         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                          )
                                           )
                v.                         )      I.D. No. 1409011585
                                           )
GABRIEL PARDO,                             )
        Defendant.                         )

                                 Submitted: October 21, 2015
                                  Decided: October 27, 2015

                         Upon Defendant’s Motion for Recusal
                        Limited to Issue of Counsel’s Withdrawal
                                        DENIED

     Defendant has filed a Motion for Recusal Limited to Issue of Counsel’s
Withdrawal, and the State has notified the Court that it does not oppose this
motion. In consideration of Defendant’s motion, the Court finds as follows:

      1. This matter was tried without a jury from September 29, 2015, and it
concluded with a verdict on October 2, 2015. Defendant was represented at trial
by Joe Hurley, Esquire. In a criminal case, defense counsel is obligated to
represent a client at least through the filing of an appeal.1 After an attorney
complies with Rule 26(a) by filing an appeal, an attorney “may withdraw only
upon written motion and order of the Court.” 2

      2. Defense counsel has also filed a motion to withdraw as counsel, and has
represented that certain disclosures will be required for the Court to give full and
fair consideration to his motion to withdraw, which disclosures, according to
defense counsel, may create a bias towards Defendant for the purpose of
sentencing.

      3. However, any such disclosures are not only unnecessary but are
inconsistent with defense counsel’s obligations as a Delaware lawyer. The
Delaware Lawyers’ Rules of Professional Conduct address the balancing of

1
    Delaware Supreme Court Rule 26(a).
2
    Delaware Supreme Court Rule 26(d).
interests that is required when it may become necessary or appropriate for a lawyer
to seek permission to withdraw as counsel. Rule 1.6 addresses the very limited
circumstances under which a lawyer is required to reveal or may reveal
confidential information related to the representation of a client. Rule 1.16
addresses the limited circumstances under which terminating representation is
either mandatory or permissive. Rule 3.3 requires candor toward the tribunal.

      4. It should not be necessary to disclose confidential information for the
Court to full and fairly consider defense counsel’s motion to withdraw. The Rules
of Professional Conduct expressly address situations in which the request to
withdraw may require balancing of the lawyer’s obligations to maintain client
confidences and to abide by the duty of candor toward the tribunal. As set forth in
Comment 3 to Rule 1.16, if defense counsel has concluded that professional
considerations require withdrawal, then defense counsel’s “statement that
professional considerations require termination of the representation ordinarily
should be accepted as sufficient.”

      5. The State’s reliance upon State v. Jackson 3 is misplaced. The State cites
Jackson for the proposition that exposure by a judge in a criminal case to
information shared by a defense lawyer led to a post-conviction legal challenge.
The State correctly states that the Delaware Supreme Court rejected the challenge,
but the State suggests that limited recusal would “obviate such challenges in this
case.” While this Court appreciates the State’s desire to eliminate bases for
postconviction challenges, the Jackson Court notes that the trial court characterized
defense counsel’s sidebar remarks about his client as “’improper, unprofessional,
unbecoming a member of the Delaware Bar, and most troubling…’” However, the
State misses the point of Jackson which is that this information should not be
revealed to the Court in the first place.

      6. The Court recognizes that there are certain circumstances which require
judges to disqualify themselves. “A judge should disqualify himself or herself in a
proceeding in which the judge’s impartiality might reasonably be questioned.” 4
However, a judge has a duty not to recuse or disqualify “in the absence of a bona
fide disqualifying condition, as defined in [Delaware Judges’ Code of Judicial
Conduct] Rule 2.11, such that the judge is not genuinely convinced of the need for

3
    21 A.3d 27, 33 (Del. 2011).
4
    Del. Judges’ Code of Judicial Conduct R. 2.11 (A).

                                                 2
recusal or disqualification.” 5 Here, recusal is unnecessary and, indeed, counter-
productive. Rather than seek recusal so that defense counsel can reveal information
that may prejudice his client, defense counsel should proceed consistent with his
professional obligations and strictly limit disclosures to the Court. 6 As noted in
Comment 15 to Rule 3.3, “a lawyer may reveal information relating to the
representation only to the extent reasonably necessary to comply with [Rule 3.3] or
as otherwise permitted by Rule 1.6.”

       7. The Court has requested that defense counsel notify the Court regarding
Defendant’s position on the motion to withdraw. The Court notes that if
Defendant has terminated the representation, then the Court’s inquiry would be
very limited. Since defense counsel has been privately retained in this matter, then
substitution of counsel by Defendant would avoid any disclosures at all.

      NOW, THEREFORE, this 27th day of October, 2015, for the reasons
stated herein, Defendant’s Motion for Recusal Limited to Issue of Counsel’s
Withdrawal is hereby DENIED.

         IT IS SO ORDERED.
                                                    Andrea L. Rocanelli
                                                    ______________________________
                                                    The Honorable Andrea L. Rocanelli




5
    State v. Desmond, 2011 WL 91984, at *10 (Del. Super.).
6
  Counsel for Mr. Jackson was none other than Mr. Hurley. Accordingly, Mr. Hurley is
specifically on notice that revelation of confidential information compromises his professional
obligations and this prior experience presumably forms the basis for his request for limited
recusal. Nevertheless, Mr. Hurley similarly misses the lesson of Jackson, which is that the
information should not be revealed to the Court.

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