April 1, 2008
Capital Crime Conflict Held Waivable
The Utah Supreme Court concluded that a trial court had not abused its discretion in denying a motion to disqualify one of two attorneys defending a capital murder case. The lawyers "both members of the disappointingly small corps of attorneys in Utah who have sought and obtained eligibility to represent defendants in capital cases" sought to interview out-of-state potential witnesses. One of the lawyers and his investigator allegedly advised witnesses not to talk to the police. They were arrested for but never charged with witness tampering. The defendant had waived any conflict that resulted from the incident. The state pressed for disqualification of both lawyers on a theory that they would be distracted by the need to defend their own conduct. The trial court had ordered one of the two lawyers disqualified.
The court here noted that every witness that was allegedly instructed not to talk to police ultimately did so. "We view the identified conflict to be of very little consequence and therefore waivable." The "potential conflict is not serious enough as to render it beyond the power of [the client] to waive..." The lower court erred in disqualifying one of the two lawyers. The matter was remanded to allow an inquiry into whether the client will waive the potential conflicts as to the second attorney. (Mike Frisch)
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