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

“Is this a big problem? Do you have attorneys from the PD’s office storming the courts to get off cases because of a potential risk of conflict?”

Chief Justice O’Connor, to the prosecutor

“And so how do we draw that distinction between someone who has a good case and someone who doesn’t have a good case?”

Justice DeWine to the public defender

On January 8, 2020, the Supreme Court of Ohio heard 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. was 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 the trial court. Barnes filed an interlocutory appeal, arguing that the trial court erred in denying Spadaro’s motion to withdraw.

The Appeal

In a split decision, 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 L.H.

The dissenting judge 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.

Read the oral argument preview of the case here.

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 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. 1.7(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.)

 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.)

At Oral Argument

Arguing Counsel

Daniel T. Van, Assistant Prosecuting Attorney, Cuyahoga County, for Appellant State of Ohio

Cullen G. Sweeney, Deputy Chief Public Defender, Cuyahoga County, for Appellee Basim Barnes

State’s Argument

It is the state’s position that the denial of a motion to disqualify an appointed attorney is not a final appealable order. The state believes that under the final appealable order statute, R.C. 2505.02, there is an adequate remedy for the defendant following a judgment of conviction if that happens. There would also be an appropriate remedy in the case of a plea.  A meaningful review would be to assess whether or not counsel provided effective representation, and that could be judged by how the case unfolds. If the issue is something an attorney didn’t do, that typically requires information outside the record, so the appropriate remedy for that is a petition for postconviction relief.

The PD’s office did the right thing when they identified a potential conflict in the case. They brought it to the attention of the trial court. But what is lacking in this case is a showing of a serious potential for a conflict or an actual conflict. The state did not object, believing the matter was properly left to the sound discretion of the trial court.  Defense counsel mostly spoke in generalities.  There was no real articulation of how Prof. Cond. R. 1.7 would be compromised in light of duties to the former client under Rule 1.9. Nor had the attorney yet looked through the file. It was not apparent that he knew what was in the file. What is missing is some affirmative representation that the file has been evaluated, and that  based on a review of the file the PD has determined that there will be a material limitation to the representation of the current client due to the obligations to his former client.

Under Rule 1.9, the only obligation is not to use the former client’s confidences to his or her disadvantage except as the rules would otherwise allow.  There’s also an exception if information is public or generally known. The public defender could have been more specific in articulating how his representation of the current client would have been compromised due to the obligation not to use information from the former client.

The state reads the Eighth District’s decision as creating a bright line rule saying that in these circumstances the mere fact that the PD’s office had represented a victim or a witness in a former case, that is automatic grounds for removal. That goes a bit too far, and isn’t  necessary at this point in the proceedings.

Barnes’ Argument

Most retained counsel, in deciding whether or not to take on a client, perform a conflicts check before they even enter into the representation. If Mr. Barnes had come into a private law firm, there’s no question he would have been told he needed to be represented by someone else. With appointed counsel, or the PD’s office, that’s not an option. The PD’s first opportunity is when the PD is appointed to a case. The PD’s office raised this issue as soon as was possible.

When the trial judge denied defense counsel’s motion to withdraw, Mr. Barnes was unwilling to waive the conflict.  The state did not object. This was not some tangential witness to this case. The former client of the office was the only fact witness of significance in this case. So, this was not a garden variety situation, where the lawyer isn’t getting along with his client, or the client doesn’t like him, or is trying to disqualify him because the client would like another attorney. That’s not the situation here.

The consequences of the state’s proposed rule would be that without an immediate appeal, there would be defendants subject to trial court proceedings with conflicted counsel who would not have a meaningful remedy. While unfortunately there are defendants who try and game the system, that is unlikely in this situation.  Where the issue is raised pretrial and there is an actual conflict, that’s a structural error.

Barnes’ case is the other side of the Chambliss coin.  In Chambliss counsel was improperly removed and the defendant was going to be stuck going to trial with counsel he did not chose, in violation of the Sixth Amendment. In this case counsel was improperly forced to stay on the case in violation of the Sixth Amendment. The analysis in Chambliss goes to how and whether that harm can be undone, post-conviction. The trial attorney affects every aspect of the case from how to investigate, whether to question the victim, whether to plead guilty, and how to conduct the trial. Because of the unquantifiable nature of the harm that systemically pervades the case, this cannot be fixed post trial. The genie can’t be put back in the bottle.

This case presents a very modest extension of Chambliss. It is very rare for a trial court to deny defense counsel’s motion to withdraw where his office previously represented the victim.  Allowing an immediate appeal in this circumstance is not going to open any floodgates. It would be in the state’s interest as well not to have a shroud of irregularity hanging over the case.

The rules of professional conduct simply do not allow the defense to do what the state is asking.  The public defender cannot come into court and say our former client disclosed X to us, and that’s legitimate grounds for cross examination.  To do so would be violating our ethical duty.

The other thing that is very important to emphasize, and which is  replete in the case law, is deference to the professional judgment of the attorney handling the case. This court, in a series of cases, says that the attorney is in the best position professionally and ethically to determine whether a conflict exists.  The judge can’t do it effectively, and certainly the prosecutor cannot, which is the reason the state probably didn’t object originally.  Deference must be given to the professional position of defense counsel. The rules of professional conduct provide the same thing. Comment 3 to Rule 1.16 says a lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.  Professionally and ethically, in that situation, the judge should let the lawyer out. And defense counsel need not and really cannot be very specific without disclosing confidential information.

There is no question that the trial judge recognized that there were divided interests here, and that these interests were mutually antagonistic. The state doesn’t dispute this. But what the judge did in his order was to resolve the conflict in favor of the PD’s former client. And that’s not appropriate. The judge said, there’s no conflict as long as you don’t use any of that information. That’s not what the rules provide. The rules provide that in a situation where the PD’s office has information that is confidential, unless we get informed consent from the former client and consent from the current client, we cannot continue with representation.  We don’t get to pick and choose whose interests override, and the judge can’t order us to do that either.

The state talks in this case about the difference between actual and potential conflicts. But that’s not the language in the rule.  Rule 1.7 talks about a substantial risk of a material limitation. The rules recognize that this isn’t an on-and-off switch where it’s actual or its potential. It speaks in terms of risk.  There is a substantial risk of a material limitation based on our former representation of the state’s only fact witness and victim int his case. As a result, there would be an ethical violation if the PD’s office were to go forward. This must be reviewed by the courts immediately to avoid unfixable harm. The decision of the appeals court should be affirmed.

What Was On Their Minds

Meaningful Remedy

If a defendant gets bad advice from counsel, because counsel is conflicted, and the defendant pleads guilty, there’s really no way to challenge that on appeal, is there, asked Justice DeWine?

Why should the defendant have the right to appeal the removal of his counsel immediately, asked Justice Fischer?

Based on the state’s position that a judge should be able to force an attorney to continue after the attorney makes representations about the potential conflicts or the risk of conflicts, and then there is a trial, and the defendant is convicted. On appeal, the conflict is found to be real and there has to be a retrial. How is that an effective use of resources, asked Chief Justice O’Connor?

Timeliness

The motion to withdraw in this case was made early on in the procedure, noted Justice Donnelly. Was there even a trial date set when this motion was made?

Defense Counsel’s Dilemma

Defense counsel articulated serious concerns that he had, noted Justice Donnelly.  He felt that he had to find out as much information about the alleged victim in the case as possible and he knew within his office there was information in a file that may have contained confidential communication to some of his colleagues that he felt if he remained on the case he would have to investigate, right?

Would it have been appropriate for defense counsel to have combed through those files before making the motion to withdraw, asked Chief Justice O’Connor? These were pretty current files involving the victim, weren’t they? Other than pointing out the obvious to the court, how specific could defense counsel have been when it would have been inappropriate for him to have gone through those files without getting a ruling on whether or not he could recuse? Does counsel have to be specific at all? What does defense counsel have to say? I’m prejudiced or conflicted, if I stay on, I will be in violation of ethics?

Isn’t part of the issue not what the allegedly conflicted lawyer did, but what the allegedly conflicted lawyer didn’t or wouldn’t do, asked Justice Fischer? Isn’t that the issue here? How do you review something that somebody wouldn’t do?

If the judge denies the motion to withdraw on the eve of trial, or mid-trial, does that attorney then have an obligation to immediately appeal that order, asked Justice DeWine? Does defense counsel have an obligation to tell his client that the client has the right to appeal right then and stop the trial and come back in 9 months when the appeals court decides the case? Could the lawyer who represented the victim in the first case appear in that courtroom? If that attorney couldn’t appear in the courtroom isn’t the rule pretty clear that while lawyers are associated with a firm none of them shall represent the client?  When the lawyer knows that any one of the practicing alone would be prohibited from doing so?

Structural Error

Wouldn’t it be structural error to have a counsel who is conflicted, asked Justice DeWine? Wouldn’t that mandate reversal if the court in fact found that the defendant was represented by counsel that had a conflict of interest?

Finality

Is the state only arguing the third prong of R.C. 2505.02(B)(4), asked Justice Fischer? (answer: yes) What would be the meaningful review? Let’s say the attorney leaves the prosecutor’s office, becomes defense counsel, an expert in whatever area the crime is, and the state says, judge, remove that lawyer because he knows how we do things in our department. And the judge denies that. Is that a final appealable order by the state? Is it always a final appealable order on a conflict issue?

Is it the defense position that the denial of a motion to withdraw as counsel should be immediately appealable, asked Justice DeWine?

Gaming the System

I’ve been a trial judge and other people have too, noted Justice DeWine. It’s not uncommon for criminal defendants to go through several  public defenders and often on the eve of trial or during trial come to the conclusion that they don’t like the PD they have and say there’s a conflict and ask the judge to remove them.  Now if we decide the way the defense want us to, wouldn’t that mean in any of those cases the judge would have to stop the case mid-trial or on the eve of trial and allow that appeal to go forward? How do we draw that distinction between someone who has a good case and someone who doesn’t have a good case?

How Big a Problem is This?

Do trial court judges routinely deny motions for recusal, asked Chief Justice O’Connor?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Like a win for Barnes, maybe even unanimously.  I’m not sure why the state insisted on taking this up. The Chief really pressed on whether this is even a common  problem and the prosecutor admitted it wasn’t.  The conflict in this case wasn’t just some passing trifle. The former client involved was the victim and the chief witness in the case against Barnes. I can’t imagine either one of them agreeing to waive this conflict, or even deeming it waivable. How is that not a material limitation on representation? And how could the public defender assigned to the case speak in anything but generalities here, as the Chief brought out in her questioning.

Mr. Sweeney simply gave a much better and more convincing argument here, notwithstanding all of Justice DeWine’s concerns about some defendants gaming the system.  This conflict isn’t one that should have to wait.  I just don’t see how a meaningful remedy comes out of a delayed appeal in this circumstance.

To Student Contributor Madeline Pinto

I think the Court will most likely rule in Barnes’ favor. Overall, the State presented weak arguments that did not appear to convince any of the justices of the State’s position. In particular, the justices seemed unconvinced by the State’s argument that Spadaro failed to demonstrate the existence of a potential or actual conflict because he spoke mostly in generalities. Chief Justice O’Connor challenged this argument by pointing out that it would not have been possible for Spadaro to be much more specific when describing the alleged conflict because it would have been inappropriate for Spadaro to have read the former client’s confidential files before filing the motion to withdraw. Additionally, Justice Fischer took issue with the State’s assertion that there would be a meaningful post-conviction review of the trial court’s denial of the motion to withdraw, questioning how an appellate court could effectively review something that an allegedly conflicted lawyer did not do or refused to do during trial. During the State’s rebuttal, Chief Justice O’Connor pointedly asked how forcing an attorney to continue a representation despite alleged conflicts is an efficient use of judicial resources if those conflicts are eventually found to be real during a post-conviction appeal and the court of appeals is required to order a re-trial. The State stumbled in response and failed to provide a satisfactory answer.

In contrast, Barnes’ counsel presented fairly strong arguments that were grounded in case law and the plain language of the Rules of Professional Conduct. Overall, the justices appeared to agree with Barnes’ arguments, allowing Barnes’ counsel to give his oral argument with few interruptions. The primary challenge to Barnes’ position came from Justice DeWine who voiced a concern that the rule advocated by Barnes would allow strategic criminal defendants to file motions to remove appointed counsel during trial, forcing the trial judge to stop the case midtrial and allow for an immediate appeal. However, Barnes’ counsel provided a sound response, arguing that, although there will always be criminal defendants who attempt to “game the system,” the Court should still hold that the denial of a motion to withdraw is a final appealable order because otherwise criminal defendants may be forced to proceed with conflicted counsel in violation of the Sixth Amendment. Therefore, I think the Court will ultimately rule in Barnes’ favor.