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Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Generally

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt

Issue/Holding: A trial court may, but is not required to, override a defendant’s waiver of the right to conflict-free representation, and in this instance the trial court properly questioned the defendant and ascertained that he was knowingly and voluntarily waiving that right:

¶13 Contrary to Dion’s assertion, none of these cases involve a situation where a trial court accepted a defendant’s valid waiver of the right to conflict-free representation. [4] Furthermore, while these cases illustrate that a court may use its discretion to disqualify an attorney, none hold that a trial court must reject a defendant’s voluntary waiver of the right to conflict-free representation. We find the holding of United States v. Lowry, 971 F.2d 55 (7th Cir. 1992), on this issue persuasive. Like Dion, Lowry claimed that the trial misused its discretion in not disqualifying his attorney due to a serious conflict of interest. Id. at 60. The Lowry court recognized that Wheat provides trial courts with discretionary power to override a defendant’s waiver of conflict-free representation. However, “Wheat failed to delineate any instance where the court is required to override the defendant’s waiver and disqualify the attorney. In other words, while courts sometimes can override a defendant’s choice of counsel when deemed necessary, nothing requires them to do so.” Id. at 64. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant’s right to retain counsel of his choice and could leave the accused with the impression that the legal system had conspired against him or her. Id.¶14 Here, the conflict of interest issue arose several times during the proceedings. The record reveals that each time the issue arose, Dion voluntarily and knowingly waived his right to conflict-free representation. On three separate occasions, the trial court conducted a colloquy with Dion regarding the conflict of interest issue and Dion does not contest the adequacy of the court’s colloquies. The court properly exercised its discretion in allowing Dion to retain the attorney of his choice. …

Detailed discussion of tension between defendant’s exercise of right to counsel of choice and judicial obligation to ensure adequate representation, in State v. Smith, 761 N.W.2d 63 (Iowa SCt 2009) (court concluding, on particular facts, that sufficient safeguards in place and noting that waiver of conflict by defendant “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’”).


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