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Right to Counsel of Choice: Lawyer as Client’s Witness

State v. Jose O. Gonzalez-Villarreal, 2012 WI App 110 (recommended for publication); case activity

Counsel (Michael J. Knoeller) was present while the police interrogated, and elicited incriminating responses from, his client, Gonzalez-Villarreal. G-V didn’t speak English, and Knoeller doubled as interpreter. The state issued charges, and Knoeller continued to represent G-V. However, the state moved to disqualify Knoeller as counsel, arguing that his service as interpreter during the interrogation created a risk that Knoeller might have to testify. The trial court granted the state’s motion, and the court of appeal now reverses.

¶8        Supreme Court Rule 20:3.7 states:

(a)  A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1)  the testimony relates to an uncontested issue;

(2)  the testimony relates to the nature and value of legal services rendered in the case; or

(3)  disqualification of the lawyer would work substantial hardship on the client.

(Emphasis added.)  The party seeking disqualification based on SCR 20:3.7 has the burden of proving the necessity for disqualification. …

¶9        We interpreted SCR 20:3.7 in State vFoy, 206 Wis. 2d 629, 557 N.W.2d 494 (Ct. App. 1996). …

¶10      …  We explained that the rule:

provides that when an attorney is likely to be a necessary witness on a contested issue not related to legal services, the attorney should disqualify himself or herself as an advocate; however if disqualification would be a substantial hardship on the client, the attorney may continue as an advocate and still testify.  “The substantial hardship” exception is directed to the effect on the client of counsel’s disqualification.  The rule contemplates a balancing between the interests of the client in continuing to be represented by the same attorney, against prejudice to the opposing party if the attorney acts in both roles.

Id. at 646 (emphasis added).

¶11      Here, despite Gonzalez-Villarreal’s specific objection to the removal of his attorney,[4] the circuit court found “an irreconcilable conflict for Mr. Knoeller” based solely on the fact that Attorney Knoeller acted as a translator for his client.

¶12      For disqualification under SCR 20:3.7, the State must show that Attorney Knoeller is a necessary witness to the content of the interview.  Here, the record supports no such conclusion. …

¶13      The circuit court granted the State’s motion to disqualify Attorney Knoeller despite there being no evidence that Knoeller was “likely to be a necessary witness.”  See Foy, 206 Wis. 2d at 646 (emphasis added).  We conclude, therefore, that the record does not demonstrate that Attorney Knoeller is a “necessary witness”[6] to the contents of the recorded interview, and thus not properly disqualified under SCR 20:3.7.

Wholly unrelated, ¶1 n. 1:

We regret to note that Attorney Knoeller failed to comply with the most rudimentary and significant requirements of Wis. Stat. § 809.19 (2009-10) in the brief he filed with this court.  The factual statements which appear throughout the brief contain no citation to the record, in violation of § 809.19(1)(d).  The appendix contains no table of contents identifying the items in the appendix by citation to the record, in violation of § 809.19(2).  Immediately preceding the last page of the appendix (which is the circuit court’s order and the only item in the appendix relevant to the specific issue on appeal) is a page containing a certification of the length of the brief, then additional argument and discussion of Missouri v. Frye, 566 U.S. __, 132 S. Ct. 1399 (2012).  This additional argument and brief length certification has no place in the appendix.  All of the appendix, except the circuit court’s order discharging Attorney Knoeller, appears to us to be completely irrelevant to the only issue before us.

The court of appeals most certainly possesses authority to sanction counsel for such violations. The court’s expression of “regret” here may be relatively mild, but that is no reason to think the court isn’t perturbed. No reason, anyway, to think failure to observe these rules is risk-free.

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