The People have filed a Notice of Motion, dated February 21, 2021, seeking an Order disqualifying both the Dutchess County Public Defender’s Office and the Ulster County Conflict Defender’s Office from representing the defendant due to a conflict of interest pursuant to New York Rules of Professional Conduct. The motion is supported by the affirmation of Heather Ryan, Esq., Senior Assistant District Attorney, dated February 21, 2021, relying in part upon the New York Rules of Professional Conduct §1.10 and §1.9(a) and various case law. Defense counsel has opposed the motion by affirmation of Robert De Mono, Esq., Senior Assistant Public Defender, dated February 23, 2021, relying in part upon its duty to maintain the confidentiality of information of clients and former clients under the New York Rules of Professional Conduct §1.6. The Court has received no opposition from Mara Timourian, Esq., the Ulster County Conflict Defender. Now, having read and deliberated on the People’s motion and the defendant’s opposition, the Court hereby finds and determines the motion as follows: On January 28, 2021, following execution of a search warrant at the defendant’s residence by the Dutchess County Drug Task Force, defendant was charged with criminal possession of a controlled substance in the third degree in violation of Penal Law §220.16(1), a class B Felony. This matter was adjourned to February 11, 2021. The People contended, first at arraignment, then at the next appearance on February 11, 2021, then via email dated February 16, 2021, and then again during a teleconference held on February 17, 2021, that both the Dutchess County Public Defender’s Office and the Ulster County Conflict Defender had a conflict of interest in representing defendant. Via the instant motion, the People have reduced their arguments to writing urging the Court to disqualify both offices from representing the defendant, citing various case law and relying in part, upon New York Rules of Professional Conduct §1.10 and §1.9(a). The People contend that both offices are small firms with fewer than twenty-five (25) attorneys handling criminal cases and have no assurances that the attorneys don’t have access to the digital or physical files that create the conflict. The People further highlight that during the February 17th conference, Mr. De Mono, Esq. acknowledged the conflict but, “his office is requesting to continue representing the defendant until and unless the case requires litigation in the hopes that it could be resolved without cross-examination of the prosecution witness” (Ryan affirmation, dated February 21, 2021, 7), and argue that this position is not supported by the law. In opposition, Robert De Mono, Esq., disputes the conflict of interest arguing that he possesses little confidential information and that there is no “substantial relationship between the current matter and the prior matter” [citing Micken v. Taylor, 535 U.S. 162] that would disqualify him or his office from representing the defendant. Mr. De Mono, Esq., does not address in his opposition papers the position he took at the teleconference on February 17th wherein he acknowledged the conflict but agreed that his office could get off the case if it proceeded to trial and could represent the defendant up to the point of trial. (Ryan affirmation, dated February 21, 2021, 7). LEGAL ANALYSIS AND CONCLUSION The Sixth Amendment encompasses a right to select and be represented by one’s preferred counsel. U.S. Const. 6th Amend. That right is not absolute, but must be balanced with the right to effective assistance of counsel. Wheat v. United States, 486 U.S. 153, 159 (1988); People v. Watson, 26 NY3d 620, 624 (2016); People v. Carncross, 14 NY3d 319, 329 (2010). As such, a determination to substitute or disqualify counsel falls within the trial court’s discretion. People v. Watson, 26 NY3d 620, 624 (2016); People v. Carncross, 14 NY3d 319, 330 (2010); People v. Tineo, 64 NY2d 531, 536 (1985). Trial courts are given substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated 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 v. United States, supra at 163. “That discretion is especially broad when the defendants actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review.” People v. Watson, supra at 624 quoting People v. Tineo, 64 NY2d 531, 536; see People v. Carncross, 14 NY3d at 330. In other words, “a court confronted with an attorney or firm that represents or has represented multiple clients with potentially conflicting interests [as is the case here] faces the prospect of having its decision challenged no matter how it rules — if the court permits the attorney to continue and counsel’s advocacy is impaired, the defendant may claim ineffective assistance due to counsel’s conflict; whereas, if the court relieves counsel, the defendant may claim that he or she was deprived of counsel of his or her own choosing. People v. Watson, supra at 624; see Wheat v. United States, supra at 161; Carncross, supra. The Ethical Rules clearly set forth counsel’s continuing duty to protect and not reveal the confidences of a former client learned in the course of their professional relationship or where the, “representation will involve the lawyer in representing differing interests.” N.Y.S. Rules of Professional Conduct 1.7. “A conflict of interest exists when an attorney’s current representation is impaired by the loyalty he owes [to] a former client.” People v. McLaughlin, 174 Misc 2d 1818, 185 (Sup. Ct. NY County 1997) citing United States v. Moscony, 927 F.2d 742, 749-750 (3d Cir. 1991). More specifically, “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.” People v. Carncross supra at 328 (internal quotation marks omitted, ellipsis and alterations in original). In McLaughlin, supra, following a motion by the People to disqualify defense counsel, the trial court concluded that a conflict existed where the Legal Aid Society (LAS) represented the defendant and previously represented a primary witness against the defendant (although it was a different LAS attorney) reasoning that the witness’s testimony was critical, the defense intended to raise the issue of the witness’s guilt during trial, and the witness was unwilling to waive any rights or privileges. People v. McLaughlin, supra at 183-86. Here, there has been no waiver and no informed consent. Based upon the averments made in Senior Assistant District Attorney Ryan’s affirmation (now under seal of this Court), this Court finds that both the Public Defender’s Office and the Conflict Defender’s Offices (whose office has not opposed the instant motion) have both a real and perceived conflict of interest in representing this defendant which cannot be cured even if a knowing and intelligent waiver had been proffered. Moreover, it is important to note that this case is in its infancy stage — pre indictment. Defendant was arraigned approximately one (1) month ago, on January 28, 2021, at which time the conflict was raised by the District Attorney’s Office, and counsel would not consent to disqualification…This matter was adjourned to February 11, 2021, when the District Attorney’s Office raised the issue again of disqualification and the Assistant District Attorney and the Assistant Public Defender requested a conference to address the issue further, which was scheduled for February 17, 2021. The District Attorney’s Office then sent an email, dated February 16, 2021, articulating the specific conflict the Public Defender had in representing the defendant. On February 17, 2021, a virtual off-the-record conference was held by this Court with the attorneys (no defendant) and the People, for a fourth time, asserted a real and perceived conflict of interest that violated the NYS Rules of Professional Conduct and disqualified counsel from representing this defendant. The Public Defender’s Office continued to oppose the application to be disqualified, but acknowledged that there was a conflict. Since the information revealed was confidential, defendant has not been made aware of the conflict and thus cannot provide his informed consent nor can he waive his privileges. Mr. De Mono, Esq., posited instead that he could get off the case if at some date in the future — if the matter was not resolved before trial — and the conflict morphed to a degree that would make it impossible for him or his office to fairly represent his client or maintain the confidentiality of their former client.1 This Court has a duty to ensure that the defendant be represented by an attorney who strictly has defendant’s interests in its concern and must balance defendant’s desire to be represented by an attorney of his choice while protecting the defendant’s right to effective assistance of counsel. Here, the Public Defender’s Office was assigned to represent this defendant at his arraignment. In other words, Mr. De Mono, Esq.,was not the attorney of defendant’s choice, per se. The defendant, not knowing of the conflict of interest, has since applied to and qualified for the services of the Public Defender’s office. This Court also has the duty and responsibility to see that trials are conducted fairly and without any impediments to either side. It must not wait to determine what witnesses testify or what strategy or defenses are employed before deciding if counsel must be disqualified, for then the Court runs a serious risk of a mistrial based on the conflict. See People v. Watson, supra at 625. Based upon the averments made by Heather Ryan, Esq., (under seal), this Court finds that there is a conflict of interest that could impair defense counsel’s current representation by the loyalty Mr. De Mono, Esq., and his office owe to their former client — which would require the Public Defender to represent differing interests — one of their former client and one of defendant — in violation of N.Y.S. Rules of Professional Conduct §1.7(a)(1). Moreover, the decision whether and how best to impeach the credibility of a witness in this matter and to whom defense counsel owes a duty of loyalty will undoubtedly place the Public Defender’s Office in a very awkward position, for which informed consent has not been given by the former client. The Public Defender’s Office possesses protected confidential information that, if used, would put their former client at a disadvantage, but if not used would put their current client at a disadvantage — and for whom no informed consent in writing signed by the client has been or can be presented to this Court (due to the confidential nature of the application). Both scenarios present challenges to the ethical rules set forth in Rule §1.9 and §1.8 of the N.Y.S. Rules of Professional Conduct being followed.2 Moreover, due to the confidential nature of the application, the defendant has not waived or been able to make an informed decision to continue with counsel despite the conflict. Finally, whether actual or a potential conflict, this Court will not delay and await the burgeoning of a conflict to present itself at trial, but instead disqualifies both offices from representing this defendant, with new 18-b counsel to be assigned statim to the defendant. THEREFORE, based upon the foregoing, it is NOW ORDERED, that the People’s motion is GRANTED in its entirety, and without opposition from the Conflict Defender’s Office; and it is further ORDERED, that the Clerk of the Court is directed to have 18-b counsel assigned to the defendant statim; and it is further ORDERED, that the affirmation of Heather Ryan, Esq., Senior Assistant District Attorney, dated February 21, 2021, is hereby SEALED, and the Clerk of the Court is directed to secure the affirmation in a secured envelope marked “SEALED BY ORDER OF THE COURT” not to be disclosed except upon issuance of an UNSEALING ORDER of this Court. SO ORDERED. Dated: March 2, 2021
