                                                                                FILED
No. 19-1160 - State of West Virginia ex rel. June Yurish,                     May 28, 2020
Kristin Douty and Christina Lester v. The Honorable                             released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
Laura Faircloth, Judge of the Circuit Court of Berkeley County              SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




Justice Workman, dissenting:


              Because there is no actual or apparent conflict of interest on the part of

defense counsel in this case, and nothing in the record to suggest that counsel’s joint

representation of the petitioners would “call in question the fair or efficient administration

of justice,” Syl. Pt. 2, in part, State ex rel. Blake v. Hatcher, 218 W. Va. 407, 624 S.E.2d

844 (2005), the circuit court’s disqualification order unlawfully deprived the petitioners of

their Sixth Amendment right to retained counsel of their choice. Accordingly, I would

grant the writ.




              I agree with the majority that as a general rule,


                     [a] circuit court, upon motion of a party, by its inherent
              power to do what is reasonably necessary for the
              administration of justice, may disqualify a lawyer from a case
              because the lawyer’s representation in the case presents a
              conflict of interest where the conflict is such as clearly to call
              in question the fair or efficient administration of justice.


Syl. Pt. 1, in part, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991). Accordingly,

this Court has properly concluded that in cases where defense counsel has an evident or

actual conflict of interest, the trial court has wide latitude in determining whether a

                                              1
defendant’s interest in effective representation of counsel overrides his or her interest in

representation by a particular lawyer. See, e.g., State ex rel. Blake v. Hatcher, 218 W. Va.

407, 417, 624 S.E.2d 844, 854 (2005) (where defense counsel had previously represented

State’s witness, as well as members of witness’s family, court is required to hold a hearing

to determine “whether a conflict of interest should overcome the presumption in favor of

defendant’s choice of counsel”); State ex rel. Michael A.P. v. Miller, 207 W. Va. 114, 116-

17, 529 S.E.2d 354, 356-57 (2000) (attorney’s representation of two juveniles created

actual conflict of interest where one juvenile was expected to be a witness against the

other); State v. Livingston, 179 W. Va. 206, 208-09, 366 S.E.2d 654, 656-57 (1988)

(clients’ interests were not compatible and record contained no evidence that they had

waived any conflict of interest on attorney’s part); Cole v. White, 180 W. Va. 393, 399, 376

S.E.2d 599, 605 (1988) (attorney’s conflict of interest resulted in his inability to effectively

present evidence and cross examine witnesses); State v. Reedy, 177 W. Va. 406, 411-12,

352 S.E.2d 158, 163-64 (1986) (attorney’s conflict of interest not revealed to his client

prior to trial).




               This wide latitude, however, is tempered by our admonition that,

                   [t]he joint representation by counsel of two or more accused,
                   jointly indicted and tried is not improper per se; and, one who
                   claims ineffective assistance of counsel by reason of conflict
                   of interest in the joint representation must demonstrate that the
                   conflict is actual and not merely theoretical or speculative.



                                                  2
Syl. Pt. 3, State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975);

see also State v. Mullins, 181 W. Va. 415, 422, 383 S.E.2d 47, 54 (1989) (where both

defendants had alibi defenses, “their interests were more compatible as opposed to

conflicting” and counsel did not have an actual conflict of interest); State v. Haddix, 180

W. Va. 71, 74, 375 S.E.2d 435, 437-38 (1988) (“[c]onjecture and surmise will not suffice

to brand counsel, appointed or retained, ineffective in the representation of one accused of

crime”) (citing Postelwaite, 158 W. Va. at 489, 212 S.E.2d at 75)).




              In the instant case, the sole ground on which the State moved to disqualify

defense counsel was that he would not be able to advise his clients as to the existence of,

or the desirability of, any proffered plea agreements. Under the facts and circumstances of

this case, the State’s argument was woefully insufficient to raise a legitimate concern about

the adequacy of counsel’s representation and, thus, to overcome the petitioners’ Sixth

Amendment right to select counsel of their choice. In this regard, the United States

Supreme Court has held that “[w]e have little trouble concluding that erroneous deprivation

of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable

and indeterminate, unquestionably qualifies as “structural error.”’”       United States v.

Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (citing Sullivan v. Louisiana, 508 U.S. 275, 282

(1992)); see also Luis v. United States, 136 S. Ct. 1083, 1089 (2016) (“the constitutional

right at issue here is fundamental: ‘[T]he sixth Amendment guarantees a defendant the right




                                             3
to be represented by an otherwise qualified attorney whom that defendant can afford to

hire.’”) (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989)).1




                 First, it is troubling that the majority glosses over the critical fact that the

circuit court did not find the existence of an actual conflict of interest on counsel’s part,

despite the State’s effort to create one.2 In this regard, the circuit court specifically

concluded that “there is not an actual conflict of interest at this early stage in the

proceedings of discovery but [the court] does believe that sufficient argument and

information has been provided to the Court that the Court can and does find that there is a

significant potential for a serious conflict of interest.”3 (Emphasis added.) This belief, in

turn, was based on the State’s representation that “it may be willing to make different




       1
          Although this Court has never had occasion to discuss this issue in length, we have
recognized that not only the Sixth Amendment to the United States Constitution but also article
III, § 14 of the West Virginia Constitution guarantees an accused the right to counsel of his or her
choice, within certain constraints. State v. Heater, 237 W. Va. 638, 647, 790 S.E.2d 49, 58 (2016);
cf. Watson v. Black, 161 W. Va. 46, 51, 239 S.E.2d 664, 667 (1977) (acknowledging that
defendant’s right to retain counsel of his or her choice is “absolute”).
       2
          The State sent identical plea offers to each petitioner one day after defense counsel had
refused to disqualify himself and before the petitioners had even been arraigned – suspect timing,
to say the least. Further, no one with any experience in the prosecution or defense of criminal cases
would consider these offers to be genuine attempts to come to an agreement. The offers required
the petitioners to plead guilty and testify against their codefendants, in return for which they would
“have the opportunity to inform the Court that [they] accepted responsibility and fully cooperated
with the state.” Indeed, the circuit court apparently did not consider these plea offers to be “real,”
inasmuch as the court did not find them sufficient to create an actual conflict of interest on the part
of defense counsel.
       3
           See transcript of hearing, November 18, 2019, pp. 26-27 (emphasis added).

                                                  4
cooperation plea offers from those already made.”4 In short, the court accepted the State’s

invitation to “brand counsel” based on nothing other than conjecture and surmise --

specifically, conjecture and surmise that the State might be willing at some time in the

future to propose a better plea deal that might be in one of the petitioners’ best interests to

accept. Postelwaite, 158 W. Va. at 489, 212 S.E.2d at 75.




              Second, disqualification of counsel based on the mere possibility that the

State might, in the future, offer a plea bargain to one or more of the petitioners, will

effectively eliminate joint representation of defendants in a criminal case, because the

possibility exists in every case that the State could offer a plea deal. In this regard, although

no one can deny that joint representation entails very real risks that must be evaluated by

the attorney, the client, and the court, Rules 1.7(a) & (b) of the West Virginia Rules of

Professional Responsibility, the State’s interest in plea bargaining does not implicate the

“institutional interest in protecting the truth-seeking function of the proceedings . . . the

institutional legitimacy of judicial proceedings . . . [or] a concern to shield a defendant

from having his defense compromised by an attorney with divided loyalties.” Michael A.P.,

207 W. Va. at 120, 529 S.E.2d at 360 (internal citation omitted); see also Syl. Pt. 2, in part,

Blake, 218 W. Va. at 409, 624 S.E.2d at 846 (disqualification of lawyer for conflict of

interest proper only “where the conflict is such as clearly to call in question the fair or



       4
        See State’s Reply to Defendant’s [sic] Response to the State’s Motion to Disqualify
Defense Counsel, November 14, 2019, p. 6 (emphasis added).
                                               5
efficient administration of justice. Such motion should be viewed with extreme caution

because of the interference with the lawyer-client relationship.”). Rather, the State has one

of two interests in extending a plea offer: a plea agreement, if accepted, can obviate the

necessity of proving the defendant’s guilt beyond a reasonable doubt to a jury, or, in a

multi-defendant case, a plea agreement with one defendant can strengthen the State’s case

against the remaining defendant or defendants. A defendant, on the other hand, has one and

only one interest in accepting a plea offer: eliminating or at least reducing the severity of

the sentence. In short, although both sides in a criminal case have very real interests in the

possibility of a plea bargain, those interests are not sufficient to warrant interference with

a defendant’s constitutionally protected right to be represented by a retained lawyer of his

or her own choosing.




                Third, while this Court has held that “[t]he failure of defense counsel to

communicate any and all plea bargain proposals to the defendant constitutes ineffective

assistance of counsel, absent extenuating circumstances,”5 we have never held that an adult

defendant,6 being fully apprised of the consequences of his or her actions, cannot waive

that right. See, e.g., Montgomery v. Ames, 241 W. Va. 615, 625, 827 S.E.2d 403, 413 (2019)


       5
           See Syl. Pt. 3, in part, Becton v. Hun, 205 W. Va. 139, 144, 516 S.E.2d 762, 767
(1999).
       6
          In Michael A.P., where the juvenile defendant had executed a waiver of his counsel’s
conflict of interest, we noted that “[j]uveniles, who are necessarily of tender years and limited
experience, may be unable to fully understand all the implications of, and the consequences that
may flow from, such a waiver.” 207 W. Va. at 121, 529 S.E.2d at 361.


                                               6
(“An accused may waive sundry constitutional rights and privileges, if he or she does so

intelligently and voluntarily.”) In the instant case not only did each petitioner sign a

detailed waiver, but also the circuit court held a W. Va. R. Crim. P. 44(c)7 colloquy with

each, with detailed explanations and warnings concerning the perils of joint representation.

The following is representative of the probing nature of the colloquies held with each of

the three petitioners:

              THE COURT: Do you understand that the state is always
              allowed to offer a plea to any defendant and may choose to
              offer a plea to any one of you for example but not by way [of]
              limitation in exchange for cooperation against the other
              defendants specifically for example in this case about any
              intent or reason that certain conduct did or did not occur?
              DEFENDANT DOUTY: Yes.
              THE COURT: Do you understand that you may desire at some
              point in the process to speak with the state about a plea and are
              being advised by your attorney that he may need to withdraw
              from representing all of you because of that request?
              DEFENDANT DOUTY: Yes.



       7
        Rule 44(c) of the West Virginia Rules of Criminal Procedure provides:
              Joint representation. – Whenever two or more defendants have been
              jointly charged pursuant to Rule 8(b) or have been joined for trial
              pursuant to Rule 13, and are represented by the same retained or
              assigned counsel or by retained or assigned counsel who are
              associated in the practice of law, the court shall promptly inquire
              with respect to such joint representation and shall personally advise
              each defendant of the right to effective assistance of counsel,
              including separate representation. Unless it appears that there is
              good cause to believe no conflict of interest is likely to arise, the
              court shall take such measures as may be appropriate to protect each
              defendant’s right to counsel.


                                               7
                 THE COURT: And finally are you sure that there can be no
                 set of circumstances that may arise that would cause a conflict
                 for your attorney to represent all three of you?
                 DEFENDANT DOUTY: Yes, there’s not any conflict.
                 THE COURT: And you’re sure moving forward in the future
                 there would never be one?
                 DEFENDANT DOUTY: No ma’am.8


                Finally, it should be noted that if the legal landscape in this case were to

change in the future, and an actual conflict of interest were to arise, then our system of

justice must rely upon the integrity of counsel to do what he specifically assured the circuit

court he would do:

                 [A]t the moment that one of [the defendants] comes to me with
                 information that I feel like using or not using will hurt them
                 and help their codefendants I think I have a conflict that would
                 probably cause me to have to withdraw but at this point each
                 one of them has a right to have their chosen defense counsel.9


Although a late-stage withdrawal of defense counsel under such circumstances could result

in some inconvenience to the court, i.e., the necessity of rescheduling deadlines, hearing

dates and/or even a trial date, there can be no principled argument that possible

inconvenience to the court in the future is sufficient to overcome the petitioners’ Sixth

Amendment rights in the here and now.




       8
           Transcript of December 10, 2019, Hearing, p. 6.
       9
           Transcript of November 18, 2019, Hearing, p. 13.
                                                 8
      In summary, the circuit court’s order disqualifying defense counsel deprived the

petitioners of their Sixth Amendment right to retained counsel of their choice – a choice

they made in full appreciation of all relevant facts and circumstances, and with full

knowledge of the attendant risks. Accordingly, I respectfully dissent.




                                            9
