State v. Bekech
A criminal defendant's 6th Amendment right to the attorney of the defendant's choice is not absolute and may be required to yield, if there is a conflict of interest, or if the defendant's selection of an attorney who previously represented the victim, as the victim's defense attorney, could jeopardize the fairness of trial. Allegedly, the defendant, Andrew Bekech, fought with Nathaniel Hainsworth. The state alleged that Bekech committed an assault. Bekech hired Attorney Michael Hillis to represent him. The state moved to disqualify Bekech's attorney, because Hillis previously represented the victim, Hainsworth, on charges of driving under the influence. Bekech offered to hire another attorney to cross-examine Hainsworth about Hainsworth's criminal record, to prevent any conflict of interest. Rule 1.9 of the Rules of Professional Conflict provides, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." In Perillo v. Johnson, a 2000 decision, the U.S. Court of Appeals for the 5th Circuit wrote, "An attorney who cross-examines a former client inherently encounters divided loyalties. . . . In these circumstances, counsel is placed in the equivocal position of having to cross-examine his own client as an adverse witness." The court was not persuaded that use of another attorney to cross-examine Hainsworth, the state's key witness, would mitigate the conflict of interest. Hillis would continue to serve as the principal coordinator of his client's defense. "Attorney Hillis's potential conflict," wrote the court, "would continue to exist as long as his representation of the defendant in the above stated matter continues, whether as principle or lesser participant in the defense." The court granted the motion to disqualify the defendant's attorney. "Clearly," wrote the court, "to have the complainant's former attorney orchestrating the defense, under the above stated circumstances, would constitute a potential conflict of interest as to the complainant that would, in fact, jeopardize the fairness and integrity of the trial."