Tuesday, April 26, 2011

Sketchy Reasons For Disqualification

The Maryland Court of Appeals reversed a criminal conviction for common law murder because the trial court had disqualified retained counsel. The attorney for the co-defendant brought to the court's attention that one of the three retained counsel had spoken to her client and that such conduct involved potential Rule 1.18 (duty to prospective client) and/or 4.2 (unauthorized communication with represented person) violations. The State expressed concern that the attorney whose conduct was at issue had improperly coached a witness.

The trial court had conducted a hearing and ordered disqualification. Here, the court agreed with the defendant that the basis for disqualification was "sketchy." The trial court must conduct an "adequate inquiry into the circumstances underlying the purported conflict to determine whether there is an actual or serious potential for conflict." The inquiry of the trial court was not sufficent. The error was structural and prejudice is assumed.

A concurring/dissenting opinion would defer to the trial court's exercise of discretion. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/04/sketchy-reasons-for-disqualification.html

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