Free Other Notice - District Court of Arizona - Arizona

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CHANDLER & UDALL, LLP
ATTORNEYS AT LAW 33 NORTH STONE AVENUE, SUITE 2100 TUCSON, ARIZONA 85701-1415 [email protected] (520) 623-4353 (520) 792-3426 (Facsimile)

Natman Schaye PCC# 51156, SBN 007095 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. 1. Lear Jet, Model 31A, Serial Number 31A244, U.S. Registration Number N224LJ, Defendant. Claimants Alberto Abed, Uptongrove, Ltd. and Calezar, Ltd., through independent counsel, Natman Schaye of Chandler & Udall, LLP ("Counsel"), provide the following notice regarding the alleged conflict of interest which Plaintiff claims exists between Claimants and their counsel of record, Cynthia E. Orr and Gerald H. Goldstein of Goldstein, Goldstein & Hilley (collectively "GG&H")(Doc. 157 at 4): 1. Counsel was retained by Claimants to provide them with independent advice concerning the above-referenced alleged conflict of interest between Claimants and GG&H. Counsel has been licensed to practice law in the State of Arizona and has practiced full-time since 1981. Counsel is also a member of the bars of the District of Arizona, the United States Courts of Appeals for the Ninth and Tenth Circuits, and the United States Supreme Court. Counsel has primarily practiced in the federal courts. NO. CIV-04-363-PHX-JWS CLAIMANTS' NOTICE REGARDING ALLEGED CONFLICT OF INTEREST WITH COUNSEL

Case 2:04-cv-00363-JWS

Document 172

Filed 05/25/2006

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2.

The alleged conflict arises from two letters ("letters") attached to a pleading filed by GG&H in the present case. (Doc. 156, Exhibits "1" and "2"). The alleged conflict is based on Plaintiff's assertion that the letters are forgeries. For purposes of providing advice to Claimants and for purposes of this notice, Counsel assumes that the letters are forgeries.

3.

Counsel has reviewed all of the relevant pleadings and exhibits that have been filed in the present case as of today's date. Counsel has also conferred with Claimant Alberto Abed, as well as others necessary to make a determination of whether a potential conflict arising from the letters exists between Claimants and GG&H.

4.

Counsel is familiar with the Arizona Rules of Professional Conduct adopted by the Arizona Supreme Court (see Rule 41(a), Rules of the Arizona Supreme Court) and applied by this Court. Rule 82.3(d), Rules of Practice of the United States District Court for the District of Arizona. Counsel also reviewed comments to those rules and court decisions that are relevant to this alleged conflict of interest. The issues raised by Plaintiff's allegation involve ER 1.7 and ER 3.7, Arizona Rules of Professional Conduct.

CHANDLER & UDALL, LLP

TUCSON, ARIZONA 85701-1415

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It is Counsel's opinion that GG&H's representation of Claimants will not be materially limited by the personal interests of GG&H. Therefore, no conflict of interest exists between Claimants and GG&H under ER 1.7(a)(2). In reaching this conclusion, Counsel considered that: The mere possibility of subsequent harm does not require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Comment to ER 1.7, paragraph 8. No evidence suggests that Claimants or GG&H believed or had reasonable grounds to believe that the letters were forgeries prior to
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receiving the forgery allegation contained in the government's pleading filed on March 8, 2006. (Doc. 157 at 4). Additionally, the letters, even if valid, are relevant only to the collateral issue of whether discovery should be stayed. Proof that the letters are forged render them irrelevant to even this collateral issue. The letters have no relevance to the issue to be decided at trial - whether the government is entitled to forfeit the subject property. 6. To the extent that any conflict may be found to exist, Claimant Alberto Abed, on behalf of himself, and Claimants Uptongrove, Ltd. and Calezar, Ltd., after being advised by Counsel, waives any conflict and gives his informed consent to the continued representation of Claimants by GG&H pursuant to ER 1.7(b). Counsel concludes that this waiver is made voluntarily, knowingly and intelligently. See United States v. Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998). 7. Pursuant to ER 3.7(a), "A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness [subject to certain exceptions] . . ." Withdrawal is required only if "the attorney will give evidence material to the determination of the issues being litigated . . ." Security General Life Insurance Co. v. Superior Court, 149 Ariz. 332, 335, 718 P.2d 985, 988 (1986), quoting Cottonwood Estates, Inc. v. Paradise Builders, Inc., 128 Ariz. 99, 105, 624 P.2d 296, 302 (1981).1 As noted in Paragraph 5, supra, GG&H has no relevant evidence to give regarding the letters or their origin. Further, no issue that is relevant at trial will arise from the letters or their source. It is Counsel's opinion that GG&H will not be a

CHANDLER & UDALL, LLP

TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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1

Reliance on decisions from the relevant state's courts is appropriate in applying ethical

standards. Hogland v. United States District Court, 223 F.3d 990, 995 (9th Cir. 2000).
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necessary witness at trial.2 Nor is GG&H a necessary witness at any proceeding regarding the letters. It is therefore respectfully submitted that the Court take no action regarding this issue. RESPECTFULLY SUBMITTED this twenty-fifth day of May 2006. CHANDLER & UDALL, LLP By s/Natman Schaye Natman Schaye

CERTIFICATE OF SERVICE I hereby certify that on May 25, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Gerald H. Goldstein Cynthia E. Orr Goldstein, Goldstein & Hilley 310 South St. Mary's Street, 29th Flood San Antonio, TX 78205 [email protected] [email protected] Allen B. Bickart 6508 North 10th Place Phoenix, Arizona 85014 [email protected]

CHANDLER & UDALL, LLP

TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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2

Plaintiff, while alleging that a conflict exists, has not moved for the disqualification of

GG&H. Had it done so, it would have the burden of proving that disqualification was required. Alexander v. Superior Court, 141 Ariz. 157, 161, 685 P.2d 1309, 1313 (1984). Counsel's opinion, however, is based on the totality of the circumstances without regard to burdens of proof.
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Douglas F. Behm Jennings Strouss & Salmon P.L.C. Collier Center 201 East Washington Street, Suite 1100 Phoenix, Arizona 85004-2385 [email protected] Lawson Pedigo Miller, Keffer & Pedigo 8401 North Central Expressway, Suite 630 Dallas, Texas 75225 [email protected] Reid Pixler United States Attorney's Office 2 Renaissance Square 40 North Central, Suite 1200 [email protected] I further certify that on May 25, 2006, I transmitted the attached document via U.S.

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Mail, first class, postage prepaid, to the following individuals who are not registered
TUCSON, ARIZONA 85701-1415

CHANDLER & UDALL, LLP

12 participants of CM/ECF:
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Jennifer Collins Mark Hopson Sidley, Austin, Brown & Wood 1501 "K" Street, N.W. Washington, D.C. 20005 Geoffrey Young Ruden McClosky 150 2nd Avenue, Suite 1700 St. Petersburg, Florida 33701 Marc S. Nurik Ruden, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard, Suite 1500 Post Office Box 1900 Ft. Lauderdale, Florida 33302 Leonard J. McDonald, Jr. Tiffany & Bosco, P.A. 2525 East Camelback Road Phoenix, Arizona 856015-4237 By: s/Sharon Hardin