dissenting. I respectfully dissent from the majority opinion in this case. Although it is impractical to set out all the pleadings and evidence in an opinion, the majority here failed to point out that petitioner specifically waived any prejudice which might come to him by the use of Mr. George M. Callahan, the counselor of his own choosing. The opinion further fails to point out that the other two defendants, at the urging of the trial court, obtained the services of two prominent attorneys who represented both of the other defendants. Further, the opinion fails to point out that these prominent attorneys agreed they would have no objection to the petitioner continuing with the services of George M. Callahan as his attorney provided another attorney cross-examined Mr. Evans when he turned state’s evidence against the petitioner.
The majority are, in my opinion, inadvertently condoning the procedure of allowing trial courts to unduly restrict an accused in freely selecting an attorney of his choice. Neither this Court nor any other court has any right to determine whether an attorney will represent a particular client so long as the selected attorney is authorized to practice law in Arkansas.
The majority designates Callahan’s decision to represent all three defendants as ill-considered. Perhaps this is so but it might not be if under the advice of Mr. Callahan all three defendants had elected to claim their immunity under the 5th Amendment of the Constitution of the United States. It is possible that the state in this particular case might have been unable to prove their allegations without the cooperation of one of more of the original defendants. In such case we would afterwards characterize Callahan’s tactics as brilliant. Not being possessed with clairvoyant powers, I am unable to make the decision which my brothers pronounced this date.
I will admit that it is usually not wise for any attorney, or firm of attorneys, to attempt to defend more than one defendant in a particular case. However, there must be some inquiry to determine whether this is true or not. In fact, it has been held that the trial judge must make a factual reconstruction of the scope of prior legal representation and must determine whether it is reasonable to infer that any confidential information allegedly given to the attorney was given. Finally, the trial judge must determine whether that information is relevant to the issue raised in litigation pending against the former client. None of this was done in the present case. Therefore, we would have to resort to speculation and conjecture to determine whether or not Mr. Callahan should have been barred from participating in the defense of the petitioner. I am unable to do this.
It is interesting to note that shortly after the court ordered the three defendants to obtain counsel other than Callahan that a guilty plea was negotiated jointly by the two attorneys representing the Evans’ defendants. We have part of that plea abstracted in this case and it is most interesting to note after Mr. Evans had become confused on some of the dates concerning the alleged theft the court stated:
“You need to get yourself some way to straighten out those dates when you testify.”
Further addressing the petitioner, the court stated:
“Mr. Mann, if I have to act, I will act in the summary fashion. You and your attorney, Mr. Callahan, should be well aware of this. I do not expect Mr. Callahan to show up here as your attorney on February 26, if he does, you can expect, and you are given notice, that this court will act summarily, which may mean, among other things, that you may be deprived of your liberty for a while. I hope you understand that.”
The attitude of the court is further reflected when he states :
“I would like to ask the response be along the lines of disciplinary enforcement of disciplinary rules of the Supreme Court as set out in the Canons of Ethics. Since it’s come up this way it must be proceeded in this manner. If that includes suspension or disbarment of Mr. Callahan, so be it.”
It appears to me that the prosecuting attorney, the trial judge, and this Court are more interested in helping Mr. Evans, who has agreed to snitch on petitioner, than they are in protecting the rights of the accused. The petitioner has had a long association with Mr. Callahan as his attorney. He desires Mr. Callahan to continue representing him in this matter; he has confidence and trust in Mr. Callahan. So it was with Mr. Evans when he testified that he had complete trust and confidence in George Callahan as an attorney. If the state is really interested in seeing that Mr. Evans’s rights are protected, it would be a simple matter to grant him immunity.
In Reickauer v. Cunningham, 299 F. 2d 170 (1962), the court stated:
The second fact set forth in the petition which constitutes a violation of the petitioner’s constitutional rights is that he was denied counsel of his own choosing. The petitioner alleges that he “begged and plead with the officials” to allow him to write to Mr. Leith Bremner, an attorney of Richmond. He further alleges that he was prevented by the state officials from contacting any lawyer. Instead, he was compelled to accept the services of an attorney who was brought to him by the Sheriff. He, therefore, had to accept this lawyer or go without counsel. The affidavit of counsel of record does not altogether refute this statement. It states that he was called from Baltimore by some person whose identity was not disclosed to him and as a result of the call he went to the jail and offered his services to the petitioner, who accepted him. Under these circumstances the petitioner could very well have accepted the attorney under the belief that he had no other choice.
The right of self-representation has since the beginning of our Nation been held to be guaranteed. § 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the first Congress and signed by President Washington one day before the 6th Amendment was proposed, provided that “in all courts of the United States, the parties may plead and manage their own cause personally or by assistance of. . . counsel ...” It has been held that the 6th Amendment guarantee of the right of assistance of counsel implicitly embodies the right to dispense with one’s lawyer and represent himself. Adams v. U.S., 317 U.S. 269 (1942).
Arkansas Constitution, art. 2, § 10 provides that a person has the right “to be heard by himself and his counsel.” In fact, this Court has stated in Steel v. State, 246 Ark. 75, 436 S.W. 2d 800 (1969):
. . . We very quickly disagree — but of course, an accused person is entitled to retain whomever he desires to represent him.
It is hard for me to understand the majority in holding that an accused must be represented by an attorney approved by the trial judge whether the accused likes it or not. Perhaps we have provided this accused a reversible error before he is even tried.
So far as Evans is concerned, he cannot be hurt by the divulgence of any confidential information revealed to Callahan because he has made a deal and is no longer in jeopardy unless he told Callahan of other unlawful acts which he is fearful might be revealed by Callahan on cross-examination. He could then, of course, take refuge in the 5th Amendment and still not be harmed. However, it appears he does not have a great deal to fear by way of prosecution under the circumstances existing in this case.
Why was it not unethical for the same attorneys to represent the other two defendants at the same time since these two were charged with the same offense as is the petitioner? No one has accused these outstanding attorneys of being either unethical or in the position of not being able to represent their clients. It seems to me that any counsel worth his salt who takes on the defense of the petitioner is going to constitute more danger to Mr. Evans on cross-examination than would Mr. Callahan who has agreed not to reveal any confidential information previously relayed to him by Evans.
Obviously Evans is cooperating with the state fully and will, no doubt, reveal to the state confidential information furnished by petitioner to Callahan during the time they were both represented by him. Is it fair to allow the state to use the same type information we here prohibit the petitioner from using? It seems to me the courts and prosecuting attorneys are under the same duty as other lawyers to avoid even the appearance of professional impropriety. If so, perhaps everyone involved in the case up to now should recuse themselves.
If petitioner wants to use Callahan that should be his decision and not ours. After all, a man has the right to go to Hades if he so elects although I question his judgment in such case.
I would grant the writ and allow the petitioner to use counsel of his own choosing.