VII. No
Abuse of Discretion in Court Disqualifying Counsel Over
Objection
A. Simultaneous Representation of Jointly
Tried Codefendants
1. U.S. Court of Appeals
Cases
1997: United States v. Howard, 115 F.3d 1151
(4th Cir. 1997). Trial court did not err
in disqualifying counsel in conspiracy and drug distribution case. Prior
to trial, the defendant admitted to government agents that he was part
of a drug trafficking organization and said that he would cooperate with
authorities except for the fact that his attorney would tell other
members of the conspiracy for whom the attorney was also working.
Following a suppression hearing, the trial court ruled that these
statements were admissible and sua sponte
raised the issue of whether counsel should be disqualified. The court
was concerned that counsel represented other conspirators with
conflicting interests and that counsel could be called as a witness to
rebut this testimony. Appellate court found no abuse of discretion in
disqualifying counsel in these circumstances.
1993: Serra v. Michigan Department of
Corrections, 4 F.3d 1348 (6th Cir. 1993). Trial court did not err in
disqualifying counsel in drug case where counsel had jointly represented
defendant and codefendant in plea negotiations and the government sought
to enter a deal with the codefendant. Defendant and his girlfriend were
arrested and charged. They retained counsel. Counsel moved to sever
preliminary hearings because of antagonistic defenses. The government
moved to disqualify counsel. The court denied both motions. The
government later renewed the motion for disqualification, in part,
because the government had sought to enter a plea agreement with the
codefendant but was prohibited from doing so because she and defendant
had the same counsel. The court disqualified counsel from representing
defendant and codefendant because each would claim that the drugs
belonged to the other and their defenses were antagonistic. Prior to
trial replacement counsel sought reconsideration because the codefendant
was now defendant’s wife and had already plead guilty but was awaiting
sentencing. Defendant and codefendant were willing to waive conflicts.
The court denied, but did allow the disqualified counsel to assist
defendant’s appointed counsel and to be present during the trial. The
Sixth Circuit held that the trial court did not abuse its discretion
even though the government had not indicated that it would call the
codefendant to testify because the defense had indicated that she would
be called as a defense witness. Either way, counsel would have been in
the position of trying to elicit favorable information for the defendant
from his former client. The trial court also did not abuse its
discretion in rejecting a waiver and disqualifying counsel.
2. Military Cases
United States v.
Odom, 53 M.J. 526 (N.M. Crim. App. 2000). Trial court
properly disqualified civilian counsel, despite purported waiver of
conflict, in case involving charges of making a false official
statement, assault consummated by a battery, and assault with intent to
commit murder. An "associate" of civilian counsel appeared at several
preliminary hearings, indicating that she was admitted to practice in
California. Later, after the military judge learned that counsel also
intended to represent the codefendants, the court conducted an inquiry,
in which it was learned that the "associate" was not even an attorney.
The court disqualified counsel but gave the accused an opportunity to
retain other civilian counsel. He did not do so and proceeded to trial
with only his assigned military counsel. The appellate court for no
abuse of discretion in the trial court’s actions, because each of the
codefendants had made pretrial statements "that, at least in part,
attempted to shift or deflect blame to another or the others, and, in
many respects, provided damaging evidence against their co- actors." Id. at 532. It was also "clear that there were
significantly varying degrees of culpability in this case, with the
appellant ‘appearing’ to be the most culpable." Id. Finally, the government indicated that they
would try the codefendants first and then grant them testimonial
immunity as witnesses in the case against the appellant. Given these
circumstances, disqualification of counsel was proper.
3. State Cases
1990: State v.
Dillman, 591 N.E.2d 849 (Ohio Ct. App. 1990). Trial court
did not err in disqualifying counsel where public defender also
represented codefendant who would testify at trial in forgery case.
Defendant and codefendant were represented by different counsel but both
were members of the same public defenders office. Trial court did not
err in removing counsel, despite waiver, due to the conflict.
B. Simultaneous Representation of Government Witness
in Same Case
2004: People v. Ortega, 808 N.E.2d 496 (Ill.
2004). Trial court did not err in disqualifying defense counsel in drug
case where counsel’s brother and law partner represented the
government’s confidential informant, who was present at the time of the
drug sale to an officer, in the same case. Even though the informant’s
charges had been resolved and the firm no longer represented him, the
court found that counsel should be disqualified because of the
unfairness to the state if the defendant used confidential information
from the informant to cross-examine him or mount a defense.
Disqualification was also appropriate because of the appearance of
impropriety.
2002: State ex rel. Kinder v. McShane, 87
S.W.3d 256 (Mo. 2002). Trial court did not abuse its discretion in
disqualifying counsel in murder case where counsel had represented the
defendant’s father, a government witness, during a deposition in the
case. The government moved to disqualify counsel. The defendant
purported to waive conflict, but the court found the waiver to be
inadequate and that the potential for conflict was too great.
Disqualification was proper under these circumstances.
C. Simultaneous Representation of Prosecutor,
Government or Defense Witness, or Confidential Informant in Unrelated
Case
1. U.S. Court of Appeals
Cases
1993: United States v. Vasquez, 995 F.2d 40
(5th Cir. 1993). Trial court did not err
in drug conspiracy case in disqualifying counsel where counsel
simultaneously represented a potential government witness. Counsel
represented the witness on unrelated pending criminal charges, but had
attended sessions where the witness’s pending testimony against the
defendant was discussed. Trial court did not abuse its discretion in
disqualifying counsel. "[T]hat a
conflict of interest would arise if [counsel] was required to
cross-examine [his client] during the trial was a valid and significant
concern." Id. at 42.
2. State Cases
2003: State ex rel. S.G., 814 A.2d 612
(N.J. 2003). Counsel was disqualified over the defendant’s objection due
to representation of both the murder defendant and the victim. The
defendant was arrested for murder and his sister retained counsel who
agreed to represent the defendant before he learned the identity of the
victim. Counsel had a long-standing relationship with the defendant’s
family and had represented a number of family members in the past. When
counsel entered his appearance on behalf of the defendant, he was
unaware that another attorney in his firm was representing the shooting
victim in connection with a drug charge at the time of his death. The
firm had also previously represented the victim. The pending charge
against the victim was not dismissed until two weeks after the firm
entered an appearance on the defendant’s behalf. The state moved to
disqualify the firm based on its current and prior representation of the
victim. The court held that this was a case of simultaneous
representation because an attorney’s responsibility in a criminal case
does not end in these circumstances until the charges are dismissed. The
court also held that the interest of the two clients was adverse on
multiple levels. First, as the victim of a shooting, the victim plainly
had a general interest in seeing his alleged attacker brought to justice
and had he lived would have been a witness against the defendant.
Second, the defendant plainly committed "a patently tortious act"
against the victim giving rise to an action for wrongful death brought
by the victim’s estate. This is "exactly the sort of conflict that the
professional rules of conduct ought not and do not permit." In reaching
this decision, the court did not even cite Mickens v. Taylor.
2002: Cotto v. State, 829 So.2d 959 (Fla. Dist. Ct. App. 2002).
The trial court properly disqualified counsel when counsel
simultaneously represented a state’s witness on unrelated charges. The
defendant was asserting insanity at the time of the crime and the
witness represented by counsel was a state’s witness to be called to
rebut the insanity defense. Although the defendant purported to waive
the conflict. The court held that although he was competent that he had
"diminished mental capacity" and did not sufficiently understand how the
conflict could affect his defense, so as to be able to intelligently
waive the conflict.
State v. Taylor, 574 S.E.2d 58 (N.C.
Ct. App. 2002). The trial court did not err in disqualifying counsel in
second degree murder case where counsel simultaneously represented the
defendant and the victim on an unrelated matter. The defendant was
charged with shooting his live-in girlfriend in August 1998 and retained
counsel to represent him. Counsel at that time had been representing the
victim for more than a year in a domestic matter and continued his
representation of her for several months after being retained by the
defendant. During that time counsel prepared a power of attorney giving
the defendant power of attorney over the victim’s affairs while she was
in the hospital. While the defendant claimed that the victim had shot
herself, the victim made contradictory statements to others but at all
times denied that she had shot herself. The victim ultimately died from
complications from the shooting. Acting on the state’s motion over the
objection of the defendant the trial court disqualified the defendant’s
counsel and members of his firm since counsel was a potential witness
and could be called upon to impeach statements made by the victim during
his dual representation. Disqualification was appropriate because
counsel was "undoubtedly privy to some information regarding the
victim’s personal life and habits." This "information would be most
helpful in defending the person accused of her murder, especially if the
defendant submits that the victim was distressed and shot herself or if
the defendant intends to attack the victim’s credibility." Although
counsel was not actually called as a witness to testify following his
disqualification, the court found that the trial court committed no
error in disqualifying counsel prior to trial.
2000: Commonwealth v. Jordan, 733 N.E.2d 147
(Mass. Ct. App. 2000). Trial court in kidnapping, assault with dangerous
weapon, conspiracy to commit murder, and assault and battery case
properly granted defense counsel’s motion to withdraw, even though
defendant attempted to waive conflict. Counsel learned less than a week
before trial that Commonwealth intended to call a new witness to testify
that the defendant made incriminating statement’s while incarcerated.
The witness was the husband and codefendant of a person represented by
counsel's associate and counsel had discussed that case with the
associate on several occasions in his capacity as supervisor in the
Office of Committee for Public Counsel Services. The witness was to be
given a sentence reduction and the dismissal of all charges against his
wife in exchange for his testimony. "This created a conflict because one
client of the office (the wife of the witness) was to receive a benefit
at the expense of the defendant. Moreover, the wife's counsel had to be
conflict-free to enable him to ensure that her husband's agreement with
the Commonwealth concerning his testimony in the defendant's case was
enforced." Id.at 152. In addition, in his
supervisory role, counsel had obtained information from the witness's
wife could be used in cross-examination of her husband to her detriment.
If counsel limited his cross-examination of the husband to prevent any
possible use of information gained from his wife, this would be
detrimental to the defendant. Therefore, counsel was allowed to withdraw
and new counsel appointed. The court gives "deference to the exercise of
an attorney's best judgment as to whether such employment will bring the attorney into conflict with the
[rules of professional conduct.]" Id. at
153.
1991: State v.
Miller, 467 N.W.2d 118 (Wis. 1991). Trial court did not
abuse its discretion in disqualifying counsel who simultaneously
represented a government witness on related charges. Defendant was
arrested after officers observed her retrieve a mailed package that
contained cocaine. Her house was searched and more drugs were found.
Witness was present and initially charged as codefendant, but those
charges were dismissed. The next day the witness house was searched and
similar charges brought against him. The witness retained counsel. After
becoming dissatisfied with her own counsel, defendant sought to retain
the same counsel. The government’s motion for disqualification of new
counsel was granted. Trial court did not abuse its discretion despite
defendant’s purported waiver because there were serious potential
conflicts in possible plea negotiations, in cross-examining the
government’s witness, and in adopting a line of defense implicating the
witness.
1990: Commonwealth v. Colon, 558 N.E.2d 974
(Mass. 1990). Trial court did not err in disqualifying counsel in murder
case where a member of counsel’s firm represented the prosecutor and his
supervisor in unrelated civil matters. Upon learning of the conflict,
counsel moved to disqualify the prosecutor’s office but was instead
disqualified himself. The court found that this was proper because the
conflict was in counsel’s representation not in the prosecutor’s
office.
D. Retained by Codefendant or Third-Party With Adverse
Interest (U.S. Court of Appeals Cases only)
1993: United States v. Locascio, 6 F.3d 924
(2nd Cir. 1993). Trial court did not err
in disqualifying counsel in RICO action, including murder, where one
counsel had previously served as "house counsel" for the organization,
was potentially implicated in the crimes and could be an unsworn
witness, and had previously represented a government witness. Defendant,
John Gotti, and two others were indicted. One codefendant plead guilty
and agreed to testify. The other codefendant’s trial was severed.
Defendant and Gotti were tried and convicted of activities related to
the Gambino Crime Family. On motion of the government, Gotti’s counsel
was disqualified because he had served as "house counsel" for the family
and had represented numerous persons while being paid by Gotti. Counsel
was also a participant in some of the taped conversations the government
would use in evidence. Counsel’s participation in the trial could thus
render him an unsworn witness explaining his own conduct in those
conversations. Counsel had also previously represented a potential
government witness. Second circuit found no abuse of discretion in the
disqualification on two grounds: (1) counsel’s role as house counsel to
the Gambino Crime Family; and (2) counsel’s anticipated role as an
"unsworn witness." The court found that proof of house counsel could be
used by the government to help establish the existence of the criminal
enterprise under RICO, by showing the connections among the
participants. The court was more disturbed,
however, that counsel could become an unsworn witness.
The government was legitimately concerned that,
when [counsel] argued before the jury for a particular interpretation of
the tapes, his interpretation would be given added credibility due to
his presence in the room when the statements were made. This would have
given Gotti an unfair advantage, since [counsel] would not have had to
take an oath in presenting his interpretation, but could merely frame it
in the form of legal argument.
Id. at 934. "If an attorney will not perform
his ethical duty, it is up to the courts to perform it for him.
[Counsel] had no place representing John Gotti in this case, and the
district court properly determined that he should be disqualified." Id. Defendant’s counsel was disqualified for
essentially the same reason as Gotti’s counsel, but also included the
fact that counsel essentially worked for and was paid by Gotti. Thus,
counsel had competing interests in representing the defendant. Second
circuit held that the trial court did not abuse its discretion.
E. Prior Representation of Government or Defense
Witness in Same Case
1. U.S. Court of Appeals
Cases
1996: United States v. Williams, 81 F.3d
1321 (4th Cir. 1996). Trial court did
not err in bank fraud case in disqualifying counsel where counsel had
previously represented a significant government witness. Defendant and
his wife were implicated in numerous counts of bank fraud. During the
investigation, the government first approached the wife and informed her
that she would be indicted. She retained counsel. The government then
approached the defendant. He confessed sole responsibility and was
indicted. His wife was not indicted. Six months later, defendant
retained the same counsel that had previously represented his wife. The
government moved to disqualify counsel. The court granted the motion.
The appellate court found no abuse of discretion.
1995: United States v. Mays, 69 F.3d 116
(6th Cir. 1995). Trial court did not
err, on motion of government, in disqualifying counsel in conspiracy to
defraud United States, FDA violations, and mail fraud case where counsel
had represented seven government witnesses in the grand jury proceedings
and had previously represented two-codefendants.
United States v.
Stites, 56 F.3d 1020 (9th
Cir. 1995). Trial court did not err, on motion of government, in
disqualifying two of defendant’s counsel in RICO and mail fraud case
where the defendant was a lawyer and the essence of his scheme, repeated
over and over again, was for him to control both sides of suits in which
insurance companies were paying for counsel, and to assure that the
plaintiffs’ lawyers would not settle until the insurance companies would
no longer pay the costs of defendants’ counsel. One counsel originally
represented the defendant in the government’s investigation, but when
the defendant fled, counsel dropped him and represented the defendant’s
sister in a plea bargain in which she agreed to testify against the
defendant. During the sister’s case, counsel protrayed the defendant as
a "wicked person" and the "mastermind." Counsel argued that the
defendant psychologically battered his sister. The defendant and the
sister agreed to waive the conflict, although the trial court expressed
doubts about the voluntariness of the sister’s waiver given the prior
evidence of psychological battering. Counsel agreed not to cross-examine
the sister and to leave that to co-counsel, but the court was doubtful
of the ability to "Chinese wall" the conflict and disqualified counsel.
The defendant then retained two other counsel. One of those died and he
brought in another counsel that had represented the defendant in civil
litigation involving the same facts. During the trial of codefendant’s,
this counsel attended and improperly spoke to a juror about the case.
While the court did not hold this counsel in criminal contempt, the
court did find that counsel committed ethical violations. Five days
prior to trial, the government moved to disqualify this counsel. The
court disqualified counsel and denied a continuance for the remaining
counsel. Appellate court found no error in disqualifying first counsel
despite purported waiver of sister. "Because of [sister’s] pathological
dependency on [defendant], [sister] could not freely and intelligently
waive her right to confidentiality when her brother was the one who
asked her to do so." Id. at 1025. The trial
court also acted properly in rejecting the proposed "Chinese wall" in
light of counsel’s failure to inform the sister several years earlier
that counsel had previously represented the defendant. It also does not
matter that the sister was ultimately not called to testify. She had
entered an agreement to testify and at the time of the disqualification
hearing was a probable witness. Counsel also could not ethically
represent the defendant and present a different case when she had
previously called him a liar and a criminal mastermind in the sister’s
case. Appellate court also found no error in disqualifying counsel who
had already committed unethical actions in the same proceedings.
1993: United States v. Coleman, 997 F.2d
1101 (5th Cir. 1993). Trial court did
not err in disqualifying counsel in conspiracy to defraud government
case where counsel had previously represented a codefendant during the
ongoing criminal prosecution and parallel civil litigation. The court
held that the district court did not abuse its discretion in sua sponte raising the issue. "The district
court had the authority and duty to inquire sua
sponte into whether counsel should not serve because of a conflict
with another client." Id. at 1104. The court
also did not abuse its discretion in disqualifying counsel.
2. State Cases
1998: *State v. Keenan, 689 N.E.2d 929 (Ohio
1998). Trial court did not err in disqualifying counsel in capital
murder case. Defendant initially tried and sentenced to death but case
was reversed. In retrial, defendant retained counsel that had previously
represented his codefendant at trial and on direct appeal. Court
disqualified counsel despite purported waivers of conflict by defendant
and codefendant. Appellate court found no abuse of discretion because Wheat allows disqualification due to "serious
potential for conflict."
F. Prior Representation of Victim, Government Witness,
or Confidential Informant in Related Case
1. U.S. Supreme
Court Cases
1988: Wheat v. United States, 486 U.S. 153
(1988). There is a presumption in favor of allowing a defendant to have
counsel of choice, but a trial court may disqualify counsel of choice,
over objection, when there is an actual conflict or a showing of a
serious potential for conflict. Id. at 164.
Counsel in a widespread drug distribution case had previously
represented one of the alleged kingpins and gotten an acquittal.
Subsequently, the alleged kingpin agreed to plead guilty to tax evasion
charges, but had not yet gone to trial. Counsel had also represented a
smaller player in his guilty plea. Just before the defendant’s trial,
counsel proposed to also represent the defendant who was an intermediate
player. The government objected because the minor player would be called
as a witness in the defendant’s trial and, if the kingpin’s deal fell
through, the defendant would likely be called as a witness in his trial.
All three defendants waived the potential conflict and said that it was
merely speculative. The district court denied the motion to substitute
counsel and allow counsel to represent the defendant. On review, the
Court reasoned that it is difficult for an attorney to evaluate the
risks of conflict because unforeseen testimony or evidence can
significantly shift the relationship between multiple defendants. "These
imponderables are difficult enough for a lawyer to assess, and even more
difficult to convey by way of explanation to a criminal defendant
untutored in the niceties of legal ethics." Id.
at 163. The Court also noted that "the willingness of an attorney to
obtain . . . waivers [of conflicts] from his clients may bear an inverse
relation to the care with which he conveys all the necessary information
to them." Id. Thus, the Court held that
trial courts "must be allowed substantial latitude in refusing waivers
of conflicts of interests not only in those rare cases where an actual
conflict may be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon into
an actual conflict as the trial progresses." Id.
2. U.S. Court of Appeals
Cases
1999: United States v. Stewart, 185 F.3d 112
(3rd Cir. 1999). Trial court did not abuse its discretion in granting
the government’s motion to disqualify the law firm representing the
defendant. The firm represented the defendant (an attorney) in
prosecution for mail and wire fraud, money laundering, and racketeering.
The firm also represented a number of individuals who had been named as
co-defendants in a parallel civil RICO action and who had been granted
immunity in order to testify against the defendant in the criminal
prosecution. The District Court held a hearing in which the petitioner
and the immunized witnesses each stated that he or she waived any
conflicts, agreed to the disclosure of privileged information, and
consented to allowing the firm as petitioner’s attorney. The court
disqualified the firm though because the firm would be in the position
of cross-examining their own clients with the help of attorney-client
communications and because the court questioned whether the witness
waivers were truly voluntary inasmuch as each of the four was tied
intimately to petitioner.
1998: United States v. Lanoue, 137 F.3d 656
(1st Cir. 1998). Trial court did not
abuse discretion in disqualifying counsel in felon in possession of
firearm case where counsel had previously represented a codefendant in a
related case and the government gave notice of intent to call the
codefendant as a witness. Defendant was initially charged with various
crimes and tried with codefendant. Defendant was convicted and his
codefendant was acquitted. The convictions were reversed on appeal and
the government opted not to retry the defendant on those convictions,
but indicted him on the present charge, which arose out of the same
course of conduct. Prior to trial, the government moved to disqualify
counsel who had represented the codefendant in the initial trial. Both
defendant and codefendant waived potential conflict and codefendant
submitted an affidavit asserting that he had no knowledge whether
defendant possessed a firearm at any time prior to arrest. While the
court recognized that "this case may well reach the outer limits of
‘potential conflict,’" the court declared that "[t]he district court did
not abuse its considerable discretion." Id.
at 664.
1989: Thomas v.
Municipal Court of the Antelope Valley Judicial District of
California, 878 F.2d 285 (9th
Cir. 1989). Trial court did not abuse its discretion in disqualifying
counsel in assault on wife case where counsel had previously represented
the wife in substantially related divorce proceedings. When defendant
and wife were married, the wife was still married to another man.
Counsel represented her in those divorce proceedings. Subsequently, the
wife sought to divorce defendant and counsel represented defendant in
those proceedings. While those proceedings were still pending, defendant
was charged with assault. During counsel’s opening statement, counsel
asserted that the assault charges were fabricated in retaliation for
defendant’s assertion in divorce proceedings that wife was a bigamist
that married him in bad faith and that she was, therefore, not entitled
to community property. On motion of the government and in light of the
defendant’s refusal to waive conflict, the trial court disqualified
counsel and ordered a mistrial. Trial court did not abuse discretion in
disqualifying counsel and ordering mistrial because there was a
possibility that privileged information would be disclosed in
cross-examining wife. It was also clear that counsel had divided loyalty
because counsel asserted, following government’s motion, that counsel
would abandon the assertion of the bigamy motive.
3. State Cases
2004: Pinkney v. United States, 851 A.2d 479
(D.C. 2004). The trial court did not err in disqualifying counsel in
murder case where counsel also previously represented a potential
government witness, who supposedly would testify that the defendant had
made a jailhouse confession. Although counsel’s prior representation was
in an unrelated matter, counsel would have been required to attack his
former client’s credibility. The prior representation was "therefore
‘substantially related’" to the current case. The trial court did abuse
its discretion, however, in denying the motion to reinstate counsel
when, just before trial, the government announced that it would not be
presenting the jailhouse snitch’s testimony. The court simply denied the
motion without further inquiry. Remanded to determine whether former
counsel would have been willing and able to reenter the case. If so, a
new trial should be granted.
1994: Kolker v. State, 649 So. 2d 250 (Fla. Dist.
Ct. App. 1994). Trial court did not abuse its discretion in
disqualifying counsel in multiple fraud and racketeering case where
counsel had previously represented defendant and codefendant/witness and
had represented business in which defendant and codefendant were
principals and the charges arose out of their activities in the
business. Counsel’s office was even located at the business. The
government moved to disqualify counsel. The defendant purported to waive
conflict, but the codefendant/witness refused to waive conflict or
attorney-client privilege. Disqualification was proper under these
circumstances.
G. Prior Representation of Government Witness on
Unrelated Charges
1. U.S. Court of
Appeals Cases
1998: United States v. Millsaps, 157 F.3d 989
(5th Cir. 1998). Trial court did not err
in disqualifying one defendant’s lawyer in drug conspiracy case due to
counsel’s prior representation of a government witness, even where the
witness offered to waive the attorney-client privilege for purposes of
this case. The potential for divided loyalties was serious enough to
justify the district court's exercise of discretion in disqualifying
counsel.
1988: United States v.
Micke, 859 F.2d 473 (7th Cir.
1988). Trial court did not abuse its discretion in tax fraud case in
limiting counsel’s participation in trial where counsel had previously
represented two government witnesses in unrelated case and counsel was a
potential rebuttal witness for the government. Prior to trial, defendant
knew that counsel was subpoenaed by government but associated that
counsel. At the beginning of trial, the defendant agreed that this
counsel would not examine any witnesses. During trial, however, the
defendant sought to have this counsel examine the defendant in his
testimony. The court refused, but allowed counsel to continue to assist
at counsel table. No abuse of discretion, especially in light of
defendant’s failure to object to the limitation at the time.
2. State Cases
2004: State v.
MacDonald, 95 P.3d 1248 (Wash. Ct. App. 2004). Counsel was
properly disqualified in rape case due to prior representation of the
victim’s mother in a divorce action. The trial court relieved counsel
and no appeal was taken, but the court addressed the question because
the conflicted counsel intended to represent the defendant in a retrial.
Because the court assumed that counsel had received confidential
information concerning the 16-year-old victim during the divorce
proceedings, the victim’s credibility was the primary issue, and counsel
would have to cross-examine his former client during the trial, the
court held that counsel could not represent the defendant in the
retrial.
People v. Jones,
91 P.3d 939 (Cal. 2004). The trial court did not err in disqualifying
counsel in murder case where counsel had previously represented a man
whom the defense suspected of actually committing the murder due to the
potential conflict. It was irrelevant that the attorney subsequently
appointed did not present evidence attempting to establish the other
man’s guilt.
2000: State v. Loyal, 753 A.2d 1073 (N.J. 2000).
Trial court did not abuse its discretion in drug-related murder trial
when the court declared a mistrial after discovering that defendant's
counsel previously represented a significant recanting State witness.
Neither the witness nor counsel remembered the representation two years
before, but both the witness and the defendant waived any conflict. The
state initially moved for a mistrial but then withdrew the motion.
Nonetheless, the trial court granted a mistrial and disqualified counsel
sua sponte because state rules preclude an
attorney from representing a client in a situation that would create an
appearance of impropriety, even if there is no actual conflict. The
defendant’s double jeopardy motion was denied and he ultimately was
convicted. The court held, "When an appearance of impropriety is found
in a criminal matter, disqualification of an attorney routinely is
required" under state law. Here, "an independent observer might believe
that ‘something is fishy’ when a witness who was previously represented
by defendant's counsel recants a prior statement that identified
defendant as the shooter." The trial court properly granted the
mistrial.
1990: People v.
Holmes, 565 N.E.2d 950 (Ill. 1990). Trial court did not err in
disqualifying counsel in armed robbery case where counsel had previously
represented the codefendant turned government witness. Defendant was
arrested after codefendant implicated him. The state moved to disqualify
defendant’s counsel because he had represented the codefendant on
several criminal charges five to ten years before counsel had also
represented the codefendant’s brother during that same time frame. The
trial disqualified counsel despite defendant’s waiver. The court did not
abuse its discretion because counsel "would have had divided or
overlapping loyalties when he cross-examined" the codefendant. Id. at 959. The trial court also properly
considered the appearance of impropriety to the jurors when they learned
of the prior representation. The court also properly considered the
state’s right to a fair trial because counsel’s knowledge of the
codefendant "potentially would have give defendant an unfair advantage."
Id. at 960.
1989: Petition of
Hoang, 781 P.2d 731 (Kan. 1989). Trial court did not abuse its
discretion in disqualifying counsel in murder case where counsel was a
member of the same public defender office that had previously
represented a key prosecution witness.
H. Prior Representation of Codefendants in Same Case
1. U.S. Supreme
Court Cases
1988: Wheat v. United States, 486 U.S. 153
(1988). There is a presumption in favor of allowing a defendant to have
counsel of choice, but a trial court may disqualify counsel of choice,
over objection, when there is an actual conflict or a showing of a
serious potential for conflict. Id. at 164.
Counsel in a widespread drug distribution case had previously
represented one of the alleged kingpins and gotten an acquittal.
Subsequently, the alleged kingpin agreed to plead guilty to tax evasion
charges, but had not yet gone to trial. Counsel had also represented a
smaller player in his guilty plea. Just before the defendant’s trial,
counsel proposed to also represent the defendant who was an intermediate
player. The government objected because the minor player would be called
as a witness in the defendant’s trial and, if the kingpin’s deal fell
through, the defendant would likely be called as a witness in his trial.
All three defendants waived the potential conflict and said that it was
merely speculative. The district court denied the motion to substitute
counsel and allow counsel to represent the defendant. On review, the
Court reasoned that it is difficult for an attorney to evaluate the
risks of conflict because unforeseen testimony or evidence can
significantly shift the relationship between multiple defendants. "These
imponderables are difficult enough for a lawyer to assess, and even more
difficult to convey by way of explanation to a criminal defendant
untutored in the niceties of legal ethics." Id.
at 163. The Court also noted that "the willingness of an attorney to
obtain . . . waivers [of conflicts] from his clients may bear an inverse
relation to the care with which he conveys all the necessary information
to them." Id. Thus, the Court held that
trial courts "must be allowed substantial latitude in refusing waivers
of conflicts of interests not only in those rare cases where an actual
conflict may be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon into
an actual conflict as the trial progresses." Id.
2. U.S. Court of Appeals
Cases
1999: United States v.
Bankston, 182 F.3d 296 (5th Cir. 1999). Trial court did not
abuse its discretion in denying, on grounds of potential conflict,
defendant’s motion to associate former counsel for co-defendant as
additional counsel in case involving illegal activities in obtaining and
maintaining licenses in the video poker industry. No error even where
defendant agreed to waive any potential conflict.
1996: United States v.
Voight, 89 F.3d 1050 (3rd Cir.
1996). Trial court did not err in conspiracy to commit wire fraud, wire
fraud, money laundering, and tax evasion case where counsel had
previously represented the defendant’s "company," including some of the
codefendants in the government’s investigation and in responding to
subpoenas from the grand jury. Several codefendants waived potential
conflicts but one codefendant and the goverment moved to disqualify
counsel. In addition to the prior representations, counsel could
potentially be called as a witness. Court also appropriately considered
that the codefendants might be denied a fair trial by being
cross-examined by their former counsel.
I. Prior Representation of Codefendant in Related Case
1. U.S. Supreme Court
Cases
1988: Wheat v. United States, 486 U.S. 153
(1988). There is a presumption in favor of allowing a defendant to have
counsel of choice, but a trial court may disqualify counsel of choice,
over objection, when there is an actual conflict or a showing of a
serious potential for conflict. Id. at 164.
Counsel in a widespread drug distribution case had previously
represented one of the alleged kingpins and gotten an acquittal.
Subsequently, the alleged kingpin agreed to plead guilty to tax evasion
charges, but had not yet gone to trial. Counsel had also represented a
smaller player in his guilty plea. Just before the defendant’s trial,
counsel proposed to also represent the defendant who was an intermediate
player. The government objected because the minor player would be called
as a witness in the defendant’s trial and, if the kingpin’s deal fell
through, the defendant would likely be called as a witness in his trial.
All three defendants waived the potential conflict and said that it was
merely speculative. The district court denied the motion to substitute
counsel and allow counsel to represent the defendant. On review, the
Court reasoned that it is difficult for an attorney to evaluate the
risks of conflict because unforeseen testimony or evidence can
significantly shift the relationship between multiple defendants. "These
imponderables are difficult enough for a lawyer to assess, and even more
difficult to convey by way of explanation to a criminal defendant
untutored in the niceties of legal ethics." Id.
at 163. The Court also noted that "the willingness of an attorney to
obtain . . . waivers [of conflicts] from his clients may bear an inverse
relation to the care with which he conveys all the necessary information
to them." Id. Thus, the Court held that
trial courts "must be allowed substantial latitude in refusing waivers
of conflicts of interests not only in those rare cases where an actual
conflict may be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon into
an actual conflict as the trial progresses." Id.
2. U.S. Court of Appeals
Cases
1993: United States v.
Rogers, 9 F.3d 1025 (2nd Cir.
1993). Trial court properly disqualified counsel in conspiracy, wire
fraud, and transporting fraudulent securities in interstate commerce
case where counsel had previously represented the codefendant in a
related civil suit. Defendant and codefendant had submitted falsified
packets, on behalf of their company, to obtain loans. The company was
sued in a civil suit and a judgment obtained against it. The defendant
and codefendant were indicted. The codefendant entered into a plea
agreement and would be a govenment’s witness. The government moved to
disqualify defendant’s counsel, who also happened to be the
codefendant’s son. Counsel had represented the codefendant at a
deposition in the prior related civil suit. The codefendant also moved
for disqualification. Counsel concurred and stated that defendant
declined continued representation without cross-examination of the
codefendant. Counsel was disqualified, but was permitted to consult and
sit at counsel table during trial. The government was allowed to bring
out that he had previously represented the codefendant, the government’s
primary witness, in a prior deposition. The codefendant admitted that he
lied in that deposition 20-30 times. The trial court did not abuse its
discretion in disqualifying counsel although it would have been better
for the trial court to personally address the defendant concerning his
rights and decisions.
1993: United States v.
Coleman, 997 F.2d 1101 (5th Cir.
1993). Trial court did not err in disqualifying counsel in conspiracy to
defraud government case where counsel had previously represented a
codefendant during the ongoing criminal prosecution and parallel civil
litigation. The court held that the district court did not abuse its
discretion in sua sponte raising the issue.
"The district court had the authority and duty to inquire sua sponte into whether counsel should not
serve because of a conflict with another client." Id. at 1104. The court also did not abuse its
discretion in disqualifying counsel.
J. Counsel Was Necessary or Potential Witness
1. U.S. Court of Appeals
Cases
2003: United States v. Merlino, 349 F.3d 144 (3rd Cir. 2003). The district court
did not abuse its discretion in disqualifying counsel in this
racketeering case involving allegations of mob activities because
counsel faced potential ethical and criminal charges in the case and was
a potential witness. There were seven defendants by the time of trial.
The defendant here was alleged to be among the top three members of the
mob organization. Prior to the indictment in the case, a former member
of the organization, who was scheduled for release from confinement,
contacted the government and agreed to become a cooperating witness
because he feared the family intended to kill him. He was transferred
from federal prison to a local jail. When the defendant learned of the
transfer, he sent his attorney to visit the witness. The attorney
smuggled a five page letter from the defendant into the prison for the
witness to read. Both the letter and counsel assured the witness that he
would be safe upon his release. Counsel also offered the witness money
from the defendant for his commissary account, which the witness
declined. After indictment, acting on the government’s motion, the
District Court disqualified counsel for two reasons. First, counsel had
a personal interest because he faced potential criminal liability and
potential ethics problems for attempting to persuade the witness not to
cooperate with the government. Second, counsel could have been called as
a witness because the government introduced evidence at trial of his
visit to show the defendant’s consciousness of guilt. Had the defendant
wished to challenge that evidence, he could have done so only by calling
counsel as a witness. The court also noted that there was a third
potential conflict due to counsel’s personal knowledge of events, in
that counsel had informed the witness that the defendant’s uncle had
become the boss of the family, that he did not intend to kill the
witness, and that it was safe for the witness to return to Philadelphia.
Because of these facts, counsel was in a compromised position, given
that the defendant denied being involved in mob activities at all at
trial. Given all of these facts, the trial court’s disqualification of
counsel was not an abuse of discretion.
1996: United States v. Voight, 89 F.3d 1050
(3rd Cir. 1996). Trial court did not err
in conspiracy to commit wire fraud, wire fraud, money laundering, and
tax evasion case where counsel had previously represented the
defendant’s "company," including some of the codefendants in the
government’s investigation and in responding to subpoenas from the grand
jury. Several codefendants waived potential conflicts but one
codefendant and the goverment moved to disqualify counsel. In addition
to the prior representations, counsel could potentially be called as a
witness. Court also appropriately considered that the codefendants might
be denied a fair trial by being cross-examined by their former counsel.
1990: United States v.
Defazio, 899 F.2d 626 (7th Cir.
1990). Trial court did not err in disqualifying counsel in tax and
bankruptcy fraud case where counsel could be a witness. While defendant
was being audited by the IRS, counsel represented defendant in a
bankruptcy proceeding in which the government charged that defendant
gave false testimony and failed to report numerous assets. When counsel
fist appeared in the criminal case, government counsel posed no
objection. Ten months later the government moved to disqualify counsel.
The trial court received written documents but held no hearing before
disqualifying counsel. The trial court did not abuse its discretion
because counsel would become a material witness IF defendant defended
himself by asserting that he acted on the advice of counsel in the
bankruptcy proceedings. "Such a defense might pit [counsel’s] word
against his client’s, or, it might discourage spirited advocacy, since
an attorney has a personal and professional interest in not having a
client claim the attorney advised lying under oath." Id. at 631. Although the defendant did not use
this defense and counsel did not ultimately testify, the question must
be resolved based on the information available to the court at the time.
Here, although the court did not hold a hearing, the trial court did not
abuse its discretion in disqualifying counsel.
1989: United States v.
Arrington, 867 F.2d 122 (2nd
Cir. 1989). Trial court did not abuse discretion in disqualifying
counsel and granting mistrial in drug conspiracy case where counsel’s
testimony was needed to rebut a government witness’ allegations that
counsel had engaged in a plot to silence witnesses. Counsel represented
the alleged kingpin. Prior to trial, two government witnesses recanted
and another was shot. A third government witness, who asserted that he
was part of a conspiracy to kill the potential witnesses, was visited by
defense counsel and recanted his early statements. During trial, counsel
for the kingpin acted as lead counsel for the defense in the joint
trial, involving a number of codefendants. The government asserted a
conflict because the third government witness to recant asserted that he
had been coerced by defense counsel, who reminded him that his family
was still on the streets. The court disqualified counsel and declared a
mistrial. Disqualification was proper even though kingpin purported to
waive the conflict and waive cross-examination of the witness. Trial
court did not abuse discretion because counsel, who was accused of
potentially criminal misconduct, had "a strong incentive to conduct the
trial in a manner that would minimize counsel’s own exposure" and
defendant would be waiving the most relevant evidence in order to stay
with conflicted counsel. Id. at 129.
1988: United States v.
Micke, 859 F.2d 473 (7th Cir.
1988). Trial court did not abuse its discretion in tax fraud case in
limiting counsel’s participation in trial where counsel had previously
represented two government witnesses in unrelated case and counsel was a
potential rebuttal witness for the government. Prior to trial, defendant
knew that counsel was subpoenaed by government but associated that
counsel. At the beginning of trial, the defendant agreed that this
counsel would not examine any witnesses. During trial, however, the
defendant sought to have this counsel examine the defendant in his
testimony. The court refused, but allowed counsel to continue to assist
at counsel table. No abuse of discretion, especially in light of
defendant’s failure to object to the limitation at the time.
2. State Cases
2003: Gonzalez v. State, 117 S.W.3d
831 (Tex. Crim. App. 2003) (affirming 63 S.W.3d 865 (Tex. Ct. App.). Trial
court did not err in disqualifying defendant’s attorney based on the
possibility that counsel was a witness due to allegations that he
attempted to bribe the state’s key witness in an organized crime case
involving insurance fraud. The state’s key witness claimed that the
defendant, through his attorney, had offered to pay him for favorable
testimony. There was evidence of payment of $3000, but the reason for
the payment was disputed. Because this allegation "was not merely
tangential to the case or to defendant’s guilt, but would support an
inference that such conduct demonstrated defendant’s consciousness of
guilt for the crime charged," the trial court acted appropriately in
disqualifying him.
1997: State v. Vanover, 559 N.W.2d 618 (Iowa
1997). Trial court did not err, despite proffered waiver of conflict, in
disqualifying counsel in drug conspiracy case where the state intended
to call counsel as a witness to testify about a statement he took from
the codefendant in which the codefendant implicated herself and
exonerated the defendant. The statement was taken without contacting the
codefendant’s attorney and without his knowledge. Trial court also did
not err in failing to reinstate counsel after the codefendant had
reached a plea agreement with the state and agreed to testify against
the defendant. The court was concerned that counsel might be influenced
in cross because of counsel’s own improper activities in taking the
statements and potential ethics charges and that counsel would be an
unsworn witness. Counsel was called to testify during the defendant’s
trial after the codefendant recanted her earlier statement to him. The
state agreed not to question him on potential ethics concerns though.
Trial court did not err under Wheat.
People v. Reed, 698 N.E.2d 620 (Ill. Ct.
App. 1998). Trial court did not err in disqualifying counsel as a
potential witness. Defendant charged with murder of girlfriend’s baby
and interrogated by police. Counsel was present in the police station at
the time, but not permitted to see defendant. State moved to disqualify
counsel as a potential witness on motion to suppress statements.
Defendant objected to the disqualification because there were other
witnesses that could testify that counsel was at police station. Trial
court believed that counsel was the best witness though and that by
cross-examining witnesses to establish that he was denied the
opportunity to speak to the defendant would put counsel’s credibility in
issue. Trial court did not abuse its discretion.
K. Conflicting Interests Due to Potential Ethics
Violations or Criminal Conduct
1. U.S. Court Of Appeals
Cases
2004: United States v. Jones, 381 F.3d 114 (2nd Cir.
2004). The trial court did not err in disqualifying counsel in
drug case where counsel was being investigated and was a potential
witness. The defendant was charged with running a drug ring in a public
housing project. Another drug ring in the same project was under
investigation. During the search of the other alleged drug dealer’s
apartment, the government discovered evidence that counsel had provided
confidential information from the defendant’s case to this individual,
who was also represented by the same counsel. The government moved to
disqualify counsel. Counsel was properly disqualified because counsel
had a per se unwaivable conflict because
could was likely to become the subject of a grand jury investigation
based on the possibility that counsel was passing information between
the defendant and the other drug dealer. Counsel was also properly
disqualified because of the possibility that counsel would be a witness
during trial to establish that the two drug rings were connected.
2003: United States v. Merlino, 359 F.3d 144 (3rd Cir. 2003). The district court
did not abuse its discretion in disqualifying counsel in this
racketeering case involving allegations of mob activities because
counsel faced potential ethical and criminal charges in the case and was
a potential witness. There were seven defendants by the time of trial.
The defendant here was alleged to be among the top three members of the
mob organization. Prior to the indictment in the case, a former member
of the organization, who was scheduled for release from confinement,
contacted the government and agreed to become a cooperating witness
because he feared the family intended to kill him. He was transferred
from federal prison to a local jail. When the defendant learned of the
transfer, he sent his attorney to visit the witness. The attorney
smuggled a five page letter from the defendant into the prison for the
witness to read. Both the letter and counsel assured the witness that he
would be safe upon his release. Counsel also offered the witness money
from the defendant for his commissary account, which the witness
declined. After indictment, acting on the government’s motion, the
District Court disqualified counsel for two reasons. First, counsel had
a personal interest because he faced potential criminal liability and
potential ethics problems for attempting to persuade the witness not to
cooperate with the government. Second, counsel could have been called as
a witness because the government introduced evidence at trial of his
visit to show the defendant’s consciousness of guilt. Had the defendant
wished to challenge that evidence, he could have done so only by calling
counsel as awitness. The court also noted that there was a third
potential conflict due to counsel’s personal knowledge of events, in
that counsel had informed the witness that the defendant’s uncle had
become the boss of the family, that he did not intend to kill the
witness, and that it was safe for the witness to return to Philadelphia.
Because of these facts, counsel was in a compromised position, given
that the defendant denied being involved in mob activities at all at
trial. Given all of these facts, the trial court’s disqualification of
counsel was not an abuse of discretion.
1995: United States v. Stites, 56 F.3d 1020
(9th Cir. 1995). Trial court did not
err, on motion of government, in disqualifying two of defendant’s
counsel in RICO and mail fraud case where the defendant was a lawyer and
the essence of his scheme, repeated over and over again, was for him to
control both sides of suits in which insurance companies were paying for
counsel, and to assure that the plaintiffs’ lawyers would not settle
until the insurance companies would no longer pay the costs of
defendants’ counsel. One counsel originally represented the defendant in
the government’s investigation, but when the defendant fled, counsel
dropped him and represented the defendant’s sister in a plea bargain in
which she agreed to testify against the defendant. During the sister’s
case, counsel protrayed the defendant as a "wicked person" and the
"mastermind." Counsel argued that the defendant psychologically battered
his sister. The defendant and the sister agreed to waive the conflict,
although the trial court expressed doubts about the voluntariness of the
sister’s waiver given the prior evidence of psychological battering.
Counsel agreed not to cross-examine the sister and to leave that to
co-counsel, but the court was doubtful of the ability to "Chinese wall"
the conflict and disqualified counsel. The defendant then retained two
other counsel. One of those died and he brought in another counsel that
had represented the defendant in civil litigation involving the same
facts. During the trial of codefendant’s, this counsel attended and
improperly spoke to a juror about the case. While the court did not hold
this counsel in criminal contempt, the court did find that counsel
committed ethical violations. Five days prior to trial, the government
moved to disqualify this counsel. The court disqualified counsel and
denied a continuance for the remaining counsel. Appellate court found no
error in disqualifying first counsel despite purported waiver of sister.
"Because of [sister’s] pathological dependency on [defendant], [sister]
could not freely and intelligently waive her right to confidentiality
when her brother was the one who asked her to do so." Id. at 1025. The trial court also acted
properly in rejecting the proposed "Chinese wall" in light of counsel’s
failure to inform the sister several years earlier that counsel had
previously represented the defendant. It also does not matter that the
sister was ultimately not called to testify. She had entered an
agreement to testify and at the time of the disqualification hearing was
a probable witness. Counsel also could not ethically represent the
defendant and present a different case when she had previously called
him a liar and a criminal mastermind in the sister’s case. Appellate
court also found no error in disqualifying counsel who had already
committed unethical actions in the same proceedings.
1993: United States v.
Locascio, 6 F.3d 924 (2nd Cir.
1993). Trial court did not err in disqualifying counsel in RICO action,
including murder, where one counsel had previously served as "house
counsel" for the organization, was potentially implicated in the crimes
and could be an unsworn witness, and had previously represented a
government witness. Defendant, John Gotti, and two others were indicted.
One codefendant plead guilty and agreed to testify. The other
codefendant’s trial was severed. Defendant and Gotti were tried and
convicted of activities related to the Gambino Crime Family. On motion
of the government, Gotti’s counsel was disqualified because he had
served as "house counsel" for the family and had represented numerous
persons while being paid by Gotti. Counsel was also a participant in
some of the taped conversations the government would use in evidence.
Counsel’s participation in the trial could thus render him an unsworn
witness explaining his own conduct in those conversations. Counsel had
also previously represented a potential government witness. Second
circuit found no abuse of discretion in the disqualification on two
grounds: (1) counsel’s role as house counsel to the Gambino Crime
Family; and (2) counsel’s anticipated role as an "unsworn witness." The
court found that proof of house counsel could be used by the government
to help establish the existence of the criminal enterprise under RICO,
by showing the connections among the participants. The court was more disturbed, however, that
counsel could become an unsworn witness.
The government was legitimately concerned that,
when [counsel] argued before the jury for a particular interpretation of
the tapes, his interpretation would be given added credibility due to
his presence in the room when the statements were made. This would have
given Gotti an unfair advantage, since [counsel] would not have had to
take an oath in presenting his interpretation, but could merely frame it
in the form of legal argument.
Id. at 934. "If an attorney will not perform
his ethical duty, it is up to the courts to perform it for him.
[Counsel] had no place representing John Gotti in this case, and the
district court properly determined that he should be disqualified." Id. Defendant’s counsel was disqualified for
essentially the same reason as Gotti’s counsel, but also included the
fact that counsel essentially worked for and was paid by Gotti. Thus,
counsel had competing interests in representing the defendant. Second
circuit held that the trial court did not abuse its discretion.
United States v. Fulton, 5 F.3d 605
(2nd Cir. 1993). Counsel in drug
conspiracy case had an actual conflict of interest that could not be
waived where counsel was implicated in the same crimes. Reversal
required without showing of adverse affect. Defendant and others were
charged with smuggling heroin in from Nigeria. Two codefendants plead
guilty in exchange for their testimony. In the middle of trial, the
government informed the court that a government witness would say that
he had previously imported drugs for defense counsel and that counsel
was also involved in trafficking and that counsel was being
investigated. The court informed the defendant of the allegations and
that counsel could be concerned about his own interests and could not be
a witness and counsel in the same proceedings. He also informed the
defendant that counsel would be unable to cross the witness on his
testimony that he smuggled drugs for counsel. When counsel asked to
respond, the court essentially advised him of his right to remain
silent. The court then recessed for defendant and counsel to consult.
Counsel then announced that defendant chose to go forward with counsel
representing him. The allegations against counsel were not brought out
before the jury. "The presumption of prejudice set forth in Cuyler applies . . . to situations where the
personal interests of the attorney and the interests of the client are
in actual conflict." Id. at 609. "[A]n
actual conflict of interest exists when an
attorney engages in wrongful conduct related to the charge for which the
client is on trial. Id.
When a government witness alleges that the
defendant’s counsel engaged in criminal conduct related to the charges
for which the defendant is on trial, it creates one of two actual
conflicts. First, if the allegations are true, concerns we expressed
in Cancilla arise: the attorney may fear
that a spirited defense could uncover convincing evidence of the
attorney’s guilt or provoke the government into action against the
attorney. Moreover, the attorney is not in a position to give unbiased
advice to the client about such matters as whether or not to testify or
to plead guilty and cooperate since such testimony or cooperation from
the defendant may unearth evidence against the attorney.
Second, even if the attorney is demonstrably
innocent and the government witness’s allegations are plainly false, the
defense is impaired because vital cross-examination becomes unavailable
to the defendant. Ordinarily, a witness’s blatantly false allegations
provide a rich source for cross-examination designed to cast doubt on
the witness's credibility; but, when the allegations are against the
defendant's attorney, this source cannot be tapped. An attorney cannot
act both as advocate for his client and a witness on his client’s
behalf.
Id. at 610 (citations omitted). Here, the
court found an actual conflict. "Whether the allegations created an
actual conflict does not turn on whether they are true or false, or with
or without ‘some foundation.’ However viewed, the allegations present an
actual conflict." Id. Under these
circumstances, "[e]ither lead trial counsel was involved with
[defendant’s] alleged co-conspirator in a crime closely related to that
for which [defendant] was on trial, or the allegations were false, and
lead trial counsel was precluded from challenging [the witness’s]
credibility based on the falsity of the accusations. In either
circumstance, [defendant’s] and lead trial counsel's interests diverged during the trial, and, therefore,
lead trial counsel had an actual conflict of
interest." Id. at 610-11. The Second Circuit
has held "that there is an ‘actual or constructive denial of the
assistance of counsel,’ Strickland, 466 U.S.
at 692, and, as such, a per se violation of
the Sixth Amendment in two limited circumstances: where defendant’s
counsel was unlicensed, and when the attorney has engaged in the
defendant’s crimes." Id. at 611. "Of course,
the per se rule does not apply any time a
court learns that an attorney may have committed a crime; the attorney's
alleged criminal activity must be sufficiently related to the charged
crimes to create a real possibility that the attorney's vigorous defense
of his client will be compromised." Id. The
court held that "when a government witness alleges that he has direct
knowledge of criminal conduct by defense counsel," those allegations
must be treated as credible and the per se
rule applied. "Therefore, [defendant] need not prove that his
representation was adversely affected to establish a Sixth Amendment
violation." Id. at 612. The court also held
that defendant’s purported waiver was invalid. "Where a government
witness implicates defense counsel in a related crime, the resultant
conflict so permeates the defense that no meaningful waiver can be
obtained. In such a case, we must assume that counsel's fear of, and
desire to avoid, criminal charges, or even the reputational damage from
an unfounded but ostensibly plausible accusation, will affect virtually
every aspect of his or her representation of the defendant." Id. at 613.
The danger arising from representation by a
counsel who has been implicated in related criminal activity by a
government witness is of a different order of magnitude, however. Advice
as well as advocacy is permeated by counsel's self-interest, and no
rational defendant would knowingly and intelligently be represented by a
lawyer whose conduct was guided largely by a desire for
self-preservation.
We therefore conclude that the kind of conflict
that has arisen in the instant matter is not subject to a meaningful
waiver by the defendant.
Id.
1990: United States v.
Reeves, 892 F. 2d 1223 (5th Cir.
1990). Trial court did not err in disqualifying counsel who was under
investigation for the same crimes and government intend to call
defendant as witness against counsel in the grand jury. Defendant was
charged with extortion and conspiracy arising out of activities from the
Lake Charles Harbor Commission. The government moved to disqualify
counsel. The court did not err in disqualification because counsel’s
interests conflicted with defendant who could possibly engage in plea
bargain to testify against counsel. Counsel was also a participant in
taped recordings that defendant might seek to present in evidence, which
could put counsel in the position of being an unsworn witness or
refraining from commenting.
1989: United States v.
Arrington, 867 F.2d 122 (2nd
Cir. 1989). Trial court did not abuse discretion in disqualifying
counsel and granting mistrial in drug conspiracy case where counsel’s
testimony was needed to rebut a government witness’ allegations that
counsel had engaged in a plot to silence witnesses. Counsel represented
the alleged kingpin. Prior to trial, two government witnesses recanted
and another was shot. A third government witness, who asserted that he
was part of a conspiracy to kill the potential witnesses, was visited by
defense counsel and recanted his early statements. During trial, counsel
for the kingpin acted as lead counsel for the defense in the joint
trial, involving a number of codefendants. The government asserted a
conflict because the third government witness to recant asserted that he
had been coerced by defense counsel, who reminded him that his family
was still on the streets. The court disqualified counsel and declared a
mistrial. Disqualification was proper even though kingpin purported to
waive the conflict and waive cross-examination of the witness. Trial
court did not abuse discretion because counsel, who was accused of
potentially criminal misconduct, had "a strong incentive to conduct the
trial in a manner that would minimize counsel’s own exposure" and
defendant would be waiving the most relevant evidence in order to stay
with conflicted counsel. Id. at 129.
2. State Cases
1989: *State v.
Rivera, 556 A.2d 1227 (N.J. Super. App. Div. 1989). Trial court
did not err in disqualifying counsel in murder case where counsel had
engaged in unethical and possibly criminal acts in the case and became
potential witnesses. Defendant was arrested for capital murder. The
state’s primary witness was the defendant’s girlfriend to whom he had
confessed. Prior to trial, it was discovered that defendant was
attempting to marry his girlfriend so her testimony could be precluded
under the marital privilege. Although the girlfriend had dated defendant
for 15 years and had 3 children by him, she had consistently refused to
marry him. She agreed, however, after counsel told her she would not
have to testify if she married defendant. The court found that the
evidence of the marriage was proper attempts was admissible and
disqualification of counsel because they were potential witnesses and
had their own "divergent interest and divided loyalty," Id. at 1234, due to possible unethical or
criminal involvement on their part. The conflict could not be waived
either and the court viewed defendant’s attempted waiver as gamesmanship
in an attempt to create reversible error.
1989: Panzardi-Alvarez
v. United States, 879 F.2d 975 (1st Cir. 1989). Trial court did not abuse
discretion in refusing to admit counsel pro hac
vice in murder case where the court found that counsel had engaged
in unethical activities in the case. Defendant was charged with drug
charges. He was subsequently charged, along with codefendants, of
charges involving the murder of a government informant/witness on the
drug charges. The trial court initially denied admission of counsel
because counsel had not complied with rule requiring local counsel.
Trial court subsequently denied the motion to admit due to concerns
about counsel’s ethical violations in assisting defendant in retaining
counsel to represent codefendant and engaging in "joint representation
scheme." The court only learned of this behavior when the codefendant
informed the court that she wished to cooperate with the government but
was afraid to discuss it with her attorney because of his ties to
defendant. The court also believed counsel had behaved improperly by
harassing the court outside chambers, such that the judge had the
Marshals to remove counsel. The court held that denying a pro hac vice admission impacts on the
constitutional protection for counsel of choice, but held that the trial
court did not abuse its discretion in denying admission due to counsel’s
ethical violations in case.
1988: People v.
Troutt, 526 N.E.2d 910 (Ill. App. Ct. 1988). Trial court did not
abuse its discretion in disqualifying counsel without giving defendant
an opportunity to waive the conflict when the court learned that counsel
represented a defendant in another case where counsel argued, based on
information provided by defendant, that that
client had been acting under the influence of drugs, which were supplied
by defendant.
L. Counsel Had Conflicting Interests Due to Connection
or Clear Sympathies with Victim, Prosecutor, Law Enforcement, or
Judge
1. U.S. Court of Appeals
Cases
1993: United States v. Smith, 995 F.2d 662 (7th Cir. 1993). Trial court did not err in
disqualifying counsel in major marijuana importation drug conspiracy
case where counsel was previously involved as a prosecutor in related
criminal prosecutions that were closely connected to this case.
Defendant and 20 codefendants were indicted. Defendant and five
codefendants went to trial. Following counsel’s opening statement, on
motion of the government, the court disqualified counsel because counsel
might have been involved in the drug conspiracy. The court then declared
a mistrial as to defendant. This issue was addressed in a prior appeal.
See United States v. Marren, 919 F.2d 61
(7th Cir.1990). In a subsequent trial, the
court disqualified another of defendant’s counsel. Five days into trial
counsel sought to enter an appearance to assist defendant’s appointed
counsel. The government moved to disqualify counsel, who previously
served as a prosecutor in South Florida involved in a parallel
investigation concerning the same overall conspiracy. He had signed an
immunity agreement for one of the government’s major witnesses in the
case. Trial court did not abuse its discretion in disqualifying counsel.
2. State Cases
2004: State v. Bruna, 686 N.W.2d 590 (Neb.
Ct. App. 2004). Counsel from the public defender’s office was properly
allowed to withdraw in sexual assault on child case where the victim’s
mother was a court reporter, who had a longstanding professional
connection with the attorneys in the office. This "connection would have
given rise to an actual conflict of interest, or at the very least, the
appearance of impropriety." Moreover, while the issue was raised on
appeal, the defendant had acquiesced at trial to the withdrawal.
2003: State v. White, 114 S.W.3d 469 (Tenn.
2003). The trial court did not err in disqualifying counsel in an
attempted murder case where the defense counsel also served as a
part-time district attorney in the same county. The court found that the
prosecutor’s duty to the public and the criminal defense counsel’s duty
to the accused are inherently antagonistic and cannot be waived.
1997: People v. Peoples, 60 Cal. Rptr. 2d 173
(Cal. Ct. App. 1997). Trial court did not err in disqualifying counsel
in assault with a deadly weapon case, where counsel was the defendant’s
sister and the defendant was accused of assault against counsel’s
ex-husband and father of her children and her children (who lived with
her) and sister were witnesses in the case. The trial court, on motion
of the state, relieved counsel. "As the trial court correctly recognized
in this case, however, and to reiterate, [counsel’s] representation
posed a significant threat not only to her responsibilities to her
children (both as a lawyer and mother), her brother/client, her
ex-husband/victim, but, perhaps, most of all to the integrity of the
judicial process." Id. at
177.