In re State (Published): The State brought a mandamus to disqualify defense counsel. The same defense counsel represented two allegedly drunken drag racers A and B. There’s a potential for conflict in that dual representation. But that potential never materialized into an actual conflict because: 1.) the State’s non-disclosure of B would have kept B off of the stand in A’s trial, and 2.) the State never made a plea offer to A. Disqualification denied by the trial court and the court of appeals.
A and B were allegedly drunk and drag racing. They were represented by the same attorney. The State tried A first, apart from B. The State tried to call B as a witness. But B wasn’t on the State’s witness list. A’s attorney objected. The State tried to disqualify A’s attorney by pointing out that he was B’s attorney as well, and would have a conflict-of-interest if B took the stand.
Could B take the stand? Trial counsel discussed this with the trial court. The State hadn’t disclosed B as a witness. Consequently, the discussion turned on whether the State could get around the lack of disclosure by calling B as an “un-anticipated rebuttal witness.” But to the trial court, it appeared “logical” that you could anticipate calling Racer B in a case against Racer A. Put another way, it’s hard to see how the State seriously claim that its need for B’s testimony was unanticipated.
As that discussion was underway, the State announced that it wanted to make a plea offer to B. The trial court directed B, and B alone, to meet with the State. B did so. When B came out of that meeting, he testified (outside of the jury’s presence) that: 1.) the meeting was the first time the State had made any offer to him; 2.) he wouldn’t take the offer just made; and 3.) he would take the Fifth if asked about what he and A had done. There may not be loyalty among thieves, but there is among accused drunk drag racers.
Practically speaking, that ended matters. Without explicitly going back to the effect of the non-disclosure, the trial court denied the State’s motion to disqualify A’s counsel. The State brought a writ of mandamus. The trial court was affirmed, but not because of B’s refusal to testify.
The Tyler court held that the trial court had implicitly ruled the State’s non-disclosure of B meant B couldn’t have taken the stand even if he had wanted to. Hence defense counsel wouldn’t be put in the position of having one client at the defense table and another on the stand. Hence no actual conflict, and no abuse of discretion in refusing to disqualify A’s counsel.
Thoughts to ponder: These events may have raised an actual conflict between counsel and B. Although B had retained counsel, B didn’t have the benefit of counsel’s input in considering the offer. And even if B had been able to confer with counsel, what about counsel’s loyalties to A? The Court passes on this question because this is a mandamus in A’s trial, not B’s.
Also, what would have happened if the State had made its offer to B earlier? Or what if B was on the State’s witness list, but B refused to testify? Questions like that are why Rule 1.06 “Conflict of Interest: General Rule” of the Rules of Professional Conduct states at Comment 17 that “Inquiry by the court is generally required when a lawyer represents multiple defendants.”
