2 

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INEUg571 '4•WA )1i1 • --,:14:464121-101214] 

Mandamus is an extraordinary remedy, and the decision to 

entertain a petition for a writ of mandamus rests within our discretion. 

See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); 

see also State ex rel. Dep't 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. Dist. Ct. (Armstrong), 127 Nev. „ 

267 P.3d 777, 780 (2011) (citations omitted). 

Petitioner contends that the district court acted arbitrarily or 

capriciously when it granted Ghani's motion to disqualify the Clark 

County District Attorney's Office. Petitioner argues that the district court 

erred in determining that the conflict between Ghani and the district 

attorney should be imputed to the entire district attorney's office, that the 
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conflict would create an appearance of impropriety, and that screening 

would not cure the appearance of impropriety. 

We conclude that the district court acted arbitrarily or 

capriciously because the district court did not base its decision on 

established law. In Collier,we held that vicarious disqualification of an 

entire prosecutor's office based on an individual lawyer's former-client 

conflict is required only "in extreme cases where the appearance of 

unfairness or impropriety is so great that the public trust and confidence 

in our criminal justice system could not be maintained without such 

action." 98 Nev. at 310, 646 P.2d at 1221; accord State v. Pennington, 851 

P.2d 494, 498 (N.M. Ct. App. 1993) (observing that "[Ole great majority of 

jurisdictions have refused to apply a per se rule disqualifying the entire 

prosecutor's staff solely on the basis that one member of the staff had been 

involved in the representation of the defendant in a related matter" so 

long as the disqualified staff member "is isolated from any participation in 

the prosecution"); Model Rules of Profl Conduct R. 1.11 cmt. 2 ("Rule 1.10 

is not applicable to the conflicts of interest addressed by this Rule . . . 

Because of the special problems raised by imputation within a government 

agency, paragraph (d) does not impute the conflicts of a lawyer currently 

serving as an officer or employee of the government to other associated 

government officers or employees, although ordinarily it will be prudent to 

screen such lawyers."). 

The district court concluded that this case was different than 

the situation presented in Collier.The district court stated that because 

the district attorney is the head of the office, to allow his office to continue 

to prosecute Ghani would create an appearance of impropriety that cannot 

aViltVE-14fta:fa0 
be cured by screening. As the head of the office, his name is on every 

pleading and he is in charge of policy making for the office. See NRS 

173.045; NRS 252.070(1). We disagree with the district court that this 

case is different than the situation presented in Collier. The chief deputy 

involved in Collier had much more hands-on responsibility for the cases 

handled by the office than the district attorney in this case does. While it 

is true that the district attorney is responsible for deciding the overall 

policy of the office, consistent with NRS 252.070(1), the deputies appointed 

by the district attorney handle the day-to-day operations of the divisions of 

the office and make decisions regarding specific cases. Further, even 

though the district attorney's name appears on every document filed with 

the court, it is clear that the district attorney is not personally handling 

all of the cases filed by the district attorney's office, and that these cases 

are instead being handled by the deputy who is also listed on every 

document. Therefore, the district court acted arbitrarily and capriciously 

because no appearance of impropriety existed to such an extent that it 

would undermine the public trust and confidence in the criminal justice 

system. 

Next, petitioner argues that the district court acted arbitrarily 

and capriciously when it determined that screening could not cure the 

conflict. Ghani argues that the district court did not act arbitrarily or 

capriciously because the screening procedures in place were inadequate 

and untimely. Specifically, Ghani claims that the district attorney's office 

waited over thirty days before circulating a memorandum regarding which 

cases the district attorney was being screened from and the memorandum 

did not include every case, including the instant case. 

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4 
This court has recently considered what screening procedures 

are appropriate in the context of screening a judicial officer pursuant to 

Nevada Rules of Professional Conduct 1.12. These guidelines consist of 

five factors: 

(1) [I]nstructions given to ban the exchange of 

information between the disqualified attorney and 

other members of the firm; (2) restricted access to 

files and other information about the case; (3) the 

size of the law firm and its structural divisions; (4) 

the likelihood of contact between the quarantined 

lawyer and other members of the firm; and (5) the 

timing of the screening. 

Ryan's Express v. Amador Stage Lines, 128 Nev. „ 279 P.3d 166, 

172 (2012). 

Applying the test from Ryan's Express, the screening 

procedures at the Clark County District Attorney's Office were adequate 

and timely in place. Instructions were given the day the district attorney 

took office to ban the exchange of information and this was communicated 

to the office via the assistant district attorney. Later it was memorialized 

in two memoranda. The district attorney's access to the files was 

restricted and the files were marked as screened files. Further, the size of 

the Clark County District Attorney's Office makes the district attorney's 

participation in any screened case unlikely. Given the size and structure 

of the district attorney's office, it is highly unlikely that there would be 

contact between the quarantined lawyer and the other members of the 

office. 

Finally, while Ghani's name does not appear on the list 

accompanying the memorandum, the fifth protocol outlined in the 

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5 
J. 

Gibbons Hardesty 

J. 

J. 

Douglas 

( 

Saitta 

screening memorandum ensures that the district attorney does not 

participate in the case. Therefore, the district attorney was adequately 

screened from the case and the district court acted arbitrarily or 

capriciously in determining that the screening procedures could not cure 

the conflict between Ghani and the district attorney. 2Accordingly, we 

ORDER the petition GRANTED AND DIRECT THE CLERK 

OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the 

district court to vacate its order granting the motion to disqualify. 

2We further deny the petitioner's "motion to strike portion of fast 

track reply," which sought to strike the district court's supplemental order 

filed on June 29, 2012. However, because the district court's order at issue 

was rescinded, we decline to consider that order. 

6 

f A42 - REM tifatig 
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cc: Chief Judge, Eighth Judicial District Court 

Hon. J. Charles Thompson, Senior Judge 

Attorney General/Carson City 

Clark County District Attorney 

Gabriel L. Grasso, P.C. 

Eighth District Court Clerk 

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