New York Law Review

Tag: Advocate-Witness Rule

  • People v. Townsley, 20 N.Y.3d 294 (2012): Ineffective Assistance of Appellate Counsel and Attorney-Witness Conflicts

    People v. Townsley, 20 N.Y.3d 294 (2012)

    Appellate counsel’s failure to raise a clear conflict of interest on the part of trial counsel constitutes ineffective assistance, warranting coram nobis relief.

    Summary

    Townsley was convicted of murder and assault. During trial, the prosecutor implied defense counsel colluded with a witness to fabricate a defense. Townsley’s appellate counsel did not argue this potential conflict of interest on direct appeal. The New York Court of Appeals held that appellate counsel’s failure to raise the conflict of interest issue constituted ineffective assistance of counsel because the prosecutor’s implication created a situation where defense counsel should have testified, and the appellate counsel’s failure to recognize and argue this point fell below the standard of meaningful representation.

    Facts

    Townsley was convicted for the shooting death of Lynell James and the wounding of Johmar Brangan. The prosecution’s witnesses identified Townsley as the shooter. Townsley’s defense was that Simeon Nelson, the leader of a drug ring, committed the crime, and the witnesses were afraid to accuse Nelson. During cross-examination, the prosecutor insinuated that Townsley and his attorneys met with Nelson to coordinate a false defense, suggesting collusion. The defense attorney attempted to rebut this insinuation during summation.

    Procedural History

    Townsley was convicted in June 1995 and his conviction was affirmed on direct appeal. His pro se habeas petition was denied. He then moved to vacate the conviction, arguing ineffective assistance of trial counsel due to a conflict of interest; this motion was denied. He then petitioned for a writ of error coram nobis, which was denied by the Appellate Division. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether appellate counsel was ineffective for failing to argue that trial counsel was conflicted due to the prosecutor’s implication that they colluded with a witness, thereby requiring them to testify and violating the advocate-witness rule?

    Holding

    Yes, because the prosecutor’s insinuation created a conflict of interest under the advocate-witness rule that appellate counsel should have recognized and argued on direct appeal.

    Court’s Reasoning

    The Court of Appeals, in dissent, focused on whether appellate counsel provided “meaningful representation.” Citing People v. Stultz, the dissent noted appellate advocacy is meaningful if it reflects a competent grasp of facts, law, and procedure. The dissent argued that appellate counsel should have recognized that trial counsel operated under a conflict of interest. The prosecutor’s cross-examination implied the defense lawyers colluded with Nelson to fabricate a defense, potentially violating the advocate-witness rule. The dissent argued that defense counsel’s testimony became necessary to rebut the prosecutor’s insinuation. The failure of trial counsel to recognize and address this conflict, coupled with the appellate counsel’s failure to raise the issue on appeal, constituted ineffective assistance, warranting coram nobis relief. The dissent cited appellate counsel’s own affirmation stating he “did not perceive the conflict of interest issue” as evidence that there was no strategic reason for the omission. The dissent also pointed to the prosecutor’s inflammatory statements during summation, which trial counsel failed to object to, further supporting the claim of ineffectiveness. The dissent reasoned that the combination of the conflict and the unobjected-to prosecutorial misconduct should have been apparent to any reasonable appellate counsel.

  • S&S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 (1987): Disqualification of Counsel Based on Advocate-Witness Rule

    S&S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 (1987)

    The advocate-witness disqualification rules in the Code of Professional Responsibility provide guidance, but not binding authority; courts must consider the party’s right to counsel and the fairness of disqualification in the specific factual context.

    Summary

    S&S Hotel Ventures sued 777 S.H. Corp, alleging breach of contract and tortious interference related to a loan agreement. 777 S.H. Corp. moved to disqualify S&S Hotel’s counsel, Bell, Kalnick, Beckman, Klee & Green, because Herman Sassower, “of counsel” to the firm, and Stephen Seldin, a real estate partner, allegedly ought to be called as witnesses. The trial court granted the motion, but limited the disqualification to trial, and the appellate division affirmed. The New York Court of Appeals reversed, holding that the lower courts improperly applied the Code of Professional Responsibility mechanically without considering the client’s right to counsel and the specific circumstances of the case, finding no basis for disqualification on the record.

    Facts

    S&S Hotel Ventures owned a hotel and office building complex. In 1981, they obtained a $15 million loan from 777 S.H. Corp., secured by a deed of trust. The deed stipulated the loan would become due immediately if S&S Hotel transferred title without 777 S.H. Corp.’s consent, but such consent would not be unreasonably withheld. S&S Hotel alleged that 777 S.H. Corp. unreasonably withheld and delayed consent to proposed purchasers to favor another purchaser and improve its terms, leading to a reduced sale price. Herman Sassower, formerly a general partner of S&S Hotel and later “of counsel” to Bell Kalnick, was involved in negotiating the loan agreement. Philip Sassower, Herman’s brother, replaced Herman as general partner and handled communications regarding the sale.

    Procedural History

    S&S Hotel Ventures sued 777 S.H. Corp. in March 1984. 777 S.H. Corp.’s motion to dismiss the tort claim was denied by both Special Term and the Appellate Division. Nine months after the action began, 777 S.H. Corp. moved to disqualify Bell Kalnick. Special Term ordered disqualification based on the advocate-witness rule, limited to the trial. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the lower courts erred in disqualifying S&S Hotel’s counsel based on the advocate-witness rule without properly considering the client’s right to counsel of choice and the specific factual context of the case.

    Holding

    No, because the advocate-witness rules in the Code of Professional Responsibility provide guidance, but not binding authority, for courts. The courts must consider other factors, including the client’s right to choose their own counsel, and the fairness and effect of granting disqualification in the specific factual setting.

    Court’s Reasoning

    The Court of Appeals emphasized that the Code of Professional Responsibility offers ethical guidance, not binding law, when disqualification is sought in litigation. Disqualification implicates the client’s right to counsel, which is a valued right. The Court recognized that disqualification can be a strategic tactic. Here, the plaintiff repeatedly stated it would not call Sassower as a witness, and that the witness’ testimony wasn’t necessary. The Court found neither court below had found Sassower’s testimony "necessary" to plaintiff’s case. "Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence." The Court concluded that disqualification was improper because: (1) plaintiff, a sophisticated business entity, knowingly chose to forego Sassower’s testimony; (2) neither lower court found Sassower’s testimony necessary; (3) Philip Sassower had first-hand knowledge of relevant conversations. The Court reversed the order of the Appellate Division and denied defendant’s motion to disqualify plaintiffs counsel.