Update: On February 4, 2020, the Court dismissed this case as improvidently accepted.

Read an analysis of the argument here.

On January 8, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Basim Barnes, 2018-1389. At issue in this case is whether a trial court’s denial of an appointed attorney’s motion to withdraw due to a conflict of interest is a final appealable order under R.C. 2505.02(B)(4) and, if so, whether  the motion was properly denied in this case.

 Case Background

On June 27, 2016, Basim Barnes was charged with numerous counts of gross sexual imposition, rape, kidnapping, and aggravated robbery related to two alleged victims, Jane Doe I (“L.H.”) and Jane Doe II. If convicted, he faced the possibility of life in prison. Assistant Public Defender Mark Spadaro from the Cuyahoga County Public Defender’s Office was appointed to represent Barnes in the case. A conflict check revealed that other counsel at the Public Defender’s Office had represented L.H. in two prior unrelated cases. Barnes expressed concern about the conflict. L.H. is the victim and the state’s only witness in the present case against him. Spadaro filed a motion to withdraw from the case, which was denied by Judge John P. O’Donnell of the Cuyahoga County Court of Common Pleas.

Barnes filed an interlocutory appeal, arguing that the trial court erred in denying Spadaro’s motion to withdraw.

The Appeal

In a split decision, authored by Judge Anita Laster Mays, and joined by Judge Larry A. Jones, the Eighth District Court of Appeals reversed and remanded the trial court’s judgment.

The majority found that the trial court’s denial of Spadaro’s motion to withdraw was a final appealable order under R.C. 2505.02 (B)(4) because Barnes would not be afforded a meaningful review of the decision after final judgment. The majority found that Barnes had a constitutional right to a conflict-free representation.  The majority also found that the trial court erred in denying the motion to withdraw because there was a substantial risk that Spadaro would be unable to represent Barnes effectively without violating the duty of confidentiality to LH.

Judge Eileen T. Gallagher dissented. She would find that the trial court’s denial of the motion to withdraw was not a final appealable order under R.C. 2505.02(B)(4) because a post-judgment appeal would afford Barnes a meaningful and effective remedy, and because at this point any conflicts are only potential.

Votes to Accept the Case

Yes: Justices Kennedy, French, DeWine, Fischer*, and former Justice O’Donnell

*Would accept the appeal on proposition of law No. 1 only.

No: Chief Justice O’Connor and former Justice DeGenaro

State’s Propositions of Law Accepted for Review

Proposition of Law 1

In a criminal case, a trial court’s order denying appointed counsel’s motion to withdraw based upon an alleged conflict of interest is not a final appealable order subject to an intermediate interlocutory appeal.

Proposition of Law 2

In a criminal case, where an appointed attorney seeks to withdraw from representation of an indigent defendant, the defendant must show more than a mere possibility that the former representation of a witness will conflict with the current representation of the client. A trial court does not err in denying an attorney’s request to withdraw where no specific showing has been made that continued representation will result in a violation of the Ohio Rules of Professional Conduct.

Key Statutes and Precedent

R.C. 2505.02(B)(4) (An order is a final appealable order when 1) the order grants or denies a provisional remedy; 2) the order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy; and 3) the appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.)

Prof. Cond. R. 1.3 (A lawyer shall act with reasonable diligence and promptness in representing a client.)

Prof. Cond. R. 1.7(a)(2) (A conflict of interest exists where there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to a former client.)

Prof. Cond. R. 1.7(b) (An attorney shall not represent a client where a conflict exists or would be created unless 1) the lawyer will be able to provide competent and diligent representation to each affected client; 2) each affected client gives informed consent confirmed in writing; and 3) the representation is not precluded by division (c) of this rule.)

Prof. Cond. R. 1.7(c) (Even if each affected client consents to the representation, the lawyer shall not accept or continue the representation if 1) the representation is prohibited by law or 2) the representation would involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding.)

Prof. Cond. R. 1.9 (A lawyer who formerly represented a client in a matter shall not thereafter use or reveal information relating to the representation to the disadvantage of the former client unless the former client gives informed consent.)

Prof. Cond. R. 1.10(a) (While lawyers are associated in a firm, none of them shall represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9 unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm).

Prof. Cond. R. 1.16(a)(1) (A lawyer shall withdraw from the representation of a client if the representation will result in violation of the Ohio Rules of Professional Conduct.)

Russell v. Mercy Hosp., 15 Ohio St.3d 37, 472 N.E.2d 695 (1984) (The denial of a criminal defendant’s right to representation by retained counsel of the defendant’s choice is a final, appealable order because it is a structural error which deprives the defendant of the counsel’s advice and representation at trial which renders a postconviction appeal meaningless.)

Freer v. Loma Ents., 7th Dist. Mahoning No. 98 CA 194, 1999 Ohio App. LEXIS 6422 (1999) (A denial of a motion to disqualify does not satisfy R.C. 2505.02(B)(4) because an immediate appeal is not necessary to afford the appellant a meaningful or effective review.)

State v. Ingram, 2005-Ohio-1967 (8th Dist.) (Indigent criminal defendants have a Sixth Amendment right to appointed counsel but that right does not guarantee that defendants will have their counsel of choice.)

United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (A trial court’s deprivation of a criminal defendant’s choice of counsel entitles him to reversal of his conviction).

State v. Badran, 2008-Ohio-6649 (8th Dist.) (An indigent defendant must demonstrate that the relationship with appointed counsel has broken down to such a degree as to jeopardize the right to effective assistance of counsel and the trial court must make an inquiry into the indigent defendant’s complaint regarding the assigned counsel on the record.)

Wilhelm-Kissinger v. Kissinger, 2011-Ohio-2317 (An order granting a motion to disqualify is a final appealable order because its effect cannot be reversed by a post-judgment appeal.)

State v. Chambliss, 2011-Ohio-1785 (A pretrial ruling removing a criminal defendant’s retained counsel of choice is a final order subject to immediate appeal).

Parma v. Fonte, 2013-Ohio-3804 (8th Dist.) (Criminal defendants have a Sixth Amendment right to conflict-free counsel.)

State v. Anderson, 2013-Ohio-339 (11th Dist.) (A denial of a motion to disqualify counsel is not a final appealable order because the appellant would not be denied a meaningful or effective remedy by an appeal after the final judgment.)

State v. Henry, 2013-Ohio-2247 (6th Dist.) (Disqualification of counsel is appropriate when an attorney accepts employment in a case involving a former client where there is a substantial relationship between the existing controversy and the prior representation.)

State v. Patterson, 2014-Ohio-1621 (8th Dist.) (A trial court has broad discretion in determining whether to remove court-appointed counsel; therefore, an appellate court reviews the trial court’s decision under an abuse of discretion standard of review.)

State ex rel. McGinty v. Eighth Dist. Court of Appeals, 2015-Ohio-937 (The denial of a motion to disqualify counsel is an ancillary proceeding that is not final and appealable under R.C. 2505.02(B)(4) because the requesting party will still be afforded a meaningful and effective remedy after a jury trial by way of appeal.)

State’s Argument

The trial court’s denial of Spadaro’s motion to withdraw is not a final appealable order under R.C. 2505.02(B)(4) because a post-judgment appeal would provide Barnes with a meaningful and effective remedy. Although criminal defendants have a Sixth Amendment right to appointed counsel, this right does not guarantee criminal defendants their choice of counsel. Therefore, a trial court’s denial of a criminal defendant’s request to disqualify counsel is effectively reviewable after final judgment and is not a final appealable order. Any alleged damage to the defendant’s case could be remedied after a final judgment and, if the defendant successfully establishes prejudice, the defendant could receive a new trial. Thus, an immediate appeal is not necessary to ensure a defendant receives a meaningful or effective review.

In this case, there is no evidence that an actual conflict existed or that Barnes would not receive a meaningful or effective remedy on appeal if any potential conflict actually arose during the course of litigation. Spadaro’s motion to withdraw from the representation was founded solely on a potential conflict and the Eighth District failed to explain how a potential conflict that arises during litigation would not be reviewable on appeal. Should Spadaro encounter actual conflicts during the course of the litigation, the appellate court could effectively review the record and determine whether the trial court’s denial of the motion to withdraw was erroneous. If Barnes is able to establish that he was prejudiced by the trial court’s denial, he may then receive a new trial. In this way, a decision in favor of Barnes on appeal after final judgment would be neither meaningless nor ineffective.

Further, the trial court did not abuse its discretion in denying Spadaro’s request to withdraw because Barnes failed to establish the existence of an actual conflict that would violate the Ohio Rules of Professional Conduct. To establish a violation of the Sixth Amendment, a defendant must demonstrate that an actual–not a potential– conflict of interest exists and negatively impacted his lawyer’s representation.

The Eighth District erroneously concluded that the Ohio Rules of Professional Conduct require Spadaro to represent Barnes zealously. In fact, Rule 1.3 only requires an attorney to act with reasonable diligence. Thus, it is not clear that, under Rule 1.3, Spadaro was required to review L.H.’s file.

Additionally, an attorney’s former representation of a witness or victim in an unrelated prosecution does not necessarily violate the Ohio Rules of Professional Conduct. Rule 1.9 does not establish an absolute prohibition on representing a current client in a matter involving a former client as a witness or victim. Rule 1.9(a) merely requires that the attorney obtain the former client’s informed consent before undertaking the representation of another client in the same or a substantially related matter where the other client’s interests are materially adverse to the interests of the former client. However, in this case, the trial court concluded that the present matter is not substantially related to the public defender’s prior representation of L.H. Further, Rule 1.9(c) only prohibits an attorney from using confidential information obtained from the former client to the disadvantage of the former client. Thus, Spadaro would not violate Rule 1.9(c) by merely reviewing L.H.’s files.

Barnes has also failed to establish an actual violation of Rule 1.7(a)(2) because Barnes has not shown that there is a substantial risk that Spadaro’s duty of confidentiality to L.H. would materially limit his representation of Barnes. Spadaro’s duty of confidentiality to L.H. is not alone enough to require disqualification. Although Spadaro would have a duty to refrain from using any confidential information obtained from L.H. in the prior representation to L.H.’s disadvantage, Spadaro, like any other attorney, would have the same opportunity to discover other information about L.H. for impeachment purposes in the present trial. Additionally, Spadaro’s inability to review L.H.’s client files from the prior representation would not materially limit his representation of Barnes because any other attorney would also be unable to review L.H.’s client files.

Although the appellate court disagreed with the trial court’s conclusion that Spadaro could provide Barnes with effective assistance of counsel despite the prior representation of L.H., mere disagreement does not amount to an abuse of discretion.

Additionally, the state does not take the position that an attorney may only be removed upon a showing of an actual violation of the Ohio Rules of Professional Conduct. A serious potential for conflict evidenced by more facts than those presented in this case may warrant disqualification of counsel.

Barnes’ Argument

The trial court’s order denying Spadaro’s motion to withdraw due to a conflict of interest is a final appealable order under R.C. 2505.02(B)(4) because neither Barnes nor Spadaro would be afforded a meaningful or effective remedy by an appeal following final judgment.

The deprivation of a criminal defendant’s Sixth Amendment right to representation by conflict-free counsel cannot be meaningfully and effectively remedied by a post-judgement appeal. Barnes has a constitutional right to be represented by conflict-free counsel throughout the entire pretrial and trial process. Thus, forcing Barnes to proceed with conflicted counsel is a continuing violation of Barnes’ Sixth Amendment right that affects the entire pretrial and trial process.

The harm caused by conflicted counsel is difficult to quantify precisely because it permeates the entire structure of the case, causing damage to the defendant’s position throughout pretrial investigation, the plea-bargaining process, and the selection of and examination of witnesses at trial. Moreover, it is difficult, if not impossible, to discern from a trial transcript the exact point in the proceedings the conflicted attorney harmed the defendant’s defense because the attorney can cause harm without even knowing it.

Without an interlocutory appeal, a criminal defendant is forced to proceed through the entire criminal trial with a conflicted attorney in violation of his Sixth Amendment right. This wrong cannot be remedied by a post-conviction appeal because, even if the trial court’s order denying the attorney’s motion for withdrawal is deemed erroneous, by the time of the post-conviction appeal the strategies employed, witnesses cross-examined, and evidence presented in the first trial would likely be stale and weakened.

A post-conviction appeal is also inadequate to protect Spadaro. An attorney who has motioned to withdraw on the basis of a conflict of interest faces imminent professional harm and potential discipline for a violation of the Ohio Rules of Professional Conduct that can only be avoided by immediate appellate review. Every federal circuit court that has addressed this issue has held that the denial of a motion to withdraw as counsel is a final appealable order appropriate for an interlocutory appeal. These federal circuit courts have concluded that the harm caused by requiring counsel to continue to represent a client against his will causes irreparable harm that is not reviewable upon final judgment particularly where, as here, the attorney’s continued representation may subject the attorney to disciplinary proceedings for an ethics violation.

A trial court errs in denying an attorney’s unopposed motion to withdraw due to a conflict of interest based upon the prior representation of the alleged victim of a serious felony offense. A conflict of interest exists where an attorney must choose between an ethical obligation to a current client and an ethical obligation to a former client.  As an initial matter, the State incorrectly asserted that a trial court’s determination regarding the existence of a conflict is subject to review for abuse of discretion. The determination of whether an actual conflict of interest exists is a mixed question of law and fact subject to de novo review on appeal.

Several rules of Professional Conduct are implicated in this conflicts issue, particularly the intersection of a lawyer’s obligation to current and former clients. After a case is over and a current client becomes a former client, certain duties of confidentiality and conflict-avoidance remain.

Under Rule 1.10, the Public Defender’s Office is a “firm.” Thus, for the purposes of a conflicts analysis, Spadaro must be treated as if he himself had previously represented L.H. Because the trial court assumed that the other attorneys in the Public Defender’s Office possessed confidential information disclosed by L.H. that would be useful in defending Barnes, Rule 1.10 required the trial court to impute that knowledge to Spadaro regardless of whether he actually reviewed L.H.’s client files. Thus, the trial court erred in concluding that Spadaro could avoid any conflict of interest by simply choosing not to review L.H.’s client files or speak to the lawyers who actually represented her.

The conflict imputed to Spadaro arises under Rule 1.7(a)(2). Because the Public Defender’s Office, and thus every one of its attorneys, possesses confidences disclosed to them by L.H. that would be useful in defending Barnes, the Public Defender’s Office has a conflict of interest between its duties to its current client and its duties to its former client. Under Rule 1.1 and 1.3 the Office has a duty to Barnes to use any information of which it is aware that may be useful in defending Barnes. However, under Rule 1.9(c), the Public Defender’s Office has a duty not to disclose L.H.’s confidences. This conflict does not arise only if Spadaro uses L.H.’s confidences in his defense of Barnes. Rather, the conflict arises as a result of the mere fact that the Public Defender’s Office possesses potentially useful information about L.H.

In denying Spardaro’s motion to withdraw, the trial court is requiring the Office of the Public Defender to prioritize its duties to one client over another, which is exactly what the conflicts rules are designed to avoid. And given the nature of the charges against Barnes, this is not a case in which written informed consent can resolve the conflict. On the contrary, it creates at least the perception to the defendant of divided loyalties of his lawyer.

The harm caused by requiring a conflicted lawyer to represent a criminal defendant in a serious felony case far outweighs the potential harm, if any, from permitting an attorney to withdraw at the outset of a criminal case based upon a conflict of interest. While requiring a conflicted lawyer to represent a criminal defendant not only violates the criminal defendant’s Sixth Amendment right to effective assistance of counsel but also forces the attorney to commit an ethical violation and subject himself to potential professional discipline, neither the trial court nor the State has identified any harm caused by the early replacement of conflicted counsel with a new attorney. Since the conflict in this case was identified early, appointing new conflict-free counsel would result in no delay to the proceedings and no conceivable harm.

Amici in Support of Barnes

Ohio State Bar Association and Academic Experts

The Ohio State Bar Association (“OSBA”) and several academic experts in legal ethics and Ohio procedure filed an amicus brief in support of Barnes. OSBA’s mission is to advance the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, and to uphold integrity, honor, and professionalism in the legal profession.

The trial court violated Barnes’ Sixth Amendment right to conflict-free counsel and exposed Spadaro to various ethical violations by requiring Spadaro to continue to represent Barnes despite Spadaro’s conflicting obligations to his current and former client, placing Spadaro in an untenable dual loyalty dilemma.  Spadaro’s ethical duty to refrain from using L.H. ’s confidences to her disadvantage would prevent Spadaro from reasonably investigating the credibility of L.H.’s accusations. Spadaro’s conflict of interest would also disadvantage Barnes during the critical plea-bargaining process. Moreover, Spadaro would be unable to effectively cross-examine L.H. during trial without violating his ethical duty to avoid taking legal positions materially adverse to a former client.

The trial court’s order denying Spadaro’s motion to withdraw was a final appealable order under R.C. 2505.01(B)(4) because a post-conviction appeal would not provide a meaningful or effective remedy for either Barnes’ Sixth Amendment rights or Spadaro’s exposure to ethical violations. By directing Spadaro to proceed with the representation, despite an undisputed conflict of interest, the trial court exposed Spadaro to various ethical violations which could not be remedied by appeal or retrial. Spadaro’s duty to provide Barnes with effective representation would require him to investigate L.H. and use any information contained in L.H.’s client files that would further Barnes’ defense. However, Spadaro’s duty to protect L.H.’s confidences and refrain from taking legal positions substantially adverse to her would prevent Spadaro from obtaining or using any information relevant to the previous representation to defend Barnes. Further, an attorney cross-examining a former client inherently confronts conflicts of interests that require the attorney’s disqualification, regardless of the relationship between the current and former matters. Thus, Spadaro’s conflicting obligations to Barnes and L.H. clearly meet Rule 1.7(a)(2)’s definition of a conflict because they create a substantial risk that Spadaro’s ability to represent Barnes effectively would be materially limited by his responsibilities to L.H. as a former client.

Additionally, the normal appellate process and a subsequent retrial would not remedy the injury to Barnes’ Sixth Amendment right to conflict-free counsel or Spadaro’s ethical exposure. The traditional appellate process would require Barnes to show an actual conflict and prejudice. However, it would be nearly impossible for Barnes to know the degree to which Spadaro’s dual loyalties impacted every strategic decision made throughout the course of the representation. Even if Barnes was successful in obtaining a new trial, the subsequent retrial would hinge on stale evidence and would further tax scarce judicial resources. Moreover, any improper information that surfaced in the first trial could be used against Barnes in the retrial despite the appointment of different counsel.

Amicus OSBA’s Proposed Counter Proposition of Law 1

A trial court must permit appointed criminal defense counsel to withdraw when the accuser is a former client of his office.

Amicus OSBA’s Proposed Counter Proposition of Law 2

A trial court’s denial of appointed criminal defense counsel’s motion to withdraw is a final order when the order requires counsel to proceed against a former client, now the accuser.

Ohio Legal Aid Organizations

Numerous Ohio Legal Aid organizations filed an amicus brief in support of Barnes. Ohio’s Legal Aid organizations represent low income litigants facing threats to their fundamental needs, such as stable housing, personal safety, and economic security.

The trial court’s decision denying Spadaro’s motion to withdraw due to a conflict of interest is a final appealable order because neither an appeal nor a new trial following final judgment would provide Barnes with an effective remedy. A post-judgment appeal cannot remedy the many ways in which conflicted counsel influences discovery, plea negotiations, cooperation with the government, defense strategy, and the posture of the defense as a whole. Further, only indigent defendants, such as Barnes, would be forced to resort to such post-judgment appeals because defendants who are able to retain private counsel would have the ability to hire new counsel immediately upon learning of a conflict.

The trial court erred in denying Spadaro’s motion to withdraw based on a conflict of interest. The Ohio Rules of Professional Conduct require attorneys to check for conflicts at the beginning of any representation and withdraw from the representation if a conflict is discovered. Although privately retained counsel generally conducts a conflict check before agreeing to represent a client, courts do not afford public defenders the opportunity to review a case for conflicts before the case has been assigned to the attorney. As such, Rule 1.16 requires appointed counsel to conduct a conflict check after the appointment and seek permission from the court to withdraw if a conflict is discovered. Trial courts should treat an attorney’s motion to withdraw with great deference because attorneys are in the best position to identify conflicts while also maintaining client confidences. The trial court in this case failed to provide any reason for not deferring to Spadaro’s judgment in evaluating the existence of a conflict.

Spadaro properly identified an actual conflict that required him to withdraw and the trial court erred in denying his motion to withdraw. Ohio Rules of Professional Conduct 1.3, 1.7(a)(2), 1.9(c), and 1.16 prohibit a public defender from continuing to represent a defendant after learning that the Public Defender’s Office possesses confidential information related to the prior representation of a witness that could be used against the witness in the current case. Because the Public Defender’s Office previously represented L.H., under Rule 1.9(c), Spadaro could not use information relating to the prior representation to L.H.’s disadvantage. Simultaneously, pursuant to Rule 1.3, Spadaro owed Barnes a duty to represent him diligently. Diligent representation includes challenging the reliability of the State’s witnesses, including L.H. The trial court incorrectly concluded that Spadaro could provide Barnes with effective representation without using L.H.’s confidential information. Pursuant to Rule 1.7(a)(2), an actual conflict of interest exists in this case because Spadaro’s duty to represent Barnes diligently under Rule 1.3 is materially limited by his obligations to his former client under Rule 1.9(c). Due to this actual conflict of interest, Spadaro appropriately alerted the trial court of the conflict at the earliest opportunity and sought permission to withdraw.

The trial court’s decision creates a two-tiered system of ethical conduct in which indigent litigants receive less protection from conflicts and public defenders are subject to greater risks of misconduct. All litigants, regardless of their ability to pay, are entitled to the same ethical system of justice. Moreover, all attorneys, regardless of whether they are appointed or privately retained, are bound by the Ohio Rules of Professional Conduct. The trial court’s decision implies that, unlike other attorneys, attorneys in the Public Defender’s Office should not be permitted to perform their own conflict checks, but rather, the court should be responsible for making conflicts determinations for them. However, the court does not possess the confidential client information necessary to make proper conflicts determinations. Further, the trial court’s decision applies the Ohio Rules of Professional Conduct differently to public defenders than privately retained counsel and creates a criminal justice system that provides one standard of justice for defendants who retain private counsel and a different, lesser standard of justice for litigants who serve as appointed counsel. Such a two-tiered system of ethical rules would undermine public confidence in the fairness of the legal system by perpetuating the perception that the criminal justice system does not treat indigent litigants fairly.

Amicus Ohio Legal Aid Organizations’ Proposed Counter Proposition of Law 1

A trial court’s decision denying a motion to withdraw due to a conflict of interest is a final appealable order.

Amicus Ohio Legal Aid Organizations’ Proposed Counter Proposition of Law 2

An actual conflict of interest exists when an attorney learns a former client is a key witness for the opposing party, and the attorney possesses information related to the former client’s case that would be helpful to the current client.

Student Contributor: Madeline Pinto