Thursday, February 28, 2013

Disqualification Where Defense Counsel Had Represented Witness

The Maryland Court of Special Appeals affirmed a conviction for second degree murder and other offenses.

The court rejected the contention that the defendant's desired trial counsel had been improperly disqualified.

The State had sought disqualification because defense counsel had previously represented a witness in the case.

Defense counsel asserted that his representation of the witness was brief and limited. He offered to set up a screen and have unaffiliated counsel cross-examine the witness. He further contended that, because the witness had filed a bar complaint against him, any privilege was waived.

The trial court nonetheless disqualified defense counsel, stating that: "there [] really is a conflict were this case to go to trial with [defense counsel] at the table."

The court here:

In the circuit court's view, the risk of conflict outweighed appellant's right to counsel of choice. We agree.

Ironically, the witness refused to testify at trial.

The court also rejected the screening proposal

The circuit court was not required to adopt the use of co-counsel as a solution where the court perceived that the risk of conflict would persist.

(Mike Frisch)

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