Right to Counsel of Choice in Criminal Cases
The Sixth Amendment to the United States Constitution provides that, "in all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Article 21 of the Maryland Declaration of Rights provides, "That in all criminal prosecutions, every man hath a right to . . . be allowed counsel." Md. Dec. of R. art. 21. "The right to counsel includes the right of a defendant, who does not require court-appointed counsel, to select the counsel of his or her choosing." Goldsberry, 419 Md. at 117-18 .
In State v. Goldsberry, 419 Md. 100, 18 A.3d 836 (2011), the Court of Appeals explained that the right to counsel of choice is qualified, stating:
It is subject to the trial court's "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." Wheat, 486 U.S. at 160; accord Moore v. State, 390 Md. 343, 405, 889 A.2d 325, 362 (2005) (stating that a defendant's right to counsel of choice "will not be permitted to frustrate the ethical and orderly administration of criminal justice"). This right to counsel, though protected by a presumption in favor of a defendant's counsel of choice, can be overcome. Wheat, 486 U.S. at 164. The presumption can be overcome if, for example, the defendant's attorney "has a previous or ongoing relationship with an opposing party." Id. at 159. And it can be overcome, "not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Id. at 164.
In Wheat v. United States, 486 U.S. 153, reh'g denied, 487 U.S. 1243 (1988), the Supreme Court affirmed the trial court's denial of Wheat's request to substitute his original counsel with counsel representing two of his co-defendants.
Although the Supreme Court acknowledged that a defendant may waive the right to conflict-free representation, it ultimately determined that a trial court may decline to grant a waiver if it finds actual conflict. Id. at 162.
The Court concluded:
The trial court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, 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. Id. at 163.
In Wheat, id. at 164, the Court stated that the proper balance is struck when "the trial court recognizes a presumption in favor of the defendant's counsel of choice," which "may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict."
In Goldsberry, 419 Md. at 123-24, the Court of Appeals discussed the framework to be used by the trial courts in determining whether to disqualify a defendant's counsel of choice based on a conflict of interest, stating:
Before a trial court is permitted to disqualify a criminal defendant's privately obtained counsel (regardless of whether counsel is the defendant's only attorney or one of several on the defense team), the court must conduct a hearing on the matter, scrutinize closely the basis for the claim, and make evidence-based findings to determine, based on factors such as those outlined in People v. Ortega, 209 Ill. 2d 354, 808 N.E.2d 496, 502, 283 Ill. Dec. 530 (Ill. 2004), whether there is actual or serious potential for conflict that overcomes the presumption the defendant has to his or her counsel of choice. The record must reflect that the trial court contemplated relevant factors in conducting the test that balances the right to one's counsel of choice against the necessity to uphold the ethical standards of the profession that ensure that legal proceedings appear fair to all who observe them.
The Court of Appeals explained the "relevant factors" that may be considered by a trial court in conducting the balancing test, "among all other factors relevant to the conflict," including:
The likelihood that defense counsel will have divided loyalties; the State's right to a fair trial; the appearance of impropriety should the jury learn of the conflict; and the likelihood that defense counsel's continued representation will provide grounds for overturning the conviction. Id. at 123.