State v. Maughan

2008 UT 27
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, Nos. 20060189
Plaintiff, Appellee, and 20060216
Cross-Petitioner,
v.
Wade Maughan, F I L E D
Defendant, Appellant,
and Cross-Respondent. April 1, 2008
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First District, Brigham City
The Honorable Ben H. Hadfield
No. 051100355
Attorneys: Mark L. Shurtleff, Att’y Gen., Thomas B. Brunker,
Asst. Att’y Gen., Salt Lake City, Brad C. Smith, H.
Thomas Stevenson, Ogden, Benjamin C. Rasmussen,
Draper, for plaintiff
Richard P. Mauro, Scott C. Williams, Salt Lake City,
for defendant
Kent R. Hart, Salt Lake City, for amicus Utah Ass’n
of Criminal Defense Lawyers
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NEHRING, Justice:
¶1 In this appeal, we consider whether the district court
exceeded its discretion when it required Wade Maughan, a
defendant in a capital murder case, to discharge one of his two
court-appointed lawyers after the State moved to have them
disqualified because of their alleged conflicts of interest.
Both the State and Mr. Maughan were unhappy with the district
court’s ruling: the State because it believed that both of Mr.
Maughan’s attorneys, Richard Mauro and Scott Williams, merited
disqualification; and Mr. Maughan because he thought neither
should have been dismissed. We conclude that the district court
did not abuse its discretion in determining that Mr. Mauro’s and
Mr. Williams’ continued representation would neither create an
actual conflict of interest nor compromise the integrity of the
judicial process. Although we affirm the district court’s

Nos. 20060189, 20060216 2
conclusion that a potential conflict of interest might exist, we
view the identified conflict to be of very little consequence and
therefore waivable.
BACKGROUND
I. FACTUAL SETTING OF THE STATE’S MOTION TO DISQUALIFY
MR. MAUGHAN’S LAWYERS
¶2 Wade Maughan was charged with murder in the first
degree, a capital offense, and aggravated robbery for killing
Bradley Perry, a convenience store clerk in Perry, Utah, in May
1984. Mr. Maughan awaits trial on these and other charges in Box
Elder County, Utah, while his choice of counsel remains in doubt.
¶3 Mr. Maughan came to the attention of law enforcement
authorities after DNA testing matched blood at the murder scene
to that of Glen Griffin. During their investigation of the
Griffin case, Box Elder County detectives interviewed Mr. Maughan
in Spokane, Washington. Mr. Maughan told the detectives that he
helped Mr. Griffin plan the robbery of the convenience store and
was present when Mr. Griffin killed Mr. Perry. With this
statement in hand, the State charged Mr. Maughan with murder in
the first degree, a capital offense, and aggravated robbery.
¶4 Mr. Maughan is an indigent individual facing a possible
capital sentence, and rule 8 of the Utah Rules of Criminal
Procedure guarantees him the assistance of at least two court-
appointed defense attorneys who are “proficient in the trial of
capital cases.” Richard Mauro and Scott Williams, both members
of the disappointingly small corps of attorneys in Utah who have
sought and attained eligibility to represent defendants in
capital cases, agreed to take on Mr. Maughan’s representation.
¶5 On December 5, 2005, within hours of being engaged to
represent Mr. Maughan, Mr. Mauro and Ted Cilwick, an
investigator, traveled to Spokane to interview those close to Mr.
Maughan, including Mr. Maughan’s girlfriend, Lorraine Rima, and
another friend, Randy Wagar. At the same time, the Spokane
Police Department, at the request of the Box Elder County
Sheriff’s Office, also sought out the same witnesses.
¶6 Mere hours before Mr. Mauro and Mr. Cilwick’s flight
was scheduled to arrive in Spokane, Detective Mark Burbridge of
the Spokane Police Department interviewed Ms. Rima. During the
interview, Ms. Rima identified Mr. Wagar as a mutual friend of
Mr. Maughan’s and hers. She said that during a visit at the
jail, Mr. Maughan told Mr. Wagar that he had been present during
the robbery and murder of Mr. Perry. Ms. Rima told Detective

3 Nos. 20060189, 20060216
Burbridge where to find Mr. Wagar. After concluding the
interview with Ms. Rima, Detective Burbridge went to Mr. Wagar’s
residence and, failing to contact him there, left a business
card.
¶7 That same evening, Mr. Mauro and Mr. Cilwick met with
Ms. Rima, Mr. Wagar, and Alta Raney, Mr. Wagar’s mother. The
details of their conversation are a matter of some dispute. Mr.
Mauro and Mr. Cilwick apparently advised the three individuals
against talking to “anyone,” which allegedly was taken to include
the police.
¶8 The next day, Detective Burbridge received a voicemail
from Mr. Wagar expressing a willingness to talk. When Detective
Burbridge and a colleague met with Mr. Wagar later that day, Mr.
Wagar had changed his mind. By Detective Burbridge’s account,
Mr. Wagar said that Mr. Maughan’s attorneys advised him not to
talk to the police. After Detective Burbridge explained that, as
a witness, Mr. Wagar could be charged with obstruction of justice
for refusing to talk to the police, Mr. Wagar relented. He told
the detectives that Mr. Maughan had said that he, Mr. Griffin,
and an unnamed third man had entered the convenience store and
that Mr. Griffin had stabbed Mr. Perry after an argument over ten
dollars. Detective Burbridge returned to Ms. Rima’s house and
discovered that she, too, had met with Mr. Maughan’s attorneys
and was unwilling to talk to the police.
¶9 A Spokane police officer contacted Mr. Mauro and Mr.
Cilwick that evening to question them about their contact with
the witnesses. Mr. Mauro allegedly refused to discuss the
matter. The police officer arrested Mr. Mauro and Mr. Cilwick,
accusing them of witness tampering. The men were later released.
According to the State, the State of Washington was required to
charge Mr. Mauro and Mr. Cilwick within ninety days of their
arrest. More than two years have now passed since the arrest,
and no charges have been filed against either man.
¶10 The Spokane detectives returned to Mr. Wagar’s house
two days later and learned that additional members of the defense
team–-Mr. Williams and an investigator named Charles
Schlessinger--had visited Mr. Wagar. According to Mr. Wagar, Mr.
Williams and Mr. Schlessinger explained that there had been a
misunderstanding and that Mr. Wagar should feel free to talk to
the police. Whatever the precise content of the conversations
between the witnesses, Mr. Maughan’s lawyers, and investigators
may have been, all of the witnesses were soon willing to, and in
fact did, talk freely to the police.

Nos. 20060189, 20060216 4
II. PROCEDURAL HISTORY OF THE STATE’S MOTION TO DISQUALIFY
MR. MAUGHAN’S LAWYERS
¶11 In short order, the State filed a motion to disqualify
Mr. Mauro and Mr. Williams. The State contended that the conduct
of Mr. Mauro and Mr. Williams created an actual conflict of
interest or presented a serious potential conflict that could
only be avoided through disqualification.
¶12 The State described several conflicts. Regardless of
whether the lawyers would ever find themselves facing prosecution
for an offense stemming from their conversations with the Spokane
witnesses, the State contended that the focus of the lawyers’
energies would shift from Mr. Maughan to themselves to a degree
that might result in leaving Mr. Maughan without effective
counsel. The State also advanced the prospect that prosecutors
might be compelled to explore the substance of the lawyers’
conversations with the witnesses during redirect examination.
The State notes that it would have an interest in exposing the
bias of Mr. Maughan’s friend, Mr. Wagar. Mr. Wagar’s willingness
to comply with the alleged admonition of Mr. Mauro to refuse to
talk to the Spokane detectives would, in the State’s view,
reinforce the case that Mr. Wagar’s testimony would likely be
tainted by his allegiance to Mr. Maughan. Once the conversation
with Mr. Mauro was disclosed, the State conjectured, disclosure
of Mr. Mauro’s arrest would not be far behind. That would
create, as the State’s counsel stated during the hearing before
the district court, “an impossible position for [Mr. Mauro].”
¶13 As for Mr. Williams, the State saw a conflict of
interest lurking in the statements made by the Spokane witnesses
after their meeting with Mr. Williams that their “confusion”
caused their belief that Mr. Mauro had instructed them not to
talk to the police. And in the event that the subject of Mr.
Mauro’s statements might arise during the redirect examination of
any of the Spokane witnesses, the State contends that the
circumstances giving rise to the witnesses’ change of heart might
also surface. To the extent that Mr. Williams’ meeting with Mr.
Wagar contributed to his decision to talk to the police and to
the extent that Mr. Williams persuaded Mr. Wagar that he was
“confused,” the State argues that Mr. Williams’ effectiveness as
counsel might be called into question. Even if Mr. Williams’
statements to Mr. Wagar were intended to clear up a
misunderstanding about the nature and scope of Mr. Mauro’s
admonition rather than to persuade Mr. Wagar that he was
“confused” about Mr. Mauro’s instructions to bar communicating
with the police, Mr. Williams’ representation would still, in the
view of the State, constitute an existing or potential conflict.

5 Nos. 20060189, 20060216
¶14 Finally, the State offered up as a ground for the
lawyers’ disqualification the unsubstantiated claim by a female
friend of Mr. Griffin that Mr. Mauro had come to her home on the
morning of his first appearance as Mr. Maughan’s lawyer and
falsely represented himself to be a television reporter. The
State suggested in its motion that Mr. Williams might have also
been involved in the alleged ruse as the driver of the SUV that
transported the person identified as Mr. Mauro to the woman’s
home. This story proved to be a complete fabrication, and, to
the State’s credit, its counsel acknowledged as much at the
hearing on the motion to disqualify the lawyers.
¶15 Throughout these proceedings, Mr. Maughan expressed his
desire to retain both Mr. Mauro and Mr. Williams as counsel. As
Mr. Mauro explained to the district court, Mr. Maughan recognized
that he had formed a relationship with the two attorneys, they
had worked extensively on his case, and they had established a
rapport with members of his family. Mr. Mauro explained that “to
the extent there is a conflict or potential conflict[,] [Mr.
Maughan] would waive both of those as to both lawyers.”
¶16 The district court did not expressly speak to the issue
of waiver in its memorandum decision. Considerations of waiver
are, however, at the heart of the court’s decision to permit Mr.
Maughan to retain one of his two lawyers. In this appeal, we
decide (1) whether it was proper for the district court to allow
Mr. Maughan to waive a conflict at all, and (2) if it was within
the court’s discretion to permit waiver, whether Mr. Maughan’s
authority to waive the conflict was properly restricted to one
and not both of his lawyers. Instead of framing its analysis of
the State’s motion to disqualify Mr. Maughan’s lawyers in waiver
nomenclature, the district court, in a memorandum decision,
approached its task by applying a test it borrowed from State v.
Johnson, 823 P.2d 484, 490 (Utah Ct. App. 1991). The test
balanced a “[d]efendant’s right to be represented by an attorney
of his choice against the need to maintain the highest standards
of professional responsibility, the public concern in the
integrity of the judicial process and the orderly administration
of justice.”
¶17 The district court cited the presence of “at least the
reasonable possibility” that Mr. Maughan’s lawyers committed “a
serious violation of law or ethical standards” as its primary
justification for disqualification. That the district court had
misgivings over just how reasonable this possibility might be and
about what the actual gravity of their transgressions were became
evident when the court decided that Mr. Maughan’s Sixth Amendment
right to continue his association with his appointed counsel was
important enough to save one, but not both, of his lawyers from

Nos. 20060189, 20060216 6
disqualification despite their Spokane misadventures. Based upon
the judge’s ruling, Mr. Maughan decided to retain Mr. Mauro, and
thus Mr. Williams was disqualified.
ANALYSIS
I. THE DISTRICT COURT’S RULING
¶18 The district court’s ruling is susceptible to several
interpretations. On one hand, it is clear that the district
court believed that sufficient grounds existed to disqualify
someone. At the same time, however, the district court concluded
that the State had not made a sufficient case for discharging
both Mr. Mauro and Mr. Williams since the court left it to Mr.
Maughan to decide which of the two lawyers he would retain.
¶19 As noted above, this second aspect of the district
court’s ruling reflects what must have been apprehension over
whether the lawyers’ alleged misdeeds in Spokane justified
disqualification. If the court’s decision to disqualify someone
was anchored to the belief that Mr. Mauro and Mr. Williams had
materially jeopardized public confidence in the integrity of the
judicial process and orderly administration of justice, the court
would have been hard pressed to reconcile that rationale with a
decision to allow one of the lawyers to continue on Mr. Maughan’s
behalf. If, on the other hand, the risk of a serious conflict of
interest was the concern most responsible for the district
court’s ruling, by permitting Mr. Maughan to select one of his
two lawyers to continue representation, the district court
signaled that the conflict was one that Mr. Maughan could likely
waive.
¶20 Neither Mr. Maughan nor the State was happy with the
district court’s compromise ruling. Both insisted that the
district court had overstepped the bounds of its discretion,
albeit for different reasons. We, of course, are at liberty to
affirm that compromise ruling to the frustration of both sides
should we deem it proper to do so. Such an outcome would
manifest a commitment to a grant of expansive deference to trial
judges in a realm of judicial decision making that is uniquely
marked by its demands on a judge’s predictive power--will the
events creating the alleged conflict ever surface in a way that
is actually detrimental to the client?--as on the judge’s fact-
finding skills. We have previously found it proper to give trial
judges considerable latitude in ruling on motions to disqualify
counsel, drawing on the United States Supreme Court reasoning
that “‘the likelihood and dimensions of nascent conflicts of
interest are notoriously hard to predict.’” State v. Arguelles,

7 Nos. 20060189, 20060216
2003 UT 1, ¶ 88, 63 P.3d 731 (quoting Wheat v. United States, 486
U.S. 153, 162-63 (1988)).
A. Abuse of Discretion
¶21 The district court’s decision to permit Mr. Maughan to
select one of his lawyers to continue in his cause leads us to
examine, with greater scrutiny than would typically be
appropriate under the Arguelles standard, the nature and
consequences of the conduct alleged to have merited the lawyers’
disqualification. This modification of our standard of review,
while necessary in our view, merits explanation.
¶22 At the outset, we reiterate that had the district court
believed disqualification was required because of the risk that
the lawyers’ conduct posed to the integrity of the judicial
process, the court would not have been justified in permitting
either lawyer to remain as Mr. Maughan’s counsel. The district
court’s ruling, then, can only be read to mean that the court
concluded that the continuing representation of Mr. Maughan by
either of his lawyers would not compromise the integrity of the
process. We hold that the district court did not abuse its
discretion when it declined to disqualify Mr. Maughan’s lawyers
on this ground and affirm.
B. Actual Conflict
¶23 The issue left for us to decide is whether the lawyers’
Spokane misadventures created a real, present conflict of
interest or a serious potential, future conflict of interest and,
if it did, whether Mr. Maughan could waive any such conflict.
¶24 The State claims that the district court exceeded its
discretion because the conflict brought on by the events in
Spokane created an actual or potential conflict of interest that
was both so real and so serious that Mr. Maughan was left
powerless to spare either of his lawyers from disqualification.
Mr. Maughan takes the opposite view. While he agrees with the
State that the district court exceeded its discretion, he insists
that there is nary an actual conflict to be found, and if a
future one may be conjured, it is of little importance. These
bipolar positions have one thing in common: they require us to
examine the nature and extent of the alleged conflict.
¶25 The district court’s memorandum decision said this
about conflict of interest: “There is a potential conflict that
examination of Mr. Wagar at trial might raise issues which
implicate either Mr. Mauro or Mr. Williams to the Defendant’s
detriment.” The district court did not elaborate about what

Nos. 20060189, 20060216 8
these issues might be or how they might prejudice Mr. Maughan.
It did, however, limit its findings concerning the conflict of
interest to a potential conflict. We affirm the district court’s
determination that the conduct of Mr. Maughan’s lawyers did not
create an actual conflict of interest and turn our attention to
reviewing the existence and nature of a potential conflict
between Mr. Maughan and his lawyers.
C. Serious Potential Conflict
¶26 A conflict of interest exists for Sixth Amendment
purposes if a lawyer’s loyalties are divided in a way that
“adversely affects counsel’s performance.” Mickens v. Taylor,
535 U.S. 162, 172 n.5 (2002); see also State v. Lovell, 1999 UT
40, ¶ 22, 984 P.2d 382. In other words, an actual or potential
conflict threatens that “‘counsel [may] . . . make choices
advancing other interests to the detriment of his client.’”
State v. Taylor, 2007 UT 12, ¶ 124, 156 P.3d 739 (quoting United
States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)). Not
all potential conflicts will justify the disqualification of
counsel, and even some potential conflicts which might lead to
disqualification of counsel may be waived. Only “serious
potential conflicts” require disqualification without the
possibility of waiver. Arguelles, 2003 UT 1, ¶ 88.
¶27 The State’s characterization of the potential conflict
in this case has two components. First, the State contends that
Mr. Mauro and Mr. Williams would be so consumed by the effort to
defend themselves against the accusations stemming from their
Spokane activities that they would have inadequate time and
interest in Mr. Maughan’s cause. Next, the State claims that the
circumstances of Mr. Mauro’s arrest and the allegations of
witness tampering would likely arise during Mr. Maughan’s trial.
According to the State, a jury would likely come to hold
unfavorable impressions of Mr. Mauro and Mr. Williams upon
hearing of their activities, to the detriment of Mr. Maughan.
¶28 The district court did not cite in its memorandum
decision the first of these arguments as a basis for finding a
potential conflict. We find the claim that the attorneys will
suffer from divided loyalty based on the presumed temptation to
surrender Mr. Maughan’s defense to their own to be too
speculative to merit consideration as a reason to disqualify the
attorneys. It is true, as the State points out, that the
attorney for Mr. Mauro and Mr. Williams complained that the
Spokane police had “substantially interfered” with the efforts to
represent Mr. Maughan. To the extent, however, that Mr. Mauro
and Mr. Williams might be compelled to expend resources in their
own defense, that redirection of resources creates no more or

9 Nos. 20060189, 20060216
less of a conflict of interest than would the demands of
representing other clients in the course of conducting a criminal
defense practice. The determination of whether a lawyer is too
limited by time and resources to provide effective legal
assistance is one in which an adversary party is entitled to
little say. It is, rather, a matter best left to the judgments
of the lawyer and the client.
¶29 The district court noted as the sole potential conflict
the claim that the circumstances surrounding Mr. Mauro’s arrest
and Mr. Williams’ Spokane activities could surface to the
detriment of Mr. Maughan during his trial. Despite the State’s
attempts to describe this conflict, we remain both unable to
fully comprehend it and skeptical of the significance of those
features that we can grasp.
¶30 In an effort to establish Mr. Wagar’s bias in favor of
Mr. Maughan, the State suggests that it may attempt to extract
testimony from Mr. Wagar that he complied with Mr. Mauro’s
alleged admonition not to talk to the police. Even were we to
assume that Mr. Wagar’s allegiance to Mr. Maughan would not have
been made so clear by the time the State embarked on this line of
cross-examination that it would not have been merely cumulative,
we see little justification to expand the inquiry to include the
claim that the admonition was unlawful or unethical.
¶31 Moreover, every witness Mr. Mauro allegedly instructed
not to talk to the Spokane police ultimately did so, and Mr.
Williams’ instructions to the witnesses on December 8 undoubtedly
played a part. We therefore find it difficult to accept the
claim that disclosure of the alleged unlawful instruction would
result in the infliction of material damage to the credibility of
either lawyer or that any impaired credibility sustained by the
two lawyers would infect Mr. Maughan.
¶32 Despite our puzzlement and skepticism, we defer to the
district court’s finding that the events in Spokane might
generate a potential conflict and do not conclude that it was
clearly erroneous. Our assessment that the potential conflict is
not serious enough as to render it beyond the power of Mr.
Maughan to waive is likewise in accord with the district court’s
approval of waiver implicit in its decision to permit one of Mr.
Maughan’s lawyers to continue to represent him. We depart from
the district court only to the extent that we hold that the
potential conflict identified by the district court was of so
little consequence that Mr. Maughan should have been afforded the
opportunity to waive it with respect to both Mr. Mauro and Mr.
Williams. We therefore remand this matter to the district court

Nos. 20060189, 20060216 10
for the purpose of inviting Mr. Maughan’s waiver of the potential
conflict relating to his disqualified counsel, Mr. Williams.
II. INSTRUCTIONS REGARDING WAIVER ON REMAND
¶33 We recognize the challenges that confront a district
court when assessing whether a defendant has knowingly and
voluntarily waived an attorney’s potential conflict of interest.
As we noted above, the specter of being whipsawed by claims of
error no matter which way a judge rules is more than fanciful.
We are “sensitive to the possibility that a defendant may seek a
waiver and then try to use it to his or her advantage later.”
State v. Johnson, 823 P.2d 484, 491 (Utah Ct. App. 1991).
¶34 We therefore instruct the district court on remand to
appoint qualified conflict counsel to represent Mr. Maughan for
the limited purpose of ascertaining whether Mr. Maughan desires
to waive the potential conflict with respect to Mr. Williams and
to ensure that Mr. Maughan’s waiver is knowing and voluntary.
CONCLUSION
¶35 We conclude that the district court did not abuse its
discretion when it declined, based on implicit grounds, to find
that Mr. Mauro’s and Mr. Williams’ continued representation would
compromise the integrity of the judicial process or constitute an
actual conflict of interest. Although we appropriately defer to
the district court’s determination that a potential conflict
might exist, we conclude that any potential conflict is not so
serious that Mr. Maughan could not waive it. We therefore
reverse and remand for proceedings consistent with this opinion.
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¶36 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.