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STATE v. SYKES, IK04-12-0610 (Del.Super. 5-2-2005)
Witham, Jr. R.J.
Ambrose Sykes ("Defendant") has been charged with First Degree Murder along with other offenses as a result of an incident that occurred on or around November 7, 2004. Thomas D. Donovan, Esquire has been appointed to represent Defendant because the Public Defender's Office at the time of Defendant's arrest was already representing Jenny St. Jean ("St. Jean") who has been represented to the Court as being a conflicting client with Defendant. The issue of whether an actual conflict existed arose at an office conference on March 8, 2005 and a hearing on the matter was conducted on March 23, 2005.
Mr. Donovan contends that an actual conflict does not exist and has requested the Court to refer Defendant back to the Public Defender's Office for further representation. Mr. Donovan asserts that St. Jean and Defendant are not truly co-defendants and both cases against St. Jean have since been resolved. Mr. Donovan further contends that only a minimal possibility exists that an actual conflict will arise because only a marginal chance exists that St. Jean will be called to testify. Mr. Donovan argues that the Office of the Public Defender should not be per se disqualified from representing Defendant because the Public Defender's Office has far superior resources to handle Defendant's case and only a remote possibility exists that an actual conflict will arise. Instead, Mr. Donovan contends that the Court should seek waivers of any potential conflict from both Defendant and St. Jean. In addition, Mr. Donovan contends that anyone in the Public Defender's Office who has handled St. Jean's cases should recuse themselves from Defendant's pending matter.
Ms. Sandra W. Dean, Esquire, assistant public defender, concurs that St. Jean and Defendant are not truly co-defendants but contends that the Public Defender's Office should be disqualified from representing Defendant because St. Jean is a potential adverse witness against Defendant. St. Jean and Defendant have been engaged in an on-and-off relationship for years and have a child together. Defendant sought refuge in St. Jean's home when he was a fugitive and both were arrested there. St. Jean was charged with hindering prosecution as a result of this incident. At the time St. Jean was charged with hindering prosecution she was already being represented by the Public Defender's Office for unrelated fraudulent credit card charges. On or about December 2, 2004, St. Jean contacted the Public Defender's Office and had an extensive conversation with Ms. Dean pertaining to this situation. Ms. Dean represents that it was during this conversation that St. Jean provided her with privileged and confidential information that is adverse to Defendant. Although St. Jean is not a true co-defendant, Ms. Dean contends that St. Jean is a potential adverse witness which creates an actual conflict. Thus, Ms. Dean requests that this Court find the Public Defender's Office disqualified from representing Defendant in this matter.
Trial courts have the inherent authority to ensure the integrity of judicial actions and may regulate and rectify conduct which threatens the legitimacy of judicial proceedings. Although disqualification is generally disfavored, it maybe the appropriate remedy when such representation would frustrate the fairness of the proceedings. Rule 1.9 of the Delaware Rules of Professional Conduct offers guidance on disqualifications based upon duties owed by attorneys to their former clients. This rule provides that an attorney should not represent a client if the present client's matter is the same or substantially related to a former client's matter, the interests of the present client are materially adverse to the interests of the former client and the former client has not consented to the representation after consultation. This rule also prohibits an attorney from representing a client when he has been previously associated with a firm that has represented a former client who provided confidential material protected by privilege that is material to the current matter.
Sanchez-Gaza v. Estate of Whetstone, 2004 Del. Super. LEXIS 300, at *3 ( citing In re Infotechnology, Inc., 582 A.2d 215, 221-22 (Del. 1990) and In re Waters, 647 A.2d 1091, 1098 (Del. 1994)).
Sancheza-Gaza, 2004 Del. Super. LEXIS 300, at *4 ( citing In re Waters, 647 A.2d at 1098).
Bowden v. Kmart Corp., 1999 Del. Super. LEXIS 423, at * 3.
Prof. Cond. R. 1.9 provides:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c). . . .
This court must first determine whether an attorney-client relationship existed between the Public Defender's Office and St. Jean. If an attorney-client relationship did exist, this Court must further determine whether Defendant's matter is substantially related to St. Jean's matter and if so, whether Defendant's interests are materially adverse to St. Jean's interests. While the moving party bears the burden of proving that a substantial relationship exists, the party is not required to divulge the confidences actually communicated. Instead, the Court should make a "realistic appraisal of the possibility" that confidential information has been disclosed in one matter that could be harmful to the client involved in the other matter. The Court should consider the nature and scope of the prior representation, the nature and scope of the present representation and using a realistic approach determine whether the client might have disclosed confidences to counsel in the course of the prior representation that are relevant to the current action. If the Court determines that relevant confidences have been disclosed during representation, the Court must further determine whether those confidences could be detrimental to the former client through the current litigation.
See Bowden, 1999 Del. Super. LEXIS 423, at *4.
Id. ( quoting Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221, 224 (7th Cir. 1978).
Sanchez-Gaza, 2004 Del. Super. LEXIS 300, at *9.
It is undisputed that the Public Defender's Office and St. Jean had an attorney-client relationship as St. Jean was initially represented by the Public Defender's Office for unrelated credit card charges. This representation prompted St. Jean to contact the Public Defender's Office when she was subsequently charged with hindering prosecution. Although St. Jean is not a co-defendant, this charge is nonetheless directly related to the charges against Defendant because it arose from harboring Defendant while he was a fugitive. The close relationship between St. Jean and Defendant makes it probable that St. Jean acquired knowledge that is adverse to Defendant's interests. It is also probable that St. Jean disclosed this adverse information to the Public Defender's Office during privileged and confidential conversations pertaining to her charge of hindering prosecution.
Although St. Jean may have conveyed confidential information that is adverse to Defendant's interest to the Public Defender's Office, it is unclear how such information could be used adversely to her if Defendant is represented by the Public Defender's Office. The cases against St. Jean have already been resolved. Although such information could certainly be useful for impeachment purposes, it is illogical to think that Defendant would want to impeach St. Jean by using information that is adverse to his interests. This Court is also unpersuaded by the Public Defender's contention that a potential adverse witness automatically creates an actual conflict requiring disqualification. The cases from various jurisdictions cited by the Public Defender's Office are either legally distinct or factually incompatible. Considering the fact intensive analysis that must be performed when determining whether disqualification is necessary, this Court does not believe that a potential adverse witness creates a per se conflict necessitating disqualification.
See State v. Crocker, 859 A.2d 571 (Conn.App.Ct. 2004) ( holding that an actual conflict of interest existed when counsel represented the defendant and the eye witness of the alleged incident. However, the interests between the state's eye witness and the defendant were in "acute" conflict and created an unavoidable and irreconcilable conflict with the professional duties owed by counsel to both clients.); Guzman v. State, 644 So.2d 996 (Fla. 1994) ( holding that a trial court must grant separate representation once the public defender certifies to the court that a conflict of interest exists. However, existing law in Florida did not allow the trial court to reweigh the facts considered by the public defender in determining that a conflict exists.); State v. Daly, 792 N.E.2d 446 (Ill.App.Ct. 2003) ( finding that a per se conflict of interest existed when counsel represented the State's star witness contemporaneously with the defendant. However, even in a per se conflict of interest case, the defendant may waive his right to conflict-free counsel); State v. Scotti, 142 A.D.2d 616 (N.Y.App.Div. 1988) ( holding that the defendant could not prevent defense counsel from withdrawing once defense counsel demonstrated a clear conflict of interest such that continued representation would result in prejudice to all. However, the standards of professional responsibility in New York explicitly preclude such representation even with full consent of the defendant).
This Court must analyze the issue of disqualification assuming that St. Jean will testify because the State has not ruled out the possibility of calling her as a witness. This Court will however note that only a remote possibility exists that St. Jean will be called to testify and an actual conflict, if any, would arise. Considering the unique circumstances of this case, this Court does not believe a per se disqualification is warranted. St. Jean may have provided the Public Defender's Office with information, that if true, would be adverse to Defendant's interests. However, if the Public Defender's Office were to represent Defendant, it appears that such knowledge would be beneficial rather than detrimental to Defendant. If St. Jean were to testify, it is unlikely that Defense Counsel would cross-examine her to elicit information that is adverse to Defendant's interests. Moreover, the fundamental purpose behind Rule 1.9 is "to ensure that a client's confidential communications to his lawyer are not used against that client when his lawyer later represents a party adverse to the former client." The Public Defender's Office has not demonstrated or represented to the Court that such confidential information could be used against St. Jean.
Satellite Fin. Planning Corp. v. First Nat'l Bank, 652 F. Supp. 1281, 1283 (D. Del. 1987).
Based upon the aforementioned reasons, this Court does not find that an actual conflict necessitating disqualification exists. This Court does, however, recognize that such representation may appear unjust and threaten the legitimacy of the proceedings. Accordingly, in order to ensure fairness and eliminate any appearance of impropriety, this Court will seek written waivers of any potential conflict that may arise from both Defendant and St. Jean. If both parties consent and waive any potential conflict, the case shall be remanded back to the Public Defender's Office. However, if either party desires not to waive any potential conflict that may arise, then Mr. Donovan as conflict counsel shall continue to represent Defendant and the case shall proceed accordingly.
IT IS SO ORDERED.
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