by Douglas Ankney 

In a case of first impression, the Supreme Court of Arizona held that trial courts have broad discretion to vicariously disqualify a prosecutor’s office based on an appearance of impropriety.

In 2010, Darren Irving Goldin was charged with murder, and the Attorney General sought the death penalty. In 2011, Goldin moved to disqualify the entire Tucson brunch of the Attorney General’s office because of the misconduct of Assistant Attorney General Richard Wintory, which consisted of his failure to disclose that he had engaged in numerous phone calls with a confidential intermediary appointed by the court to assist the defense in identifying mitigation evidence by locating and interviewing Goldin’s mother. Wintory was removed from the case and received a 90-day suspension from law practice for his misconduct; he left the Tucson office and was later suspended from the practice of law for two years in Oklahoma based in part on his misconduct in Goldin’s case. 

Goldin accepted a plea agreement, which mooted his disqualification motion, but his conviction was vacated based on a successful claim of ineffective assistance of counsel. His case was returned to the superior court, and he renewed his effort to disqualify the Tucson office.

After a hearing, the superior court granted the motion. The judge reasoned that it wasn’t possible to know the extent of the phone calls or how those calls prejudiced the case. The judge stated, “I’m sure there’s a more eloquent way of putting this, but it just looks bad.” Based on the appearance of impropriety and the importance of Goldin’s right to counsel, the superior court vicariously disqualified the entire Tucson office. 

The court of appeals (“COA”) reversed and remanded after concluding that the judge failed to consider the factors for vicarious disqualification set forth in Gomez v. Superior Court, 717 P.2d 902 (Ariz. 1986). The Arizona Supreme Court granted further review, stating “the question of vicarious disqualification of a prosecutor’s office is of statewide importance and likely to recur.”

The Court began its analysis by noting that it has never addressed this specific issue. It has addressed the disqualification of defense counsel for a conflict of interest in Gomez and the case it was based upon, Alexander v. Superior Court, 685 P.2d 1309 (Ariz. 1984), but it has never “applied Gomez beyond the actual conflict-of-interest or misconduct contexts,” the Court stated.

The Court observed only “in extreme circumstances should a party to a lawsuit be allowed to interfere with the attorney-client relationship of his opponent.” Alexander. When ruling on a motion for disqualification based on the appearance of impropriety, the trial court should consider: (1) whether the motion was made for the purpose of harassing the opposing party, (2) whether the party bringing the motion will be damaged in some way if the motion is denied, (3) whether there are alternative solutions that are less damaging, and (4) whether the possibility of public suspicion would outweigh any benefits of continued representation. Id. These four factors must be considered when ruling on a motion to disqualify opposing counsel. Gomez.

The Court rejected the State’s argument that a defendant should have the ability to disqualify an entire prosecutor’s office only if he can establish that that is the only way he can get a fair trial. The Court reiterated that “criminal prosecutions must appear fair, as well as actually be fair.” Turbin v. Superior Court, 797 P.2d 734 (Ariz. Ct. App. 1990). The Court instructed that trial courts should consider the Gomez factors whenever the defendant attempts to disqualify an entire prosecutor’s office, “regardless of whether the basis for the motion is a conflict of interest, misconduct, or appearance of impropriety.”

Although the superior court didn’t explicitly address the Gomez factors, they were satisfied, according to the Court. As to factor (1), Goldin had sought disqualification at the initial proceedings in 2011 so renewing his effort could not be viewed as for purposes of harassment. Regarding factor (2), the superior court had observed it was impossible to know the extent of the prejudice to Goldin and his right to counsel as a result of Wintory’s improper actions. Factor (3) was a close call due to the fact that Wintory was no longer at the Tucson office and a substantial amount of time had passed since the misconduct occurred. Nevertheless, it was unknown if other persons within the office were privy to the contents of the unauthorized communications, and it was within the trial court’s discretion to disqualify the entire office. 

As to factor (4), the Court was persuaded by the following rationale of a Florida appeals court: “[H]ow much of an advantage, if any, one party may gain over another, we cannot measure. However, the possibility that such an advantage did accrue warrants resort to this drastic remedy for the sake of the appearance of justice, if not justice itself, and the public’s interest in the integrity of the judicial process.” Gen Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. Dist. Ct. App. 1986).

Because the trial court has the greatest familiarity with the facts and visibility of the case before it and is in the best position to determine whether an appearance of impropriety is sufficient to undermine public’s confidence, the Court advised: “[w]e will not ordinarily second-guess a trial court’s determination regarding public perception of a fair trial in deciding whether to disqualify a prosecutor’s office.” Thus, the Court held that “actual misconduct may have tainted the proceeding, [so] the trial court did not abuse its discretion in disqualifying the Tucson office.”

Accordingly, the Court vacated the opinion of the COA and affirmed the trial court’s ruling, See: State v. Marner, 487 P.3d 631 (Ariz. 2021). 

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