Jun
11

Court denies County Supervisor Don Stapley’s Motion to Dismiss

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Don Stapley is facing over 100 charges in the Superior Court arising from allegations that he completed financial disclosure forms containing omissions and misstatements.  His attorneys attempted to get the charges dismissed on the grounds that the county attorney had previously provided legal advice related to the disclosure forms.  In denying Mr. Stapley’s motion the court held:

The evidence is undisputed that the Defendant as a member of the Board of Supervisors for Maricopa County consulted with Deputy Maricopa County Attorneys assigned to the County Attorney’s civil department/division on matters relating to his official duties and provided financial information. It is also undisputed that generally the subject of that disclosure is also the subject matter of certain counts in the indictment against the Defendant. There is no evidence that any of the information disclosed to the civil Deputy County Attorneys was used to obtain the indictment against Defendant.

It is the Defendant’s position that because confidential information was obtained by the Maricopa County Attorney’s office that was part of the indictment, a conflict of interest was created. This conflict disqualified the Maricopa County Attorney’s office from appearing before the Maricopa County Grand Jury as an authorized prosecutor to present evidence under Rule 12.5, AZ Rules of Criminal Procedure. Defendant further argues that the appearance of an unauthorized person before the Grand Jury denies him Due Process and irreparably taints the indictment. This taint in turn requires dismissal.

The State’s argument in response is that there was no conflict of interest disqualifying the Maricopa Country Attorney since there is no attorney-client relationship. The Attorney-Client relationship, according to the State, is one created by statute, A.R.S. § 11-532(A) (9), which provides that the County Attorney is the legal advisor to the Board of Supervisors. The State further argues that this relationship does not extend to individual members of the Board.
The State’s position is that giving advice to individual members on how to deal with conflict of interest issues and on the financial disclosure forms as well as presenting evidence here to the Grand Jury is not egregious misconduct requiring dismissal.

At the hearing on these motions, a former civil department Deputy County Attorney and a current civil department Deputy County Attorney (civil deputies) testified. The testimony established that prior to this indictment, the civil deputies did not explain to newly elected county officials, including members of the Board of Supervisors, the scope of the attorney-client relationship with the Maricopa County Attorney’s office. The current civil deputy testified she gave “general advice” on conflict of interest issues and financial disclosure forms, but not “specific advice” on how to fill out the forms. She testified she gave individual advice relating only to a member’s role as a Supervisor and would not give advice on what information to include on the financial disclosure forms.

The former civil deputy testified that he gave legal advice to individual members if it was in furtherance of his representation of the Board of Supervisors. He also gave advice in the past to members of the Board of Supervisors on financial disclosure forms as to what items to include on the forms and viewed this as part of his role as a civil deputy. He viewed this as part of the attorney-client relationship and as confidential information. He has given advice to the Defendant on disclosure forms but cannot recall any specifics. He also noted however that if an individual member disclosed something that would concern the entire Board, he would discuss the matter with other Board members.

There is no doubt that the better practice would have been for the Maricopa County Attorney to refer the entire investigation at its inception to another State prosecuting agency, such as the Attorney General or another county attorney, given the relationship with the Board of Supervisors as its legal advisor. This Court must however review all the evidence to determine if, under the specific circumstances here, the Maricopa County Attorney was disqualified because an attorney-client relationship was created with the Defendant. State ex rel. Romley v. Superior Court, 184 Ariz. 223, 227 ( App. 1995).

As the Arizona Supreme Court noted in In re Petrie, 154 Ariz. 295, 299-300 (Ariz. 1987), the relationship is determined by looking at the parties’ conduct. For example, is there evidence that “… the party sought and received advice and assistance from the attorney in matters pertinent to the legal profession….” and what was the expectation of the client.

Here there is no dispute that the Defendant received legal advice and assistance from civil deputies within the Maricopa County Attorney’s Office. The inquiry does not end here however. The test is a subjective one and requires this Court to look “…to the nature of the work performed and the circumstances under which the confidences were divulged….” In re Petrie, supra. A reasonable person in the Defendant’s position when soliciting legal advice and assistance from the civil deputies about business ventures that could be conflicts of interest and/or would be reportable on the elected official’s financial disclosure statements would have been aware that the Maricopa County Attorney is also a prosecuting agency in addition to acting as the legal advisor for the Board of Supervisors. This is not a situation where the Defendant first engaged a private attorney for legal assistance, divulged confidences and later was prosecuted by the same attorney on the same matters. It was not reasonable under the circumstances here for Defendant to expect that the Maricopa County Attorney was his attorney on all matters. The legal advice and assistance from the civil deputies related to Defendant’s role as a member of the Board of Supervisors. As Mr.Wolcott, the former civil deputy, pointed out, the individual legal assistance was only given to individual members as necessary to further the business of the Board of Supervisors, the County Attorney’s client.

There was an attorney-client relationship created but it was limited in scope. This hybrid or limited scope attorney-client relationship does not given the same protections one would expect from representation by private counsel. The confidences divulged to the civil deputies were not used to obtain an indictment against the Defendant. Unlike the situation before the Honorable Gary Donahoe in 462 GJ 350, the County Attorney here is not attempting to use privileged communications with its client, the Board of Supervisors, or investigating the client’s (the Board of Supervisors) activities upon which it gave legal advice.

This Court is not convinced that the type of attorney-client relationship created between Defendant and the Maricopa County Attorney would disqualify the County Attorney from appearing before the Grand Jury to present evidence of criminal activity by Defendant so long as no confidences were divulged. The Motion to Dismiss is denied.

Contact Phoenix DUI and Criminal Defense Attorney Joshua Davidson today if you are facing criminal charges in Maricopa County Superior Court.

Categories : Criminal Law, Politics

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