Dual representation not OK, despite waiver

BY: Traci R. Gentilozzi

The Michigan Court of Appeals has ruled that a Madison Heights lawyer cannot represent two co-defendants in a criminal case, even though they both agreed that he could be their attorney.
The court, noting that the constitutional right to counsel is not absolute, said the defendants’ right to counsel of choice must be balanced against “the public’s interest in the prompt and efficient administration of justice.”
In People v. Dzierwa (MiLW No. 08-82689, 4 pages), an unpublished opinion, the Court of Appeals said the trial court did not abuse its discretion when ordering both defendants to get new lawyers because there was a potential conflict of interest.
The ruling has raised numerous concerns from the defense lawyers in the case, Timothy R. Corr and Talya A. Drissman. They said they believe the court’s analysis of the Sixth Amendment issue was too cursory and the wrong standard of review was used, which is why they are appealing to the Michigan Supreme Court and are preparing a federal appeal as well.
Corr and Drissman, who are both with 248Lawyers PC, said the Court of Appeals should have used a higher level of scrutiny. “This case concerns defendants’ Sixth Amendment constitutional right, and the standard governing this issue should be close appellate scrutiny,” they said in an email.
The trial courts have now been given “broad latitude to vitiate defendants’ rights,” they added.
But what is perhaps most troubling to Corr and Drissman is the “gamesmanship” they say the prosecutor used in the case. They asserted the Livingston County prosecutor engaged in “bad-faith conduct.”
“When you’re following the rules, and the prosecutor is trying to be underhanded, and then for the trial courts and the Court of Appeals to uphold that … well, it’s scary,” Corr remarked.
Farmington Hills attorney Thomas M. Loeb didn’t necessarily agree with their assessment.
“I don’t think there’s anything here to be overly concerned about,” he told Michigan Lawyers Weekly. “There’s nothing in this opinion that really surprises me. Judges often bend to prosecutors, sometimes too much, especially in Livingston County. I’ve handled cases there.”
Livingston County Prosecutor William J. Vailliencourt Jr. and Shawn Marie Ryan, senior trial attorney, did not respond to MiLW’s requests for comment.

Sixth Amendment issue
In November 2012, Corr was in the middle of a preliminary exam for the two defendants when the prosecutor told the judge that a plea offer was being considered for one of them. However, Corr said the plea offer had not been made and the defendants had already indicated they were not interested in accepting a plea offer.
Livingston County District Judge L. Suzanne Geddis then ordered the defendants to find new, separate attorneys. She ruled that Corr representing both defendants would be a conflict of interest because a plea offer may be accepted by one of them.
Livingston Circuit Judge Michael P. Hatty upheld the decision. Corr appealed, claiming the defendants’ Sixth Amendment right to choose their own attorney was violated.
The Court of Appeals, in a per curiam opinion by Judges David H. Sawyer, Patrick M. Meter and Pat M. Donofrio, noted that the U.S. Supreme Court acknowledged in Wheat v. United States, 486 U.S. 153 (1988), the “dilemma” that’s faced by trial courts when multiple defendants are represented by the same lawyer.
The Court of Appeals then turned to MCR 6.005(F), which governs the representation of multiple defendants. The court said that, although the rule lets an attorney represent more than one defendant in a case, it also places restrictions on the ability of the defendants to have the same lawyer. In this case, the requirements of MCR 6.005(F)(1) and (2) were satisfied, the panel said.
This case hinged on MCR 6.005(F)(3), the Court of Appeals said, pointing out the trial court had concern over a potential conflict “in the future … if there is an offer for one to testify against another … .”
But the defendants argued that, under People v. Portillo, 241 Mich. App. 540 (2000), there had to be an actual conflict of interest and not a potential conflict. The Court of Appeals disagreed, noting the Portillo court “was not making a general statement that an actual conflict must be found in all cases.” MCR 6.005(F)(3) “clearly directs that joint representation may be refused if there is a ‘probability’ of a conflict of interest.”
The defendants also claimed that the waiver requirements in MRPC 1.7(b) had been satisfied. The Court of Appeals noted the requirements “mirror those of MCR 6.005(F)(1) and (2)” and the requirements were met. However, MCR 6.005(F)(3) was the real issue here, and it “does not have a corresponding section in MRPC 1.7(b),” the court observed.
The defendants also argued the prosecutor had engaged in “gamesmanship.” While the court said the defendants “rightly indicate that such gamesmanship is a concern,” it held there was “nothing of record that indicates that the court did not view the matter with caution.”
Accordingly, the trial court’s order that the defendants retain separate counsel “was not outside the range of principled decisions and was, therefore, not an abuse of discretion,” the Court of Appeals concluded.

Wrong standard
According to Corr, the Court of Appeals should not have used an abuse of discretion standard and, instead, should have used a de novo standard. By using an abuse of discretion standard, the court avoided its responsibility to review the constitutional implications and minimized the importance of the Sixth Amendment, he asserted.
“This was the easiest route for the court to take,” Corr remarked. “They didn’t get very cerebral here. There’s not a lot of substance to this opinion.” He explained that, when a constitutional issue is presented to the state’s second highest court, the resulting analysis should be “more in-depth.”
Drissman said she found it “curious” that an opinion dealing with a Sixth Amendment question “is only four pages long, most of which is filled with court rules and case law” and contains “very little substantive examination” of the facts.
And, Corr asserted, it should not have been an unpublished opinion.

‘Last-ditch effort’
According to Corr and Drissman, the prosecutor’s motion regarding the potential conflict of interest and a possible plea offer “came suddenly in the middle of the defendants’ preliminary exam, after the waiver of conflict had been introduced and accepted by the judge in a prior hearing.”
They also noted the motion came just before Corr was preparing to admit lab results as evidence that “would have gutted the prosecution’s case” and before Corr was able to call three police officers. Drissman said the timing of the motion “demonstrates … that it was a last-ditch effort by the prosecution to regain some semblance of control of the case … since they were losing their chance at a conviction.”
In Wheat, the majority “was fearful of attempts by the government to manufacture conflicts to prevent defendants from obtaining ‘particularly able counsel,’” Drissman remarked. “Governmental maneuvering must be relevant to a trial court’s decision as to whether to accept a criminal defendant’s chosen counsel.”
In addition, Corr and Drissman explained that, because of the conflict issue that arose, the defendants each hired independent attorneys who consulted with them. These attorneys determined there was no conflict and that neither defendant was interested in a plea offer. They said that affidavits from these two attorneys were attached to the Court of Appeals filing.
“There needs to be more than just spit in the wind,” Corr remarked. Both he and Drissman said the prosecution “was clearly engaging in bad-faith conduct,” which is one reason why they are appealing.

Where’s the ‘Wheat’?
According to Corr, under Wheat, the real concern in these multiple representation cases is whether there’s a “serious” potential for conflict. “That was not present here,” he asserted.
Drissman agreed, noting the Court of Appeals improperly relied on the “possibility” for conflict.
“A ‘possibility’ is simply not enough to satisfy the Wheat requirement of ‘serious potential for conflict,’” she stated. “Perhaps this cursory overview [of Wheat] is why they didn’t publish this opinion.”
Corr and Drissman pointed out that Wheat’s 5-4 decision was “hardly a mandate.” In fact, they asserted the Court of Appeals didn’t even apply the Wheat standard. “Here, there was only a possibility of conflict: both defendants have identical defenses and circumstances,” they said. “While we do agree with the concept of the Wheat decision, … we do not believe that Wheat can apply to the facts of this case.”
The Wheat dissent “is instrumental and vital” to the relevance of the Sixth Amendment, Drissman pointed out. She noted that Justice Thurgood Marshall said the primary purpose of the Sixth Amendment is to “grant a criminal defendant ‘effective control over the conduct of his defense.’”
However, in this case, the courts have “effectively eliminated” the defendants’ option to use joint representation as a “defense tool” — a tool that has been recognized in various U.S. Supreme Court rulings for being an “advantageous means to insure against reciprocal recrimination,” Drissman explained.
The Court of Appeals is “forcing” the defendants “to either use attorneys not of their choice or give up and be run over by the prosecution,” she pointed out. In essence, the courts “are presuming to know” what is best for the defendants and their attorneys, and are “usurping the Constitution in order to maintain the appearance of fairness and propriety.”

Presumptions ignored
Corr said there is “supposed to be a presumption in favor of defendant’s counsel of choice” in these types of cases. He said that trial courts should not have “such broad latitude” when it comes to a defendant’s ability to choose his or her own attorney.
Drissman explained that the Court of Appeals took a “paternalistic role of ethics” instead of following the presumptions set out in case law — “presumptions that were implied, but never actually mentioned, in the Court of Appeals decision.” According to the dissent in Wheat, the presumptions mean that “a trial court may not reject a defendant’s chosen counsel on the ground of a potential conflict of interest absent a showing that both the likelihood and the dimensions of the feared conflict are substantial,” she said.
Moreover, letting courts have “substantial latitude” in deciding whether a conflict may arise “forces a burden onto the defendant to prove there isn’t a conflict,” Drissman said. “This might only be done by revealing facts and/or a strategy of defense, which could possibly impinge on their Fifth Amendment right as well.”
She said that “unsupported or dubious speculation as to a conflict” is insufficient in these cases.
“And yet, here … they have [rejected chosen counsel],” Drissman stated. “And two defendants, with no criminal history, are fighting” to keep their records clean.
“They just want to pick their lawyers.”
If you would like to comment on this story, email Traci R. Gentilozzi at traci.gentilozzi@mi.lawyersweekly.com.