Crone v. Gill

BERDON, J.,

concurring. A substantial quantum of stigma is often associated with a trial court’s decision that it will not permit a particular attorney to represent a particular client. I am troubled by the thought of counsel suffering this stigma without any recourse to judicial review. Nevertheless, I agree with my colleagues in the majority that — absent extraordinary circumstances — an attorney does not possess a right to assert an immediate appeal from his or her own disqualification in order to vindicate his or her pecuniary and reputational interests. I write separately for two interrelated reasons.

First, the majority opinion contains dicta that is of concern to me. The majority emphasizes that a criminal defendant “retains the right to challenge the disqualification [of his counsel] upon appeal from an adverse final judgment” — that is, after the completion of trial. In my view, a criminal defendant will never have an incentive to exercise this right. If the defendant is acquitted, then of course he has no reason to assert an appeal. If he is convicted, he still has little reason to *487assert an appeal from the order disqualifying his attorney, because he would have to demonstrate “that he lost the case because he was improperly forced to change counsel. This would appear to be an almost insurmountable burden.” (Internal quotation marks omitted.) State v. Vumback, 247 Conn. 929, 930, 719 A.2d 1172 (1998) (Berdon, J., dissenting).

Correlatively, I want to reiterate my belief that a criminal defendant may assert an immediate appeal from the disqualification of his attorney in order to vindicate his right to counsel of his choice. Earlier this term, I explained that “[t]he right to counsel in a criminal prosecution is not only embodied in our state constitution; Conn. Const., art. I, § 8; it has also been richly embellished in the history of this state. Not only was Connecticut the first state to adopt the public defender system; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)]. . . . Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)]. State v. Stoddard, 206 Conn. 157, 165, 537 A.2d 446 (1988).

“It is imperative that a criminal defendant should have his or her choice of counsel unless there are compelling reasons to thwart this choice. In a criminal trial, the enormous coercive power of the state and the outrage of the community are both pitted against a lone individual. Defense counsel is often the only person *488who stands on the side of the accused. An almost sacred relationship exists between a criminal defendant and his lawyer, and it is for this reason that the state should not lightly wrench the two apart.” (Internal quotation marks omitted.) State v. Vumback, supra, 247 Conn. 932-33 (Berdon, J., dissenting). I continue to adhere to these views.