VI. Court Abused Discretion in Disqualifying Counsel Over Objection
A. Simultaneous Representation of Jointly Tried Codefendants (State Cases only)
1999: Hanna v. State, 714 N.E.2d 1162 (Ind.
Ct. App. 1999). Interlocutory appeal. Trial court erred in disqualifying
counsel in joint representation over objection. Hanna, a police officer,
was charged with criminal recklessness, pointing firearm, operating
motor vehicle while intoxicated, operating motor vehicle while
intoxicated causing serious bodily injury, obstruction of justice, and
official misconduct. Five other police officers were indicted for
obstruction of justice and/or official misconduct. All retained the same
law firms to represent them. The state moved to disqualify joint
counsel. All defendants, after consultation with unconflicted counsel,
waived the conflict in a hearing. The trial court granted the state’s
motion and ordered the defendants to retain separate counsel. The
appellate court held, "Where it is the government which moves to
disqualify defense counsel, the burden is on the government to show that
any infringement on the defendant's choice of counsel is justified."
Id. at 1165. Here, the trial court erred because there was no
showing of an actual conflict and the defendant’s right to counsel of
choice must be respected. "[A] defendant's right to the counsel of his
choice should prevail over his or her right to conflict- free counsel"
when the defendant makes a knowing and intelligent waiver of the
conflict. Id. at 1166.
1995: Tyson v. District
Court, 891 P.2d 984 (Colo. 1995). Trial court
erred in disqualifying counsel from joint representation when the
defendants entered valid waivers. The defendants, husband and wife, were
charged with a variety of offenses arising out of a drive-by-shooting on
an interstate. At a preliminary hearing, the court conducted a thorough
inquiry of the defendant’s and also appointed independent counsel for
each to advise them. The defendant’s waived the potential conflicts at
the hearing and subsequently in writing. Later, on motion of the
government, the trial court addressed the issue again and reversed the
prior ruling because of the government’s assertions including: (1) the
evidence is stronger against one person than it is against another
person; (2) a plea agreement had been offered to one of the defendants
which would include testifying against the other; and (3) both
defendants statements that they would not enter plea agreements. The
appellate court held that the trial court erred in disqualifying counsel
since both defendants had made a knowing, intelligent, and voluntary
waiver of the conflict. The court also ruled that both defendants were
waiving any future allegation of ineffective assistance due to a
conflict of interest.
B. Simultaneous Representation of Codefendants in Severed Trials (State Cases Only)
2003: Valdez v. State,
847 So.2d 602 (Fla. Dist. Ct. App. 2003). The trial court improperly
disqualified counsel in drug case over objection. Defendant was charged,
along with her boyfriend, with drug charges. They retained the same
attorney. The state moved to disqualify counsel because the boyfriend
would be called to testify during the defendant’s trial. The trial court
erred in disqualifying counsel because the defendant, after being fully
informed of the potential conflict, made a knowing waiver.
C. Simultaneous Representation of Government Witness on Related Charges (State Cases only)
1988: Alcocer v. Superior Court, 254 Cal.
Rptr. 72 (Cal. Ct. App. 1988). Trial court erred in disqualifying
counsel in lying to grand jury case where counsel also represented a
potential state witness. Defendant was charged with lying about
knowledge that a judge had been using drugs. He retained counsel who
also represented a witness the state intended to call to say the
defendant was present when the witness sold drugs to the judge. The
state moved to disqualify counsel. The court had independent counsel to
advise defendant and defendant chose to continue with counsel. The court
disqualified counsel anyway. The appellate court held that the trial
court erred because "California courts have held that a defendant, upon
proper advisement, may waive his right to retain counsel free
from conflict of interest." Id. at 77. The court established
guidelines for the advisement and remanded due to finding that trial
court had prematurely granted the motion to disqualify counsel.
D. Simultaneous Representation of Potential Government Witness in Unrelated Case (U.S. District Court Cases Only)
E. Prior Representation of Government Witness in Related Case (State Cases)
1989: Commonwealth v. Cassidy, 568 A.2d 693
(Pa. Super. Ct. 1989). Trial court erred in disqualifying counsel in
racketeering case involving police narcotics unit defendants where
counsel had previously represented a potential government witness (also
a police officer) in a federal prosecution. Appellate court found that
the government’s disqualification motion was premature and that there
was no showing of an actual conflict or serious potential for conflict
to overcome the presumption that defendant was entitled to counsel of
choice.
F. Prior Representation of Government Witness in Unrelated Case (State Cases only)
2004: State v. Carver
, 95 P.3d
104 (Kan. 2004).
The trial court erred in disqualifying counsel over objection in
aggravated battery case where the defendant was charged with assault and
kidnaping of his former girlfriend. The defendant retained counsel, who
had been his family attorney for 15 years. Counsel had also previously
represented the victim’s mother five years before in an action to obtain
custody of two of the victim’s children. The state moved to disqualify
counsel and, without the defendant being present, the court disqualified
counsel following an off-the-record discussion and appointed the public
defender. The defendant objected to the disqualification and appointment
of the public defender office, but the motion on the disqualification
was never heard. Ultimately the court allowed a 30 day trial continuance
in order to allow the defendant to retain a different lawyer. The court
held that it was error to disqualify counsel because counsel had not
represented the victim’s mother in a "substantially related matter" and
counsel would not have been required to use information concerning his
prior representation during the trial. Indeed, the state’s motion in
limine preventing the defense from inquiring about the prior child
custody actions ensured that the prior representation would not cause a
conflict during the trial. Finally, the victim’s mother was not a key
witness and would testify only to background information. The court
found that the error was not harmless.
1996: Ex Parte Tegner, 682 So.2d 396 (Ala.
1996). Trial court erred in disqualifying counsel in murder case without
sufficient inquiry. Counsel had previously represented an eyewitness.
The state moved to disqualify counsel. The trial court, relying on an
ethics opinion from the state bar in this specific case, disqualified
counsel. Defendant sought a writ of mandamus. Appellate court held that
the trial court erred in disqualifying counsel without sufficient
inquiry. The trial court should have evaluated the evidence regarding
the question of disqualification, weighed the constitutional rights in
issue, and determined whether the first representation was substantially
related to the second. It did not do so; because it had to do so before
it could properly disqualify counsel, the ordering disqualifying counsel
was set aside.
G. Prior Representation of Codefendants in Same Case (State Cases only)
1995: State v. Parrott, 919 S.W.2d 60 (Tenn.
Crim. App. 1995). Trial court erred in disqualifying counsel where
defendant made a knowing and intelligent waiver of conflict. Defendant
and her husband were charged with drug possession and intent to
distribute. They initially were jointed represented by two attorneys.
They then requested separate representation but defendant did not change
counsel. The government moved to disqualify counsel. Both the defendant
and her husband waived any potential conflict, but the trial court
disqualified counsel anyway. The trial court erred because no actual
conflict was shown, only a potential conflict was present. The trial
court also erred because the defendant made a knowing and intelligent
waiver of any conflict.
1990: People v. Burrows,
269 Cal. Rptr. 206 (Cal. Ct. App. 1990). Trial court erred in
disqualifying counsel in murder case despite waivers of conflict.
Defendant and his brother were arrested. Following the preliminary
hearing, their trials were severed. Defendant retained counsel, who had
represented his codefendant at the preliminary hearing. Defendant and
codefendant signed waivers, but the court disqualified counsel. The
appellate court found error because "California makes a defendant the
master of his fate and allows him to proceed uninterrupted, with the
exceptions of flagrant circumstances of attorney misconduct or
incompetence..., with counsel of his choice if the parties involved in
the conflict properly waived any potential or actual conflicts."
Id. at 212.
H. Prior Representation of Person Implicated (but not charged) in Same Crime (State Cases only)
1988: Coffey v. Pack, 524 So. 2d 498 (Fla. Dist. Ct. App. 1988). Trial
court erred in disqualifying counsel without conducting an adequate
inquiry to determine whether disqualification was necessary where it was
discovered that a member of counsel’s office also represented the person
the defendant claimed was the actual perpetrator on unrelated charges.
I. Counsel Was Necessary or Potential Witness (State Cases only)
2003: State v. Peeler,
828 A.2d 1216 (Conn. 2003). The trial court improperly disqualified
defendant’s retained counsel in a murder case. Defendant was initially
charged with attempting to murder his partner in a crack cocaine
operation and two minor children. All three of the victims were
identified by name in the police arrest warrant and information.
Subsequently, while the defendant was free on bond, the defendant was
charged with murdering his drug partner. The defendant retained counsel
to represent him. The state subsequently filed a motion for a protective
order to preclude disclosure to the defense of the identity of certain
witnesses, including the two minor victims of the initial drive-by
shooting. The court allowed disclosure to the defense but ordered that
the names and addresses of
the witnesses could not be disclosed to the defendant. Subsequently, one
of the minor children and his mother were murdered in their apartment
where they had recently moved. The state charged the defendant and his
brother with these murders. The state then moved to disqualify
the defendant’s counsel, because the state intended to call counsel
as a witness in the defendant’s capital trial for the murder
of the young witness and his mother. Over objection, the
trial court granted the state’s motion to disqualify counsel. Counsel was
called as a witness during the defendant’s separate capital trial. The court held
that the record did not demonstrate that the state had met its
burden of proving that counsel’s testimony was necessary or that there was a
compelling need for counsel’s testimony. Here the minor witness
had already been mentioned by name in both the arrest warrant,
affidavit, and substitute information before his death. In addition, the state’s
notice of service upon defense counsel of the witness’ statement was
a matter of public record. Therefore, the state did not need
counsel’s testimony in order to establish that the defense had
been served with the statement. Even when given the opportunity to question
counsel, the state never asked him what he did in connection with
any of the statements he had been given pursuant to the
court order. Prejudice was presumed. "If the decision of the
trial court deprived the defendant of his constitutional right to counsel
of choice," reversal was required.
1991: State v. Corley, 809 S.W.2d 405 (Mo.
Ct. App. 1991). Trial court erred in disqualifying counsel in light of
defendant’s waiver and only a remote chance that counsel would be called
as a witness for the defense. On information from witness, defendant was
arrested for murder. He retained counsel, who had previously represented
the witness on unrelated charges. Witness refused to cooperate or to
testify in defendant’s case though. He claimed that he had told counsel
of defendant’s confession during counsel’s prior representation of him
and that counsel advised him not to disclose the information or to use
it in plea bargaining. In an initial trial, counsel informed the jury
that he might be a witness. That trial ended in a mistrial for other
reasons. Prior to retrial, the court appointed independent counsel to
consult with defendant concerning potential conflicts. The independent
counsel reported that it would be a substantial hardship to defendant if
his counsel was removed. The state moved to disqualify counsel. A
hearing was held and defendant informed the court he desired to waive
the conflict. The court disqualified counsel because of the likelihood
that he would testify. Defendant appealed. The Court of Appeals held
that the trial court erred because it was doubtful that counsel’s former
client would testify in light of his refusals to cooperate. The court
also did not consider the substantial hardships for defendant in
delaying trial and in obtaining new counsel since defendant was confined
and did not have sufficient money to retain new counsel.
State v. Shores, 402 S.E. 2d 162 (N.C. Ct. App. 1991). Trial court
erred in disqualifying counsel in murder case where it was early in the
proceeding and had not yet been determined whether counsel’s testimony
would be needed. Following arrest, counsel entered appearance. The state
moved to disqualify counsel based on a witness’ statement that the
defendant talked to counsel after the victim’s disappearance and counsel
said there was no evidence if the authorities had no body. After that
the defendant burned the body. The trial court erred in disqualifying
counsel early in the proceedings because no determination had even been
made that the witness’ testimony was admissible or that counsel could
testify despite the attorney-client privilege.
J. Counsel Previously Worked for Prosecutor and Had Limited Involvement in Case (State Cases only)
1988: Anaya v. People, 764 P.2d 779 (Colo.
1988). Trial court erred in disqualifying counsel in kidnapping and
assault case over objection where member of counsel’s firm had
previously worked in the prosecutor’s office and was involved in limited
discussions of this case. The court of appeals held that the error was
harmless because defendant had not shown that replacement counsel was
ineffective. The Colorado Supreme Court held, however, that erroneous
disqualification of counsel over objection cannot be considered harmless
error.
K. Miscellaneous
1. U.S. Court of Appeals Cases
1989: Fuller v. Diesslin, 868 F.2d 604
(3rd Cir. 1989). Trial court abused discretion in arbitrarily
denying motion to admit out-of-state counsel pro hac vice due
only to concerns that admission would cause delay in the trial of drug
and weapons charges. Court held that "a request for counsel pro hac
vice should [not] be treated any differently by a trial court than
any other request for counsel of choice." Id. at 607. The court
held that per se reversal is required whenever, as here,
there is an arbitrary denial of counsel of choice.
2. State Cases
2002: *People v. Harlan, 54 P.3d 871 (Colo.
2002). The trial court erred in capital post conviction proceedings in
disqualifying counsel of choice after counsel filed a motion for
appointment of alternate defense counsel to investigate potential
ineffective assistance of counsel claims.
State ex rel. Youngblood v. Sanders, 575
S.E.2d 864 (W. Va. 2002). The trial court erred in disqualifying counsel
in felony murder case over the objection of the defendant. Counsel’s
paralegal had initially met with the co-defendant wife for the purpose
of exploring the possibility of counsel representing the co-defendant.
The co-defendant did not retain counsel because of financial reasons.
Later the defendant retained counsel. The co-defendant plead guilty and
agreed to testify against the defendant. The state move for
disqualification of counsel. The court found that disqualification was
not required because the information provided to counsel by the
co-defendant’s wife was also contained in several police reports and was
therefore generally known information
1996: People v. Johnson, 547 N.W.2d 65 (Mich. Ct. App. 1996). Trial court
improperly disqualified counsel in armed robbery and assault case.
Counsel was appointed to represent defendant. Court ordered that counsel
discover defendant’s prior convictions and details concerning their
validity. Counsel moved to set aside the order and the court removed
counsel. The court’s order was found to be improper and violative of
both state and federal law. Clearly, counsel was relieved because he
challenged the court’s order. This was improper because a court cannot
relieve counsel simply because the court disagrees with counsel’s
actions.
1989:
*Stearns v. Clinton, 780 S.W.2d 216
(Tex. Crim. App. 1989). Trial court erred in disqualifying counsel in
capital trial where court was upset about counsel interviewing a witness
without prosecutor’s permission. The prosecutor moved for
disqualification because counsel could be a witness after interviewing
the witness. [Yes. That is what the opinion says.] The court erred in
removing counsel because "the power of the trial court to appoint
counsel to represent indigent defendants does not carry with it the
concomitant power to remove counsel at his discretionary whim."
Id. at 223. The prosecutor’s rule requiring permission to
interview witnesses is "in conflict with principles of fair play."
Id. at 224.
1982: *Maxwell v. Superior
Court, 639 P.2d 248 (Cal. 1982). Trial court erred in
disqualifying counsel in murder case over objection where defendant
validly waived any conflict due to contract with counsel giving counsel
the right to exploit defendant’s life story.