 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON
                                               No. 67875-2-1
                    Respondent,
                                               DIVISION ONE
             v.
                                               UNPUBLISHED OPINION
KELSEY MARIE JOHNSON,

                    Defendant,

             and

KEITH THOMAS BLAIR, and each of
                                                                                    c n
them,                                          FILED: October 14, 2013
                    Appellant.

        Grosse, J. — Under the Sixth Amendment, defendants have a qualified

right to choose retained counsel. In the event of a conflict with counsel, the

defendant must be afforded an opportunity to waive that conflict. Here, the trial

court disqualified the defendant's attorney because the attorney was a witness to

the crime for which the defendant was charged. However, the attorney was not a

necessary witness and the State now concedes that the trial court's reason for

disqualification was erroneous. Nonetheless, the State argues that the attorney

had a serious potential conflict of interest under Rules of Professional Conduct

(RPC) 1.7 and therefore the disqualification was proper. However, the potential
conflict issue was not argued below and we will not now consider it. Because the

defendant was not afforded an opportunity to waive any potential conflict of

interest, we reverse and remand.
No. 67875-2-1 / 2



                                     FACTS

      The State charged Keith Blair with first degree trafficking in stolen

property, residential burglary, and two counts of second degree possession of

stolen property.    Blair retained attorney John Muenster, replacing his court

appointed counsel, Simon Stocker. By amended information, the State charged

Blair with nine counts of residential burglary and two counts of firearm theft. The

State notified Muenster of its intent to add a money laundering charge, the basis

of which was that Muenster was paid with money stolen during the burglary. The

State informed Muenster that if Blair provided proof that the money came from a

legitimate source by February 1, 2011, the State would not move to amend.

      On February 4, 2011, the State moved to amend the information and

submitted a motion to disqualify Muenster, pursuant to RPC 3.7 and Mannhalt v.

Reed,1 which held that an actual conflict of interest exists where an attorney is

accused of crimes similar or related to his client. Because Muenster had no prior

notice of the motion to disqualify, the presiding judge set the matter over to the

following week.

      On March 2, 2011, Judge Theresa Doyle heard the motion to disqualify

Muenster and the State's motion to amend the information. The trial court found

there were no grounds under the RPC's to disqualify Muenster as Blair's counsel.

Further, the court determined that Muenster was not a necessary witness in the

laundering charge, ruling:

       [T]he State is asking me to disqualify Mr. Muenster as counsel of
       record. First of all, I question - I don't see that he's a necessary


 847 F.2d 576 (9th Cir. 1988).
No. 67875-2-1 / 3


       witness.     I mean apart from all the Sixth Amendment and other
       constitutional issues that this motion raises, I don't see even that
       the basic requirement of disqualification under the, I think it's the
       RPC's, is met here.

       The State agreed with the trial court's ruling that Muenster was not a

witness, but nonetheless continued to argue that the court should ask Blair to

waive any potential conflict that might exist with regard to Muenster serving as

his counsel for the money laundering charge. The State argued that it was not

really seeking disqualification, but rather a waiver from the defendant to preclude

any appeal he might have based on any potential conflict. Judge Doyle denied

the motion to disqualify.    Even after the court denied the State's motion, the

prosecutor continued to contend that there was a potential conflict and again

asked that the court disqualify Muenster. At the same time the State requested

the court disqualify Muenster, it asserted that this conflict would not necessarily

remove Muenster from acting as Blair's attorney because Blair could waive any

conflict. The court granted the motion to amend and again denied the motion to

disqualify. It did not rule on the waiver issue.

       On March 14, 2011, defense moved to dismiss the money laundering

charge or to sever the count from the remaining charges. Blair argued that this

was the first time the State had used payment of attorney fees as a basis for a

money laundering charge under RCW 9A.83.020. The court requested additional

briefing. On March 30, 2011, the court severed the money laundering charge

from the other charges.

       Judge Doyle subsequently determined that a criminal defendant did not

have the right to retain an attorney with stolen funds, reconsidered her prior
No. 67875-2-1 / 4


ruling, and granted the State's motion to disqualify Muenster under RPC 3.7,

ruling that Blair was a necessary witness.

      Simon Stocker, the previously replaced attorney of record, was appointed

to represent Blair on the money laundering charge.2 The jury found Blair guilty of
money laundering.

                                   ANALYSIS

       Blair appeals, arguing that he was denied his Sixth Amendment right to

counsel when the trial court erroneously disqualified his attorney.     The Sixth

Amendment provides a defendant in a criminal prosecution the right to

assistance of counsel. A defendant does not have an absolute right under the

Sixth Amendment to counsel of his or her choice.3 However, a defendant's right

to choose one's retained counsel is independent of the right to competent

counsel. In United States v. Gonzalez-Lopez,4 the Supreme Court held that

where a defendant retains counsel, the Sixth Amendment encompasses the right

to counsel of his choice. The right to counsel of choice "commands, not that a

trial be fair, but that a particular guarantee of fairness be provided—to wit, that

the accused be defended by the counsel he believes to be best."5
       Where the right to be assisted by counsel of one's choice is
       wrongly denied, therefore, it is unnecessary to conduct an
       ineffectiveness or prejudice inquiry to establish a Sixth Amendment
       violation. Deprivation of the right is "complete" when the defendant



2 Muenster continued to represent Blair who was convicted of 13 of the 14
counts, including the burglary that allegedly garnered the funds used to pay
Muenster.
3 State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997)).
4 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006).
5 Gonzalez-Lopez, 548 U.S. at 146.
No. 67875-2-1 / 5


       is erroneously prevented from being represented by the lawyer he
       wants, regardless ofthe quality ofthe representation he received.161
However, such a right is not absolute and where the court finds an actual or

potential conflict of interest, it may decline a waiver of such a conflict and remove

the attorney.7 There is a presumption in favor of a defendant's right to choose
counsel and that presumption must be overcome by either an actual conflict or "a

showing of a serious potential for conflict."8
       Under RPC 3.7, a lawyer generally cannot act as an advocate in a trial in

which the lawyer is a necessary witness.9 A breach of the rule may prevent a fair
trial, entitling a defendant to a new trial.10 This court reviews a decision to
disqualify an attorney for an abuse of discretion.11          A determination about
whether a conflict of interest exists is a question of law and is reviewed de



6 Gonzalez-Lopez, 548 U.S. at 148.
7 Wheat v. U.S., 486 U.S. 153, 162-63, 108 S. Ct. 1692, 100 L. Ed. 2d 140
(1988).
8Wheat, 486 U.S. at 164.
9 RPC 3.7 provides:
         (a) A lawyer shall not act as advocate at a trial in which the lawyer is
       likely to be a necessary witness unless:
           (1) the testimony relates to an uncontested issue;
             (2) the testimony relates to the nature and value of legal services
          rendered in the case;
             (3) disqualification of the lawyer would work substantial hardship on
       the client; or
             (4) the lawyer has been called by the opposing party and the court
          rules that the lawyer may continue to act as an advocate; or
          (b) A lawyer may act as advocate in a trial in which another lawyer in
       the lawyer's firm is likely to be called as a witness unless precluded
       from doing so by Rule 1.7 or Rule 1.9.
10 State v. Nation, 110 Wn. App. 651, 659, 41 P.3d 1204 (2002).
11 Public Util. Dist. No.1 v. Int'l Ins. Co., 124 Wn.2d 789, 812, 881 P.2d 1020
(1994); State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997) (A trial
court abuses its discretion when it makes a decision based on untenable grounds
or for untenable reasons.)
No. 67875-2-1 / 6


novo.12 Courts are reluctant to disqualify an attorney under RPC 3.7 and require
that the motion for disqualification "'be supported by a showing that the attorney

will give evidence material to the determination of the issues being litigated, that

the evidence is unobtainable elsewhere, and that the testimony is or may be

prejudicial to the testifying attorney's client.'"13
       Here, citing RPC 3.7, the trial court disqualified Muenster from acting as

attorney in the money laundering charge because Muenster was a necessary

witness as the recipient of stolen funds. There are no other findings supporting

this disqualification.   The State concedes that RPC 3.7 was not a basis for

disqualification. The record here demonstrates that the State never intended to

call Muenster as a witness, he was not a necessary witness, and, in fact, he was

not called as a witness.

       Nevertheless, the State argues that this court should affirm because the

record establishes a serious potential for a conflict of interest under RPC 1.7.

Under RPC 1.7(a)(2), a lawyer shall not represent a client if "there is a significant

risk that representation of one or more clients will be materially limited ... by a

personal interest of the lawyer." The State contends that because Muenster was

involved in receiving and retaining stolen funds, there was a conflict of interest.

       Below and on appeal, the State cites Mannhalt v. Reed14 to support
Muenster's disqualification. In Mannhalt, the Ninth Circuit Court of Appeals held

that an actual conflict of interest existed where an attorney was accused of


12 State v. Orozco, 144 Wn. App. 17, 20, 186 P.3d 1078 (2008).
13 Public Util. Dist. No.1, 124 Wn.2d at 812 (quoting Cottonwood Estates, Inc. v.
Paradise Builders, Inc., 128 Ariz. 99, 105, 624 P.2d 296 (1981)).
14 847 F.2d 576 (9th Cir. 1988).
No. 67875-2-1 / 7


crimes related to those of his client.15 But Mannhalt is distinguishable. There,
defense counsel's personal interests were conclusively shown to be at odds with

those of the defendant during the time of representation because he was

accused of a crime similar or related to those of the defendant at the time. Here,

there is no such accusation. Moreover, here, the State argued that if there was a

conflict, Blair could waive it. Because the trial court did not inquire into whether

there was a potential conflict or whether Blair would waive it, Blair was denied his

choice of counsel.


       Further, the record here does not support the State's claim of an actual or

potential conflict of interest that would adversely affect the attorney's

performance. The State's reliance on Government of Virgin Islands v. Zepp16
and United States v. Fulton17 is misplaced.
       In Zepp, the defendant was charged with possession of controlled

substances and destruction of evidence.         Police who had surrounded the

defendant's home heard a toilet flushing.     At the time, the defendant and her

attorney were the only occupants of the house and police recovered cocaine

from the septic tank.   The attorney stipulated to the fact that he was not the

person who had flushed the toilet. The Third Circuit Court of Appeals found that

the attorney's stipulation deprived the defendant of her constitutional right to

counsel. Because only one of two people could have flushed the toilet, the Zepp

majority concluded that counsel's stipulation placed him in the irreconcilable



15 Mannhalt, 847 F.2d at 581.
16 748 F.2d 125, 136 (3rd Cir. 1984)
175F.3d605(2ndCir.1993).
No. 67875-2-1 / 8



position of defending Zepp while simultaneously attempting to exculpate himself

from criminal liability, resulting in "a total abandonment of the loyalty which

counsel owes his client."18 Unlike in Zepp, the circumstances here did not leave
Muenster with any interest in exculpating himself at odds with his duty to defend

Blair. If anything, their interests were aligned.

         In Fulton, in the middle of trial, it was discovered that the defendant's

counsel had been named by a government witness as one who was trafficking

heroin himself and had received heroin that had been smuggled in by the

defendant's co-conspirator.     The defendant waived the conflict, but the court

found that the conflict was not subject to waiver because the attorney's fear of

implicating himself would prevent the defendant from receiving a vigorous

defense.19 Unlike Fulton, counsel here would not be in fear of implicating himself

as the State admits that there is no evidence that Muenster committed a crime.

The State argues that a potential conflict has somehow morphed into a per se

violation of the RPCs, necessitating counsel's removal. This, however, cannot

be reconciled with the State's argument below where it sought only an

opportunity for Blair to waive any potential conflict.

         Here, even if the trial court had inquired into whether there was a possible

conflict, the defendant could have waived the conflict.20 Because the defendant




18 Zepp, 748F.2dat138.
19 Fulton, 5 F.3d at 612-13
20
     See United States v. Lopesierra-Gutierrez, 708 F.3d 193, 202 (D.C. Cir. 2013)
(conflict of interest resulting from alleged receipt of laundered funds can be
waived).


                                           8
No. 67875-2-1 / 9


was not afforded such an opportunity, he was denied his Sixth Amendment right

to counsel of his choice.

       Because we reverse on the issue presented in this appeal, we need not

and do not consider issues raised by Blair in his statement of additional grounds.

       Reversed and remanded.




                                                           atv/3ji   i
WE CONCUR:




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