New York Law Review

Tag: disqualification of counsel

  • People v. Carncross, 14 N.Y.3d 319 (2010): Disqualification of Counsel Based on Potential Conflict of Interest

    14 N.Y.3d 319 (2010)

    A trial court has the discretion to disqualify a defendant’s chosen attorney due to potential conflicts of interest, even with the defendant’s waiver, to protect the defendant’s right to effective assistance of counsel.

    Summary

    James Carncross was convicted of reckless driving and aggravated criminally negligent homicide after a high-speed chase led to the death of a state trooper. Prior to trial, Carncross’s attorneys were disqualified because one of them had previously represented Carncross’s father and girlfriend before the grand jury, where they gave testimony that could be used against Carncross at trial. The New York Court of Appeals affirmed the conviction, holding that the trial court did not abuse its discretion in disqualifying counsel, even with Carncross’s waiver of the conflict. The Court emphasized the trial court’s duty to ensure effective representation.

    Facts

    Defendant Carncross, on felony probation and unlicensed to drive a motorcycle, fled from a state trooper who attempted to pull him over for speeding. A high-speed chase ensued, during which the trooper crashed and died. Three days later, Carncross, after consulting with his attorney, gave an inculpatory statement to the police. Before the grand jury, Carncross’s father and girlfriend testified, with one of Carncross’s attorneys representing them. Their testimony included incriminating statements Carncross made to them about the incident.

    Procedural History

    Carncross was indicted on several charges, including reckless driving, aggravated manslaughter, and aggravated criminally negligent homicide. He was acquitted of aggravated manslaughter but convicted of the other charges. The People moved to disqualify Carncross’s counsel due to a conflict of interest arising from their prior representation of Carncross’s father and girlfriend before the grand jury. County Court granted the motion. The Appellate Division affirmed the judgment of conviction. The Court of Appeals granted leave to appeal and affirmed.

    Issue(s)

    1. Whether the evidence was legally sufficient to support Carncross’s conviction for aggravated criminally negligent homicide, specifically regarding the element of causation.
    2. Whether the County Court erred in granting the People’s motion to disqualify Carncross’s counsel due to a potential conflict of interest.
    3. Whether Carncross’s statement to the police should be suppressed based on ineffective assistance of counsel.

    Holding

    1. Yes, because Carncross’s conduct set in motion the events that led to the trooper’s death, and it was reasonably foreseeable that a fatal accident would occur as a result of Carncross leading the trooper on a high-speed pursuit.
    2. No, because the trial court has broad discretion to ensure a defendant receives effective assistance of counsel, and disqualification was necessary to avoid potential prejudice arising from the conflict.
    3. No, because Carncross failed to establish that he received ineffective assistance of counsel; his attorney made a strategic decision to encourage cooperation to receive favorable treatment.

    Court’s Reasoning

    The Court found sufficient evidence of causation, citing People v DaCosta, stating that a defendant’s conduct must contribute to the victim’s death by setting in motion the events that result in the killing, and liability attaches even if the defendant’s conduct is not the sole cause if the actions were a sufficiently direct cause where the harm should have been reasonably foreseen. The Court reasoned that if Carncross had not fled, the trooper would not have engaged in the high-speed chase.

    Regarding the disqualification of counsel, the Court balanced the defendant’s right to counsel of his choosing against the right to effective assistance of counsel. Citing Wheat v. United States, the Court noted that trial courts must be allowed substantial latitude in refusing waivers of conflicts of interest, particularly in the pre-trial context where potential conflicts are hard to predict. The Court emphasized that the trial court reasonably concluded that defense counsel’s prior representation of witnesses who could potentially testify against Carncross created a conflict that could undermine Carncross’s ability to present a cogent defense.

    Finally, the Court rejected the argument that Carncross’s statement should be suppressed. The Court determined that Carncross’s attorney’s advice to give a statement was a strategic decision made with the understanding that cooperation might lead to more favorable treatment, distinguishing the case from situations where counsel’s advice was deemed grossly incompetent. The Court stated, “[A]ll of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation”.

  • 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.