Defense Counsel’s Past Representation of Key State Witness Against Current Client Disqualifies Counsel

State v. Patterson, Minn.S.Ct., 4/25/2012.  A grand jury indicted Mr. Patterson and Leroy Paul on various counts of first degree murder and attempts to do the same.  Mr. Patterson retained Eric Newmark to represent him.  Before trial the state moved to disqualify Mr. Newmark based on alleged actual and potential conflicts of interest arising out of Newmark’s past representation of Mr. Paul and three of the state’s prospective witnesses.  The trial court granted that motion even after Mr. Patterson waived his right to conflict-free counsel.  Mr. Patterson got another lawyer, went to trial, got convicted of a lesser degree of homicide and appealed.

Here are the simplified facts.  Mr. Patterson and Mr. Paul were in one car chasing another car occupied by Mr. Artison and an unnamed passenger.  Yet a third car, driven by Mr. Wilson, was trailing these two cars.  Patterson was shooting at Artison’s car, successfully as it turned out; Mr. Artison died at the hospital.  The state maintained that this was all payback from when Mr. Paul shot and killed a Mr. Williamson, for which Mr. Artison, while he was still alive, tried to shoot Mr. Paul.  And so on.  All having to do with gangs.

The state wanted to tie all these pieces together during Mr. Patterson’s trial with three witnesses - Wilson, Herron, and Richardson - from the Williamson murder.  Mr. Newmark had represented all three of these guys, (as well as Mr. Paul). 

The rules for determining whether a conflict exists such that a defendant’s counsel of choice may be disqualified were stated in Wheat v. United States, 486 U.S. 153 (1988:

The District Court must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.

Wilson:  Newmark had represented Wilson on several state drug charges, one of which went federal.  Before the feds got it, he and Newmark reviewed police reports and had privileged communications about the underlying facts of the charge.  Over in federal court, with a different lawyer, Wilson agreed to cooperate in Paterson’s trial.  To defend Patterson, Mr. Newmark would need to discredit Mr. Wilson; Mr. Newmark had information about Wilson that would be relevant to this cross examination; moreover, if Newmark took Wilson apart on the stand the feds might reconsider its plea agreement.  If, on the other hand, Mr. Newmark pulled his punches on cross examination, then he’s harming Mr. Patterson’s interests.

Here’s how the supreme court summed up:

Here, in defending Patterson, Newmark would have needed to mount a strong challenge to Wilson’s credibility on cross-examination given Wilson’s expected testimony explaining the circumstances that led to Artison’s shooting and his expected testimony that he saw Patterson shoot Artison. That need to effectively cross-examine Wilson, coupled with information Newmark would normally have obtained during his past representation of Wilson, created a substantial risk that confidential information would materially advance Patterson’s defense. Given how we define a “substantially related matter,” Newmark’s previous representation of Wilson was substantially related to his representation of Patterson. Moreover, Patterson’s interests in his case were materially adverse to Wilson’s interests in Patterson’s case. Further, Newmark’s past representation of Wilson materially limited Newmark’s representation of Patterson because of the limits placed on Newmark’s ability to effectively cross-examine Wilson. Newmark’s representation of Patterson would have, of necessity, raised ethical questions implicating Rules 1.7(a)(2) and 1.9 of our Rules of Professional Conduct. And Newmark’s past representation of Wilson would have made it difficult for Newmark to effectively cross-examine Wilson on Patterson’s behalf, thereby calling into question the fairness of Patterson’s trial. As a result, we conclude that the trial court did not abuse its discretion when it granted the State’s motion to disqualify Newmark from representing Patterson based on Newmark’s previous representation of Wilson.

Having upheld the disqualification based on Wilson, the court didn’t have to weigh in on either the other two witnesses or Mr. Paul.