Commonwealth v. Delnegro

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

16-P-339 Appeals Court
16-P-340

COMMONWEALTH vs. DAVID DELNEGRO.

Nos. 16-P-339 & 16-P-340.

Hampden. January 6, 2017. - April 12, 2017.

Present: Kafker, C.J., Hanlon, & Agnes, JJ.

Practice, Criminal, Interlocutory appeal, Assistance of counsel.
Supreme Judicial Court, Superintendence of inferior courts.
Attorney at Law, Disqualification, Attorney as witness,
Conflict of interest. Conflict of Interest. Witness,
Attorney as witness. Constitutional Law, Assistance of
counsel. Due Process of Law, Assistance of counsel.

Complaints received and sworn to in the Springfield
Division of the District Court Department on February 4, 2014,
and June 8, 2015.

Motions for disqualification of counsel, filed on April 10,
2015, and October 15, 2015, were heard by Patricia T. Poehler,
J., and Philip A. Contant, J., respectively.

Kaily Hepburn for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.

KAFKER, C.J. The defendant, David Delnegro, seeks

interlocutory review of orders disqualifying his attorney, Kaily
 2

Hepburn, from representing him in two criminal cases. Hepburn

was the sole passenger in the defendant's vehicle when he was

charged with operating a motor vehicle under the influence of

alcohol and negligent operation. Hepburn was also present at a

subsequent hearing on that matter in which the defendant got

into an altercation with court officers and was charged with

assault and battery on a public employee, disruption of court

proceedings, and disorderly conduct. The defendant claims that

Hepburn is not a necessary witness in the first case, and even

though she is a necessary witness in the second case, that she

can represent him in pretrial proceedings. He also argues that

he has consented to any conflict of interest arising from the

representations.

We dismiss the interlocutory appeals because the defendant

did not petition a single justice of the Supreme Judicial Court

for interlocutory review pursuant to G. L. c. 211, § 3, and the

doctrine of present execution does not provide for interlocutory

review of disqualification of counsel orders in criminal cases.

We nonetheless consider the propriety of Hepburn's

representation of the defendant, due to the important ethical

considerations at stake, and conclude that she cannot represent

him in either case at trial or any pretrial proceedings.

Background. The Commonwealth alleges the following facts.

On February 4, 2014, at approximately 2:00 A.M., the defendant
 3

was driving in an erratic manner through the streets of

Springfield. Hepburn was the only passenger in the vehicle. A

police officer stopped the vehicle and approached it. Based on

the defendant's "glassy and bloodshot" eyes, flushed face,

slurred speech, and the odor of alcohol on his breath, the

officer asked him to get out of the car. He had difficulty

doing so and, in the officer's opinion, performed poorly on

field sobriety tests. The officer then placed him under arrest.

At this point, according to the officer, Hepburn "ran out" of

the vehicle and "demanded" that the officer release the

defendant, because she was an attorney. Again, according to the

officer, Hepburn was "extremely belligerent" and began

"screaming obscenities" at him.

After the defendant's arraignment on the resulting criminal

case, Hepburn sought to represent him. The Commonwealth moved

to disqualify her, arguing that she had a conflict of interest

because of her status as a percipient witness to the events

underlying the charges. The motion judge agreed, noting that,

because Hepburn was the only passenger in the vehicle, she was

the "percipient witness," and the only person "who could

possibly rebut the testimony of the police." The judge further

explained: "[The officer's] report does not cast her in a

particularly flattering light. Given this police report, I do

not see how Attorney Hepburn can be loyal to the defendant and
 4

to herself. Any analysis by her regarding whether she is a

necessary witness for the defendant would naturally be impacted

by her self interest in not embarrassing herself by taking the

witness stand and subjecting herself to cross examination. The

conflict lies in her divided loyalties."1

Thereafter, at a hearing on June 8, 2015, the Commonwealth

alleges that the defendant, representing himself, became

aggravated with the judge. Hepburn sat in the gallery of the

courtroom behind the defendant. After the judge continued the

defendant's case, according to court officers, the defendant

refused to leave the courtroom and began shouting about

unrelated matters. There was also apparently a struggle over a

court document in the defendant's hands that Hepburn may have

given him. Several court officers attempted to escort him from

the courtroom, and a physical struggle ensued. Hepburn followed

the officers as they removed the defendant from the courtroom,

lobby, and courthouse, insisting that they release him and

1
The Commonwealth first raised the issue of the propriety
of Hepburn's representation at a pretrial hearing on the first
case. The judge heard arguments at sidebar and determined that
Hepburn could represent the defendant. At a subsequent hearing,
a different judge conducted a colloquy with the defendant to
ensure that he understood the consequences of Hepburn's
representation. Several weeks later, the Commonwealth filed a
motion to disqualify Hepburn based on her conflict of interest
and status as a necessary witness, which the defendant opposed.
The second judge agreed with the Commonwealth and disqualified
Hepburn from representing the defendant in the first case for
the reasons discussed above.
 5

attempting to record the incident.2 The defendant was eventually

placed under arrest.

Initially, Hepburn sought to represent the defendant in the

case arising from the second incident. The Commonwealth again

moved to disqualify her, based on her presence at the hearing.

The motion judge agreed and disqualified her from representing

the defendant in the second case, finding that she "was not only

a percipient witness but actively involved in the underlying

events."

Discussion. 1. Notices of appeal and the doctrine of

present execution. The defendant's notices of appeal for both

disqualification orders cited Mass.R.Crim.P. 15, an inapplicable

rule related to motions to suppress. See Mass.R.Crim.P.

15(a)(2), as appearing in 422 Mass. 1501 (1996) (defendant may

apply to single justice of Supreme Judicial Court for leave to

appeal order determining motion to suppress evidence). The

defendant also did not petition a single justice of the Supreme

Judicial Court for interlocutory review pursuant to G. L.

c. 211, § 3, which would have been the appropriate means to

immediately seek review of the disqualification orders.3 Rather,

2
Hepburn attested that another court officer took away her
cellular telephone, which she was using to record the incident.
No videotape appears in the record of the incident.
3
G. L. c. 211, § 3, as appearing in St. 2011, c. 93, § 46,
grants the Supreme Judicial Court the general superintendence
 6

at a subsequent hearing and in later filings, the defendant

relied on the doctrine of present execution to justify the

interlocutory appeals. We conclude that interlocutory review of

such orders may only be permitted pursuant to G. L. c. 211, § 3,

because the doctrine of present execution does not apply to

disqualification orders in criminal matters, for the reasons

explained by the United States Supreme Court in Flanagan v.

United States, 465 U.S. 259, 264 (1984). We therefore dismiss

the appeals.

Generally, "a judgment must be final to be appealable."

Commonwealth v. Bruneau, 472 Mass. 510, 515 (2015). This rule

is "crucial to the efficient administration of justice," and

serves the important interests of not burdening the parties and

clogging the courts with costly, time-consuming piecemeal

appeals. Flanagan, supra. In criminal cases, the reasons for

the final judgment rule are "especially compelling" for both the

defense and the Commonwealth. Ibid., quoting from Cobbledick v.

United States, 309 U.S. 323, 324 (1940). The Sixth Amendment to

the United States Constitution and art. 11 of the Massachusetts

Declaration of Rights provide criminal defendants with the right

to a speedy trial. See Mass.R.Crim.P. 36(b), 378 Mass. 909

power to correct and prevent errors and abuses by courts of
inferior jurisdiction "if no other remedy is expressly
provided."
 7

(1979). As for the Commonwealth, "[a]s time passes, the

prosecution's ability to meet its burden of proof may greatly

diminish: evidence and witnesses may disappear, and testimony

becomes more easily impeachable as the events recounted become

more remote." Flanagan, supra.

Therefore, in criminal cases, the "[Supreme] Court has

allowed a departure [from the final judgment rule] only for the

limited category of cases falling within the 'collateral order'

exception." Id. at 265, citing Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 545-547 (1949). To fall within this

"narrow exception," Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 374 (1981), a trial court order must, at a minimum,

meet three conditions. First, it must "conclusively determine

the disputed question"; second, it must "resolve an important

issue completely separate from the merits of the action"; and

third, it must be "effectively unreviewable on appeal from a

final judgment." Id. at 375, quoting from Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978).

The Supreme Court has concluded that a motion to disqualify

counsel in a criminal case does not satisfy the third prong of

this rule because it is not "effectively unreviewable on appeal

from a final judgment." Flanagan, supra at 266. The reason is

that a defendant who demonstrates on appeal that his or her

chosen counsel was improperly disqualified has an effective
 8

remedy: the defendant is entitled to a new trial without a

showing of prejudice. See id. at 268. "No showing of prejudice

need be made to obtain reversal [of an erroneous

disqualification order] because prejudice to the defense is

presumed." Ibid. This presumption "reflects [the]

constitutional protection of the defendant's free choice,"

independent of the "objective fairness" of the proceedings.

Ibid. See United States v. Gonzalez-Lopez, 548 U.S. 140,

150 (2006), quoting from Sullivan v. Louisiana, 508 U.S. 275,

282 (1993) ("erroneous deprivation of right to counsel of choice

'unquestionably qualifies as structural error'").

In the present case, to support his contention that the

motion to disqualify counsel is immediately appealable, the

defendant relies on a line of Massachusetts civil cases applying

the doctrine of present execution to disqualification motions.

See, e.g., Maddocks v. Ricker, 403 Mass. 592, 598 (1988).

Pursuant to the present execution doctrine, an order is

"immediately appealable if it concerns an issue that is

collateral to the basic controversy . . . and the ruling will

interfere with rights in a way that cannot be remedied on appeal

from the final judgment." Rodriguez v. Somerville, 472 Mass.

1008, 1009 (2015), quoting from Shapiro v. Worcester, 464 Mass.

261, 264 (2013).
 9

The defendant is correct that disqualification orders in

civil cases are immediately appealable under the doctrine of

present execution.4 See Maddocks, supra. See also Smaland Beach

Assn., Inc. v. Genova, 461 Mass. 214, 219 n.10 (2012) (pretrial

disqualification order immediately appealable in property case).

Such orders "realistically" cannot be "cured on appeal" from the

final judgment because, in civil cases, prejudice must be shown

in addition to an abuse of discretion in disqualifying the

attorney. Maddocks, supra. See Bryan Corp. v. Abrano, 474

Mass. 504, 509, 516 (2016). Although, in theory, there could be

a new trial in which the client is represented by chosen

counsel, in practice, "it is unlikely that an appellate court

would reverse a judgment and require a new trial in the absence

of a demonstration, often impossible to make, that [the]

erroneous disqualification order significantly prejudiced the

rights of the client." Maddocks, supra.

Criminal cases are, however, as explained above, quite

different. Whereas, in civil cases, prejudice is difficult, if

not impossible to prove, even when counsel was improperly

disqualified, making appeal of the disqualification order

4
The United States Supreme Court has adopted a different
approach, holding that "orders disqualifying counsel in civil
cases, as a class, are not sufficiently separable from the
merits to qualify for interlocutory appeal." Richardson-
Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985).
 10

essentially unreviewable, in criminal cases, such prejudice is

presumed, and the defendant will automatically receive a new

trial upon a showing that the disqualification was improper.

See, e.g., Commonwealth v. Rondeau, 378 Mass. 408, 415 (1979).

Moreover, as explained by the United States Supreme Court, there

are compelling reasons, constitutional and otherwise, to more

strictly enforce the final judgment rule in criminal, rather

than in civil, cases. See Flanagan, 465 U.S. at 264. We

therefore conclude that the doctrine of present execution does

not apply to render disqualification orders immediately

appealable in criminal cases.

This does not leave the defendant in a criminal case

without a remedy. The defendant, discerning a clear abuse of

discretion in the trial court's disqualification of his or her

chosen counsel, can file a G. L. c. 211, § 3, petition to a

single justice of the Supreme Judicial Court. The single

justice can quickly and efficiently address abuses or errors in

the disqualification decision likely to result in a new trial,

and the delays associated therewith, if not otherwise corrected.

This alternative avenue of review properly balances the need to

avoid inefficient and time-consuming piecemeal appeals, while

providing for the rapid correction of obvious errors regarding

the disqualification of counsel in earlier proceedings.
 11

2. Disqualification of counsel. Despite our conclusion

that the interlocutory appeals are not properly before us, we

nevertheless address the propriety of Hepburn's representation

of the defendant, "because the claim[s] [have] been briefed

fully by the parties, [they] raise[] . . . significant issue[s]

concerning the [ethical conduct of lawyers], and addressing

[them] would be in the public interest." Marcus v. Newton, 462

Mass. 148, 153 (2012) (addressing merits even though party was

"not entitled to an interlocutory appeal...under the doctrine of

present execution").5 The trial judges in both cases found that

Hepburn should be disqualified as counsel. We review those

decisions for an abuse of discretion. See Smaland, supra at

220. Based on the record before us, we discern none.

a. Necessary witness. Although subject to certain

exceptions, a lawyer that is "likely to be a necessary witness"

cannot represent the defendant at trial.6 Mass.R.Prof.C. 3.7(a),

426 Mass. 1396 (1998). In determining the necessity of a

5
"The public ha[s] a deep and vital interest in [the]
integrity" of attorneys, who are "sworn to aid in the
administration of justice and to act with all good fidelity both
to [their] clients and to the court." Berman v. Coakley, 243
Mass. 348, 354 (1923).
6
The defendant argues that one of the exceptions applies --
that disqualification of Hepburn would "work substantial
hardship" on him. Mass.R.Prof.C. 3.7(a)(3), 426 Mass. 1396
(1998). We disagree. Neither case is particularly complex or
difficult, and should not take a significant amount of time for
another attorney to prepare for trial.
 12

lawyer's testimony, courts consider "the nature of the case, the

importance and probable tenor of the lawyer’s testimony, and the

probability that the lawyer’s testimony will conflict with that

of other witnesses." Comment [4] to rule 3.7.

A witness is deemed necessary where "the proposed testimony

. . . is material and relevant, . . . is also not cumulative and

. . . unobtainable elsewhere." Carta v. Lumbermens Mut. Cas.

Co., 419 F.Supp. 2d 23, 31 (D. Mass. 2006) (applying

Mass.R.Prof.C. 3.7[a]). We then require disqualification

because "[c]ombining the roles of advocate and witness can

prejudice the tribunal and the opposing party." Comment [1] to

rule 3.7. "The trier of fact may be confused or misled by a

lawyer serving as both advocate and witness. . . . A witness is

required to testify on the basis of personal knowledge, while an

advocate is expected to explain and comment on evidence given by

others." Id. comment [2]. See Serody v. Serody, 19 Mass. App.

Ct. 411, 414 (1985) ("Commentators and the cases have remarked

on the adverse effect upon the judicial process in the public

mind of having lawyers leave the counsel table for the witness

chair").

Based on the record before us, Hepburn is "likely to be a

necessary witness" in both cases. Rule 3.7(a). The defendant

recognizes this to be true in the second case, so we only

address this issue in regards to the first case. Hepburn was
 13

the sole passenger in the defendant's vehicle prior to and

during his first arrest and the only person who could contradict

the officer's versions of the events. See Commonwealth v.

Patterson, 432 Mass. 767, 778 (2000) (defense counsel was

necessary witness because she was only person who could refute

Commonwealth's version of defendant's statement to police),

overruled in part on other grounds, Commonwealth v. Britt, 465

Mass. 87, 99 (2013). See Rondeau, 378 Mass. at 415-417 (defense

counsel was necessary witness because he was only alibi witness

that could not be impeached with criminal conviction).7

The fact that neither the Commonwealth nor the defendant

presently intend to call Hepburn as a witness does not render

her testimony unnecessary. "[T]he rule depends not on whether

the attorney will be called, but whether he [or she] ought to be

called." Borman v. Borman, 378 Mass. 775, 790 (1979). To mount

an adequate defense in either case, the defendant is very likely

to need to call Hepburn as a witness. Even if he does not plan

to call her now, subsequent events at trial may require a change

of plan and a change of mind. At that point, Hepburn's

testimony, as his attorney, would be "less effective" and "more

7
Contrast Commonwealth v. Zabek, 86 Mass. App. Ct. 520, 526
(2014) (defense counsel was not necessary witness where victim
expressed reservations about testifying to counsel, but "there
was no reason to believe that the victim would testify in a
manner inconsistent with what she told [counsel]").
 14

easily impeachable." Borman, supra at 786. The jury might

believe that she is "distorting the truth for [her] client."

Ibid. If Hepburn does not testify, the Commonwealth could

request a missing witness instruction, which would permit the

jury to draw a negative inference against the defendant on the

assumption that her testimony would not be favorable to him.8

See Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 203

(2016). Because the defendant's "present intention to forego

the testimony of counsel appears obviously contrary to [his]

interests," the motion judges "properly reject[ed] counsel's

best judgment in the matter[s] and order[ed] disqualification."

Borman, supra at 791.

We therefore conclude that Hepburn may not represent the

defendant at trial in either case. Because the necessary

witness rule contains the limiting phrase "at trial" and focuses

on the problems associated with an advocate-witness,9 we are

8
The Commonwealth also indicated that if the defendant
decides to take the stand at trial, the Commonwealth may call
Hepburn as a rebuttal witness.
9
"Unlike the rules governing disqualification due to
conflicts of interest . . . rule [3.7(a)] contains the limiting
phrase at trial. . . . [B]ecause the rule strives to mitigate
potential jury confusion, to avoid the difficulties of cross-
examining an adversary and to diminish the appearance of
impropriety where an attorney leave[s] counsel table for the
witness chair, . . . judges need only divorce the two functions
-- that of advocate and witness -- at the trial itself"
(citations and quotations omitted). Smaland, 461 Mass. at 225-
226.
 15

"limited to barring [Hepburn's] participation at trial" under

this rule. Smaland, 461 Mass. at 226 (emphasis supplied). "Any

disqualification that might extend to pretrial activities must

derive from a different source." Id. at 226-227.

b. Conflict of interest. We further conclude that Hepburn

may not represent the defendant before trial. See

Mass.R.Prof.C. 1.7(a)(2), as amended, 430 Mass. 1301 (1999). We

do so because Hepburn has a significant conflict of interest

that the defendant cannot properly waive, see id., comment [2],

and the conflict rules, unlike the necessary witness rule, do

not limit an attorney's disqualification to trial. See Smaland,

supra at 225.

Generally, "a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest."

Rule 1.7(a). A concurrent conflict of interest exists if "there

is a significant risk that the representation of one or more

clients will be materially limited . . . by a personal interest

of the lawyer." Rule 1.7(a)(2). See Commonwealth v. Perkins,

450 Mass. 834, 852 (2008) (quotations omitted) (conflict of

interest exists "where the independent professional judgment of

trial counsel is impaired . . . by his [or her] own interests").

The burden "rests on the party seeking disqualification to

establish the need to interfere with the relationship."

Steinert v. Steinert, 73 Mass. App. Ct. 287, 288 (2008).
 16

In the present case, the Commonwealth has met its burden to

establish that Hepburn has a concurrent conflict of interest in

both cases. There is a "significant risk" that Hepburn's

representation will be "materially limited" by her personal

interests. Rule 1.7(a)(2). The police officer's testimony

regarding what he described as her "aggressive tirade" during

the defendant's first arrest portrays her in a less than

flattering light, as the motion judge determined. By

testifying, Hepburn would air this conduct publicly and subject

herself to cross-examination. "The conflict lies in the fact

that the client's interests would be better served by having the

attorney testify while the attorney's interests would be better

served by not testifying." Patterson, 432 Mass. at 780. See

comment [1] to the Mass.R.Prof.C. 3.7 (lawyer's status as

necessary witness "can also involve a conflict of interest").

Hepburn was also "intimately involved" in the events, which

is when "[t]he need for disqualification is greatest." Serody,

19 Mass. App. Ct. at 415. Hepburn was with the defendant and

was able to observe his driving before he was pulled over. She

not only observed the subsequent events, but allegedly became an

active participant in them. Apparently, the officer would

testify that she argued "belligerent[ly]" with police during the

first arrest.
 17

Before his second arrest, Hepburn apparently provided to

the defendant a copy of the court's docket, which, when he would

not answer the court officers' questions about it, escalated the

situation. Hepburn followed the officers as they escorted the

defendant from the premises, insisting that they release him and

attempting to record the incident with her cellular telephone.

Her affidavit describes in detail her personal observations and

actions, indicating she is a necessary witness for the motion to

dismiss. Thus, Hepburn's testimony is central to her

representation of the defendant before trial as well as at

trial.

"Notwithstanding the existence of a concurrent conflict of

interest," a lawyer may nonetheless represent a client under

certain circumstances. Rule 1.7(b). As an initial matter, for

the conflict to be "consentable," id. comment [2], the lawyer

must "reasonably believe" that he or she "will be able to

provide competent and diligent representation" despite the

conflict. Id. 1.7(b)(1). The client must also give "informed

consent, confirmed in writing," id. 1.7(b)(4), and such consent

must be "voluntarily, knowingly, and intelligently" given.

Perkins, 450 Mass. at 853, quoting from Commonwealth v.

Martinez, 425 Mass. 382, 392 (1997). Finally the court must

balance the right to chosen counsel on one hand, with the

"obligation of 'maintaining the highest standards of
 18

professional conduct and the scrupulous administration of

justice,' on the other." Slade v. Ormsby, 69 Mass. App. Ct.

542, 545 (2007), quoting from Mailer v. Mailer, 390 Mass. 371,

373 (1983). In so doing, the court must determine whether the

conflict "taints the legal system," requiring counsel to be

disqualified regardless of consent. Id. at 546.

Based on the significant conflict of interest here,

Hepburn's belief that she can provide competent and diligent

representation to the defendant, either before trial or at

trial, is not reasonable, and the defendant therefore cannot

consent to the representation. The defendant's interests would

not be "adequately protected," rule 1.7 comment [15], as

Hepburn's current strategy, in representing him rather than

serving as a potential witness on his behalf, is "obviously

contrary to [his] interests." Smaland, 461 Mass. at 222. See

Patterson, 432 Mass. at 779 ("[t]hat defense counsel 'ought' to

testify concerning what transpired at her client's interview

with the police soon became 'obvious'"); rule 1.7 comment [10]

("if the probity of a lawyer’s own conduct in a transaction is

in serious question, it may be difficult or impossible for the

lawyer to give a client detached advice"). "Avoiding the

consequences of an actual conflict of interest is a shared

responsibility of counsel and the court." Commonwealth v.

Zabek, 86 Mass. App. Ct. 520, 524 (2014). Hepburn was thus
 19

"ethically obligated to withdraw" as counsel and never should

have taken on the representations, given her significant

involvement as a participant and witness in both incidents

leading to the defendant's arrests. Rondeau, 378 Mass. at 414.

In reaching this conclusion, we recognize that courts

"should not lightly interrupt the relationship between a lawyer

and a client," Slade, supra at 545, quoting from G.D. Matthews &

Sons Corp. v. MSN Corp., 54 Mass. App. Ct. 18, 20 (2002), and

"due regard" should be given to the effect of disqualification

on the defendant. Rule 3.7 comment [4]. "Nonetheless, the

right to representation by an attorney of one's choosing" is not

absolute, and must, in some circumstances, yield to other

considerations." Bryan, 474 Mass. at 509. Disqualification is

proper, even if the client consents to the representation, if

after a "searching review," the court determines that the

representation would "taint[] the legal system or the trial of

the cause before it." Slade supra at 546.

Our review of the record confirms that disqualification was

necessary to prevent such a taint. Hepburn's representation

would taint the pretrial as well as trial proceedings. Also,

neither of the cases are particularly difficult or complex, and

should not take an excessive amount of time for another lawyer

to get up to speed to litigate. See Rule 3.7 comment [4]. The

longer Hepburn continues to represent the defendant, the greater
 20

the learning curve for her successor and the greater the

possibility of ineffective assistance of counsel in the pretrial

proceedings she does undertake. We therefore conclude that, in

the present case, the court's interests in maintaining the high

ethical standards of the legal profession and "the public's

interest in the fair, efficient, and orderly administration of

justice," Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 106

(1989), outweigh the defendant's right to chosen counsel at and

before trial in both cases.

Conclusion. For the reasons stated, the defendant's

interlocutory appeals from the disqualification orders are

dismissed.

So ordered.