[Cite as State v. Ross, 2018-Ohio-3524.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.       17CA011220

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JOCQUEZ I. ROSS                                        COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   17CR095533

                                  DECISION AND JOURNAL ENTRY

Dated: September 4, 2018



        CALLAHAN, Judge.

        {¶1}     Defendant-Appellant, Jocquez Ross, appeals from an order of the Lorain County

Court of Common Pleas, disqualifying his retained counsel of choice. This Court affirms.

                                                  I.

        {¶2}     Mr. Ross was charged with a litany of offenses, including two counts of capital

murder, following the deaths of a man (“the first victim”) and the man’s wife (“the second

victim”). He chose to retain counsel and, over the next few months, either his retained counsel

or his retained counsel’s law partner appeared on his behalf at several pre-trials. At one of those

pre-trials, the State notified the court that it had become aware of a potential conflict of interest.

It was the State’s position that retained counsel had a conflict of interest because: (1) he had

represented the first victim on a drug-trafficking case in 2009; (2) his law partner was

representing the first victim on a drug-trafficking case at the time of his death; and (3) his law

partner previously had represented both the second victim and the first victim’s mother, a
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potential witness in this matter. Following the State’s pronouncement, the court set the matter

for a disqualification hearing, and the State filed a written motion to disqualify. Based on the

arguments presented at the disqualification hearing, the State’s written motion, and the relevant

case law, the court granted the motion to disqualify.

       {¶3}    Mr. Ross now appeals from the trial court’s order, disqualifying his retained

counsel of choice. He raises one assignment of error for review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DISQUALIFIED DEFENDANT’S
       COUNSEL OF CHOICE, IN VIOLATION OF THE SIXTH AMENDMENT OF
       THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF
       THE OHIO CONSTITUTION[.]

       {¶4}    In his assignment of error, Mr. Ross argues that the trial court erred when it

granted the State’s motion to disqualify. He contends that his retained counsel had no conflict of

interest and the State failed to prove that retained counsel would not act competently and

diligently on his behalf. On review, this Court does not agree that the trial court erred in its

disqualification order.

       {¶5}    Criminal defendants enjoy a constitutional right to counsel. Sixth Amendment;

Ohio Constitution, Article I, Section 10. “[One] element of [that] right is the right of a defendant

who does not require appointed counsel to choose who will represent him.” United States v.

Gonzalez-Lopez, 548 U.S. 140, 144 (2006). If a defendant has the ability to retain a qualified

attorney, the Sixth Amendment generally protects his choice of counsel. Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 625 (1989). “A court commits structural error when it

wrongfully denies a defendant his counsel of choice, so a defendant need not demonstrate further

prejudice.” State v. Miller, 9th Dist. Summit No. 27048, 2015-Ohio-279, ¶ 8, citing Gonzalez-
                                                  3


Lopez at 150. The wrongful denial “entitles [the defendant] to an automatic reversal of his

conviction.” State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, ¶ 18. Moreover, because

the right to one’s choice of counsel is fundamental, a pretrial ruling that removes one’s retained

counsel of choice is immediately appealable. See id. at syllabus. Accord State v. Rivera, 9th

Dist. Lorain Nos. 16CA011057, 16CA011059, 16CA011060, 16CA011061, 16CA011063,

16CA011073, 16CA011075, 2017-Ohio-8514, ¶ 5.

          {¶6}   Though fundamental, the constitutional right to one’s counsel of choice is not

absolute. Miller at ¶ 9, quoting Wheat v. United States, 486 U.S. 153, 159 (1988). A defendant

has no right to “‘an attorney with a conflict of interest * **.’” Miller at ¶ 9, quoting State v.

Howard, 5th Dist. Stark No. 2012CA0061, 2013-Ohio-2884, ¶ 39. Both an actual conflict and “a

showing of a serious potential for conflict” justify a trial court’s removal of a defendant’s

counsel of choice. Wheat at 164. That is because trial 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.’” Gonzalez-Lopez at 152, quoting Wheat

at 160.

          Thus, “[t]rial courts have the inherent authority to regulate the conduct of
          attorneys, including the disqualification of attorneys in accordance with the Ohio
          Rules of Professional Conduct.” Harold Pollock Co., LPA v. Bishop, 9th Dist.
          Lorain No. 12CA010233, 2014-Ohio-1132, ¶ 7. See also Avon Lake Mun. Utils.
          Dep’t v. Pfizenmayer, 9th Dist. Lorain No. 07CA009174, 2008-Ohio-344, ¶ 13.
          They enjoy broad discretion when considering motions to disqualify counsel and,
          therefore, “‘[w]e review a trial court’s determination regarding a motion to
          disqualify counsel for an abuse of discretion.’” In re E.M.J., 9th Dist. Medina
          No. 15CA0098-M, 2017-Ohio-1090, ¶ 5, quoting Pfizenmayer at ¶ 13.

Rivera at ¶ 8. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
                                                 4


       {¶7}    The Ohio Rules of Professional Conduct provide, in relevant part, that a conflict

of interest exists “if * * * there is a substantial risk that [a] lawyer’s ability to consider,

recommend, or carry out an appropriate course of action for [a] client will be materially limited

by the lawyer’s responsibilities to another client, a former client, or a third person or by the

lawyer’s own personal interests.” Prof.Cond.R. 1.7(a)(2). With regard to former clients,

       [a] lawyer who has formerly represented a client in a matter or whose present or
       former firm has formerly represented a client in a matter shall not thereafter do
       either of the following:

       (1) use information relating to the representation to the disadvantage of the
       former client except as these rules would permit or require with respect to a client
       or when the information has become generally known;

       (2) reveal information relating to the representation except as these rules would
       permit or require with respect to a client.

Prof.Cond.R. 1.9(c)(1)-(2). The Rules of Professional Conduct “impute conflicts of interest to

all lawyers ‘associated in a firm.’” (Emphasis sic.) Carnegie Cos. v. Summit Properties, Inc.,

183 Ohio App.3d 770, 2009-Ohio-4655, ¶ 32 (9th Dist.), quoting Prof.Cond.R. 1.10(a). “‘Firm’

* * * denotes a lawyer or lawyers in a law partnership, professional corporation, sole

proprietorship, or other association authorized to practice law * * *.” Rule 1.0(c).

       {¶8}    It is undisputed that, during the timeframe relevant to this appeal, Mr. Ross’

retained counsel had a law partner, and his partner appeared in his stead at several of Mr. Ross’

pre-trials. The State informed the trial court that the first victim was a former client of retained

counsel and, at the time of his death, a current client of the law partner. In both instances, the

first victim had been facing drug-trafficking charges; a serious point of concern for the State

because drugs were a possible motive for his murder. The State noted that, at the time of the first

victim’s death, the law partner had already been representing him for two years. The law partner

also had represented the second victim in a prior criminal matter and, following the first victim’s
                                                 5


death, had represented the first victim’s mother on a civil matter. Because the mother was a

potential witness in this case, the State argued that her status as a former client was another point

of conflict.   Indeed, prosecutors divulged that the law partner had shared with them his

discomfort at appearing on behalf of Mr. Ross when the first victim’s mother was present. The

State noted that the mother also had come forward to express her discomfort with the

arrangement.

       {¶9}    Based on the foregoing relationships and the concerns cited by the State, the trial

court found that there was “a serious potential conflict of interest that exist[ed] which could

affect [retained] counsel’s representation of [Mr. Ross].” Accordingly, it granted the State’s

motion to disqualify. Mr. Ross argues that the court erred by doing so because there was no

conflict. He notes that, pursuant to Prof.Cond.R. 1.7(a)(2), a conflict only exists if there is a

“substantial risk” that an attorney’s relationship with a former client will materially limit him or

her in fulfilling his or her duties as counsel. He argues that, at best, the State set forth evidence

of “a minor risk” in this matter. According to Mr. Ross, the State failed to allege “any reason

that [his retained] counsel [would] not [have] provide[d] competent and diligent representation to

[him] in his case * * *.”

       {¶10} Having reviewed the record, this Court cannot conclude that the trial court abused

its discretion when it granted the State’s motion to disqualify. See In re E.M.J., 2017-Ohio-

1090, at ¶ 5, quoting Pfizenmayer, 2008-Ohio-344, at ¶ 13. Because retained counsel and his law

partner practiced law together, they were considered a “firm” for purposes of the Rules of

Professional Conduct. See Prof.Cond.R. 1.0(c). Thus, any conflict of interest that arose for one

was, by law, imputed to the other. See Carnegie Cos., 2009-Ohio-4655, at ¶ 32, quoting

Prof.Cond.R. 1.10(a). Even if retained counsel’s representation of the first victim back in 2009
                                                  6


was not a cause for concern, the trial court reasonably could have concluded that there was a

substantial risk his duties to Mr. Ross would be materially limited by the duties he owed to his

partner’s former clients. See Prof.Cond.R. 1.7(a)(2), 1.9(c)(1)-(2). As noted, both the victims

and the first victim’s mother, a potential witness in this matter, were his partner’s former clients.

The first victim’s case, in particular, was a drug-trafficking case, and drugs were a possible

motive for his murder. If any pertinent, privileged information came to light during the two-year

period that the law partner acted as the first victim’s counsel, both he and retained counsel would

be prohibited from revealing or using that information to the disadvantage of the first victim,

even if it would benefit Mr. Ross. See Prof.Cond.R. 1.9(c)(1)-(2). Moreover, if the first victim’s

mother testified in this matter, retained counsel would be placed in the position of cross-

examining her despite her status as a former client. There was evidence that both the law partner

and the victim’s mother had already expressed their discomfort as a result of the partner acting as

substitute counsel at various pre-trials. While Mr. Ross claims that there is only “a minor risk”

that all the foregoing concerns will impede his retained counsel in the performance of his duties,

the record supports the trial court’s conclusion to the contrary.

       {¶11} Notably, both an actual conflict and “a showing of a serious potential for conflict”

justify a trial court’s removal of a defendant’s counsel of choice. Wheat, 486 U.S.at 164. The

trial court, acting in its sound discretion, reasonably could have concluded that there was a

serious potential for conflict if retained counsel continued to represent Mr. Ross.          See id.

Accordingly, this Court cannot conclude that it erred in its decision to disqualify retained

counsel. Mr. Ross’ sole assignment of error is overruled.
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                                                III.

       {¶12} Mr. Ross’ sole assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



TEODOSIO, P. J.
CARR, J.
CONCUR.
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APPEARANCES:

JACK W. BRADLEY, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NICHOLAS A. BONAMINIO, Assistant
Prosecuting Attorney, for Appellee.
