On Point blog, page 2 of 3
Attorney-Client Relationship – Conflict of Interest
Office of Lawyer Regulation v. Nikola P. Kostich, 2010 WI 136
Counsel publicly reprimanded for “a clear conflict of interest,” SCR 20:1.9(a): sexual assault victim had consulted counsel about suing his assailant, and counsel later represented assailant in criminal case involving number of victims including the one who had consulted him. The matters were “the same or … substantially related”; the interests of the subsequent client was “materially adverse”
Foley-Ciccantelli v. Bishop’s Grove, 2009AP688, rev. granted 4/19/10
Issue:
Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?
The Ciccantellis sued a condo association for a personal injury. Turns out plaintiffs’ counsel had also represented the association’s property manager;
State v. John C. Berard, 2008AP 3187-CR, Dist II, 2/3/10
court of appeals decision (not recommended for publication); Resp Br. (Berard); Reply (State)
Counsel – Conflict of Interest – Prior Representation in Unrelated Case
“Berard’s postconviction showing that Peter B. was Attorney Smith’s former client in an unrelated case and that he wanted to pin his charged crimes on Peter B. does not equate to a showing of an actual conflict of interest.
Counsel – Conflict of Interest – IAC Claim Lodged by Former Partner of Postconviction Counsel
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:
¶21 Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system.
Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Generally
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue/Holding: A claim that the prosecutor represented the defendant in a prior case may be raised in a pretrial motion to disqualify the prosecutor, which requires a showing that “the subject matter of the two representations are ‘substantially related,’” ¶15, quoting State v. Tkacz, 2002 WI App 281,
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.
Holding:
¶24 We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely.
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Postconviction Motion to Disqualify – Actual Conflict Required
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue/Holding:
¶33 The circuit court here accepted the district attorney’s testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record.
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Generally
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: A trial court may, but is not required to, override a defendant’s waiver of the right to conflict-free representation, and in this instance the trial court properly questioned the defendant and ascertained that he was knowingly and voluntarily waiving that right:
¶13 Contrary to Dion’s assertion,
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Amounts to Waiver of Claim of Deficient Performance
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding:
¶15 Dion contends that he was denied effective assistance of counsel because his counsel’s law firm also represented his co-defendant brother Douglas. … While there is no Wisconsin case law directly on point, the State cites federal cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation.
Counsel – Conflict of Interest – Prior Representation by Prosecutor: Unrelated Civil Forfeiture
State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen
Issue: Whether the prosecutor’s prior representation of the defendant in a civil forfeiture worked a disqualifying conflict of interest.
Holding: The standard for analyzing the existence of a conflict of interest (raised before trial) in serial representation is the “substantial relationship” test, ¶15 ( State v.