Mann v. Britt

George Rose Smith, Justice.

In June, 1978, the Garland county grand jury returned indictments charging the petitioner, Virgil Mann, and three co-defendants with various counts of public servant bribery, theft, conspiracy to commit theft, and obtaining money under false pretenses. Mann’s co-defendants were M. B. “Rip” Evans, Jeanette Evans, and Rip Evans Construction Company, Inc. All the defendants pleaded not guilty. At first Mann and his three co-defendants were all represented by George M. Callhan, a lawyer who had previously represented Mann and Rip Evans in other matters. In November, however, the three co-defendants, at the suggestion of the circuit judge, obtained independent counsel. In January, 1979, pursuant to a plea bargain, Rip Evans and his corporation changed their pleas to guilty, and the charges against Mrs. Evans were dismissed. As part of the plea bargain Rip Evans agreed to testify against Mann.

In February the circuit court conducted a hearing upon a motion by Evans asking the court to admonish Mr. Callahan not to divulge, through cross-examination or otherwise, any information which Mr. Callhan had received from the Evanses during their attorney-client relationship, and upon a motion by the State to disqualify Mr. Callahan from continuing to act as Mann’s attorney in the cases. The circuit judge ruled that Mr. Callahan should be disqualified from further representation of Mann in the pending cases and that Mann should obtain other counsel for the trial, which was tentatively set for February 27. Mr. Callahan, as Mann’s attorney, then applied to this court for a writ of prohibition to prevent the circuit court from proceeding with the cases pursuant to its ruling that Mr. Callahan was disqualified to act as defense counsel. We issued a temporary writ of prohibition to stay the proceedings until the matter could be submitted to this court on briefs, which has been done.

The indictments have not been made exhibits to the petition for prohibition, which with its exhibits is the record in this court. Supreme Court Rule 16 (a). We can, however, infer the nature of at least part of the charges from the testimony given by Rip Evans at the hearing at which the court approved his plea bargain with the prosecuting attorney. Evans testified that Mann, a street commissioner (presumably of the city of Hot Springs), had stated that he was in need of money. As we understand Evans’s testimony, Mann prepared fraudulent purchase orders, running to thousands of dollars, by which the city was ostensibly to purchase oil from Evans or his company. The city issued its checks to Evans or the company for the various purchases. Evans, without delivering the oil to the city, turned the money over to Mann, after retaining enough to pay Evans’s federal income taxes on the transactions. Thus, according to Evans, Mann was the conspirator who actually profited from the transactions.

We hold that the circuit judge did not abuse his discretion in disqualifying Mr. Callahan from further participation in the cases. In reaching this conclusion we emphasize the apparent impropriety of Mr. Callahan’s original attempt to represent all four defendants. We note in passing that Mr. Callahan does not seem yet to have conceded even the possibility of impropriety on his part. He says, for example, in his type-written brief seeking a temporary writ of prohibition that no conflicts between the defendants arose during the time that he was representing them, that the conflicts arose only after three of them had obtained separate counsel. Again, Mr. Callahan says in his printed brief, with respect to the hearing at which the trial court imposed the disqualification: “There was no showing in the hearing that the interest of Co-Defendants, Mann and Evans, was not similar or that any defenses asserted by one would be inconsistent with that interposed by the other.”

On the record before us, which is all that the petitioner has submitted, we think the potential conflict between Evans and Mann was strikingly apparent from the outset. The two were jointly accused of public servant bribery. The human tendency of co-defendants to seek leniency for themselves by casting the primary blame on each other is well known. In fact, that tendency underlies our long-standing rule that the testimony of an accomplice must be corroborated. Here, as might have been foreseen, Evans, who apparently had received the city’s checks, attempted to shift the blame to Mann by testifying that it was Mann who proposed the scheme and actually profited by it. Furthermore, Evans, within a few weeks after engaging independent counsel, elected to plead guilty and agreed to testify against Mann. That turn of events, in a case involving alleged joint complicity, cannot be regarded as unforeseeable.

Mr. Callahan, primarily as defense counsel but also simply as a practicing attorney, was under a clear-cut obligation to anticipate the possibility of a conflict between the interests of his several clients. We discussed the point to some extent in Chambers v. State, 264 Ark. 279, 571 S.W. 2d 79 (1978):

We have no doubt at all about Larry’s having been entitled to independent counsel. The duty of a lawyer in Mr. Etoch’s position is clearly stated in the ABA Standards Relating To the Defense Function, § 3.5 (b) (1971):

“Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.”

See also the Code of Professional Responsibility, Canon 5 (1975).

The ABA Standards Relating To the Defense Function again emphasize the point in the commentary to § 3.5 by pointing out that “the risk of an unforeseen and even unforeseeable conflict of interest developing is so great that a lawyer should decline multiple representation unless there is no other way in which adequate representation can be provided to the defendants.” See also the extended quotation from an unpublished article by Alan Y. Cole in the court’s opinion in United States v. Garafola, 428 F. Supp. 620 (D.C.N.J.1977).

We do not mean that Mr. Callahan’s ill-considered decision to attempt to represent both Mann and Evans is in itself a complete answer to Mann’s insistence that he is still entitled to be represented by Mr. Callahan as the counsel of his choice. Nevertheless, the rights of an accused to “the assistance of counsel” as guaranteed by the Sixth Amendment to the United States Constitution and to be heard “by himself and his counsel” as guaranteed by Article 2, § 10, of the Arkansas Constitution do not confer an absolute choice of counsel, regardless of the circumstances. As the court said in Gandy v. State of Alabama, 569 F. 2d 1318 (5th Cir., 1978):

[N]ot all the variations of the right to counsel are absolute values. Indeed, it is a settled principle that the right to counsel of one’s choice is not absolute as is the right to the assistance of counsel. [Citations.] The right to choose counsel may not be subverted to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.

Similarly, an indigent defendant does not have an absolute right to demand the services of any lawyer he chooses. Thomas v. State, 584 P. 2d 674 (Nev., 1978).

The question is whether Mr. Callahan’s continued representation of Mann can be permitted without any substantial possibility of prejudice either to Evans or to the State. We cannot say with confidence that such a possibility does not exist.

Counsel for Evans make the point that there were many confidential communications between their client and Mr. Callahan before that attorney-client relationship terminated. That confidential information, it is argued, might be used by Mr. Callahan to Evans’s disadvantage, such as with regard to extraneous matters going to his credibility, if Callahan were permitted to cross-examine Evans. We do not regard Mr. Callahan’s suggestion that Mann be allowed to employ still another lawyer to cross-examine Evans as being a practical or satisfactory solution to a problem that arose only as a result of Mr. Callahan’s initial attempt to represent multiple defendants with potentially conflicting interests. Furthermore, counsel for the State make the point that Evans could hardly be cross-examined without the possibility of frequent interruptions in the trial, with attendant in-chambers hearings, whenever questions about confidentiality arose. In fact, just such a difficulty arose at a hearing below with respect to Evans’s change of plea, when Mr. Callahan asked Evans, on cross-examination, if he had not agreed in the first place that his interests and those of Mann were similar. The question was objected to, as involving the disclosure of a confidential communication, and led to a protracted argument between opposing counsel. The difficulty is basic. There is simply no way of determining whether a communication was confidential without first violating its confidentiality. See Holloway v. Arkansas, 435 U.S. 475 (1978).

The point was discussed in United States v. Garafola, supra. There Garafola and Dolan, co-defendants in a prosecution for possession of stolen property, were at first represented by the same attorney. On the day of trial Garafola decided to change his plea to guilty, and eventually he retained separate counsel. The court later held that the defendants’ original attorney was disqualified from continuing to represent either Garafola or Dolan, pointing out some of the same difficulties that may arise in the case at bar:

Reverting to the specific issue raised herein by Garafola’s decision now to retain separate counsel, the position of conflict in which defense counsel knowingly placed himself from and after arraignment continues to persist. This is so for several reasons. Simply by way of example, should Garafola be called as a witness by the United States upon re-trial, how can he be cross-examined effectively by his former attorney without intruding into matters protected by the attorney-client privilege. Moreover, what is to be done if Dolan wishes to waive the attorney-client privilege but Garafola does not? What is present counsel then to do? A myriad of equally complex questions are presented, simply because counsel did not, when he first ascertained all of the facts in the case, exercise that prudence which was required. Accordingly, I adhere now to my ruling of March 10, 1977, and order that Dolan retain new counsel to represent him at re-trial.

See also United States v. Lawriw, 568 F. 2d 98 (8th Cir. 1977), where the court recognized the possibility that, as in Garafola, it may sometimes be necessary to disqualify counsel from representing either of two defendants.

In discussing only what is actually the primary issue in this application for a writ of prohibition, we do not overlook counsel’s reliance upon six separate points in his brief. All of them, however, derive essentially from the main issue. That Mann did not receive specific notice that the State’s motion to disqualify counsel would be presented at the hearing below did not result in a denial of due process, as the court had already indicated that Mr. Callahan’s disqualification would be at issue; so there was no want of notice or of an opportunity to be heard.

Writ denied.

Byrd and Purtle, JJ., dissent.