This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 19
The People &c.,
Appellant,
v.
Lawrence Watson,
Respondent.
Dana Poole, for appellant.
Renee M. Zaytsev, for respondent.
STEIN, J.:
Notwithstanding the general rule that, for the purposes
of conflict of interest analysis, knowledge of a large public
defense organization's current and former clients is typically
not imputed to each attorney employed by the organization,
conflicts may nevertheless arise in certain circumstances
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involving multiple representations within such organizations. In
this case, Supreme Court was placed in the difficult position of
having to either relieve defense counsel -- thereby depriving
defendant of the counsel of his choosing -- or permit counsel to
continue his representation despite a potential conflict of
interest, thereby impinging on defendant's right to the effective
assistance of counsel. Under the circumstances presented here,
the court did not abuse its discretion by relieving defendant's
assigned counsel and appointing conflict-free counsel to
represent him. Therefore, we reverse.
I.
Defendant showed a friend a gun in his waistband and
threatened to use it against another person. He then went to a
park, where he was seen near Toi Stephens. When police arrived,
defendant and Stephens fled separately. Witnesses saw defendant
throw a gun during the chase, and a gun was subsequently found in
the identified location. Cocaine and marihuana were also found
on the ground, and Stephens admitted that the drugs belonged to
him. Defendant was charged with criminal possession of a weapon
in the second degree (two counts) and resisting arrest. Stephens
was charged with drug possession.
Robert Fisher, an attorney employed by New York County
Defender Services (NYCDS), was assigned to represent defendant.
Eight months later, the People turned over Rosario material that
revealed that a different attorney from NYCDS had represented
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Stephens on his criminal charge arising from the same incident.
Fisher immediately brought this to the attention of Supreme
Court. Fisher stated that he had been looking for Stephens as a
possible witness for defendant before becoming aware of the
potential conflict of interest. Even though defendant wanted
Fisher to continue as his attorney, Fisher was not sure it would
be appropriate to do so. The court granted an adjournment to
determine whether the situation could be resolved.
At an appearance a few days later, Fisher advised the
court that Stephens had entered a guilty plea shortly after his
arraignment, and NYCDS no longer represented him. However,
because Stephens had not waived confidentiality, Fisher's
supervisors at NYCDS prohibited him from searching for Stephens,
calling Stephens as a witness, or conducting any
cross-examination if the People called him to testify. Fisher
advised defendant that he could not continue to represent
defendant unless defendant agreed to waive even the attempt to
call Stephens as a witness. Fisher also asked the court to
prohibit the People from calling Stephens, because his
supervisors had determined that Fisher could represent defendant
only under those conditions.
The court stated that it could not prevent the People
from calling a relevant witness, and explained to defendant the
potential conflict and the difficult position confronting Fisher.
Defendant responded that he wanted to keep Fisher as his attorney
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and waive the conflict, but also that he wanted Stephens to
testify. After hearing these statements that were incompatible
with an unequivocal waiver, the court relieved Fisher of his
assignment and assigned a new attorney, who represented defendant
at trial. The jury convicted defendant of all charges.
The Appellate Division, with one Justice dissenting,
reversed the judgment on the ground that the trial court had
abused its discretion in relieving Fisher (124 AD3d 95 [1st Dept
2014]). The majority concluded that, because Fisher did not
represent Stephens and was not privy to any of his confidential
information, the relationship between NYCDS and Stephens did not
constitute a conflict (see id. at 102-104). The dissent would
have held that, at the very least, a potential conflict existed,
and the trial court properly acted within its discretion in
disqualifying counsel (see id. at 107-108 [Tom, J.P.,
dissenting]). The dissenting Justice granted the People leave to
appeal to this Court.
II.
A determination to substitute or disqualify counsel
falls within the trial court's discretion (see People v
Carncross, 14 NY3d 319, 330 [2010]; People v Tineo, 64 NY2d 531,
536 [1985]). "That discretion is especially broad when the
defendant's actions with respect to counsel place the court in
the dilemma of having to choose between undesirable alternatives,
either one of which would theoretically provide the defendant
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with a basis for appellate review" (Tineo, 64 NY2d at 536; see
Carncross, 14 NY3d at 330; People v Robinson, 121 AD3d 1179, 1180
[3d Dept 2014]). Criminal courts faced with counsel who
allegedly suffer from a conflict of interest must balance two
conflicting constitutional rights: the defendant's right to
effective assistance of counsel; and the defendant's right to be
represented by counsel of his or her own choosing (see US Const,
6th Amend; Carncross, 14 NY3d at 327; People v Gomberg, 38 NY2d
307, 312-313 [1975]). Thus, a court confronted with an attorney
or firm that represents or has represented multiple clients with
potentially conflicting interests faces the prospect of having
its decision challenged no matter how it rules -- if the court
permits the attorney to continue and counsel's advocacy is
impaired, the defendant may claim ineffective assistance due to
counsel's conflict; whereas, if the court relieves counsel, the
defendant may claim that he or she was deprived of counsel of his
or her own choosing (see Wheat v United States, 486 US 153, 161
[1988]; Carncross, 14 NY3d at 330).
Courts "should not arbitrarily interfere with the
attorney-client relationship," but must protect the defendant's
right to effective assistance of counsel (Gomberg, 38 NY2d at
313; see Carncross, 14 NY3d at 327; see also Wheat, 486 US at
159-160). Thus, the court must satisfy itself that the defendant
has made an informed decision to continue with counsel despite
the possible conflict, yet avoid pursuing its inquiry too far so
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as not to intrude into confidential attorney-client
communications or discussions of possible defenses (see Gomberg,
38 NY2d at 313; see also Holloway v Arkansas, 435 US 475, 487
[1978]).
Particularly relevant here, the presumption in favor of
a client being represented by counsel of his or her choosing may
be overcome by demonstration of an actual conflict or a serious
potential for conflict (see Wheat, 486 US at 164). The court may
appropriately place great weight upon counsel's representations
regarding the presence or absence of a conflict (see Gomberg, 38
NY2d at 314), because the attorney is generally in the best
position to determine when a conflict of interest exists or is
likely to develop during trial (see Holloway, 435 US at 485).
Depending on when a potential conflict becomes evident, the court
may not be aware of the details and ramifications of any
conflict, or of the evidence, strategies or defenses that will
emerge at trial (see People v Lloyd, 51 NY2d 107, 111 [1980];
Gomberg, 38 NY2d at 314; see also Wheat, 486 US at 162-163 [court
must decide whether to allow waiver of conflict "not with the
wisdom of hindsight after the trial has taken place, but in the
murkier pre-trial context" where conflicts are hard to predict];
Carncross, 14 NY3d at 328-329 [same]). However, if the court
waits until trial -- to ascertain what witnesses testify or what
strategy or defenses are employed -- it runs a serious risk of a
mistrial based on the conflict (see Carncross, 14 NY3d at
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329-330).
Where there have been successive representations of
individuals with different goals or strategies, a concern arises
that counsel's loyalties may be divided because a lawyer has
continuing professional obligations to former clients. Those
obligations include a duty to maintain the former client's
confidences and secrets (see Rules of Professional Conduct [22
NYCRR 1200.0] Rule 1.9), "'which may potentially create a
conflict between the former client and present client'" (People v
Prescott, 21 NY3d 925, 928 [2013], quoting People v Ortiz, 76
NY2d 652, 656 [1990]; see Rules of Professional Conduct [22 NYCRR
1200.0] Rule 1.7). Here, prior to defendant's trial, Fisher's
NYCDS supervisors noted the institutional duty of loyalty to its
former client, Stephens. Those supervisors -- who presumably
were familiar with Stephens's file -- determined that there was a
potential or actual conflict that prevented Fisher from
investigating Stephens, attempting to locate him, calling him as
a witness, or cross-examining him if he was called by the People.
Under these circumstances, the trial court did not err in
concluding that defendant's statements were insufficient to waive
the conflict.
Our decision in People v Wilkins (28 NY2d 53 [1971])
does not compel a contrary result. In that case, this Court
found that no conflict of interest existed merely because a
defendant was represented by the Legal Aid Society and a
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different staff attorney from that same organization had
previously represented -- in an unrelated criminal proceeding --
the person who was now the complaining witness against Wilkins.
There, the purported conflict was not discovered until after
Wilkins's trial, and his counsel had no prior knowledge of the
separate case involving charges against the complaining witness.
Thus, the prior representation could not have affected the
representation of Wilkins. We held that, unlike private law
firms where knowledge of one member of the firm is imputed to
all, large public defense organizations are not subject to such
imputation, so there was no inferred or presumed conflict (see
id. at 56; compare Rules of Professional Conduct [22 NYCRR
1200.0] Rule 1.10 [addressing imputation of conflict to firm]).
The current case is distinguishable from Wilkins, and
we do not disturb the general rule against imputation of
knowledge created there. In both cases, counsel worked for a
large public defense organization and was initially unaware of
another staff attorney's representation of a potential witness in
the client's case, because there was apparently no free flow of
information among staff attorneys. However, unlike counsel in
Wilkins, defense counsel here became aware before defendant's
trial of NYCDS's prior representation of Stephens, and the
organization's representation of Stephens arose from the same
incident that led to defendant's arrest. Additionally, Fisher's
supervisors expressly prohibited him from attempting to locate
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Stephens (apparently even by searching in publicly-available
sources) or questioning him. This directly impinged on Fisher's
representation of defendant. Not only did the supervisors
instruct Fisher to refrain from investigating Stephens, they also
directed that he could not cross-examine Stephens if he was
called by the People. Therefore, even if the institutional
representation of Stephens did not, in and of itself, present a
conflict, such a conflict was created by the conditions imposed
by Fisher's supervisors, which hampered his ability to zealously
and single-mindedly represent defendant. Although the court
could have inquired as to why NYCDS took the position of
forbidding any investigation into or questioning of Stephens, the
court was in a precarious situation because such an inquiry might
have intruded into confidential attorney-client information.
Thus, the court did not abuse its discretion by relieving counsel
once those restrictions were announced.
Defendant's assertion that he was never given the
opportunity to waive the conflict is unavailing. Although
defendant indicated that he would be willing to waive the
conflict, almost immediately thereafter he said that he wanted
Stephens to be called as a witness at trial. These competing
statements did not clearly demonstrate a knowing waiver, or that
defendant would knowingly waive Fisher's conflict. Moreover, had
he attempted to do so, it would have been within the court's
authority to decline to accept such a waiver (see Carncross, 14
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NY3d at 327-328). A trial "court must be allowed substantial
latitude in refusing waivers of conflicts of interest not only in
those rare cases where an actual conflict may be demonstrated
before trial, but in the more common cases where a potential for
conflict exists which may or may not burgeon into an actual
conflict as the trial progresses" (Wheat, 486 US at 163).
Further, while defendant might have agreed to allow
counsel to refrain from calling Stephens, the People indicated
the possibility that they would call him as a witness, depending
on the defense that was raised -- including the potential
assertion that someone other than defendant possessed and dropped
the gun -- which would not be known until trial. Although a
waiver of the conflict by defendant would have permitted counsel
to refrain from cross-examining Stephens if he was called, that
would be a tactic based on loyalty to Stephens as a former NYCDS
client, not a strategy employed in the best interest of
defendant. Additionally, if the court had waited until trial and
the People had decided to call Stephens, a mistrial could have
resulted (see Carncross, 14 NY3d at 329-330). Thus, the court
could properly decide that it would not accept a waiver in these
circumstances, instead choosing to protect defendant's right to
the effective assistance of counsel in order to ensure a fair
trial (see Carncross, 14 NY3d at 327-328; see also Wheat, 486 US
at 162-163).
In sum, the Appellate Division erred in holding that
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the trial court abused its discretion. Supreme Court
appropriately balanced defendant's countervailing rights, based
on the information it had at the time, and reasonably concluded
that Fisher could not effectively represent defendant due to
NYCDS's representation of Stephens and the duty of loyalty
Fisher's supervisors were asserting toward that former client.
Accordingly, the Appellate Division order should be reversed and
the case remitted to that court for consideration of the facts
and issues raised, but not determined, on the appeal to that
court.
* * * * * * * * * * * * * * * * *
Order reversed and case remitted to the Appellate Division, First
Department, for consideration of the facts and issues raised but
not determined on the appeal to that court. Opinion by Judge
Stein. Judges Pigott, Rivera, Abdus-Salaam and Fahey concur.
Chief Judge DiFiore and Judge Garcia took no part.
Decided February 11, 2016
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