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Defendant is Charged with Criminal Possession of a controlled Substance

A New York Criminal Lawyer said that, in one case, defendant is represented by retained counsel, who had also been retained to represent co-defendant on that same case, and did so for nearly eleven months. Co-defendant is now represented by another counsel assigned by the Court after the first counsel asked to be relieved in September 2010 because of the conflict.

A New York Criminal Lawyer said that, in the other case, defendant who is indigent, was assigned a public defender office, The Bronx Defenders, to represent him at the time of his arraignment on the felony complaint. That same office had already been assigned to represent a co-defendant, who will hereinafter be called Jane Doe, when that defendant was arraigned before another judge earlier the same day on a separately-docketed felony complaint. After defendants were indicted and charged as accomplices to certain felony counts in the same indictment, The Bronx Defenders asked only to be relieved from representing, who was then assigned counsel from the 18B panel. Her case was dismissed in September 2010 before a different judge; the reason for that dismissal is unknown to this Court. In both cases, after considering the records made and upon the review of applicable law, the Court exercises its discretion and relieves counsel.

A Nassau County Criminal Lawyer said that, on October 21, 2009, defendants and were arrested for charges including criminal possession of a controlled substance in the first degree. According to the People, defendants were both present inside a house in Bronx County in which the police recovered more than 40,000 glassines of heroin, purportedly packaged and ready for sale. The police also recovered additional heroin and drug paraphernalia in various locations inside the house. The police allege that when they entered the house, they found defendant covered with white dust, which they believe to be powdered heroin. She was found hiding in a different area of the house, on a different floor.

Both defendants retained the first counsel to represent them, and both were indicted and charged as co-defendants. The first counsel acknowledged from the outset that there was a conflict. Another judge made an inquiry early in the 1975 case decision, and it is this Court’s understanding that both defendants waived the conflict on the record in open court and indicated at that time that they each wanted the first counsel to be their attorney. When defendants first appeared before this Court on February 28, 2010, counsel was reminded of his ethical obligation to have both clients waive the conflict in writing, as required by Rule 1.7(b)(4) of New York’s Professional Conduct Rules. During a subsequent court appearance, the first counsel indicated he did obtain the required “informed consent, confirmed in writing” from each defendant.

A Bronx Drug Crime Lawyer said that, the case proceeded through motion practice and discovery. Counsel was actively engaged in plea discussions with the District Attorney’s Office for several months on behalf of both clients. The case was set down for hearing and trial on September 13, 2010. On that date, the first counsel informed the Court that he could no longer continue to represent both defendants, because at that point the conflict prevented him from giving each of his clients appropriate legal representation. He asked to be relieved from representation of the defendant, but stated his intention to remain as her attorney. The Court relieved the first counsel from representing defendant, and said that she would be given time to retain her own separate attorney. The first counsel informed the Court that defendant was indigent, and requested court-assigned counsel for her. The Court directed that counsel from the 18B panel be assigned to represent her. Since it was an unusual situation in this Court’s experience, the first counsel and the People were asked to provide the Court with legal authority supporting his application to be relieved of his representation of the defendant while continuing to represent the other defendant.

The Court referred all parties to Rule 1.9(a) of the Code of Professional Conduct, which relates to an attorney’s representation of a client in a case in which a former client is also a party. The rule requires that unless the former client “gives informed consent, confirmed in writing” to an attorney representing a co-defendant in the same case, that attorney “shall not thereafter represent another person in the same or a substantially related matter.”

A Bronx Drug Possession Lawyer said that, the People agreed that “there is a potential conflict if it went to trial, and may defendant may take the stand, she could put herself in jeopardy of being rearrested under new information given,” and asked that The Bronx Defenders be relieved. Counsel asked that The Legal Aid Society be relieved from representing on the new misdemeanor case, and have the Court assign The Bronx Defenders to represent defendant on this matter as well. The Court reserved decision on the applications.

The issue in this case is whether the court should to exercise its discretion and relieve an attorney from representing a client because of an acknowledged conflict arising out of the prior representation of a co-defendant in the same matter.

Both the Sixth Amendment to the United States Constitution and Article I, ยง 6 of the New York State Constitution guarantee that an accused in a criminal proceeding have the assistance of counsel. “An element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.” “Where a constitutional right to counsel exists there is a correlative right to representation that is free from conflicts of interest. When a defendant has retained counsel of his or her own choosing, “judicial restrictions on the exercise of this fundamental right will be carefully scrutinized.”

Following their arrest, defendants exercised their 6th Amendment right to retain counsel of their choice, who was the first counsel. And, the Court permitted such representation because these defendants each waived the conflict that existed, and affirmed that they wanted first counsel to represent them. The first counsel in turn, satisfied his ethical obligation under Rule 1.7(b) of the Professional Conduct Rules and obtained the requisite written informed consent from both clients. However, that waiver is no longer relevant in this case, because he, for his own reasons, has concluded that the conflict now prevents him from fulfilling his ethical obligation to continue to zealously represent both defendants. Defendant will not waive the current conflict and agree to have first counsel continue to represent the other defendant. Although first counsel asked to be relieved from representing defendant, and did not dispute the Court’s characterization of the conflict as one in which the other defendant “interests are materially adverse to the interests of his former client,” Rule 1.9(a), first counsel nonetheless insists that he can and should be allowed to remain as the other defendant’s lawyer. The Court disagrees.

The starting off point in this analysis must focus on the other defendant’s choice of the first counsel to be her counsel. She retained him, and he has been representing her for more than a year. Both defendants choose to confide in first counsel, each with the expectation that he would remain as their attorney, despite any the presence of any potential or actual conflicts. The presumption, therefore, is that the other defendant be permitted to be represented by her counsel of choice. However, this presumption “may be overcome by a showing of a serious potential for conflict.’

There is “no per se rule” recognizing that simultaneous retained representation of different defendants on the same case violates any of these defendants’ 6th amendment rights. Nonetheless, “a court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts require separate counsel.” Here, the first counsels’ request to be relieved of representing one client is nothing less than an acknowledgment that there is a real conflict, and it is a serious one. As far as defendant is concerned, granting first counsel’s application to relieve him of his retained representation has answered the question of whether the conflict in this case requires that separate counsel be assigned for her. Now the question is whether this conflict requires the other defendant to retain new counsel.

Since a court always has the responsibility of “ensuring that cases before it are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them,” this responsibility should be weighed in determining an application to disqualify an attorney where a conflict exists. There is a decided ethical problem in this case involving first counsel’s continuing representation of the other defendant. It is, in fact, prohibited by the Code of Professional Conduct because defendant has not waived the current conflict. The per se violation of an ethical rule does not in and of itself trump the 6th Amendment right to retain counsel of choice. It is, where relevant, something to consider in determining whether to relieve retained counsel in a conflict of interest case involving representation of a current client where the same attorney has represented another client on the same case. In this case, if the Court does not relieve first counsel, he will violate “ethical standards of the profession,” including specifically Rule 1.9(a) of the Professional Conduct Rules. Such an ethical breach can, in and of itself, give rise to an appellate claim that, should he be permitted to remain as the other defendant’s counsel and she is convicted, she failed to receive effective assistance of counsel.

Put simply, while “the wall” concept is sometimes recognized as an option in cases where a firm has been retained by different clients who are parties in the same case, it is still incumbent upon the organization to demonstrate that there has been no sharing of information, and that the “wall” is adequate. Here, the record shows that although there was an attempt to create a wall that would isolate defendant from the rest of The Bronx Defenders, that attempt did not succeed. Even if the proposed wall were fortified for the future, at the very least, “the appearance of impropriety” would always remain in this case.

Accordingly, considering all the information before it, and in the exercise of its discretion, The Bronx Defenders’ applications to be allowed to continue to represent defendant in the indicted matter, as well as to be assigned to represent him on his subsequent misdemeanor arrest, are denied. Instead, the Court continues the assignment of The Legal Aid Society to represent defendant on the misdemeanor case, Docket No. 61123C-2010, and also assigns that organization to represent him on the felony case. The Legal Aid Society does not appear to have been assigned to represent any of the defendants on the felony matter. Barring some unknown conflict involving some past representation, the Court believes that this assignment will protect his constitutional right to conflict-free representation on these cases, as well as allow him to continue being represented by an attorney he already knows and with whom he has begun to develop an attorney-client relationship.

If you have been deprived of the assistance of an effective counsel, seek the legal consultation of a Bronx Drug Possession Attorney and Bronx Drug Crime Attorney at Stephen Bilkis and Associates.

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