People v. Buckhanan,2016 IL App (1st) 131097 (September). Episode 244 (Duration 8:41).

The State inappropriately moved to disqualify the defendant’s chosen attorney because the attorneys father represented one of the state’s witnesses.

Facts

Defendant was accused of a murder. His girlfriend was being squeezed by the police she hired her own lawyer.

The state believed she had information concerning Defendant’s attempted flight the day after the murder. Her attorney was present with her when she gave a statement to the police and he was representing her when she testified before the grand jury.

the State told the judge that it intended to use the girlfriend’s testimony regarding her conversation with Defendant the day after the murder to show that he knew he was wanted in a homicide investigation, thus explaining his abrupt departure.

When the defendant was arrested his attorney was the son of his girlfriend’s attorney.

The State argued that Junior should be disqualified for two reasons:

First, it asserted that, through his father, Junior had access to confidential information about Defendant’s girlfriend that would give the defense an unfair advantage;

Second, it argued that if the jury learned Junior’s father represented a State witness, it would create an appearance of impropriety.

Conflict of Interest

Junior responded by pointing out that both he and his father were solo practitioners and had never worked in partnership with each other.

His father had never disclosed to him any confidential information regarding his client’s girlfriend. Junior also challenged the basis for the State’s disqualification motion by pointing out that her statement to police was not inconsistent with her grand jury testimony.

Junior had represented defendant in the past in unrelated issues.

Senior had represented the girlfriend in the past in unrelated issues.

Learn more about conflict of interest law.

Learn more about Illinois professional responsibility for lawyers.

Judge Thought It Looked Funny

Based on the possibility that Junior would call Senior to testify regarding that statement, the court believed there was a serious potential for conflict.

The court found that Junior’s continued representation of defendant could impact the State’s right to a fair trial, since he could potentially access confidential information about the girlfriend that would give the defense an unfair advantage.

It also found that there was a risk of the appearance of impropriety if the jury were to find out that the father of the defendant’s lawyer represented one of the State’s witnesses.

Right To Counsel

However, the sixth amendment provides that a defendant in a criminal prosecution has a right to the assistance of counsel. U.S. Const., amend. VI. As part of this right, there is a presumption in favor of defendant’s counsel of choice.

In Illinois, a two-part test governs State challenges to the defendant’s counsel of choice.

First, the court must determine whether defense counsel has “a specific professional obligation that actually does conflict or has a serious potential to conflict with defendant’s interests.”

If the answer is yes, then the court must determine whether the interests threatened by that conflict are weighty enough to overcome the presumption in favor of defendant’s counsel of choice.

Weighing The Interests

In weighing the interests, courts consider the likelihood that a conflict will actually occur, since “a conflict that would seriously undermine counsel’s effectiveness is not a basis for disqualification if it has little likelihood of occurring.

Courts also frequently consider…

(1) The defendant’s interest in having the undivided loyalty of counsel
(2) The State’s right to a fair trial in which defense counsel acts ethically and does not use confidential information to attack a State’s witness
(3) The appearance of impropriety should the jury learn of the conflict, and
(4) The probability that continued representation by counsel of choice will provide grounds for overturning a conviction.

Analysis

The reviewing court found that Senior and Junior were not formally associated in a law firm. But it was at least arguable that they constitute a firm under Rule 1.0, given their closeness of their professional relationship.

They acted as cocounsel in various criminal matters, shared office space, and Senior covered for Junior in a number of court appearances in this case.

Nonetheless, it said that the interests threatened by that potential for conflict are not enough to overcome the constitutional presumption in favor of Defendant’s counsel of choice.

Holding

The appellate court said that the state’s motion to disqualify counsel came on the eve of trial and was completely meritless because the witness never contradicted herself.

What the prosecution didn’t tell the judge was that they had other abundant evidence of defendant’s flight in their possession.

The trial court’s disqualification order violated Defendant’s sixth amendment right to choose his own counsel. This was structural error not subject to harmless-error review.

Reversed and remanded.