              IN THE SUPREME COURT OF IOWA
                              No. 07–1041

                        Filed February 13, 2009


STATE OF IOWA,

      Appellee,

vs.

JEFFREY D. SMITH,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County,

Kellyann M. Lekar, Judge.



      Defendant charged with first-degree murder appeals from the

district court’s order disqualifying his counsel of choice.   REVERSED

AND REMANDED WITH INSTRUCTIONS.



      Robert P. Montgomery of Parrish, Kruidenier, Dunn, Boles,

Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, and Michael

Lanigan, Waterloo, for appellant.


      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Charity

McDonell, Assistant County Attorney, for appellee.
                                        2

HECHT, Justice.

      The State moved to disqualify defendant’s privately-retained

counsel of choice on the ground that counsel faced an “actual conflict of

interest.”   Despite the defendant’s express waiver of the conflict, and

notwithstanding the availability of co-counsel to handle all matters

related to the State’s witness whose involvement in the case was the

subject of the claimed conflict, the district court ordered counsel to

withdraw.     We stayed further proceedings in the district court and

granted interlocutory discretionary review of the order disqualifying the

defendant’s counsel. We now reverse and remand with instructions.

      I.     Factual and Procedural Background.

      Tonyeah Jackson was murdered at a Waterloo bar in July of 2006.

Waterloo police identified the defendant, Jeffrey Smith, as a prime

suspect in the murder.       On July 10, Smith met with Attorney Robert

Montgomery of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish,

Gentry & Fisher, L.L.P. (Parrish Firm) in Des Moines.                Montgomery

advised Smith to voluntarily turn himself in to the police, and Smith

complied. Smith was initially charged with a drug offense, and he hired

Montgomery to represent him.

      On August 3, 2006, Smith was charged with first-degree murder in

connection with the Jackson homicide.               He hired Montgomery to

represent him on this new charge, as well.1 Montgomery appeared with
Smith at the arraignment on the murder charge, and was given a copy of

the trial information.     A list of potential witnesses for the State and




      1Montgomery’s    disqualification from representation of Smith on the murder
charge gives rise to this appeal. Montgomery’s representation of Smith on the drug-
related charge continued and is unrelated to this appeal.
                                            3

minutes of testimony were not attached to or provided with the

information delivered to Montgomery and Smith at the arraignment.2

       After making a formal appearance as Smith’s counsel on the

murder charge, Montgomery filed an application for the appointment of a

court-appointed co-counsel to assist in Smith’s defense.                      The court

appointed attorney Mike Lanigan of Waterloo to serve as Montgomery’s

co-counsel. Montgomery and Lanigan had no personal or professional

association prior to their mutual representation of Smith in this case.

       Montgomery traveled to the clerk of court’s office in Waterloo on a

number of subsequent occasions and reviewed the State’s list of

witnesses, consisting of approximately one hundred names, and the

minutes of testimony.            While reviewing the State’s witness list in

December 2006, Montgomery discovered Marlon Earsery was among the

persons named on the State’s list of potential witnesses. Earsery was at

that time represented by Eric Parrish, Montgomery’s colleague in the

Parrish Firm, on an unrelated criminal charge.

       The minutes of testimony revealed the State planned to call

Earsery to testify about two tape-recorded telephone conversations he

had with Shylandra Dunn, his girlfriend, and Larhandrae Dunn, her

brother.3     The original minutes of testimony summarized Earsery’s

expected testimony as follows:

       [Earsery] will testify and identify and introduce into evidence
       a recording from the jail pod with Shylandra Dunn and
       Larhandrae Bud Dunn. [Earsery] will testify and identify his
       voice and those voices on said conversation. [Earsery] will

       2The   record suggests it is customary in Black Hawk County for the initial
witness lists and minutes of testimony to be placed in boxes at the clerk of court’s office
in Waterloo. Thus, defendants and their counsel do not customarily receive documents
communicating such information at the time of their arraignment in that county.

       3Earsery was an inmate in the county jail at the time, and his phone calls were
tape-recorded consistent with the procedures used on all inmate calls originating from
the jail.
                                           4
       testify and describe the events as they transpired during the
       phone conversation, mainly hearing shots and to Bud Dunn
       telling him that J-Rich just came in and started shooting up
       Crystyles.     [Earsery] will further testify, identify, and
       introduce into evidence said recorded phone call from the
       jail. [Earsery] will testify and identify the voices on it.
       [Earsery] will testify to the nature of the conversations.
       [Earsery] will testify as to the shots being recorded.

       After learning Earsery was represented by Parrish, Montgomery

immediately discussed the matter with Lanigan.                    Montgomery and

Lanigan again reviewed the minutes of testimony and concluded

Earsery’s role as a witness would be to provide foundational testimony

supporting the introduction of the audiotape in evidence.4                       Their

understanding of Earsery’s expected role as a witness was corroborated

in conversations with the prosecuting attorneys who suggested they saw

no actual conflict presented by Montgomery’s continued representation

of Smith.

       Montgomery and Lanigan believed Earsery’s expected testimony

would not be accusatory in nature because Earsery was not present at

the scene of the crime, and therefore had no personal knowledge of the

matter. Neither Montgomery nor Lanigan anticipated a need to impeach

Earsery’s foundational testimony through cross-examination.
       Even after concluding Earsery’s testimony was solely foundational,

Montgomery took various cautionary steps to ensure the situation would

not develop into an actual conflict.            First, Montgomery and Lanigan

agreed Montgomery would not participate in deposing nor questioning


       4Contemporaneous     discussions between Smith’s attorneys and the county
prosecutors concerning Earsery after discovering the potential conflict substantiated
the conclusion that Earsery would serve a purely foundational role. The prosecutors
indicated to Smith’s attorneys they saw no actual conflict presented by Montgomery’s
continued representation of Smith. The prosecutors remained steadfast in this position
until the time of the “Watson hearing.” At the hearing, the prosecutors argued Earsery
would be a “key witness” contrary to their earlier assertions and contrary to the
language of the minutes. Our full review of the record yields no support for the State’s
assertion Earsery’s testimony would be more than foundational.
                                        5

Earsery should either later become necessary.           Lanigan would handle

those duties.5 Additionally, Montgomery took steps within the Parrish

Firm to avoid all contact with Earsery’s defense. Montgomery gained no

knowledge of Earsery’s client confidences, and he never discussed

Earsery’s case or Smith’s case with Parrish.

      Having fully disclosed the situation to Lanigan and to the

prosecutors, Montgomery proceeded as lead counsel from the time he

was hired in September 2006 until May 2007 on the understanding that

no actual conflict existed which would require his voluntary withdrawal

or his involuntary disqualification.        During that time, Montgomery

deposed over fifty witnesses and spent substantial time and energy

preparing Smith’s defense. Smith’s defense was planned and organized

with Montgomery as lead counsel, and consistent with Montgomery’s

strategies and theories.

      On May 7, 2007, the State filed an “Additional Minute of

Testimony” for Earsery. The additional minute of testimony stated:

      In addition to testifying to matters contained in Minutes of
      testimony previously filed in this case, [Earsery] will testify,
      identify and introduce into evidence recordings of two (2)
      phone conversations which originated with himself from the
      Black Hawk County Jail on 7/9/2006 between the hours of
      9:00 and 9:30 PM. [Earsery] will testify and identify the
      voices on said phone conversations. [Earsery] will testify
      that said voices are those of Shylandra Dunn (aka: Lan Lan)
      and Shytari Dunn (aka: TD or TT). [Earsery] will testify as to
      conversations with Bud Dunn. . . . [Earsery] will testify,
      identify and introduce into evidence said two (2) phone calls.
      [Earsery] will testify as to the foundation for said phone
      calls.

Thus, the additional minute clarified Earsery’s expected testimony, but

did not change the substance of the original minutes of testimony. In


       5Consistent with his belief that Earsery’s testimony was only foundational,

Lanigan elected not to depose Earsery.
                                           6

fact, the additional minute did nothing to alter the foundational nature of

Earsery’s testimony.

       As trial approached, the district court’s deadline for filing pre-trial

motions came and passed. On May 9, 2007, after the deadline for filing

pre-trial motions had passed, the State filed a “Motion For Watson

Hearing To Determine Conflict of Interest.”6 The State’s motion asserted,

for the first time, that Montgomery should be disqualified as Smith’s

counsel because of an actual conflict of interest arising from the Parrish

Firm’s concurrent representation of Smith and Earsery.

       A hearing on the State’s motion was held on May 18, 2007

approximately two weeks before Smith’s trial was scheduled to begin.

The State contended Earsery would be an important witness for the

State, and asserted the actual conflict required the total disqualification

of Montgomery from any further representation of Smith on the murder

charge.      Montgomery       and    Lanigan     disputed     the    State’s   claims,

contending (1) Earsery was merely a foundational witness, (2) no actual

conflict existed precluding Montgomery’s continuing representation of

Smith, and (3) partial disqualification would be an adequate response to

the perceived potential conflict of interest.          Montgomery informed the

district court of the protective measures taken to mitigate the potential

conflict, including the decision to have Lanigan handle all matters related

to Earsery.     Smith acknowledged and voluntarily waived the possible

conflict on the record during the hearing, and expressed to the district

court his desire that Montgomery should continue to serve as defense

counsel.

       6In  earlier discussions with Smith’s attorneys, the prosecutors suggested a
hearing would only be necessary to create a record of Smith’s voluntary waiver of any
“potential conflict.” A district court order entered on April 23, 2007 had noted such a
hearing could be held on short notice at either party’s request. Neither party requested
a hearing before the deadline for filing motions passed.
                                            7

        The district court found Earsery is a “key prosecution witness,”

and concluded an “actual conflict of interest” requiring Montgomery’s

total   disqualification     arose     from     the   Parrish     Firm’s    concurrent

representation of Smith and Earsery. Smith filed a motion urging the

district court to reconsider its ruling, and requesting an opportunity to

make an offer of proof.7 The district court denied the motion.8

        Smith sought and we granted interlocutory discretionary review of

the district court’s order.         We stayed all further proceedings in the

district court pending this appeal.

        II.    Scope of Review.

        “A determination of whether a conflict exists is a mixed question of

fact and law.” Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003) (citing

Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 1715, 64 L. Ed.

2d 333, 342 (1980)); see also State v. Vanover, 559 N.W.2d 618, 627

(Iowa 1997) (utilizing a modified version of the de novo standard to

analyze a conflict of interest issue).

        When a defendant claims a violation of his Sixth Amendment

rights, our review is generally de novo.              Pippins, 661 N.W.2d at 548

(citing State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000); Vanover, 559

N.W.2d at 627). At the same time, “[w]hether the facts show an actual

conflict of interest or a serious potential for conflict is a matter for trial

court discretion.” Id. (citing Watson, 620 N.W.2d at 235; Vanover, 559

N.W.2d at 627); see also Wheat v. United States, 486 U.S. 153, 164, 108

        7The
           motion was captioned “Motion to Reconsider and Motion for Expanded and
Amended Findings of Fact and Conclusions of Law and Motion for Further Hearing for
Offer of Proof and Request for In Camera Inquiry and Combined Incorporated
Memorandum of Law.”

        8On  appeal, Smith assigns as error the district court’s decision to deny an offer
of proof. We do not reach that issue because we reverse and remand with instructions
for other reasons.
                                       8

S. Ct. 1692, 1700, 100 L. Ed. 2d 140, 152 (1988) (noting an evaluation of

an actual conflict of interest is left primarily to the discretion of the trial

court).    This court will “find an abuse of that discretion only when a

party claiming it shows ‘the discretion was exercised on grounds or for

reason clearly untenable or to an extent clearly unreasonable.’ ” Pippins,

661 N.W.2d at 548 (quoting Vanover, 559 N.W.2d at 627).

      III.    Discussion.

      A.      Constitutional Right to Counsel-of-Choice.            The Sixth

Amendment to the United States Constitution states: “In all criminal

prosecutions, the accused shall enjoy the right to . . . have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. The Iowa

Constitution similarly states: “In all criminal prosecutions . . . the

accused shall have a right to . . . have the assistance of counsel.” Iowa

Const. art. I, § 10.

      “[A]n element of [the Sixth Amendment] 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, 126

S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 416 (2006) (citing Wheat, 486 U.S.

at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 148). Stated another way,

“ ‘the Sixth Amendment guarantees the defendant the right to be

represented by an otherwise qualified attorney whom that defendant can

afford to hire, or who is willing to represent the defendant even though

he is without funds.’ ”     Id. (quoting Caplin & Drysdale, Chartered v.

United States, 491 U.S. 617, 624–25, 109 S. Ct. 2646, 2652, 105 L. Ed.

2d. 528, 541 (1989)).

      However,     the   defendant’s   right   to   counsel    of   choice   is

“ ‘circumscribed in several important respects.’ ” Id. (quoting Wheat, 486

U.S. at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 148). It cannot be
                                     9

overlooked that “the essential aim of the [Sixth] Amendment is to

guarantee an effective advocate for each criminal defendant rather than

to ensure that a defendant will inexorably be represented by the lawyer

whom he prefers.”     Wheat, 486 U.S. at 159, 108 S. Ct. at 1697, 100

L. Ed. 2d at 148.

      As the Eighth Circuit has noted, “[i]n general, defendants are free

to employ counsel of their own choice and the courts are afforded little

leeway in interfering with that choice.” United States v. Cox, 580 F.2d

317, 321 (8th Cir. 1978) (citation omitted). However, we have recognized:

      [t]here are times when an accused’s right to counsel of
      choice must yield to a greater interest in maintaining high
      standards of professional responsibility in the courtroom.
      The trial court may therefore disqualify counsel if necessary
      to preserve the integrity, fairness, and professionalism of
      trial court proceedings.

Vanover, 559 N.W.2d at 626 (citation omitted) (emphasis added)

(affirming the district court’s disqualification of the defendant’s attorney

whom the State intended to call as a witness); see also State v. Powell,

684 N.W.2d 235, 242 (Iowa 2004) (holding the existence of a possible

conflict required remand for a determination of whether an actual

conflict of interest existed, and holding a new trial would be required if

an actual conflict existed).

      Indeed, when a defendant’s counsel of choice proceeds in

representation despite an actual and apparent conflict of interest:

      “[T]he court should not be required to tolerate [such]
      inadequate representation of a defendant.                  Such
      representation . . . invites disrespect for the integrity of the
      court [and] it is also detrimental to the independent interest
      of the trial judge to be free from future attacks over the
      adequacy of waiver or the fairness of the proceedings in his
      [or her] own court and the subtle problems implicating the
      defendant’s comprehension of the waiver.”
                                        10

Vanover, 559 N.W.2d at 627 (quoting Wheat, 486 U.S. at 162, 108 S. Ct.

at 1698–99, 100 L. Ed. 2d at 151 (internal quotations omitted)).

Although district courts need not tolerate inadequate representation to

protect a defendant’s right to choose his counsel, a defendant who is

erroneously deprived of the right to counsel of his or her choice is entitled

to relief. Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at 2564–65, 165

L. Ed. 2d at 419–20.

        With these principles in mind, we will address whether the district

court    erred   (1)    in    concluding     the   Parrish   Firm’s    concurrent

representation of Smith and Earsery constituted an actual conflict of

interest requiring Montgomery’s disqualification; and (2) in ordering

Montgomery’s total, rather than partial, disqualification.

        B.    The      Nature    of   Montgomery’s      Conflict.       We   have

considered in two recent cases the effect of a defense counsel’s conflict of

interest on a defendant’s right to counsel of choice.                 See State v.

Smitherman, 733 N.W.2d 341 (Iowa 2007); Watson, 620 N.W.2d 233. In

both cases, the defendant’s attorney was, at least for some length of time,

directly engaged in the concurrent representation of both a defendant

and a witness for the prosecution. See Smitherman, 733 N.W.2d at 343–

45; Watson, 620 N.W.2d at 234–35.             Apart from this initial similarity,

however, the facts and legal conclusions of the two cases diverge.

        In Watson, the defendant was charged with murdering his father.

620 N.W.2d at 234.           Ross-Boon and Sissel, colleagues in the public

defender’s office, were appointed to represent Watson.           Id.    At trial, a

witness for the State testified he overheard Watson admit he shot his

father. Id. On cross-examination by Sissel, the witness admitted he was

facing pending criminal charges, and disclosed that Ross-Boon was his

counsel. Id. at 235. The trial court made no inquiry into the nature of
                                      11

the conflict arising from Ross-Boon’s concurrent representation of

Watson and the witness when it was revealed, and neither party objected

in the district court. Id. In the direct appeal from his conviction, Watson

first claimed Ross-Boon labored under an actual conflict of interest. Id.

Watson argued the court’s failure to conduct an inquiry into the conflict

required an automatic reversal of his conviction. Id.

        After an analysis of Sixth Amendment authorities, we adopted the

“presumed prejudice” rule.        Id. at 235–36.      This rule requires a

defendant’s conviction be reversed, regardless of guilt, if an actual

conflict of interest existed. Id. at 236 (citations omitted). However, we

also noted “if the trial court record shows merely a possibility of a conflict,

prejudice will not be presumed.” Id. (citing Cuyler, 446 U.S. at 348, 100

S. Ct. at 1718, 64 L. Ed. 2d at 346) (emphasis added). Accordingly, “ ‘a

defendant who raised no objection at trial must demonstrate that an

actual conflict of interest adversely affected his lawyer’s performance.’ ”

Id. (quoting Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718, 64 L. Ed. 2d at

346).

        We concluded counsel’s actual conflict of interest mandated the

reversal of Watson’s conviction where the trial court failed to make an

inquiry into the conflict even after it became apparent. Id. at 237. We

stated, “[i]t is only in cases of uncertainty, where the record shows the

mere possibility of a conflict, that the additional requirement of an

adverse effect on counsel’s performance is required to establish an actual

conflict.” Id. at 238. We were not swayed by the fact Sissel handled all

questioning of the adverse witness, because both Ross-Boon and Sissel

were members of the same “firm” (the public defender’s office), and they

had full and equal access to the witness’s confidences. Id. at 241.
                                          12

       In   Smitherman,       we    addressed     similar,      but   not   identical,

circumstances. 733 N.W.2d at 341.9 Two public defenders, Anderson

and Reel, were appointed to represent Smitherman on a murder charge.

Id. A jailhouse informant, who was concurrently represented by Reel on

unrelated     charges,    came      forward     with   information      relevant    to

Smitherman’s guilt.        Id.     Reel withdrew from the representation of

Smitherman soon after he discovered the dual representation, and the

public defender’s office also promptly ceased all representation of the

informant. Id. at 344. After his withdrawal as Smitherman’s counsel,

Reel was entirely screened off from any matters related to Smitherman’s

defense. Id.

       The State filed a pre-trial application for a “Watson hearing” to

determine if a conflict of interest required disqualification of all attorneys

associated with the public defender’s office.             Id.    A hearing on the

application led the district court to find Smitherman wished to maintain

his lawyer-client relationship with Anderson notwithstanding the former

dual representation by Reel.            Id. at 345.       Based on the prompt

“screening” actions of Reel and Smitherman’s voluntary waiver of any

conflict, the district court concluded no potential or actual conflict of

interest existed. Id.

       Smitherman was convicted.               He filed an appeal claiming his

constitutional rights were violated by the public defender’s continued

representation. Id. at 346. The appeal presented “one question: whether

the defendant has made a showing whereby we can presume prejudice.”

Id. (citing Watson, 620 N.W.2d at 238). In Mickens v. Taylor, 535 U.S.

162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the Supreme Court


       9We note that our decision in Smitherman was not available to the district court

when it ruled on the motion at issue in this appeal.
                                        13

explained that “[a]n ‘actual conflict,’ for Sixth Amendment purposes, is a

conflict of interest that adversely affects counsel’s performance.”            535

U.S. at 172 n.5, 122 S. Ct. at 1244 n.5, 152 L. Ed. 2d at 305 n.5

(emphasis   added).        In   applying     Mickens,   we   concluded    it   was

Smitherman’s burden to show “adverse effects” resulting from the

claimed conflict of interest in order to obtain a reversal.          Smitherman,

733 N.W.2d at 347 (citing Mickens, 535 U.S. at 172–73, 122 S. Ct. at

1244–45, 152 L. Ed. 2d at 304–05). In our application of this standard

in Smitherman, we noted it was the defendant’s burden after his

conviction to show his counsel was adversely affected by the conflict in

order to prove a violation of his constitutional rights where the district

court had conducted a meaningful inquiry as to the claimed conflict prior

to the conviction, and because Smitherman had indicated his preference

before trial that representation by the public defender should continue.

Id.

      We distinguished Watson, a case in which the district court failed

to conduct a reasonable inquiry into the apparent conflict and its effect

on the defendant’s constitutional right to counsel, and therefore did not

apply its “presumed prejudice” rule in Smitherman.                 Id. at 347–48.

Unlike the circumstances presented in Watson, “all the parties were

manifestly aware of the conflict and took several precautions to assure

[Smitherman’s] rights were not violated,” and Smitherman requested his

defense   counsel     be    permitted      to   continue     the   representation

notwithstanding the conflict. Id. at 348. Under the circumstances, we

concluded automatic reversal of Smitherman’s conviction was not

appropriate. Id.; see also Wheat, 486 U.S. at 163, 108 S. Ct. at 1699,

100 L. Ed. 2d at 151 (noting a district court must be afforded

“substantial latitude” in refusing a defendant’s waiver where a “potential
                                     14

for conflict” may arise during trial). We determined Smitherman failed to

show how his counsel’s performance was “adversely affected” by the

claimed conflict of interest, and concluded his right to conflict-free

counsel was not violated. Smitherman, 733 N.W.2d at 349.

      Because Smith has not yet been tried, our consideration of his

claim is prospective rather than retrospective as it was in Watson and

Smitherman.     We conclude, however, that these recent cases reveal

principles useful to our prospective analysis and the appropriate

disposition of this appeal. We conclude Smith’s Sixth Amendment right

to counsel of his choice was violated by the district court’s total

disqualification of Montgomery under the circumstances presented here.

      1. The nature of the conflict. We agree the possibility of a conflict is

present under the facts and circumstances of this case. However, as in

Smitherman, several facts weigh against finding an actual conflict of

interest. Among them are: (1) the presence of non-conflicted co-counsel

Lanigan who will be able to handle any aspect of Smith’s defense that

requires involvement with Earsery; (2) Smith’s voluntary waiver on the

record; (3) Montgomery’s careful avoidance of involvement in Earsery’s

defense through the Parrish Firm so as to avoid disclosure to him of

Earsery’s client confidences; and (4) the purely speculative nature of the

State’s claim that Montgomery’s representation of Smith will be adversely

affected by the conflict.     Taken together, these facts substantially

mitigate the risk that Montgomery’s continued representation of Smith

will be burdened by an actual conflict.

      a.   Presence of non-conflicted co-counsel.       The district court’s

decision failed to consider critical factual differences between the facts of

this case and those presented in Watson. First, in Watson, conflicted-

counsel Ross-Boon directly engaged in the concurrent representation of
                                       15

the defendant and of a witness for the State.         620 N.W.2d at 238–39.

Second, both of Watson’s defense attorneys were members of the same

firm (the public defender’s office).    Id. at 241.   Thus co-counsel Sissel

faced the same actual conflict as his colleague, Ross-Boon. Id. In the

absence of evidence to the contrary, the court could only presume Sissel

had full access to the same client confidences of both the witness and

Watson as Ross-Boon, thus rendering the two attorneys equally

conflicted. See id.

      In sharp contrast, Montgomery has carefully avoided direct

engagement in the Parrish Firm’s representation of Earsery.           Perhaps

more importantly, Lanigan, Montgomery’s non-conflicted co-counsel from

an outside firm, is available to handle any defensive matters that relate

to Earsery.    Lanigan, as we have explained, is unaffiliated with the

Parrish Firm and has not been exposed to the client confidences of

Earsery.   Lanigan is therefore free to question Earsery zealously (if it

should become necessary) without the fear of divulging confidences.

Lanigan’s presence as co-counsel significantly distinguishes the facts of

this case from those in Watson, and mitigates the risk Smith will receive

inadequate representation.     The district court abused its discretion in

failing to distinguish this fact which led to its finding of an actual conflict

and in turn to Montgomery’s total disqualification.

      b.   Voluntary waiver on the record.       Smith voiced an informed,

unequivocal, voluntary waiver of the potential conflict on the record.

Such a waiver of a conflict does not vitiate the court’s duty to ensure a

defendant receives zealous representation when the facts suggest an

“actual conflict of interest or a serious potential for conflict of interest.”

Vanover, 559 N.W.2d at 626–27 (citation omitted); see also Wheat, 486

U.S. at 162, 108 S. Ct. at 1698–99, 100 L. Ed. 2d at 150–52 (noting
                                      16

“where a court justifiably finds an actual conflict of interest, there can be

no doubt that it may decline a proffer of waiver . . .”).       However, a

defendant’s informed, voluntary, and express waiver of counsel’s conflict

is a significant factor in our determination of whether the defendant’s

right to counsel has been violated.

      Smith’s waiver was made with full awareness of the Parrish Firm’s

concurrent representation of Earsery, and with knowledge that Lanigan,

who was not burdened with a conflict as to Earsery, would represent him

in any examination of Earsery.        We find no reason on this record to

believe Smith’s waiver was uninformed, incomplete, or ineffective. Like

the defendant in Smitherman, Smith acknowledged Montgomery’s

potential conflict on the record, waived it, and indicated his desire for

Montgomery to continue as his counsel. See Smitherman, 733 N.W.2d at

344–45, 348 n.7 (discussing the defendant’s waiver of a conflict and

acquiescence to representation, but rendering no final conclusion as to

the validity of the waiver). While the district court does have latitude in

refusing such waivers where “a serious potential for conflict exists,” any

possibility for an actual conflict in this case is mitigated by Montgomery’s

avoidance of all involvement in Earsery’s defense and Lanigan’s ability to

handle any aspect of Smith’s defense that requires contact with Earsery.

See Vanover, 559 N.W.2d at 626–27 (noting the district court has latitude

in refusing waivers of conflict). There is, in our view, no serious potential

for an actual conflict that would preclude Montgomery’s representation of

Smith in this case.

      c.   Montgomery’s efforts to avoid involvement with Earsery.        To

ensure     Earsery’s   client   confidences   would   not   interfere   with

Montgomery’s representation of Smith, counsel promptly took steps to

mitigate any possible conflict arising from Earsery’s involvement as a
                                           17

witness. As we have noted, he avoided all contact with Earsery’s defense

within the Parrish Firm. Montgomery has had no contact with Parrish as

to the cases of either Smith or Earsery, and has had no access to any of

Earsery’s client confidences.

       Montgomery has also arranged to have no involvement in the

examination of Earsery if he should be deposed or testify in Smith’s trial.

Like defense counsel in Smitherman, Montgomery has shielded himself

from involvement in aspects of the defense which might involve an

examination of Earsery so as to prevent any “potential conflict of

interest” from having any “adverse affects” on Smith’s defense. See 733

N.W.2d at 344, 348 (discussing the use of a “Chinese wall” by the public

defender’s office to prevent the exchange of client confidences and to

ensure the defendant’s rights were protected). The district court abused

its discretion in determining an actual conflict existed despite the

protective effects of Montgomery’s careful efforts to avoid all involvement

in Earsery’s defense and in any aspect of Smith’s defense that might

require an examination of Earsery.10

       10In  applying an earlier version of the Iowa Rules of Professional Conduct, we
recognized screens could be effective in mitigating imputed conflicts under certain
circumstances. See Smitherman, 733 N.W.2d at 344, 348 (discussing the effective use
of a “Chinese wall” by the public defender’s office); Doe v. Perry Cmty. Sch. Dist., 650
N.W.2d 594, 597–98 (Iowa 2002) (holding disqualification was appropriate, but
referencing several ABA formal opinions where screening prevented the disqualification
of an entire firm). It should be noted, however, that under the current version of the
rules, screening will not prevent the imputation of conflicts of interest to other firm
members in the practice of law. See generally Iowa Rs. Prof’l Conduct 32:1.7, 32:1.10;
see also Randall B. Bateman, Return to the Ethics Rules as a Standard for Attorney
Disqualification: Attempting Consistency in Motions for Disqualification by the Use of
Chinese Walls, 33 Duq. L. Rev. 249, 259–61 (1995) (discussing the ABA’s decision not
to include screening as a defense for private practice attorneys under the Model Rules
of Professional Conduct). Our holding in this case should therefore not be understood
as a determination that screening will generally vitiate conflicts of interest. As Smith’s
constitutional right to choose his counsel was impacted by the order disqualifying
Montgomery, we nonetheless consider the screening procedures implemented by
Montgomery and the Parrish Firm as a factor in determining whether the alleged
conflict is actual or merely potential, and our analysis of whether the claimed conflict is
                                          18

       d.   Speculative nature of the conflict.        The inherently speculative

nature of the conflict in this case causes us to reject the district court’s

conclusion      that     an     actual     conflict     requiring      Montgomery’s

disqualification exists in this case. In Watson, the finding of an actual

conflict was based, in part, on the fact that the testimony of the

concurrently represented witness was directly adverse to the interests of

the defendant. 620 N.W.2d at 239–41. Earsery’s testimony appears to

be merely foundational in nature and will be used primarily to introduce

a tape-recorded telephone conversation.11 Although the State speculates

that Earsery’s testimony might evolve into something more, the minutes

of testimony offer no support for the proposition that the witness has

personal knowledge of other matters which might allow him to testify in a

manner directly adverse to Smith. Earsery’s expected role in this case

thus differs markedly from the role of the witness in Watson who testified

he personally overheard the defendant admit commission of the charged

crime. See id. at 234.

       Assuming there were support for the conclusion that Earsery was

a witness who might become directly adverse to Smith, we have already

noted Lanigan, a non-conflicted attorney from an outside firm, is

available to conduct all questioning of Earsery. In Watson, there was no

outside, non-conflicted counsel available to conduct questioning of the
__________________________________
serious or speculative. Given Smith’s voluntary waiver, the presence of non-conflicted
co-counsel, and the speculative nature of the claimed conflict in this case, we conclude
the screens implemented by Montgomery are a mitigating factor under the
circumstances presented here. We do not suggest that those screens, standing alone,
would have been sufficient to preclude his disqualification.

        11Attorneys Montgomery and Lanigan made professional statements indicating

they foresaw no circumstance in which they would need to depose, cross-examine, or
impeach Earsery.      The minutes of testimony support counsel’s conclusion that
Earsery’s testimony serves only a foundation purpose. The record is markedly devoid of
support for the State’s suggestion that Earsery could competently serve any other role
as a witness.
                                           19

adverse witness.        See id. at 241.       Lanigan, unlike both attorneys in

Watson, is not in a situation of “divided loyalties.”12                  He is readily

available to handle any aspect of the case involving Earsery.                         See

generally Pippins, 661 N.W.2d at 549 (noting one test for determining

whether a conflict exists is “whether an attorney is placed in a situation

conducive to divided loyalties”).           The State presents no evidence or

meritorious argument to suggest Lanigan is incapable of handling any

examination of Earsery which might become necessary.13

       2. Rules of Professional Conduct. The Iowa Rules of Professional

Conduct provide provisions relevant to our analysis in cases, such as

this, involving concurrent conflicts of interest.                See Iowa Rs. Prof’l

Conduct 32:1.7, 32:1.8, 32:1.10 (2005). The rules provide guidance in

fully understanding and analyzing the conflict faced by Montgomery

under the circumstances of this case.

       In relevant part, rule 32:1.7 states:

       (a) . . . [A] lawyer shall not represent a client if the
       representation involves a concurrent conflict of interest. A
       concurrent conflict of interest exists if:

       (1) the representation of one client will be directly adverse to
       another client; or

       (2) there is a significant risk that the representation of one or
       more clients will be materially limited by the lawyer’s
       responsibilities to another client . . . .

Iowa R. Prof’l Conduct 32:1.7 (emphasis added).

        12From the time the potential conflict was discovered, Smith’s attorneys have

planned for Lanigan to handle any aspect of the defense that might involve Earsery.
Indeed, it was Lanigan who elected not to depose Earsery as to his foundational role in
this case.

       13In  both its written brief and at oral argument, the State provided a laundry list
of “what if” scenarios where something unexpected might happen and Attorney Lanigan
might be incapable of responding without the assistance of Montgomery. We find the
list of “what ifs” unpersuasive especially in light of a complete lack of any evidence to
suggest Lanigan would be incapable of handling, without Montgomery’s involvement,
any and all issues that may arise involving Earsery.
                                     20

      The conflict of interest rule outlined in rule 32:1.7 is subject to the

imputation principles promulgated in rule 32:1.10. Rule 32:1.10 states:

      (a) While lawyers are associated in a firm, none of them shall
      knowingly represent a client when any one of them
      practicing alone would be prohibited from doing so by rule
      32:1.7 . . . .

      ....

      (c) A disqualification prescribed by this rule may be waived
      by the affected client under the conditions stated in rule
      32:1.7.

Iowa R. Prof’l Conduct 32:1.10; see also Iowa R. Prof’l Conduct 32:1.10,

cmt. 2 (stating “a firm of lawyers is essentially one lawyer for the

purposes of the rules governing loyalty to the client”).

      In applying these rules in our analysis of the possible conflict faced

by Montgomery, we first look to rule 32:1.7 to determine if an actual

conflict of interest exists in Montgomery’s representation of Smith

concurrently with Parrish’s representation of Earsery. To qualify as an

actual conflict of interest under the rule, Parrish’s representation of

Earsery must be directly adverse to Montgomery’s representation of

Smith, or the representation of either client must be materially limited by

representation of the other. See Iowa R. Prof’l Conduct 32:1.7. If either

standard is met, an actual conflict exists.

      We conclude the concurrent representation of Smith and Earsery

by the Parrish Firm, under the circumstances fully discussed above,

meets neither the “directly adverse to” nor the “materially limited by”

standards. Thus, the district court abused its discretion in concluding

the conflict of interest in this case was an actual conflict.

      C.     Partial Disqualification.     Having established neither the

circumstances of this case nor an application of the Rules of Professional

Conduct support the district court’s finding an actual conflict under the
                                      21

circumstances presented here, we conclude the total disqualification of

Montgomery violated Smith’s right to counsel.

      “[T]he chosen method for dealing with a potential conflict, in the

absence of a waiver, is the one which will alleviate the effects of the

conflict while interfering the least with the defendant’s choice of counsel.”

United States v. Agosto, 675 F.2d 965, 970 (8th Cir. 1982), abrogated on

other grounds, Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051,

79 L. Ed. 2d 288 (1984); see also State v. Duncan, 435 N.W.2d 384, 387

(Iowa 1988) (stating in cases of dual representation rather than joint

representation “the danger of conflict is not as great, hence judicial

scrutiny need not be as deep”). While recognizing the general principle

that “[a] trial court has flexibility in making the difficult assessment of

the potential for conflict,” the Eighth Circuit noted “substantial weight is

given to defense counsel’s representations” in determining whether an

actual conflict exists. United States v. Flynn, 87 F.3d 996, 1001 (8th Cir.

1996) (citation omitted) (affirming a defendant’s conviction despite the

fact his attorney had previously represented one of the government’s

adverse witnesses). But see Powell, 684 N.W.2d at 241 (noting that an

attorney is in a precarious position when continuing representation

under circumstances suggesting the existence of divided loyalties).

      We believe the appropriate remedy in this case is a partial

disqualification of Montgomery from any aspect of Smith’s defense

involving Earsery. Partial disqualification will “alleviate the effects of the

conflict while interfering the least with [Smith’s] choice of counsel.” See

Agosto, 675 F.2d at 970.         Montgomery’s conflict is limited to one

foundational witness. Lanigan is ready, willing, and able to handle all

aspects of the case related to that witness. Under these circumstances,

partial disqualification will limit the danger that the potential conflict will
                                     22

prejudice Smith’s right to zealous representation while protecting his

valuable right to choose the counsel who will represent him.

      In similar situations, other courts have allowed a defendant’s

counsel of choice to continue representation when another, non-

conflicted counsel was available to handle aspects of the case involving

the witness giving rise to the conflict. See Rodriquez v. Chandler, 382

F.3d 670, 673 (7th Cir. 2004) (concluding the disqualification of an

attorney was unnecessary where “having co-counsel cross-examine [the

witness] would have eliminated all risks”); Agosto, 675 F.2d at 974

(discussing counsel’s continued representation of a defendant so long as

co-counsel was employed to handle cross-examination of certain

witnesses, and so long as defendant executed a waiver); United States v.

Johnson, 131 F. Supp. 2d 1088, 1103 (N.D. Iowa 2001) (noting the

presence of non-conflicted co-counsel to handle matters involving a

specific witness, if assigned to do so, supported the conclusion

disqualification of counsel was unnecessary).

      The district court ordered total disqualification of Montgomery

three weeks before trial, despite the fact that Montgomery had spent

nearly a year preparing for Smith’s defense, and, more importantly,

despite the presence of non-conflicted co-counsel to handle the cross-

examination of Earsery if such examination becomes necessary.                The

district court gave little or no weight to defense counsel’s representations

regarding Earsery’s limited role as a foundational witness and the

speculative nature of the possible conflict.             Given the proactive,

protective measures taken by Montgomery and Lanigan, as well as both

attorneys’   professional   statements    that     no    cross-examination    or

impeachment     of   Earsery   is   anticipated,    we    conclude   the   total
                                    23

disqualification of Montgomery unreasonably interferes with Smith’s

right to counsel.

      IV.   Conclusion.

      We conclude the district court abused its discretion in ordering the

total disqualification of Montgomery from representing Smith in his

murder defense.     The total disqualification of Montgomery under the

circumstances of this case violated Smith’s constitutional right to choose

who will represent him in this case. Partial disqualification will mitigate

any possible conflict while minimizing interference with the defendant’s

rights. Therefore, we reverse and remand with instructions to the district

court for entry of an order disqualifying Montgomery only from those

aspects of Smith’s defense involving Earsery.

      REVERSED AND REMANDED WITH INSTRUCTIONS.
