significant risk" does "significant does not allow for disqualification for a potential conflict, but for "inevitable for disqualification

24 24 and material and material conflicts."

conflicts." Id (citing Eottoms Id (citing Bottoms v.

v. Stapleton, 411, 417 Stapleton, 706 N.W.2d 411, 417 (Iowa 2005)).

25 u | I v o - . .

The challenge challenge before

before thls

this Court is how to

Court is to measure

measure "slgnlticant

"significant rlsk"

risk" in

in thls

this context,

context, given

given that

that

26 26 there is no precedent on point. In In considering

considering the

the appropriate

appropriate formula, the Court Court considers

considers the

27 27 .

28

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v.

v. Blas, CF0334-23-01

CF0334-23-01

Page Page 77 of21

of21

1 analysis analysis invoked by the Iowa Iowa Supreme

Supreme Court in Bottoms, which reasoning reasoning was adopted by the 2 Guam Supreme Court in Supreme Court in Barrett-Anderson.

3 Although Bottoms, like Barrett-Anderson, does not involve involve aa criminal

criminal proceeding,

proceeding, the

the

4

5 principles are articulated clearly therein and articulated clearly and Iowa Iowa Rule of

ofProfessional

Professional Conduct

Conduct 32:1.7

32:1.7 mirrors

6 Guam's Rule 1.7 1.7 in

in all

allapplicable respects. 5 Consequently, applicable respects.5 the Court Consequently, the Court finds finds its analysis

analysis in

7 determining there exists a disqualifying conflict determining whether there conflict both both persuasive

persuasive and

and appropriate.

appropriate. The

8 Iowa Iowa Supreme reasoned as Supreme Court reasoned asfollows:

follows:

9 The question

question to to be answered underrule answered under rule 32:l.7(a)(2)

32:l.7(a)(2) is whether

whether therethere isis "a "a

10 significant risk" that significant risk" that counsel's representationofofone counsel's representation oneclient client "will

"will be be materially

materially

11 11 limited by [his or her]

her] responsibilities

responsibilitiestotoanother anotherclient."

client."See

Seeid.idr.r.32:l.7(a)(2).

32:l.7(a)(2).

Although related to Although related to the the old

old "appearance

"appearance of impropriety"

impropriety" test,

test, the

the modem

modem

12 12 approach focuseson approach focuses degreeof thedegree

onthe of risk

risk that

thataalawyer

lawyerwill

will be unable

unable to to fulfill

iultill his

his

or her duties to both clients. See See generally generally l1 The

The Law

Law ofofLawyering

Lawyering §§ 10.4,10.4, at 13 13 10-12 10-12 toto 10-13

10-13 (noting

(noting the

the old

oldstandard

standard was "too"too vague vague and

and subjective"

subjective" and and

14 droppedfrom was dropped fromthe

theABA

ABA Model Rules of of Professional Professional Conduct).

15 15 A comment comment to rulerule 32:1.7 32: 1. 7 sheds light on sheds light on when

when a conflict

conflict of

of interest

interest will

materially limit

limit an

an attorney

attorney inin the

the performance of

ofthe

the at"tomey's responsibilities:

attorney's responsibilities:

16 16

17 17 [A]

A] conflict

conflictofofinterest

interestexists

existsififthere

thereisisaasignificant

significantrisk

risk that

that aa lawyer's

lawyer's

ability to

to consider,

consider, recommend,

recommend, or can'y carry out out an

an appropriate course of appropriate course

18 18 action for the client will will be

be materially

materially limited

limited as

as aa result

result of

of the

the lawyer's

19 19

5 20 Iowa R.R. of ProflConduct ofProf'l Conduct 32:l.7 32:1.7mirrors

mirrors Rule

Rule 1.71.7 of

ofthe

theGuam

Guam RulesRules ofofProfessional Professional Responsibility Responsibility in all

all

relevant relevant aspects, aspects, andand provides:

provides:

21 (a) Except Except as as provided

provided in in paragraph paragraph (b), aa lawyer

lawyer shall

shall not

not represent

represent aa client

client ififthe

the representation

representation involves aa concurrent conflict of interest. concurrent conflict interest. AA concurrent conflict of interest exists concurrent conflict exists if:

if:

22 (1)

1)the

the representation

representation of of one client will will be

be directly

directlyadverse

adverse to to another client, or another client;

(2) there

there is is aa significant significant risk

risk that

that the representation

representation of of one one oror more

more clients

clients will

will be materially

materially limited by

23 the the lawyer's responsibilities responsibilities to to another client, a former another client, former client, client, or aa third

third person or by aa personal personal interest

interest of the

the

lawyer. lawyer. · 24 (b) Notwithstanding Notwithstandingthe the existence existence of ofaaconcurrent concurrent conflict

conflictofofinterest

interestunder

underparagraph

paragraph (a),(a), aa lawyer lawyermay

may represent

represent

a client client if:

if:

25 (1) the the lawyer

lawyer reasonably

reasonably believes that the lawyer will be that the be able able totoprovide

providecompetent

competent and and diligent diligent

representation representation to to each eachaffected

affected client;

client,

26 (2) the the representation prohibited by representation is not prohibited by law;

law,

(3) the

the representation

representation does does not not involve

involve the

the assellion

assertion of aa claimclaim bybyoneoneclient clientagainst

against another

another client

client

27 represented represented by by the the lawyer

lawyer in thethe same

same litigation

litigation oror other proceeding beforebefore aa tribunal, tribunal; and

and

(4) each

each affected

affected client

client gives

gives informed

informed consent,

consent, confirmed in writing.

28 (c)

(c)InInno noevent

eventshall

shallaa lawyer

lawyerrepresent

represent both

both parties in dissolution of of marriage marriage proceedings.

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to

to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v. Blas, CF0334-23-01 People v. CF0334-23-0l Page 88 of21 Page offal

1

1 other other responsibilities....

responsibilities.... The mere possibility possibility ofofsubsequent subsequent harm harm does does

not itself

itselfrequire

require disclosure

disclosure and

and consent.

consent. The

The critical

critical questions

questions areare the

the

2 likelihood that

that a Terence

differenceinininterests

interests will

willeventuate and, ififititdoes, eventuate and, does, 3 whether whether itit will

will materially

materially inteire

interferewith

withthethe

lawyer's

lawyer'sindependent

independent

professionaljudgrnent

judgment inin considering considering alternatives

alternatives or

orforeclose

foreclose courses

courses of

4 action that reasonably should be bepursued pursuedon onbehalf

behalfofthe

of client.

5 5 Bottoms at 416 (quoting Iowa Iowa R. of Prowl Conduct

of Profl Conduct 32:

32:1.7 cut. [8])(emphasis added).

1. 7 cmt.

6 In In Barrett-Anderson,

Barrett-Anderson, the Guam Guam Supreme

Supreme Court noted

noted Bottoms as

as finding that

that the

the

7

8 "concept of of a potential conflict

conflict of interest

interest is foreign

foreign to

to the

the new

newethical rule." 6 The entire ethical ru1e."6 entire

9 the Iowa's portion of the Iowa's court's court's discussion about potential conflict conflict is important to consider, so it is

10 replicated here: 11 11 In considering thisthis ruling ruling [of [of the

the district

district court

court that "there is a significant 12 potential for potential divergence of'

for divergence interests of the attorney's of" the interests attorney's clients], clients], we

first note that the first the concept of of a potential conflict of of interest is foreign to 13 13 the ethical rule. the new ethical rule. TThathat isis because because rulerule 32:l.7(a)(2.)

32:l.7(a)(2) statesstates that that a

14 14 conflict of interest conflict of "exists if interest "exists if ... there her e is aa s significant ignifica risk that tthe

representation of representation of one one or more clients will be materially materially limited limited by the

15 15 lawyer's responsibilities lawyer's responsibilities to to another another client."

client." Iowa

Iowa R. R. ofof Prof'l

Profl Conduct

Conduct

32:l.7(a)(2) 32:1.7(a)(2) (emphasis added). In other words, if (emphasis added). if there there is is aa significant significant

16 16 risk

s k tthat

h r representation

ep r t a t i o n of o oonen e c lclient

i en t wiwill

l l mamaterially

t er i a l y l i limit

mi t ' · tthe

17 representation of another client, a conflict of of interest actually exists;exists, it is merely potential. See

not merely See l1 The The Law Law ofofLawyering

Lawyering §§ 10.4, 10.4, at 10-13.

18 18 Thus, only an actual conflict of of interest, as defined in rule 32:1.7(a),32:l.7(a), will justify disqualification.

19 19

20 20 Bottoms v.

v. Stapleton,

Stapleton, 706 N.W.2d 411, 417 (Iowa 2005). The Court Court interprets

interprets this finding in 21

22 22 Bottoms ass sta nding for the standing the pr oposition that the proposition the existence existence of a significa

significant

nt risk

isk that the

the

23 representation of one client will materially limit limit the representation of of of another client is in and of 24 24 itself itself an actual - not not potential

potential -.- conflict of of interest which requires disqualification.

25 25 We now examine whether

whether McDonald's

McDonald's authority

authority under

under his

his SAAG

SAAG designation

designation results

results in

26 a significant risk that his his dual

dual representation

representation as

as prosecutor

prosecutor and

and defense

defense counsel will materially 27

28

66 Barrett-Anderson Barrett-Anderson at at 1[17 (quoting Bottom at 417).

,r17 (quoting

I

Decision Decision and

and Order Re,

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualify aa Prosecutor

Prosecutor

People v.

v. Blas, CF0334-23-01

CF0334-23-01

Page 99 of21

offal

1 limit limit the the representation of another representation of client (his criminal defendant another client defendant clients), therefore, resulting in 2 a conflict conflict under under Rule 1.7

1. and mandating

mandatinghis

hisdisqualification.

disqualification.

3 1. McDonald's McDonald'sauthority

authorityunder

underhis

his SAAG

SAAGdesignation.

designation.

4 McDonald McDonald asserts

asserts that his

his representation

representationisisnot

notmaterially

materiallylimited

limited by his responsibilities 5

6 to another client, client, a former client

client or

or aa third

third person,

person, or

or by

by his

his personal

personal interests.

interests. Response at

at p. 2

7 (citing Rule Rule 1.7(a)

l.7(a) of

ofthe

the GRPC)("None

GRPC)("Noneofof

the

thedefendants

defendantsororwitnesses

witnesses are

are clients

clients or

or former

former

8 clients clients of of the

the Firm,

Firm, nor

nor does

does the

theundersigned

undersigned have

have any

any responsibilities

responsibilities to another another client,

client, aa

9 former client client or

or aa third person, nor is there there a personal

personal interest

interestof

of undersigned

undersignedSAAG

SAAG that would

10 10

")-

11 materially limited by be materially by the engagement in this matter.

matter."). However, these are mere blanket

12 12 assertions unaccompanied assertions unaccompaniedby byDeclarations

Declarationsor

orAffidavits made under penalty Affidavits made penalty of perjury. Indeed,

13 13 the statement the statement that that McDonald has no "responsibilities McDonald has "responsibilities to to another client ... that would another c1ient...that be would be

14 14 materially limited materially limited by the the engagement

engagement in this

this matter"

matter" is the

the precise

precise question

question sought

sought to

to be

15

answered in this answered in this instant instant Motion.

Motion. That is, whether

whether McDonald's

McDonald's responsibilities responsibilities to

to his

his current

current

16 16

17 17 criminal criminal defense clients would be materially defense clients materially limited limited by

by his

his responsibilities

responsibilities as

as aa prosecutor

prosecutor

18 18 under underthe theSAAG and vice SAAG designation, and vice versa.

19 While acknowledging

acknowledging a conflict

conflict of

ofinterest

interest that

that is,

is, "to

"to some

some extent,

extent, recognized

recognized and

and

20 20 sanctioned by sanctioned by the thegovernment[,]" SAAG McDonald government[,]" SAAG McDonaldindicated indicated during

during the

the Motion

Motion Hearing

Hearing that

that

21

he has has one one court-appointed

court-appointed criminal

criminal defendant

defendantclient

client and

andtwo

two clients who retained either him or 22

23 another attorney another attorneywithin withinthe

theMcDonald

McDonaldFirm

Firm("Firm"). Hrg. at ("Firm"). Mot. Hrg. at 10:16:30 10:16:30 AM 10:19:30

AM - 10:19:30

24 24 AM (Jan. AM 3, 2024).

(Jan. 3, 2024). He He claims

claimsthat he has

that he has obtained

obtained waivers

waivers from these criminal firm these criminal defense defense clients

clients

25 but did not present present any

any other

other information

information on the purported purported waivers in order to establish waivers in establish whether 26 26 they are knowing waivers of conflict.

27

28

Decision Decisionand

and Order

Order Re. Defendant's Motion Motion to Disqualify

Disqualify aa Prosecutor

People People v. Blas, CF0334-23-01l v. Elms, Page Page 10 of21

of21

The Court's

Court's concern

concern in

in this

this case

case isisthat

thatMcDonald's

McDonald'srepresentation

representation of

of criminal

criminal

2 defendants concurrentlywith defendants concurrently with prosecuting prosecuting individuals

individualscharged

chargedwith result in aa crime would result

with aa crime

3 significant risk "that the the representation

representationof

ofone

oneor

ormore

moreclients

clientswill

will be materially limited be materially by [his]

limited by [his]

4

5 responsibilities to another another client," as

as proscribed by Rule 1.7.

1.7. In this regard, Courtwill the Court

regard, the will apply

6 the analysis analysis from the Bottoms Bottoms case:

case: "The

"The critical

critical questions are the questions are the likelihood likelihood that

that a

a dwérence

difference

7 in interests interests will willeventuate

eventuate and, if it does, and, if whetherititwill does, whether materiallyinterfere willmaterially the lawyer's with the

interne with

8 independent professional judgment in independent professional in considering alternatives or foreclose considering alternatives courses of action foreclose courses

9 that reasonably reasonably should pursuedon bepursued

shouldbe behalfof onbehalf theclient."

ofthe Supra.

client."Supra.

10

11 11 a. The

Thelikelihood

likelihoodthat

thataadifference interests will ofinterests

differenceof eventuate.

will eventuate.

12 The Court Court agrees

agrees with

with the

the Defendant

Defendant that

that there appearance of an appearance

there is an of impropriety when

13 13 SAAG SAAGMcDonald McDonaldisisacting asaaprosecutor actingas during one prosecutor during point in one point the day

in the and aa criminal defense day and

14 14 attorney during during another.

another. Mot.

Mot. Hrg. 9:55:40 AM.

at 9:55:40

Hrg. at However, an AM. However, appearance of an appearance impropriety of impropriety

15 15 "will not "will stand alone not stand to disqualify alone to disqualify an in the attorney in

an attorney absence of the absence any indication ofany indication that the that the

16 16

17 17 representation risks attorney's representation violating the risksviolating Rules of the Rules Conduct." Barrett-Anderson Professional Conduct." of Professional Barrett-Anderson

18 18 at 1117 roleas McDonald'srole

Thus, McDonald's

(quoting Bergeron, supra). Thus, 117 (quoting prosecutor pursuant asprosecutor hisSAAG pursuant totohis SAAG

19 19 designation dictate whether a difference in designation will dictate interests will eventuate in interests resulting in a violation eventuate resulting violation 20 or a significant risk risk of 1.

of violating Rule 1.7.

21

According to

to McDonald, as a SAAG his role as

McDonald, his the prosecution SAAGininthe ofthis prosecution of case and this case of two

and of

22 22

23 23 matters isis limited other matters to a "consultant."

limited to 10:26:25 AM Mot. Hrg. 10:26:25

"consultant." Mot. 10:27:00 AM.

AM - 10:27:00 AM. He relies on

24 Guam Public Law No. SAAG authority:

hisSAAG forhis

basisfor

as aabasis

Part II Section 4 as

36-107, Chapter 7 Part

No. 36-107,

25 Notwithstanding any Notwithstanding anyother provisionof otherprovision law for of law Fiscal Year

for Fiscal the OAG 2023, the

Year 2023, OAG in

26 26 pursuit of the pursuit of public interest the public authorizedtotouse interestisis authorized uptoto5% useup of its

5% of 2023

its FY 2023

appropriation appropriation to procure

procure consultants, experts and expert experts and witnesses on expert witnesses on a sole-

27 source basis as source basis necessary to as necessary pursuelocal to pursue and federal local and criminal cases federal criminal and civil cases and civil

28 cases. cases.

Decision Decision and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualify aa Prosecutor

Prosecutor

v. Blas, CF0334-23-01

People v. CF0334-23-01 Page 11 of21 Page 11 offal 1 (emphasis added). A (emphasis added). A "consultant"

"consultant" is defined in in the

the Merriam-Webster dictionary dictionary as

as "one

"one who

2 gives gives professional professional advice or services."7 McDonald or services."7 McDonald then then argues

argues that his consulting that his consulting role

role is very

3 well defined defined and

and was specifically crafted crafted as a "narrow engagement"

engagement" for the

the limited

limited purpose

purpose of

4

5 taking the matter to tn'al trial and

and other related proceedings. However, as he describes describes his

his role,

role, it is

6 far far more expansive than aa mere expansive than mere "consultant" in the "consultant" in the general definition of general definition of the the word.

word. His

His

7 responsibilities include the "authority "authority to

to enter

enter and

and make

make appearances, make legal decisions as appearances, make as 8 the the prosecutor at trial, prosecutor at trial, file file pleadings,

pleadings, and

and share[]

share[] certain

certain ministerial

ministerial and

and operational

operational

9 responsibilities between the the Firm and

and the

the attorneys

attorneysand

andstaff

staffininthe

theDept.

Dept.of

ofLaw."

Law." Response at

at

10

111 4. "Primary "Primary attorney attorney responsibility

responsibility in this

this matter remains with

matter remains with the

the Attorney

Attorney General,

General, Chief

12 12 and the Dep. Attorney, and the Chief Prosecutor,"

Prosecutor," which McDonald describes describes to

to regard

regard the "setting of

the "setting

13 13 terms terms of plea plea deals

deals and

and the

the exercise

exercise of

ofdiscretion

discretion on

on legal

legaland

andstrategic

strategic matters

matters that

that are

are

14 14 appropriately at their appropriately at their respective levels, given respective levels, given the the undersigned SAAG's experience undersigned SAAG's as a experience as

15 16 prosecutor at trial. " Id. (emphasis (emphasis added).

added).

16

17 17 The Court Court is perplexed

perplexed by McDonald's

McDonald's description

description of

of his

his "narrow

"narrow engagement"

engagement" as

as

18 18 SAAG SAAG because because itit appears

appears to

to encompass all of

encompass all ofthe

the same

same authority

authority as

as aa full-time

full-time Assistant

Assistant

19 19 Attorney General OAG.88 Additionally, as General employed by the OAG. as the former Chief Chief Prosecutor

Prosecutor for the

20 20 OAG, McDonald's McDonald's use

use of

of the

the phrase

phrase "given

"given the

the undersigned SAAG's experience undersigned SAAG's experience as aa 21

prosecutor at trial" prosecutor at trial" seems seems to

to downplay

downplay his

his own

ownexperience

experienceand

and undercuts

undercuts the three

three previous

previous

22

23 23 pages of of his

his Response

Response detailing the

the "compliance

"compliance program"

program" through

through which

which he

he purportedly

purportedly vets

24 24 cases to to determine

determine and

andavoid

avoid conflicts

conflicts of interests.

25 25

26 26

27 27 77 https://www.merriam-webster.com/dictionary/consultant.

https://www.rnerriam-webster.com/dictionary/consultant.

28 8 The AAGs who appear before this Court have often indicated that plea agreements go through fsThe AAGs who appear before this Court have often indicated that plea agreements go through an approval process which includes review by by the

the Attorney

Attorney General

General and

and relevant

relevant hierarchy.

hierarchy. Thus',

Thus, the limitation offered here does not provide any distinction between between McDonald's duties as a SAAG and those of a full-time McDonald's duties full-time AAG.

AAG.

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualifyaa Prosecutor

Prosecutor

v. Blas, CF0334-23-0

People v. CF0334-23-0ll Page 12 Page 12 of21

of21

1 During During the hearing

hearing of

of this

this matter,

matter, when

when queried

queried about

about the tasks he is authorized tasks he authorized to 2 2 perform, perform, McDona1d's-lresponse was tentative McDonald'·s--response was and ambiguous tentative and ambiguous and and at times

times contradictory.

contradictory. In

3 I response to the Court's Court's question

question about

about what he is responsible for for in

in this

this case,

case, he responded:

responded:

4

5 McDONALD: McDONALD: It's It'sonly onlytotoconduct

conduct trial.

trial. It's

It's only

only for

fordiscretion

discretion over

over

legal calls at the

the time of trial. If

IfI'm

I'mapproached

approached with with anan offer offer or

or request

request

6 for aa plea plea agreement,

agreement, I do not exercise discretion on that. that. What What II do

do is go

to the Attorney

Attorney General...excuse General. .. excuse meme... or, I go ... or, go to

to one

one of

ofthe

the Deputies

Deputies

7 who has asked me

has asked me to

to take

take.the

thecase

caseand

andI Isay,

say,"Hey,

"Hey,look.

look.Now

Now they're

8 asking asking for a plea agreement,"

agreement," and so even that type of discretion discretion I have

have

not not asked for because

asked for I'm continuing because I'm continuing to narrow narrow everything down. down.

9 COURT: COURT: So, So, in

in terms

terms ofof appointment

appointment asasSAAG,

SAAG, and

and- - correct

correctmemeifif I'm

I'm

10 10 wrong - it sounds

sounds like this is aa veryvery limited limited appointment

appointment just

just for thethe

11 1 purposes of purposes of trial. bringing the trial. So, bringing the matter matter to trial,

trial; so,

so, nothing

nothing pre-trial?

pre-trial?

You're saying

saying that

that there's

there's nothing,

nothing, ... nothing

nothing in terms

terms ofof pre-trial

pre-'trial

12 12 negotiations, terms of appearing negotiations, in terms appearing on behalf of the the government

government in in this

this

case case for violations,

violations, andand then

then you're indicating

indicating asas well that that if

if defense

defense

13 13 counsel wanted to counsel wanted to engage in negotiations for aa resolution resolution without trial, 14 14 that's not you?

you? That's someone else?

15 How does does that

that resolve the

the issue

issue of

ofaa limited

limited number

number of

ofprosecutors

prosecutors by

your· appointment as your appointment as Special Special Assistant

Assistant Attorney

Attorney General

General if your

if your

16 appointment appointment isisfor

for the

the purposes

purposesof oftrial?

trial?AA lot

lot of the work gets done in 17 17 the pre-trial stages, stages, right? So, I guess guess my question

question is: how does

does that help

with the

the burden

burden on thethe limited

limited number

number of ofprosecutors

prosecutors currently

currently at the

18 18 AG's AG's office?

office?

19 19 McDONALD: Well, McDONALD: Well,trial trialdoes

does take

take time.

time. A

A trial

trial like

like this

this II imagine

imagine is is

20 20 wrapped up wrapped up within

within four

four to

to five And that five days or fewer. And that time time atat trial, the

other prosecutors

prosecutors areare continuing continuing toto work

work up

up their

their files,

files, their matters.

matters. So,

21 it does

does free

free up

up those

those prosecutors

prosecutors that

that are

are doing

doing other

other pre-trial

pre-trial matters.

matters.

22 Now, Now, again,

again, ...

23 23 COURT:*** COURT: Whattasks

*** What tasksisisyour youroffice

officegoing

goingtotobe

beLmdertaking?

undertaking? Are

Are you

going to be

be interviewing

interviewing witnesses?

witnesses? What is your role specifically, or or are 24 24 you just appearing

appearing in court for thethe purpose purpose of doing opening of doing opening arguments arguments

25 and and then

then questioning witnesses,are questioning witnesses, areyou you doing

doing...what kind of trial ... what kind trial

preparation up

upto

tothat

thatpoint

pointare

areyou

yougoing

going to

to be

be doing?

26 26 McDONALD: McDONALD:Well, Well,after afterreviewing

reviewingthethecase,

case, naturally,

naturally, Iwould

would bring

bring an

an

27 investigator with me to to question question any of ofthe

the witnesses.

witnesses. That investigator investigator

28 is a Office Office of

ofthe

the Attorney

AttorneyGeneral

Generalinvestigator

investigatorto

to question

question witnesses

witnesses or

after any

to go after any other

other witness

witness that

that they might think is relevant to the case.

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v. People v. Elms,

Blas, CF0334-23-01

CF0334-23-0l

Page 13 of21 Page 13 of21 .1 It hasn't hasn't progressed to that that stage stage yet.

yet. So,

So, we

we don't

don't know

know but

but all

all II can

can say 1

Court is as we progress towards trial, then we can look at the to the Court

2 l scope of engagement

engagement and see see if it fits within the scope of engagement 3 for this matter.

matter. I'm

I'mnotnotinvolved

involved inin any

any ofofthe

the investigations.

investigations. AllAll I'm taking the file

doing is taldng file that's given given toto me,

me, working

working itit up,

up, malting

making suresure

4 that the jury charging,

charging, the the actual

actual charging

charging instrument,

instrument, that the evidence 5 is admissible and is relevant that I intend to elicit elicit testimony on at trial. So, it's

it's just

just narrowing

narrowing itit toto the

the point

point where, when we do show up at trial, 6 every contingency that that I think think isis relevant

relevant to conducting the trial has been at least looked at and understood.

7

8 as for

Now, as for the

the non-trial

non-trial resolution,

resolution, again,

again, this

this is

is all just unfolding

unfolding asas we

see. This is really only the second matter I've undertaken. I can envision 9 at some point in the future where I may say, say, and and ifif the prosecutor in charge of this area or the, excuse me, Chief Chief Prosecutor Prosecutor or Assistant

10 10 Chief Prosecutor is comfortable, then maybe I may ask for for authority 11 11 non-trial resolution just to see ifwe on non-trial we can escape trial trial even

even if

if it's

it's at the

very last second.

12 Mot. Mot. Hrg.

Hrg. at 10:05:50 AM - 10:11:29 AM (emphasis added).

added).

13 13

14 14 McDonald will be "working up the case," which means that he will be working with an

15 15 OAG Investigator, he will question witnesses which will include police officers involved in the 16 16 investigation, and, despite his earlier assurance that he will not be engaged in plea negotiations, 17 17 hearing on the Motion

at the hearing Motion he indicated indicated that

that he may ask

ask for

for authority

authority to engage

engage in

in plea

plea

18 18 negotiations. negotiations.

19 19

20 20 Considering ns id e r ing the

t he extent

e xt e nt of

o f his involvement

his invo lve m e nt in

in this

his casee aand tthe

he eexpansion

xp a ns n oof

f

21 responsibilities as responsibilities as may

may be dictated by the case progress, the Court finds that there is a strong strong

22 22 likelihood that likelihood that a difference difference of

of interests

interests between

between his

his role

role as

as a prosecutor

prosecutor and

and his

his role

role as aa

23 23 criminal defense criminal defense attorney attorney will

will eventuate.

eventuate.Even

Even ifif the

the OAG Investigator isis not the same OAG Investigator same 24

r

25 individual who individual b~en involved in the investigation of the cases who may have been cases in which McDonald

26 26 serves as defense counsel, the extent of the engagement and working relationship between the

27 investigators and McDonald gives rise to aa strong OAG investigators strong likelihood likelihood that he cannot cannot separate

separate his

28 obligation as a prosecutor from his duties to to his criminal client. McDonald has not indicated the

Decision Decision and

and Order Re.

Re. Defendant's Motion

Motion to

to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v. Blas, CF0334-23-01 CF0334-23-0l

Page 14 Page 14 of21

of21

21

1 type of ofcases

cases he

he currently

currently represents criminal defendants.

represents criminal defendants.Are Are they

they similar to the

the charges

charges in

2 CF0334-23? If not, CF0334-23? If not, does does it really matter that they matter that they are

are not

not the

the same

sametypes

typesof

of offenses

offenses if the

the

3 investigators are the same same ones

ones who

who would

would be

be investigating

investigating the cases on behalf cases on OAG?99 behalf of the OAG?

4

5 More More importantly,

importantly, in

in his

his Response,

Response, itit is

is clear

clearthat

that McDonald

McDonald isis passionate

passionate about

about serving

6 as a prosecutor, prosecutor,which

whichevidences

evidencesthe

thelikelihood

likelihood that

thatthe

thedifference

difference in interests

interestswill

will arise:

arise:

7 From the foregoing,

foregoing, ititshould

should be be clear

cleartotothis

thisCourt

Courtthat

that the

the undersigned

undersigned

8 SAAG SAAG(a) (a)isisnot

notininviolation

violationofofthetherules

rules of

ofconduct,

conduct, (b) isis mindful mindful ofof the

obligations imposed by obligations imposed by the the rules

rules of

of conduct,

conduct, ((c)

c) is actively

actively monitoring

monitoring

9 risk of aa violation violationof ofthe

therules,

rules, and

and (d)

(d) stands

stands ready to serve the People as as a duly

duly appointed,

appointed, experienced,

experienced, non-conflicted non-conflicted prosecutor prosecutor whose

whose

10 engagement engagement in this this matter matter isis carefully

carefully and narrowly tailed and narrowly tailed to to serve the

11 11 People's interest People's interest in bringing bringing to justice

justice those

those who

who violate

violate criminal

criminal

offenses of the territory of the territory andand no more. The primary The primary goal of this particular of this particular

12 12 public interest is to to bring bring toto justice

justice defendants

defendants introducing

introducing or or attempting attempting

to introduce amphetamine-based substances and introduce amphetamine-based substances and contraband items contraband items into 13 1 the the Adult

Adult Correctional

Correctional Facility,

Facility, Mangilao,

Mangilao, Guam.

Guam. The Theundersigned

undersigned

14 14 SAAG SAAGisisdulydulyappointed, appointed, prepared,

prepared, andand ready to serve the public interest.

15 Response at Response at 5. Having Having read

read such

such an

an impassioned

impassioned argument against disqualifying argument against disqualifying him him from

16 16 as a prosecutor in this matter, serving as matter, the theCourt

Courtisis hard-pressed

hard-pressedtotonow

nowfind

findthat

thatdifferences

differenceswill

will

17 17 not eventuate as as a result

result of

of his service as

as a prosecutor.

18 18

The next

next question,

question, however,

however, is whether

whether such

such difference

difference of interest

interest will

will materially

materially

19 19

20 20 interfere with SAAG SAAG McDonald's

McDonald'sindependent

independent professional

professional judgment.

21 // II 22 22 NII 23 II // 24 24

25 25

9 McDonald indicated that "on September 27, 2023," he was allowed to appear as a SAAG in CF0431-21 9 26 McDonald indicated that "on September 27, 2023," he was allowed to appear as a SAAG in CF0431-21 before Presiding JudgeAlberto Presiding Judge Alberto C. Lamorena III "after "afterobjection

objectionby

bythe

theAlternate

AlternatePublic

PublicDefender

Defenderand

and response

response by the

the

27 undersigned SAAG. Soon undersigned SAAG. Soonthereafter, thereafter, the

the CF0431-21

CF0431-21 defendant pled guilty to to charges charges that he

he beat

beat his

his girlfriend

girlfriend so

severely that the police smelled her blood first upon that the upon entering the dark, entering the dark,unlit

unlitresidence

residenceofofthe

thevictim."

victim." Response at

28 ll. However,the 11.However, Courtcannot theCourt cannotfind

findany

anyEntry

EntryofofAppearance

Appearanceby byMcDonald

McDonaldininthat

thatcase

caseon

onSeptember

September 27,

27, 2023.

2023. In

fact, the Judgment of the Judgment of Conviction in that Conviction in that case was entered entered since

since August

August 26,

26, 2022.

2022.McDonald

McDonald waswasnot

notinvolved

involved in

CF0431-21. CF0431-21.

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion ro

to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v.

v. Blas, CF0334-23-01

CF0334-23-0l

Page Page 15 of21 1 b. The eventual eventual difference of interest interest will

will materially

materially interfere

interfere with

with

McDonald's McDonald'sindependent

independent professional

professional judgment

judgment in

in considering

considering alternatives

alternatives

2 or foreclose courses

courses of action that should action that should be

be reasonably

reasonably pursued

pursued on behalf

3 of his client.

4 The Court finds that

that there

there is a significant risk that McDona1d's engagement that McDonald's engagementas asaaSAAG

SAAG

5 in this case case will

will materially limit

limit his

his responsibilities

responsibilities to his criminal defense clients. Although he 6 stated thathe stated that he obtained obtainedwaivers

waivers from his current criminal defendant current criminal defendant clients, clients, he

he did not provide

7

8 sufficient proof to the the Court

Court that the waivers

that the waivers were

were made

made by

by clients

clients with

with the

the full

full knowledge

knowledge of

9, 9. the extent of his participation in the prosecution of defendants charged with defendants charged with crimes crimes on

on behalf

behalf of

10 10 the People of ofGuam,

Guam, as

as he passionately describes in his Response.

Response.

11 11 Ofconcern Of concern to

to the

the Court

Court is

is the

the relationship

relationship that

that will be

be forged

forged between

between the

the prosecution

prosecution

12 division division staff staff when

when he

he prepares

prepares for trial

trial in

in the

the prosecution of this

prosecution of this instant case (as instant case as well as

as the

13 13

14 14 others others for which he for which he has

has been

been designated

designatedSAAG).

SAAG).He

He will

will work

work closely with an

closely with an OAG

15 15 Investigator, with police Investigator, with police officer officer witnesses,

witnesses, with victim

victim witnesses all in service witnesses all service to to the

the public

public

16 16 . . . . . . . , interest. Will Interest. Wlll he be able to impeach able to impeach the

the same

same police

police officer

officer or

or investigator

investigator witnesses

witnesses in

in the

the

17 17 cases involving his cases involving his clients? Are Are the

the same

same Chief

Chiefand

and Deputy Chief Prosecutors going to evaluate 18 18 19 the pleas involved the pleas involved in McDonald's criminal defendantclient's criminal defendant client's cases?

eases?How

Howwill

will the

the conflict

conflict of

19

20 20 interest be avoided when the same interest be same people who are are responsible

responsible for employing employing and

and designating

designating

21 McDonald as SAAG are also SAAG are also the

the ones

ones who

who have

have the

the final

final say

say in

in plea

plea agreements

agreements involving his

his

22 . . . u . I , 1 criminal defense cr1m1na1 clients?

defense Who

clients? Whowaives

walvesthe

theconflict

conflictof

of interest

interestwhen

when itit isis the

the People

People who

who could

23 be affected affected by aa decision decision made

made by

by SAAG

SAAGMcDonald?

McDonald?Based

Basedupon

uponthese

these concerns

concerns and

and the

the

24 24 25 25 Response Response submitted which does submitted which does not allay the Court's Court's concerns,

concerns, the Court

Court finds

finds that

that the second

26 prong of the Bottoms prong Bottoms query supports supports finding

finding a substantial

substantial risk

riskof

of a conflict of

ofinterest

interest under

under

27 27 Rule 1.7.

1.7 .

28 28

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualify aa Prosecutor

Prosecutor

People v. People v. Blas, CF0334-23-01 CF0334-23-01

Page 16 of21 Page 16 of21

The Court

Court next

next Tums

turns to Rule

Rule l.7(b)

1.7(b)which

whichpermits

permitsrepresentation

representation notwithstanding notwithstanding aa

2 u . . u .

confect ofinterest conflict of interest If if certain factors

factors are satisfied.

3 c. c. McDonald's

McDonald's dual

dualrepresentation

representation does

does not pass

pass Rule 1.7(b)

l.7(b) requirements

requirements to

4 permit permitcontinued

continued representation

representation in light

light of

ofthe

the Conflict.

conflict.

5 Rule 1.7(b)

l.7(b) provides as

as follows:

follows:

6 Notwithstanding Notwithstanding the the existence existence of

of aa concurrent

concurrent conflict of

ofinterest

interest under

under

7 paragraph (a), a lawyer may paragraph (a), representaaclient may represent client if:

if:

8 (1) the lawyer reasonably believes that that the the lawyer

lawyer will

will be

be able to provide

provide

9 competent andand diligent diligent representation to each ajjiected client;

each affected client,

(2) the representation

representation isis not

not prohibited

prohibited byby law;

law,

10 (3) the

the representation doesnot representation does not involve involve the

the assertion

assertion ofof aa claim

claim by one

one

11 client against

against another client represented another client represented by by the the lawyer

lawyer in the the same

same

litigation litigationororother

otherproceeding

proceeding before

before a tribunal;

tribunal, and

12 12 (4) each erected client each affected client gives informed informed consent, confirmed in consent, confirmed in writing.

writing.

13

14 Even when when aa concurrent conflict of interest concurrent conflict interest exists, exists, a lawyer may represent represent aa client

client if

15 15 four four elements underGRP elements under GRP 1.7(b)

1.7(b) are

are met.

met. The Court

Court considers here 1.7(b)(1)

considers here l.7(b)(l) and and (4), as

as

16 16 1.7(b)(2) 1.7(b)(2) and and (3)

(3) do

donot

notapply

apply to

to prohibit

prohibit continued

continued representation. Under 1.7(b)(l), representation. Under 1.7(b)(1), the the lawyer

17 17 must "reasonably" believe must "reasonably" believe that that they

they will

will be

be able

able totoprovide

providecompetent

competent and

and diligent

diligent

18 18 19 representation to each representation to each affected client. GRP 1.7(b)(1).

1.7(b)(l). As

Asdiscussed

discussed at

at length,

length, above,

above, despite

despite

19

20 20 SAAG SAAG McDona1d's McDonald's belief

belief that

that he

he can

can serve

serve both

both as

as aaprosecutor

prosecutor and

and aa criminal

criminal defense

defens.e

21 attorney at the same same time, the Court has

has found

found that

that such

suchbelief

belief is not reasonable.

reasonable.

22 With With respect

respect to 1.7(b)(4),

1.7(b)(4),other

otherthan

than declaring

declaring that

that his criminal

criminal defense clients waived defense clients

23 23 the conflict, McDonald did not provide evidence evidence that

that each

each affected client

client gives informed

24

25 25 consent, confirmed in writing as required under 1l.7(b)(4). The extent consent, confirmed of SAAG extent of SAAG McDonald's McDonald's

26 26 authority as aa prosecutor authority as far extends prosecutor far extends beyond beyond "consulting

"consultingservices"

services" as

as the

the term

tern typically

typically

27 27 invokes. Indeed, for for all

allintents

intents and

and purposes,

purposes, be

he has

has the same authority as same authority as any

any other

other full-time

full-time

28 Assistant Attorney General Assistant Attorney employed with the General employed the OAG. He He isisaaprosecutor

prosecutor and,

and, therefore,

therefore, any

any

Decision Decision and

and Order Re. Defendant's Motion Motion to

to Disqualify

Disqualify aa Prosecutor

Prosecutor

People People v.

v. Blas,

Blas, CF0334-23-01

CF0334-23-0l

Page Page 17 offal

17 of21

1 waiver of of aa conflict

conflictby

byaaclient

clientinina acriminal

criminalmatter

mattermust

must be

be made

made after

after full

full and

and knowing

knowing

2 .

disclosure. d1sc10sure.

3 2. The The requirements

requirements of Guam

Guam Public

Public Law

LawNo.

No.36-107,

36-107, Chapter

Chapter 11

11 Section

Section 18,

18,

4 authorizing the hiring hiring of

of independent contractors for independent contractors for the OAG OAGhave

have not

not been

been met

met

5 here. here.

6 SAAG SAAGMcDonald

McDonaldalso

alsoargued

argued in

in the

the Motion

MotionHearing

Hearingthat

that his

his representation asaaSAAG representation as SAAG

7 7 is permitted under this this law,

law, because

becauseGuam

GuamPublic

PublicLaw

Law 36-107

36-107allows

allowsthe

theOffice

Office of the

1s permitted under the 8 Attorney General General to

to hire

hire independent

independent contractors impracticable or contractors when impracticable or impossible.

impossible. Mot.

Mot. I-kg.

Hrg.

9 at 10:26:25 10:26:25AM- 10:27:00 AM.

AM 10:27:00 Under this law:

AM. Under law:

10 10

11 11 Guam Public Guam PublicLaw

LawNo.

No.36-107,

36-107, Chapter 11

11 Section 18.

18. Contracts.

Contracts.

12 12 Positions in the classified Positions classified and and unclassified

unclassified service

service of government of of the government

Guam shall

shall not bebe filled

filledpursuant

pursuant to

to aacontractual

contractual arrangement,

arrangement, except as

as

13 13 provided provided in

in this Section, for

for Fiscal

Fiscal Year

Year2023

2023.

14 14 [Subsections (a) & [Subsections (a) & (b)

(b) (omitted)]

(omitted)]

15 15

16 16 (c) (c) The Office

Office of

ofthe

the Attorney

AttorneyGeneral,

General, the

the Public

Public Defender Service

Corporation, and the Alternate and the Alternate Public Defender Defender areare authorized authorized to

17 17 contract contract with attorneys

attorneys as as independent independent contractors

contractors toto provide

services services in

in areas

areas in which it is impracticable or impossible for the 18 18 office officeto

toproceed.

proceed. Such

Such contracts

contracts shall

shall be in

in accordance

accordance with the

procurement procurement laws laws of Guam.

Guam. No Nosuch

suchindependent

independent contractor

contractor

19 19 hired pursuant

pursuant totothis

thisSection

Section maymay receive

receive from thethe government government

20 20 of ofGuam

Guam any

any remuneration in any any form other other than in payment for the the position into

into which

which such

such person

personisishired.

hired.TheTheOffice

Office of the

the

21 21 Attorney General, General, thethe Executive Director of of the the Public

Public Defender

Service Corporation,

Corporation, and and the

the Executive

Executive Director

Director of the Alternate 22 22 Public Defender shallshall file aa copy copy ofofevery

everysuch

such contract

contract with

with the

23 23 Chief Chief Procurement

Procurement Officer and and the the Director

Director of ofAdministration Administration

together together with

with a written certification stating why certification stating why itit isis 24 impracticable impracticable toto handle handle the the matter

matter within

within the

the ojyiee

office as

as

25 otherwise constituted.

26 (emphasis added). No (emphasis added). No written written certification

certification has

has been

been provided

provided to

to the

the Court

Courtestablishing

establishing

27 27 compliance with the requirements of the P.L. 36-107.

requirements of 36-107. Without the written certification certification stating

stating

28 28 why it it is is impracticable

impracticable to handle

handle the

the matter

matter withi~

within the

the Office of the

Office of the Attorney

Attorney General,

General, the

the

Decision and Decision and Order Re.

Re. Defendant's

Defendant's Motion Disqualifyaa Prosecutor Motion to Disqualify Prosecutor People v. Bias, CF0334-23-01 v. Blas, CF0334-23-0l Page 18 of21 Page 18 offal 1 Court finds finds that the SAAG's

that the SAAG's services

services are

are not

not impracticable

impracticable or

or impossible

impossible for the

the existing

existing

2 2 prosec~tors of prosecutors of the

the Office ofthe

Office of the Attorney

Attorney General

General to

to execute.

execute.

3 Moreover, several

several AAGs

AAGshave

haveappeared

appeared in

in this

this case prior to

to SAAG

SAAG McDona1d's

McDonald's entry

entry

4

5 of appearance includingAAG appearance including AAG Kristine KristineBorja,

Bois, AAG

AAG Charles

Charles Kinnunen, AAG Leah Kinnunen, AAG Leah Diaz-

Diaz-

6 6 Aguon, AAG Aguon, AAG Matthew

Matthew Shuck, and AAG

Shuck, and AAG Ed Han,

Han, during the period

during the period of

of May 11,

11, 2023,

2023, to

7 September 6,

6, 2023;

2023, therefore,

therefore, it does

does not appear

appearthat

thatititisis"impracticable "impracticable or

or impossible

impossible for the

8 office office to

to proceed" without SAAG

SAAG McDonald.

9 3. 3. The

TheSAAG's

SAAG'sengagement

engagementisisnot

notprohibited

prohibited by

by Title

Title 5

5 §30113.

§ 30113.

10 10

11 Notwithstanding the Court's Court's ruling

ruling herein,

herein, the

the Court

Court rejects

rejects Defendant's

Defendant's argument

argument that

that

12 12 SAAG SAAG McDonald

McDonaldisisbarred

barred from

fromengaging

engagingininoutside

outsideemployment

employment under

under §§30113.

30113. Outside

Outside

13 13 Employment Regulated. Def Employment Regulated. Mot.This Def Mot. Thisstatute

statute states that:

states that:

14 14 Title Title 55 §30113.

§ 30113. Outside

Outside Employment

Employment Regulated.

Regulated.

15 15

Neither Neither thethe Attorney

Attorney General

General nor nor any

any person

person employed

employed in the the

16 Department Department of of Law shall engage in outside employment shall engage in outside employment which shall shall conflict

17 17 with his duties within the the Department Departmentof of Law.

Law. Attorneys employed as classified or unclassified attorneys in the the Department Departmentof of Law, oror any any attorney employed

employed as as

18 18 classified classified or unclassified unclassified attorneys

attorneys by by any

any government

government Of of Guam

Guam agency,

agency,

department department or instrumentality, instrumentality, including including semi-autonomous semi-autonomous or or autonomous autonomous

19 19 agencies or branches

branches of of the government of ofGuam Guam shall not engage in the practice 20 20 of law law outside

outside ofofthe theDepartment Department of ofLaw,

Law,ororthetheagency,

agency,department,

department,

instrumentality instrumentality or or branch branchof of the

the government

government of Guam,

Guam, unless

unless the attorney

attorney is

21 exempted from this exempted from this restriction becausethe restriction because the attorney attorneyisis aa member

member of of the

the U.S.

military armed formed or U.S. Coast Guard armed formed serving actively, Guard serving actively, or serving in the 22 22 reserves, or

or state

state or territorial

territorial guard,

guard; or

or unless

unless the attorney is exempted Hom from this 23 23 restriction because the restriction because the attorney attorneyisis performing

performing propro bono

bono service,

service, or teaching

teaching or

training that is training that is approved approvedby by the

the Attorney

Attorney General

General or by thethe head head oror director

director of

24 24 the agency, department, department, instrumentality or branch of the government Guam.

instrumentality or branch of the government of Guam.

25 As As mentioned

mentioned earlier, the SAAG earlier, the SAAG indicated indicated that

that he

he is

is also

also representing clients in two representing clients

26 26 criminal, pre-trial

pre-trial stage

stage matters

matterswith

withthe

theFirm.

Firm.McDonald's

McDonald's outside

outsideSAAG

SAAG employment,

employment, while

27

28 practicing with

with the

the Firm,

Firm, does

does not

not constitute

constitute aa violation

violationofofthe

thestatute,

statute, because

because this

this statute

statute only

It

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v.

v. Blas, CF0334-23-01

CF0334-23-0l

Page offal Page 19 of21

21

1 applies to attorneys with the attorneys with the Department Departmentof

of Law and

and attorneys

attorneys for the Government of Guam.

Guam.

2 2 While While he he is

is not

not an attorney with

an attorney theDepartment with the Deptment ofofLaw, Law,the

theoutside

outsideemployment

employmentat

at issue

issue here

3 is his SAAG SAAGengagement

engagementas

as aapracticing

practicingprivate

privatedefense

defenseattorney,

attorney, not

nothis

his court-appointed

court-appointed and

and

4 5 retained clients with the retained clients the Firm - all of ofwhich

which predate

predate his SAAG

SAAGengagement.

engagement. Therefore,

Therefore, the

the

5

6 SAAG SAAGdid didnot

not violate

violate§§ 30113 by his

30113 by his SAAG

SAAG engagement.

engagement.

7 Iv. IV.CONCLUSION

CONCLUSION

8 The Coup

Court finds

finds that

that the dual and contradictory dual and contradictoryroles rolesthat

thatSAAG

SAAG McDonald is required 9 to serve serve for for the

the People

People and

and for

for aadefendant

defendant in

in aacriminal

criminal case

case will

willeventually

eventually result

result in

in .a

.a

10 10

11 difference difference of ofinterest

interest that

that will

will compromise

compromise and

and materially interfere in in McDonald's

McDonald's independent

independent

12 12 professional professional judgment in both judgmentin both of

of his capacities as prosecutor capacities as prosecutorfor for the

the People

People of

of Guam

Guam and

and

13 13 counsel counsel for for indigent

indigent and

and retained defendants

defendants in criminal cases.

cases. The Court

Court finds

finds further

further that

that the

14 SAAG SAAG isisunable unable totoestablish

establish an

an exception

exception permitting

permitting representation of both the People and representation of and 15 15

16 clients in in criminal cases under

underRule

Rule 1.7(b).

16

17 17 Moreover, even if the Moreover, even the Court Court were

were to

to find

find that

that there

there was

was no

no conflict

conflict ofofinterest

interest

18 18 precluding precluding McDonald's continued prosecutionof continued prosecution of this this matter

matter as

as SAAG,

SAAG, the

the requirements

requirements of

19 19 Guam Public Law No. Guam Public No. 36-107, 36-107, Chapter

Chapter 11,

11, Section 18

18 have not been satisfied.

satisfied. Therefore, his 20 appointment appointment isisin inviolation

violation of this law.

law.

21

Finally, Finally, the

the Court

Court finds

finds that Title 55 §§30113.

that Title 30113. Outside Outside Employment

Employment Regulated

Regulated does

does not

not

22 22

23 23 apply in this this case

casetotoprohibit

prohibitMcDonald's

McDonald'sSAAG

SAAG designation.

designation.

24 24 II U

25 25 N II 26 II // 27 28 28 U II

Decision Decision and

and Order Re.

Re. Defendant's

Defendant's Motion

Motion to

to Disqualify

Disqualifyaa Prosecutor

Prosecutor

People v.

v. Blas,

Blas, CF0334-23-01

CF0334-23-01

Page 20 of21

1 S the Defendant's Motion herein, the Court hereby GRANTS forth herein,

reasons set forth

the reasons

For the For Motion to

2 Disqualify. Disqualify. The Court Court shall

shall issue, under separate issue, under cover, an separate cover, Criminal Trial an ASSERTED Criminal

3 as the Defendant has asserted Scheduling Order, as herright asserted her to speedy trial in right to matter.

in this matter.

4

5 SO ORDERED this22nd

ORDERED this nd

dayofofApril, day April,2024.

2024.

6

7 )

8 HONO M AR I A T. CENZO N 9 Judge, Superior Court of Guam Judge,

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Decision Decision and

and Order Re.

Re. Defendant's Motion

Motion to Disqualify

Disqualify aa Prosecutor

Prosecutor

People People v.

v. Elms,

Blas, CF0334-23-01

CF0334-23-0l

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