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Counsel – Conflict of Interest – IAC Claim Lodged by Former Partner of Postconviction Counsel

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:

¶21      Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system. ……

¶23      A sua sponte disqualification inquiry presents a palpable risk of unfairly denying a party the right to retain counsel of his or her choosing. “The right to retained counsel of choice is supported by three basic tenets of our adversary system: trust, autonomy, and fairness.” Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 540 (Summer 2007). “Basic trust between counsel and defendant is the cornerstone of the adversary system ….” Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981). Notwithstanding the importance of preserving the integrity of the courts and the confidence of the public, attorney disqualification should not be imposed cavalierly. Here, the court did not explain what problem it anticipated if Petit continued, the court did not describe any potential ethical violation that might arise, and the court did not engage in any sort of dialogue with Peterson before deciding to disqualify Petit. Moreover, the circuit court would have had the same opportunity to rule on the admissibility of the evidence and to control the tenor of the proceedings regardless of whether Petit continued as Peterson’s advocate or another attorney stepped in. Accordingly, the court’s decision to disqualify Petit was an erroneous exercise of discretion.


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