                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 post-
                conviction 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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                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




                                                                                  J.


                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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