Opinion
No. 199/2010.
2012-03-6
The PEOPLE of the State of New York, v. Marat MARTYNOV, Defendant.
Wheat, 486 U.S.at 162–63. Nowhere in this letter does it establish that Mr. Umirova has been apprised of the potential or actual conflicts or that he has waived any rights with respect to those conflicts.In addition, the Court is mindful of the possibility that if Mr. Umirova or Defendant change their minds in the middle of trial, the Court would be faced with a potential mistrial. Furthermore, the fact that the representation by Mr. Rankin of Mr. Umirova was not on the same or a substantially related matter as the present case does not mean that there is not a conflict of interest. See People v. Urie, 2012WL 578912 (Mt. Vernon City Ct.2012); People v. Twedt, 7 Misc.3d 665, 670 (Sup.Ct.Bx.Co.2005).
JOHN G. INGRAM, J.
Defendant is charged under indictment 199/2010 with Criminal Possession of a Weapon in the Second and Fourth Degrees. Defendant moved this Court to suppress the weapon recovered by police and the statement he made to police. On December 20, 2011, this Court was to conduct a Huntley, Mapp, and Dunaway hearing. The People began the direct examination of their first witness when it was brought to the Court's attention that a former client of defense counsel, Douglas Rankin, Esq., was an informant in this case, directly involved with the circumstances surrounding the arrest of Defendant. As a result of the relationship between Mr.Rankin and his former and current clients, the People argue that Mr. Rankin should be removed as counsel due to a conflict of interest. Mr. Rankin alleges that there is no conflict and he should be permitted to continue as Defendant's counsel.
The Sixth Amendment ensures that defendants have a right to conflict-free legal representation. See United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994). Where assigned counsel is involved, “courts are afforded considerable latitude in their decisions to replace appointed counsel and may do so where a potential conflict of interest exists.” United States v. Parker, 469 F.3d 57, 61 (2d Cir.2006). In People v. Carncross, the Court of Appeals held that “[i]n protecting a defendant's Sixth Amendment rights, a trial court may, on occasion, properly disqualify an attorney of a defendant's choosing due to that attorney's conflicts, actual or potential, even in the face of defendant's waiver of such conflicts.” 14 NY3d 319, 323 (2010). Courts always have the responsibility of “ensuring that [cases before it are] conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160(1988). This obligation should be considered when determining whether an attorney should be disqualified when a conflict exists. “While the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat, 486 U.S. at 159. Defendant's right to counsel of his or her choice is not absolute. People v. Gordon, 272 A.D.2d 133 (2000). It is not the defendant's decision whether his attorney can continue representation. It is the Court that must balance “the public's perception of the judicial system, the integrity of the judicial system, and the enforcement of ethical standards for legal practice.” People v. Twedt, 7 Misc.3d 665, 670 (Sup.Ct.Bx.Co.2005)(holding that defense counsel's representation of defendant and his previous representation of boyfriend who was to be witness against defendant was conflict of interest). “When these interests are in need of protection, they even override a waiver of the right to client confidentiality and justify the removal of defense counsel from a case.” Twedt, 7 Misc. at 671.
In the case at hand, it is alleged that Ruslan Umirova, called Defendant, at the request of the police, and asked him to bring him a gun. When Defendant appeared with the gun, he was arrested by police and made a statement confirming that Mr. Umirova called him and told him to bring a gun. During hearing Mr. Rankin claims that it was the first time that he became aware that his former client, Mr. Umirova, was the informant. According to Mr. Rankin, he represented Mr. Umirova in October 2008 at his arraignment in Richmond County and he only spoke with him at his arraignment because Mr. Umirova was subsequently detained by the United States Immigration and Naturalization Service (INS). While Mr. Rankin alleged that he spoke with Mr. Umirova briefly and did not gain any knowledge of adverse information or confidences, he admitted to negotiating a dismissal of his charges in Richmond County. Based on this information, it is clear that either an actual or potential conflict exists. Mr. Umirova plays a major role in this case. Allegedly, he called Defendant and asked him to bring a gun to a location. If he testifies, his testimony and his cross-examination by defense counsel will be crucial. “The potential for disclosing confidences, for exhibiting disloyalty for disclosing confidences, for exhibiting disloyalty to a prior client and for creating the appearance of impropriety, are dramatically increased” if defense counsel attacks the credibility of Mr. Umirova. People v. McLaughlin, 174 Misc.2d 181, 186 (Sup.Ct. N.Y. County 1997). “A conflict of interest exists when an attorney's current representation is impaired by the loyalty he owes a former client.” United State v. Moscony, 927 F.2d 742, 749–50(3d Cir.1991); see also, United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993)(holding that “[t]here are many situation in which a ... court can determine that disqualification of counsel is necessary. The most typical is ... because of the counsel's prior representation of a witness or co-defendant”). While defense counsel claims his last contact with Mr. Umirova was years ago, it is irrelevant because the duty of confidentiality lasts forever. People v. George, Misc.2d 630 (Sup.Ct. Bronx Co.1980). Even though representation of a former client has concluded, a lawyer has a continuing professional obligation to that former client, including the obligation to maintain the client's confidences and secrets which may potentially create a conflict between the former client and present client. See People v. Urie, 2012WL 578912 (Mt. Vernon City Ct.2012)(holding that defense counsel's prior representation of complaining witness/victim was clearly conflict of interest and pursuant to Code of Professional Responsibility, representation of defendant by defense counsel was improper). In addition, “[t]he duty of loyalty to a former client is broader than the attorney-client privilege and an attorney is not free to attack a former client with respect to the subject matter of the earlier representation even if the information used in the attack comes from sources other than the former client.” People v. Liuzzo, 167 A.D.2d 963 (4th Dept.1990). An “attorney's decision whether and how best to impeach the credibility of a witness to whom he ... owe[s] a duty of loyalty necessarily place[s] the attorney in a very awkward position, where prejudice to defendant need not be precisely delineated but must be presumed.” People v. McDonald, 68 N.Y.2d 1, 11 (1986).
Defendant also alleges that there is no conflict of interest because the former representation of Mr. Umirova by Mr. Rankin would not violate the New York Rules of Professional Conduct in that the representation is not on the same or substantially related matter and both Defendant and Mr. Umirova have given their consent to counsel's continued representation of Defendant, waiving any potential or actual conflict of interest. Defendant claims that there is no conflict because Mr. Umirova has consented to Mr. Rankin representing Defendant. Mr. Rankin attached to his motion a letter written to Mr. Umirova, confirming his oral consent to allow Mr. Rankin to continue representing Defendant. While a former client or current client's willingness to waive the conflict are important factors to consider, they do not end the inquiry. Wheat, 486. U.S. 153, 164 (1988). The Supreme Court recognized the difficulty courts faced when trying to determine to allow a waiver of a conflict of interest prospectively:
“[A] lower court must pass on the issue whether or not to allow a waiver of a conflict of interest ... not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly ... For these reasons we think the [lower] court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.”
Wheat, 486 U.S.at 162–63. Nowhere in this letter does it establish that Mr. Umirova has been apprised of the potential or actual conflicts or that he has waived any rights with respect to those conflicts.In addition, the Court is mindful of the possibility that if Mr. Umirova or Defendant change their minds in the middle of trial, the Court would be faced with a potential mistrial. Furthermore, the fact that the representation by Mr. Rankin of Mr. Umirova was not on the same or a substantially related matter as the present case does not mean that there is not a conflict of interest. See People v. Urie, 2012WL 578912 (Mt. Vernon City Ct.2012); People v. Twedt, 7 Misc.3d 665, 670 (Sup.Ct.Bx.Co.2005).
Defense counsel argues that the Rules of Professional Conduct, formerly the Code of Professional Responsibility, do not prevent him from continuing to represent Defendant. The Rules of Professional Conduct, are a disciplinary rule, not a statute. While the Rule of Professional Conduct are respected by this Court, they are not the law and do not have the effect of law. People v. Herr, 86 N.Y.2d 638, 642 (1995). “[W]hat is at issue is a disciplinary rule, not a statute ... disciplinary rule have a different provenance and purpose ... The Code of Professional Responsibility is essentially the legal profession's document of self-governance, embodying principles of ethical conduct for attorneys as well as rules for professional discipline. While unquestionably important, and respected by the courts, the Code does not have the force of law. That distinction is particularly significant when a disciplinary rule is invoked in litigation, which in addition to matters of professional conduct by attorneys, implicated the interests of nonlawyers.” Niesig v. Team I, 76 N.Y.2d 363, 370 (1990)(holding that while courts should enforce disciplinary rules, when there are areas of uncertainty, courts must use judicial process to make its own decision in interests of justice to all concerned).
Therefore, this Court finds that Mr. Rankin's prior representation of Mr. Umirova is clearly a conflict of interest, and grant People's application to disqualify Mr. Rankin as counsel and Defendant should retain new counsel.
This opinion constitutes the Decision and Order of the Court.