See Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 

1178 (1982); see also State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 

358, 360, 662 P.2d 1338, 1339 (1983). We have indicated that mandamus 

is the appropriate vehicle for challenging attorney disqualification rulings. 

See generally Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982). But 

"Mlle disqualification of a prosecutor's office rests with the sound 

discretion of the district court," id. at 309, 646 P.2d at 1220, and "while 

mandamus lies to enforce ministerial acts or duties and to require the 

exercise of discretion, it will not serve to control the proper exercise of that 

discretion or to substitute the judgment of this court for that of the lower 

tribunal," id. at 310, 646 P.2d at 1221. Accordingly, where the district 

court has exercised its discretion, a writ of mandamus is available only to 

control an arbitrary or capricious exercise of discretion. See Round Hill 

Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). 

"An arbitrary or capricious exercise of discretion is one founded on 

prejudice or preference rather than on reason, or contrary to the evidence 

or established rules of law." State v. Eighth Judicial Dist. Court 

(Armstrong), 127 Nev. , 267 P.3d 777, 780 (2011) (citations 

omitted). 

Gonzales contends that the district court acted arbitrarily and 

capriciously when it denied his motion to disqualify without holding an 

evidentiary hearing. Gonzales argues that it is a conflict of interest for the 

Clark County District Attorney's Office to continue participating in the 

post-conviction proceedings because petitioner's former trial attorney, who 

now works for the district attorney's office, will be a witness at the 

evidentiary hearing on Gonzales' post-conviction petition for a writ of 

habeas corpus. Specifically, Gonzales claims that, pursuant to Rule 3.7(b) 

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of the Nevada Rules of Professional Conduct, his former attorney cannot 

be a witness for the State at the evidentiary hearing because she would 

violate Rule 1.9, her duty to her former client. 

Gonzales fails to demonstrate that the district court acted 

arbitrarily or capriciously because he fails to show that there is a conflict 

of interest. In Collier, we held that when exercising its discretion on 

whether to disqualify a district attorney's office due to a conflict of 

interest, the district court "should consider all the facts and circumstances 

and determine whether the prosecutorial function could be carried out 

impartially and without breach of any privileged communication." 98 Nev. 

at 310, 646 P.2d at 1220. Gonzales fails to show that the prosecutorial 

function could not be carried out impartially. He argues that the district 

attorney's impartiality will be affected because the district attorney's office 

"will undoubtedly stand up for its own and argue that certainly its 

employee or co-worker was competent." This argument does not 

demonstrate that the district attorney cannot carry out the prosecutorial 

function impartially because the district attorney's position in a postconviction proceeding generally will be that the trial attorney was 

competent regardless of whether the attorney now works for the district 

attorney's office. In a post-conviction proceeding, the district attorney's 

office is defending the conviction, and to do that, the district attorney's 

office must argue that counsel was effective and competent. Therefore, 

Gonzales fails to demonstrate that the district attorney's office cannot be 

impartial. 

Further, Gonzales fails to demonstrate that there would be an 

unethical breach of privileged information. While Gonzales is correct that 

RPC 1.9(c) states that a lawyer who formerly represented a client in a 

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J. 

matter cannot use information gained during that representation to the 

disadvantage of the former client, the rule has an exception that allows 

use of the information if other rules of professional conduct allow it. RPC 

1.6(b)(5) allows a lawyer to reveal confidential information in order to 

respond to allegations in a proceeding regarding the lawyer's 

representation of the client. Moreover, Gonzales filed the form petition 

contained in NRS 34.735 and claimed ineffective assistance counsel. The 

form petition makes it clear that by filing the petition the petitioner is 

waiving the attorney-client privilege if he made claims of ineffective 

assistance of counsel. 

Because Gonzales fails to demonstrate that there was a 

conflict of interest, he fails to demonstrate that the district court acted 

arbitrarily and capriciously in denying the motion to disqualify without an 

evidentiary hearing. Accordingly, we 

ORDER the petition DENIED. 

tkA,t.t.1 

Hardesty 

cc: Hon. Stefany Miley, District Judge 

Bush & Levy, LLC 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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