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Counsel – Conflict of Interest – Prior Representation by Prosecutor: Unrelated Civil Forfeiture

State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen

Issue: Whether the prosecutor’s prior representation of the defendant in a civil forfeiture worked a disqualifying conflict of interest.

Holding: The standard for analyzing the existence of a conflict of interest (raised before trial) in serial representation is the “substantial relationship” test, ¶15 ( State v. Love, 227 Wis. 2d 60, 82, 594 N.W.2d 806 (1999) distinguished, on necessity of showing “actual prejudice” when issue raised after trial). That is, disqualification is required “if the two representations are ‘substantially related,” as measured by whether the attorney could have obtained confidential information in the first representation that would have been relevant to the second. ¶13. In this case, the trial court’s findings — principally, that the prosecutor and his former client “did not exchange any meaningful confidential information” — is upheld and leads to denial of relief.

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