Friday, May 29, 2020

Prosecutor's Conflict Claim Forces Disqualification

The West Virginia Supreme Court of Appeals declined to overturn an order of disqualification in a criminal matter involving three jointly-represented defendants

Petitioners now seek a writ from this Court to prohibit the circuit court from enforcing that order. They contend that the disqualification of Mr. Riddell is a clear violation of their Sixth Amendment right to choose their own counsel, regardless of the conflicts that exist or that may arise. We disagree. The circuit court did not clearly err when it applied Rule 44(c) of the West Virginia Rules of Criminal Procedure to disqualify Mr. Riddell from representing Petitioners, jointly, at this early stage of the proceedings. So, we deny the requested writ.

Each of the defendants were charged with a single count of failure to report abuse

The State moved to disqualify Mr. Riddell from appearing in Petitioners’ cases immediately before the October 21 initial hearing. In its motion, the State represented that it had offered plea agreements to Petitioners which, as a condition of acceptance, required each to assist the State’s investigation and, if necessary, to testify against her codefendants. The State argued in its motion that the offer created a concurrent conflict of interest for Mr. Riddell under West Virginia Rule of Professional Conduct 1.7.

Defendants opposed the motion

Petitioners responded to the State’s motion the next month. They urged the circuit court to approach the State’s motion with extreme caution out of deference to their rights under the Sixth Amendment of the United States Constitution to be represented by the counsel of their choice. They reasoned that their waivers cured any concurrent or future conflicts that may arise as the case progressed and that the State had not met its heavy burden to prove that disqualification was necessary and justified.

The trial court granted it

The court found that the rule applied to potential conflicts as well as actual ones and concluded that good cause existed under Rule 44(c) to believe that a conflict of interest would likely arise in Petitioners’ cases that would disqualify Mr. Riddell from representing Petitioners jointly. The court explained that while a conflict may not arise immediately in Petitioners’ cases, it would certainly arise...

Here the court majority found the the trial court did not abuse its discretion 

Petitioners’ primary argument in support of the requested writ is that the circuit court’s order is a clear, legal error or a flagrant abuse of discretion because they waived any current or potential conflicts that may arise due to the joint representation arrangement with Mr. Riddell. But that argument fails because Petitioners acknowledged that the joint representation arrangement in this case had the potential to create a conflict of interest for Mr. Riddell, and, in fact, already had. There is no dispute that the State offered cooperation plea agreements to Petitioners before October 21, 2019, when the State first moved to disqualify Mr. Riddell. So, the State’s offer of cooperation plea agreements created an actual conflict of interest for Mr. Riddell because he could not advise one Petitioner without violating his professional obligations to the other. And, Petitioners admitted in their conflict waivers that the State would likely offer plea agreements as their cases progressed, demonstrating the strong possibility that future conflicts would arise.

Justice Workman dissented

Because there is no actual or apparent conflict of interest on the part of defense counsel in this case, and nothing in the record to suggest that counsel’s joint representation of the petitioners would “call in question the fair or efficient administration of justice,” Syl. Pt. 2, in part, State ex rel. Blake v. Hatcher, 218 W. Va. 407, 624 S.E.2d 844 (2005), the circuit court’s disqualification order unlawfully deprived the petitioners of their Sixth Amendment right to retained counsel of their choice. Accordingly, I would grant the writ.

...In the instant case, the sole ground on which the State moved to disqualify defense counsel was that he would not be able to advise his clients as to the existence of, or the desirability of, any proffered plea agreements. Under the facts and circumstances of this case, the State’s argument was woefully insufficient to raise a legitimate concern about the adequacy of counsel’s representation and, thus, to overcome the petitioners’ Sixth Amendment right to select counsel of their choice. In this regard, the United States Supreme Court has held that “[w]e have little trouble concluding that erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.”’”


First, it is troubling that the majority glosses over the critical fact that the circuit court did not find the existence of an actual conflict of interest on counsel’s part, despite the State’s effort to create one...

Second, disqualification of counsel based on the mere possibility that the State might, in the future, offer a plea bargain to one or more of the petitioners, will effectively eliminate joint representation of defendants in a criminal case, because the possibility exists in every case that the State could offer a plea deal...

Third, while this Court has held that “[t]he failure of defense counsel to communicate any and all plea bargain proposals to the defendant constitutes ineffective assistance of counsel, absent extenuating circumstances,”  we have never held that an adult defendant, being fully apprised of the consequences of his or her actions, cannot waive that right...

Finally, it should be noted that if the legal landscape in this case were to change in the future, and an actual conflict of interest were to arise, then our system of justice must rely upon the integrity of counsel to do what he specifically assured the circuit court he would do:

[A]t the moment that one of [the defendants] comes to me with information that I feel like using or not using will hurt them and help their codefendants I think I have a conflict that would probably cause me to have to withdraw but at this point each one of them has a right to have their chosen defense counsel.

Although a late-stage withdrawal of defense counsel under such circumstances could result in some inconvenience to the court, i.e., the necessity of rescheduling deadlines, hearing dates and/or even a trial date, there can be no principled argument that possible inconvenience to the court in the future is sufficient to overcome the petitioners’ Sixth Amendment rights in the here and now.

Herald Mail Media reported on the underlying civil and criminal matters. (Mike Frisch)

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