Massachusetts Appeals Court Says Defendant Cannot be Represented by Attorney Who Witnessed Alleged Crimes

The Massachusetts Appeals Court today affirmed the principle that an attorney who was a witness to an alleged crime ordinarily cannot then represent the defendant in court.  The name of the case is Commonwealth v. Delnegro.

In February of 2014, the defendant was stopped by a Springfield police officer after allegedly driving erratically.  The officer observed the defendant to have slurred speech, glassy and bloodshot eyes, and a flushed face.  His breath also smelled like alcohol.  The officer asked the defendant to get out of the car and perform a series of field sobriety tests.  At the conclusion of the tests, the officer arrested the defendant and charged him with operating under the influence of alcohol and negligent operation.  The defendant’s passenger was a lawyer.  According to the cop, as the defendant was being arrested, the lawyer belligerently demanded the defendant’s release and screamed obscenities.  At the defendant’s arraignment, the lawyer attempted to represent him in court.  At the request of the prosecutor, the judge removed the lawyer from the case after concluding she had a conflict of interest.  At a subsequent court hearing, the defendant allegedly became frustrated with the judge and refused to leave the courtroom upon request.  Court officers attempted to physically remove the defendant from the courtroom and a struggle ensued.  The lawyer had been sitting in the gallery and she followed the defendant as he was escorted out of the courtroom and into the lobby.  The lawyer demanded that the defendant be released and tried to record the incident with her cell phone.  The defendant was charged with assault and battery on a public employee, disorderly conduct, and disruption of a court proceeding.  The lawyer again attempted to represent the defendant in court and again was disqualified by the judge.  The defendant appealed the orders disqualifying the lawyer and the Appeals Court affirmed.

The Court first noted that the Massachusetts Rules of Professional Conduct prohibit a lawyer from representing a defendant at trial if the lawyer is likely to be a necessary witness.  The rule exists to prevent the judge or jury from being confused by a lawyer who is serving as both an advocate and a witness.  The Court concluded the lawyer here is likely to be a necessary witness in both of the defendant’s cases.  With respect to the OUI, the lawyer was the only witness who could have contradicted the cop’s version of events.  With respect to the courtroom incident, the defendant conceded the lawyer was a necessary witness.  The question becomes whether the lawyer was also prohibited from representing the defendant at pretrial hearings.  The Appeals Court concluded such a prohibition was appropriate in this case because of the presence of the lawyer’s conflict of interest.  The Court said there would be a significant risk that the lawyer’s representation would be materially limited by her personal interests.  In the OUI case, the police officer characterized the lawyer’s conduct as an “aggressive tirade.”  If she testified, the lawyer would expose herself to cross-examination that could embarrass her.  In the second case, the lawyer made observations that will be relevant to the defendant’s motion to dismiss (suggesting the lawyer will be a necessary witness at that stage of the litigation).  The Court ruled, therefore, that the lawyer’s belief she could competently and diligently represent the defendant was not reasonable and her disqualification was necessary.