One Defense Attorney Disqualification Upheld; One Refusal to Disqualify Next Defense Attorney Upheld.

State v. Patterson, Minn.Ct.App., 3/15/2011, petition for review filed, 4/14/2011.  A jury convicted Mr. Patterson of aiding and abetting drive by shooting and aiding and abetting second degree murder.  The real dust up in this appeal, however, is over who gets to be the lawyer.

R.A. was the victim of the murder, and T.D., a passenger in R.A.’s car, was the victim of the drive by shooting.  Leroy Paul was driving Patterson around at the time of the drive by.  Paul pleaded guilty to second degree murder, agreeing to testify against Mr. Patterson.

Mr. Patterson first retained Eric Newmark to represent him.  The state said that Mr. Newmark had a conflict of interest due to his previous representation of three of the state’s witnesses and moved to disqualify him; the trial court granted that motion.  Next, Mr. Patterson retained Barry Voss, who, as it happens, had represented Mr. Paul on a separate but related murder.  The state moved to disqualify Mr. Voss.  Mr. Voss said that Mr. Paul had not made any privileged communications about the murder of R.A.  Mr. Paul’s attorney in the R.A. murder said that while he thought that was correct, if Mr. Paul had made privileged communications to Mr. Voss then Paul would not waive attorney-client privilege.  Paul said it was okay by him for Mr. Voss to represent Mr. Patterson so long as Mr. Voss could not cross examine him; that is, so long as Mr. Voss retained independent counsel to cross examine Paul.  The trial court thought that was okay so long as Mr. Patterson waived any effective assistance of counsel claim pertinent to Mr. Voss’s potential conflict of interest.  Mr. Patterson provided that waiver.

On appeal Mr. Patterson complained that the trial court had denied him his counsel of choice by disqualifying Mr. Newmark; and had denied him conflict free counsel by refusing to disqualify Mr. Voss.  In rejecting these claims, the appellate court observed that the trial court is allowed “substantial latitude” in disqualification before trial of an attorney who is facing an actual or serious potential for a conflict of interest.  The trial court may consider these four factors:

1) the prejudice to the defendant which would result from the disqualification of his lawyer; (2) the state’s interest in preserving the finality of a judgment in the face of an ineffective-assistance-of-counsel claim; (3) the court’s interest in preserving the ethical standards of the legal profession; and (4) the public’s interest in having a criminal justice system that is perceived as fair.

The appellate court engaged in a lengthy analysis of Mr. Newmark’s potential conflicts and determined that the conflict existed and that it could not be remedied.  The court then considered the refusal to disqualify Mr. Voss.  The appellate court determined that if Mr. Patterson made a valid waiver of that conflict then that was the end of it.  The court’s analysis is not under the dual representation rule and case law.  Rather, the court applies case law on waiver of the right to counsel in general.  See State v. Richards, 456 N.W.2d 260 (Minn. 1990).  This is a Faretta analysis.  Faretta v. California, 422 U.S. 806 (1975).  The waiver must be knowing, voluntary and intelligent; and the court must also make a defendant aware of the “dangers and disadvantages” of continuing with the representation.  The appellate court concluded that under this standard Mr. Patterson’s waiver was valid.