☢ test - Í

consent to the simultaneous representation, knowing that an Alston & Bird lawyer would likely cross-examine [witness] Colman at trial.” “The record reveals merely that Alston & Bird has a relationship with Parsons. The remainder of the case for disqualification consists of one conjecture piled upon another. See Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 22, 694 S.E.2d 346 (2010) (‘bare assertion’ of conflict is insufficient to sustain burden of showing basis for disqualification); Dismuke v. C & S Trust Co., 261 Ga. 525, 527(3), 407 S.E.2d 739 (1991) (‘In the absence of any evidence supporting the bare assertion [of conflict], the trial court did not err in denying the motion to disqualify.’); Schaff [ v. State, 304 Ga.App. 638, 642(1), 697 S.E.2d 305 (2010)] (speculation cannot support disqualification); Life Care Centers of America v. Smith, 298 Ga.App. 739, 745(3), 681 S.E.2d 182 (2010) (absence of evidence of wrongdoing by counsel, ‘[b]eyond conclusory allegations,’ does not justify disqualification); Duvall [ v. Bledsoe, 274 Ga.App. 256, 260, 617 S.E.2d 601 (2005)] (‘bare assertion’ of conflict insufficient to warrant disqualification); Clough [ v. Richelo, 274 Ga.App. 129, 135-136(1), 616 S.E.2d 888 (2005)] (mere speculation is no basis for disqualification). We are aware of no criminal case in which a court deprived an accused of his counsel of choice based upon such speculation and conjecture, and we do not think the constitutional guarantee of the right to counsel of choice can be overcome so easily. The Georgia Rules of Professional Conduct recognize that a disqualifying conflict exists only when there is a ‘ significant risk that the lawyer's own interests or the lawyer's duties to another client ... will materially and adversely affect the representation of the client,’ Ga. R. Prof. Conduct 1.7(a) (emphasis added), and the record here shows nothing more than a bare possibility of conflicting interests, a far cry from a ‘significant risk.’” Registe v. State, 287 Ga. 542, 697 S.E.2d 804 (July 12, 2010). “The trial court granted the State's motion to disqualify former assistant district attorney (ADA) Stacey S. Jackson from representing the defendant, Michael Jason Registe in a murder case in which Jackson had signed search warrant applications to secure evidence against Registe, as well as in two other criminal cases against Registe the facts of which the State intends to introduce as similar transaction evidence in the murder trial. 1. Conflict of interest generally. “As relevant to this case, it is well-established that a defendant does not have a right to be represented by an attorney who is ethically prohibited from doing so, most commonly due to a conflict of interest. See [ United States v. Gonzalez-Lopez, 548 U.S. 140, 151-152 (126 S.Ct. 2557, 165 L.Ed.2d 409) (2006)]; Lynd v. State, 262 Ga. 58, 62-63 (414 S.E.2d 5) (1992). The trial court's decision on whether an ethical requirement bars a lawyer from representing a defendant is reviewed on appeal for abuse of discretion. See Redd v. State, 264 Ga. 399, 400 (444 S.E.2d 776) (1994). See also Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 694 S.E.2d 346 (March 22, 2010) (reviewing for abuse of discretion a trial court's ruling declining to disqualify retained counsel in a civil case). The defendant's waiver of his attorney's conflict of interest does not always cure the problem, because ‘courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ Wheat v. United States, 486 U.S. 153, 160 (108 S.Ct. 1692, 100 L.Ed.2d 140) (1988).” Accord, Edwards (March 30, 2016), above. 2. Murder prosecution. Counsel’s execution of search warrant applications used to locate defendant was sufficient to constitute direct representation of the State, requiring counsel’s disqualification from representing defendant, regardless of fact that he made no court appearances in the case. “Jackson took action in court by filing application to obtain search warrants, and that is enough,” based on Rule 1.9 of the Georgia Rules of Professional Conduct. “The second official comment to Rule 1.9 recognizes that, while an attorney's involvement may vary from case to case, ‘[t]he underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.’ Rule 1.9 cmt. [2]. Jackson's involvement in the murder case was not merely in an advisory, supervisory, or managerial role; it was direct and substantive, as he personally applied to the court for search warrants to obtain evidence against his current client,” and thus “was undeniably ‘a changing of sides in the matter in question.’” Counsel’s representation here also clearly violates Rule 1.11 : ““Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee , unless the appropriate government entity consents after consultation....” Rule 1.11(a). This rule can be hard to apply with lawyers who supervise large offices, but not here, “where a prosecutor personally applied on behalf of the State for three criminal search warrants and certified as an officer of the court that the warrants were justified because they were ‘relevant and material’ to the State's ‘ongoing criminal investigation’ to locate a fugitive wanted for murder and that the requested information would ‘provide leads which will aid in locating and apprehending the fugitive.’” 3. Other prosecutions. “Because Jackson did not take action on both sides of the car theft and aggravated assault cases, his representation of Registe in those cases is not as clearly forbidden. However, Rule 1.9(a) bars representation of adverse clients not only in ‘the same ... matter,’ but also in any ‘substantially related matter.’ The fact that the State plans to offer evidence of the two other cases in the murder case as similar transactions is sufficient to make them ‘substantially related’ matters. We therefore cannot say that the trial court abused its discretion in also disqualifying Jackson in those two cases.”

Made with FlippingBook Ebook Creator