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Defendant waived trial counsel’s conflict of interest

State v. Michael Wade, 2018AP614-CR, 3/5/19, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

Wade challenged his convictions for misdemeanor intimidation of a witness and violating a domestic abuse injunction on the grounds that his trial lawyer had a conflict of interest: he had previously represented the victim in other criminal matters. The court of appeals held that Wade waived the conflict.

Trial counsel privately discussed the possible conflict of interest with Wade. He had represented the victim 15 years earlier. He also brought the conflict to the court’s attention before trial. This colloquy ensued:

THE COURT: All right. We did have some conversations in chambers about … the alleged victim in this case—her name is [N.D.]. Mr. Wade, are you aware that Attorney Tishberg at one point represented her in some criminal matters?
THE DEFENDANT: Yes, I’m aware.
THE COURT: And I want to make sure that it’s okay with you that he continues to represent you, given the fact that in the past he has represented her.
THE DEFENDANT: Yes.
THE COURT: Is that acceptable to you?
THE DEFENDANT: Yes.
THE COURT: And did you talk to him about this, Attorney Tishberg?
MR. TISHBERG: Yes. He knew about it for quite a while and I did discuss it with him earlier today.

The court of appeals held that the colloquy was sufficient for Wade to knowingly and intelligently waive a conflict of interest under State v. Cobb, 221 Wis. 2d 101, 584 N.W.2d 709 (Ct. App. 1998)(defense counsel was previously a DA and had prosecuted defendant; defendant waived conflict). Opinion, ¶¶12-14. For more on a defendant’s waiver of his attorney’s conflict of interest, click here.

The court of appeals further held that defense counsel had no actual conflict of interest because the victim was never called as a witness in this case. Opinion, ¶¶18-20.

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