The People move this Court for an Order relieving the Legal Aid Society from representing the defendant pursuant to a potential conflict of interest. The defendant opposes the instant application. Upon review of the parties’ submissions this Court finds as follows: The defendant stands charged with Murder in the Second Degree (P.L. §125.25) stemming from the July 8, 2019, stabbing death of Bobby Bruce (hereinafter: decedent), pursuant to Kings County Indictment: 7183/2019. The Legal Aid Society, Brooklyn Criminal Division, has represented the decedent on multiple criminal cases and charges since 2004, including several open matters pending at the time of the decedent’s death. The People move for the Legal Aid Society’s disqualification from representing the above-captioned defendant, due to their long-standing attorney-client relationship with the decedent and on the basis that confidential information pertaining to the decedent may become relevant in the instant matter with the imposition of a justification defense. The defense opposes disqualification arguing that no person on the defendant’s defense team has had access to or will access the decedent’s records or files maintained by the Legal Aid Society. A defendant enjoys the constitutional right to conflict-free representation. See Wood v. Georgia, 450 US 261, 271 (1981); People v. Ortiz, 76 NY2d 652, 655-656 (1990). “[A] court commits reversible error where it interferes with an established attorney-client relationship without making ‘threshold findings that [the attorney's] participation would have delayed or disrupted the proceedings, created any conflict of interest, or resulted in prejudice to the prosecution or defense’” (People v. Espinal, 10 AD3d 326, 329, quoting People v. Knowles, 88 NY2d 763, 767). “A conflict of interest is involved if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to a former client A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” (Emphasis added). See Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7, 1.9. Moreover, “an attorney’s obligations to his clients do not terminate once the representation of the client by the attorney has been completed.” People v. Alicia, 61 NY2d 23, 29 (1983). “Where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts ‘are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake’” (People v. Addimando, 197 AD3d 106, 119 [2d Dept 2021] quoting Midwood Chayim Aruchim Dialysis Assoc., Inc. v. Brooklyn Dialysis, LLC, 82 AD3d 1177, 1178 [2d Dept 2011]; see also Gabel v. Gabel, 101 AD3d 676, 76-77 [2d Dept 2012]). Yet, this conflict, or at least the potential therefore, is waivable by the defendant. See People v. Gomberg, 38 NY2d 307 (1975). “A determination to substitute or disqualify counsel falls within the trial court’s discretion (see People v. Watson, 26 NY3d 620, 624 (2016); People v. Carncross, 14 NY3d 319, 330 (2010); People v. Tineo, 64 NY2d 531, 536 (1985). “That discretion is especially broad when the defendant’s 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.” Watson, at 624, quoting Tineo at 536 (internal quotation marks omitted); see also Carncross, at 330. Here this Court is faced with those undesirable alternatives (id.), by weighing the defendant’s right to conflict-free effective assistance of counsel and the defendant’s right to be represented by counsel of his choosing. See 6th Amendment to the U.S. Constitution; see also Gomberg at 314. “Thus, a defendant’s willingness to waive the conflict at an early stage does not end the inquiry (see People v. Carncross, 14 NY3d at 327), and it is within the court’s authority to decline or accept such a waiver (see People v. Watson, 26 NY3d 627; People v. Carncross, 14 NY3d at 327-328)” Addimando at 120. The trial court is granted wide latitude in rejecting a defendant’s waiver of conflict of interest in cases where “a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” (Carncross at 328, quoting Wheat v. US, 486 US 153, 163). Finally, “doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety” (emphasis added) (Matter of Janczewski v. Janczewski, 164 AD3d 795, 797 [2d Dept 2018]). Here the defense concedes that there is the likelihood a justification defense will be raised. This will require an intimate understanding of the decedent and the decedent’s prior conduct, thereby making the potential for the appearance of impropriety a concerning reality Finally, the defense erroneously relies on the case of People v. Griffin, 20 NY3d 626 (2013), where the Court of Appeals held that the trial court abused its discretion in relieving the Legal Aid Society from representing a defendant and assigned other counsel, when the attorney of record from the Legal Aid Society resigned the organization and a supervisor of the same asked for an adjournment to assign another attorney, on the eve of trial, as a sanction for their failure to be ready for trial. Said case is not controlling here as this case was in its relative infancy when the potential conflict was raised before this Court, neither party has yet to file their certificate of compliance and the removal of the counsel in the instant matter is not punitive in nature, rather it is the result of remedying the potential conflict of interest in continued representation of the defendant. As such, for the reasons stated above, the Legal Aid Society is hereby relieved of the defendant’s representation and new counsel shall be appointed pursuant to County Law §18B. This constitutes the decision, opinion and Order of this Court. Dated: November 9, 2021
