has discretion to disqualify defendant’s counsel of choice where there is an actual
conflict of interest or a serious potential for a conflict of interest.
Although there is a presumption in favor of defendant’s counsel of choice,
the presumption may be overcome by a conflict or potential conflict of interest.
Factors to be considered in determining whether the presumption has been
overcome include: (1) the defendant’s right to the undivided loyalty of his attorney,
(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
representation by counsel of choice will provide grounds to overturn a conviction.
Here, the trial court considered an additional factor - whether the State
legitimately needed to call the father and brother or was attempting to
manufacture a conflict to prevent the defendant from being represented by
counsel of choice.
The trial court’s decision to disqualify counsel of choice will not be
overturned unless there has been a clear abuse of discretion.
2. Defendant was represented by two attorneys on first degree murder
charges. Before trial, a third attorney sought leave to also file an appearance. The
third attorney disclosed that at some time in the previous year-and-a-half, he had
represented defendant’s father when the father was interviewed by the State’s
Attorney’s office concerning the offense for which the defendant was charged. The
father signed a waiver of any conflict of interest which might arise from the
attorney’s representation of both the father and of the defendant.
In a motion to disqualify the third attorney, the State noted that the
attorney appeared with the father during an interview by the State’s Attorney’s
office, negotiated a “use immunity agreement” concerning the information which
the father provided, and attended the entire interview.
The State asserted that the third attorney also represented defendant’s
brother during interviews by the State’s Attorney’s office concerning the offense
with which defendant was charged. According to the State, the attorney negotiated
a “use immunity agreement” for any information provided by the brother, and was
present for the interview.
The State also asserted that it intended to call the father as a witness at the
defendant’s trial, and that it might call the brother as a rebuttal witness. The
names of both the father and the brother were on the list of witnesses which the
State had tendered in discovery.
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