Opinion
ID # 9808000280
Date Submitted: May 22, 2002
Date Decided: June 25, 2002
UPON STATE'S MOTION TO DISQUALIFY DEFENSE COUNSEL DENIED
James A. Rambo, Esq. and Cynthia Kelsey, Wilmington, Delaware, Attorneys for the State of Delaware.
Eugene J. Maurer, Jr., Esq., Wilmington, Delaware, Attorney for Defendant.
ORDER
On this 25th day of June 2002, upon consideration of the State's Motion to Disqualify Defense Counsel and the record in this case, it appears to the Court that:
(1) Defendant had a jury trial scheduled to begin on May 7, 2002 on the charges of First Degree Murder, Possession of a Firearm During the Commission of a Felony and Possession of a Deadly Weapon by a Person Prohibited.
(2) Prior to jury selection on the morning of May 7, 2002, the State revealed a new anticipated witness, Othello Predeoux. A few days prior to trial Mr. Predeoux spoke to police claiming to have observed the shooting.
(3) After picking but not swearing the jury, the State made an oral Motion to Disqualify Defense Counsel as Mr. Maurer previously represented Mr. Predeoux. Defendant opposes this motion and has waived any possible conflict of interest.
(4) Mr. Maurer represented Mr. Predeoux in April of 1996 for a guilty plea to misdemeanor theft and in December, 1998 in respect to guilty pleas to possession of a deadly weapon by a person prohibited, possession of cocaine and resisting arrest.
(5) The Court must be wary of opponent's efforts to disqualify Defendant's chosen counsel. State v. Baker, 1995 WL 108909, Cr. A. No. 9406016784, Herlihy, J. (Feb. 15, 1995). In order to preserve the integrity of the adversary process and to avoid the appearance of impropriety, the Court has the power to disqualify trial counsel. Id. Pursuant to Professional Conduct Rule 1.9:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known. The Comment informs us that "the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client."
(6) Here, the offenses with which Defendant is charged are not the same or substantially related to the offenses Defense counsel previously represented Mr. Predeoux. Further, Defendant here argues, and the Court agrees, that the information Defendant would use to impeach Mr. Predeoux is generally known information. Mr. Predeoux's convictions are public information that any Defense attorney could obtain. Thus, it appears that Mr. Maurer would not need to utilize information which was privately obtained to the disadvantage of his former client, Mr. Predeoux. Therefore, the Court finds that there is no conflict of interest under Rule 1.9(b).
For the aforementioned reasons, the State's Motion is DENIED.
IT IS SO ORDERED.