People v. Igitol

Opinion

.t -3 -1 Fi!-ED Ss?r-:.;;~~q . ,C- i U R T ,: C

IN THE SUPERIOR COURT OF GUAM

PEOPLE OF GUAM,

I vs. DECISION AND ORDER

INTRODUCTION

This matter came before the Honorable Arthur R. Barcinas on the 171hday of December,

2008, for hearing on the People's Motion to Disqualify Counsel for Defendant. Assistant

Attorney General Brian P. Kelley represented the People, and Attorney Leilani Lujan represented

the Defendant. After considering the arguments of the parties and the relevant documents in the

record, the Court now issues the following Decision and Order on the matter.

DISCUSSION

A criminal defendant has a right to the "assistance of counsel" under both the Sixth and

Fourteenth Amendments of the federal Constitution. United States v. Gonzalez-Lopez, 548 U.S.

140 (2006). Subject to certain limitations, the Sixth Amendment guarantees a criminal defendant

the right to be represented by counsel of his choice. Wheat v. United States, 486 U.S. 153, 159

(1988). The right to assistance of counsel of a defendant's choosing includes the right to

"effective assistance of counsel," Strickland v. Washington, 466 U.S. 668, 686 (1984), and a

"correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450

U.S. 261,271 (1981); Glasser v. United States, 315 U.S. 60,70,76(1942). People vs. Igitol; CF0264-08 -3 DECISION AND ORDER

In Wheat, 486 U.S. at 159, the United States Supreme Court recognized that the

constitutional right to counsel of one's choice is "circumscribed in several important respects."

The right is especially limited in situations where the defendant's chosen counsel has a current

conflict of interest, or a serious potential conflict of interest. Id. In light of the "special dangers"

posed by multiple representation, the United States Supreme Court held that, under the.

constitution, courts have "substantial latitude" to rehse a defendant's proffered waiver of h s

counsel's conflict or potential conflict of interest. Id.at pp. 16 1-63. The high court explained that

despite any waiver of conflict by the clients, a court has an autonomous duty to assure itself that

the representation of either client will not be limited by the concurrent representation, stating,

"courts have an independent interest in ensuring that criminal trials are conducted within the

ethical standards of the profession and that legal proceedings appear fair to all who observe them

. . . .Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation." Id.at

p. 160.

In this case, the government contends that there are two existing conflicts of interest. First,

the government claims that Defendant Jose Tereas was offered a plea agreement which included

a cooperation agreement against Defendant Igitol, and with the advice of Attorney Lujan,

Defendant Jose Tereas rejected this plea agreement. The government claims that this plea

agreement was to the benefit of Defendant Jose Tereas, but worked a detriment to Defendant

Igitol. The government claims that the rejection of the plea agreement appears to show that

Attorney Lujan cannot balance the interests of both clients. Next, the government asserts that

Jose Tereas is an eye witness to the charges against Defendant Igitol, and that the government will

Page 2 of 8 People vs. Igitol; CF0264-08 1 ,) DECISION AND ORDER

be calling Jose Tereas to the witness stand, where he will not be able to effectivelyassert his Fifth

Amendment privilege against self-incrimination for the events he merely witnessed, thus placing

Attorney Lujan in a position where she will be required to cross-examine her own client,

Defendant Jose Tereas in favor of Defendant Igitol. The fact that Defendant Jose Tereas was a

percipient witness to the event is supported by the Magistrate's Complaint filed in this case.

Attorney Lujan informed the Court that she does, in fact, represent both clients, Defendant

Igitol, and Defendant Jose Tereas, and that these clients are not being represented by different

attorneys within the firm. Attorney Lujan further represented to the Court that she has conversed

with Jose Tereas regarding his testimony and the case against Defendant Igitol. Attorney Lujan

acknowledged the possibility that she might have to cross-examine her own client, Jose Tereas,

and stated that she would do so zealously and to the best of her ability. However, Attorney Lujan

contends that her clients have waived in writing any actual or potential conflicts of interest, and

has provided the Court with those waivers. The defense argues that this motion is untimely, and

therefore, should be denied.

Although Defendant argues that the motion to disqualify counsel is untimely, Defendant

fails to cite any authority for t h s assertion. Pursuant to 8 G.C.A. $ 65.45, the "[flailure by a party

to raise defenses or objections or make requests which must be made prior to trial, at the time set

by the court pursuant to $65.15 . .. shall constitute a waiver thereof, but the court for cause shown

may grant relief fiom the waiver." In criminal cases, motions or requests which must be made

prior to motion cut off date set by the Court under 8 G.C.A. $65.15 consist of:

(a) Defenses and objections based on defects in the institution of the prosecution; (b) Defenses and objections based on defects in the indictment, information or complaint . . . (c)Motions to suppress evidence; (d) Requests for discovery

Page 3 of 8 People vs. Igitol; CF0264-08 7 -1 DECISION AND ORDER

pursuant to Chapter 70 (commencing with $ 70.10); or (e) Requests for a severance of charges or defendants pursuant to $ 65.35.

The failure to raise these defenses or objections "at the time set by the court pursuant to

$65.15," constitutes a waiver of only these arguments or objections. 8 G.C.A. $ 65.45.

In this case, the government's motion to disqualifycounsel is not a motion required to be

made by the motion cut-off date set by the Court pursuant to 8 G.C.A. $3 65.15 and 65.45. In

addition, the motion to disqualify was made before trial. Although the Court disapproves of the

notice and filing so close to trial, there is no statutory time limit set for such a motion, and the

Defendant has failed to cite any authority to show that the motion is untimely. Accordingly, the

Court shall decide the motion on its merits.

Rule 1.7(a) of the Guam Rules of Professional Conduct prohibits concurrent

representation of clients if:

(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Notwithstanding the existence of a concurrent conflict of interest under 1.7(a), a lawyer

may represent a client under 1.7(b) if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

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DECISION AND ORDER

The Government has shown that there is an existing conflict and a serious potential for

conflict under Rule 1.7(a). Despite the waivers filed under Rule 1.7(b), where the Court finds that

there is a "serious potential" for conflict, Wheat, 486 U.S. at 163, the Court is afforded

"substantial latitude" to reject those waivers and disqualify counsel, Wheat, 486 U.S. at 164, due

to concerns regarding,

inadequate representation of a defendant . . . . disrespect for the integrity of the court, . . . the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicatingthe defendant's comprehension of the waiver.

Wheat, 486 U.S. at 162 (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978).

Because the incidents charged against Defendant Jose Tereas constitute a separate incident

from that charged against Defendant Igitol, and Defendant Jose Tereas was merely a witness to

the charges against Defendant Igitol, it appears that Defendant Jose Tereas will not be'able to

assert the privilege against self-incrimination once called to testify. There is a presumption that

an attorney receives confidential cormn-mications in the course of representing a client. United

States v. Shepard, 675 F.2d 977,980 ( 8 Cir.1982). ~ Although the privilege against disclosure of

confidential information may be waived, the defense has provided no waivers, written or oral, to

this effect. Guam Rules of Professional Conduct, Rule 1.6(a). The waivers submitted by the

defense waive only conflicts of interest, and do not waive the privilege against disclosure of

confidential information. Defendant's Exhibits A and B; see United States v. Lussier, 71 F.3d

456,462 (2d Cir. l995)(absent a specific waiver from the client, an attorney may not inquire into

privileged matters on cross-examination). On these facts, the Court must conclude that Attorney

Lujan presumptively has confidential knowledge pertaining to the representation which could be

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used and might be necessary to cross-examine her own client, Jose Tereas, for the best interest

ofher other client, Defendant Igitol. The Court has concerns that the cross-examination may be

inadequate due to ethical problems of using privileged information gained fiom one client against

the other.

In addition, a conflict exists where clients represented by the same attorney are given plea

agreements in which one would agree to give evidence against the other in return for an

advantage. Ross v. Heme, 638 F.2d 979,983 (7thCir. 1980). No evidence has been provided by

the defense, and the Court cannot assume that the rejection of the plea agreement favorable to

Defendant Jose Tereas was fiee fiom influence of the directly competing and conflicting interests

of Defendant Igitol. Thus, although the conflict was waived by the clients, the appearance of

impropriety and the high likelihood of the use of confidential knowledge against one client

presents an unacceptable risk that the continued representation of both clients will result in

unfairness to one or both clients.

The possibility that a client might be cross-examined by their own attorney constitutes a

serious potential conflict of interest which generally requires disqualification. United States v.

Void, 89 F.3d 1050, 1078 (31d Cir.1996); United States v. Ross, 33 F.3d 1507, 1523 (11'

Cir. 1994); United States v. Moscony, 927 F.2d 742,748-49 (3rdCir.1991), cert. denied, 501 U.S.

1211 (1 991); H o f h a n v. Leeke, 903 F.2d 280,285-87 (4thCir. 1990); Lightbourne v. Dugger,

829 F.2d 1012 (1 1' Cir.1987); United States v. Shepard, 675 F.2d 977, 979-81 (gthCir.1982);

United States v. Martinez, 630 F.2d 361, 362 (5'h Cir. 1980), cert. denied, 450 U.S. 922 (198 1);

Ross v. Heyne, 638 F.2d 979,983-85 (7thCir.1980); Tucker v. United States, 235 F.2d 238,240

(gthCir. 1956). Attorney Lujan has admitted that there is a possibility that she may be required to

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cross-examine her own client in this trial. Despite the opportunity to do so, the defense has

provided no case law or other authority to the contrary, to show that cross-examination of one

current client in favor of another current client is either permissible or appropriate and does not

require disqualification in this circumstance.

As observed by the government, upon either a conviction or acquittal in this case, both

parties will have grounds for appeal on the basis of counsel's conflicts of interest. "[Tlhe

legitimate wish of [courts] that their judgments remain intact on appeal" is a proper consideration

in the determination of whether a conflict of interest requires disqualification of an attorney.

United States v. Voicrt, 89 F.3d 1050, 1078 (3rdCir.1996); see also Wheat v. United States, 486

U.S. 153,162 (1988). Under the Court's independent duty to ensure appearance of propriety and

fairness, and the rendition of a just trial conducted within the ethical standards of Guam, the Court

determines that the continued representation of both clients jeopardizes the institutional

appearance of propriety in this case, and presents immediate appealable issues, whatever the

outcome of the case. Accordingly, to protect these interests, disqualification is necessary.

In a nearly identical case before the Superior Court of Guam involving the same firm,

PeoDleCriminal Case No. CF0428-94, the court found that disqualification of the entire law firm of Lujan, Aguigui, & Perez, LLP was required where two different attorneys in

that firm each represented a criminal defendant in one case, and also represented a percipient

witness to that case, in a different criminal matter. The court found an "intolerable conflict"

presented by the continued representation of both Defendants by attorneys in the same firm.

Defendant Igitol has failed to distinguish that case from the situation presented here. This Court

finds that this situation presents the same conflict as that presented in People v. Angoco, which

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People vs. Igitol; CF0264-08 1 DECISION AND ORDER

is seemingly more egregious because of the fact that Attorney Lujan personally represents both

clients. See, e.g. Cuvler v. Sullivan, 446 U.S. 335 (1980); and Hollowav v. Arkansas, 435 U.S.

475 (1978). She has not contended that confidential information known to her concerning each

case has not been shared with the other client, will not be used against the other client during

examination, or that the information has been "walled off," as contended in the case of People v.

Anaoco.

The appointment or retention of another attorney for Defendant Igitol will avoid not only

the existing conflicts of interest, but will avoid any later issues concerning the ineffective

assistance of counsel, and any related appellate issues. At this time, trial has not yet been

rescheduled, Defendant Igitol has not asserted her right to speedy trial, and accordingly,

Defendant Igitol will not be prejudiced by the opportunity to retain different counsel without a

conflict of interest.

CONCLUSION

Having heard arguments on the motion and having received and considered all of the

filings and evidence presented, the Court finds that there is an existing conflict of interest in that

counsel is negotiatingplea agreements for clients with conflictinginterests, and a seriouspotential

conflict of interest based on the possibility of cross-examination of Defendant Jose Tereas at trial.

Based upon the foregoing, the People's Motion to Disqualify Counsel for Defendant is

GRANTED. Further Proceedings is scheduled for Januarv 21.2009 at 2:30 am.

SO ORDERED, this ,IAN 0 6 7flM

HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam

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