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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2002 Term

__________

No. 30785
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STATE OF WEST VIRGINIA EX REL.
DENVER A. YOUNGBLOOD, JR.,
Petitioner,

v.

    HONORABLE DAVID H. SANDERS,
JUDGE OF THE CIRCUIT COURT OF MORGAN COUNTY,
Respondent
 
_________________________________________________

PETITION FOR A WRIT OF PROHIBITION
 
WRIT GRANTED    
__________________________________________________

Submitted: November 6, 2002
Filed: November 27, 2002

Robert C. Stone, Jr.                                                        Stephen M. Kenney
Martinsburg, West Virginia                                            Special Prosecuting Attorney
Attorney for the Petitioner                                              South Charleston, West Virginia
                                                                                          and
                                                                                          Debra M. H. McLaughlin
                                                                                          Prosecuting Attorney
                                                                                          Berkeley Springs, West Virginia
                                                                                          Attorneys for the Respondent

JUSTICE ALBRIGHT delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.

 

 

SYLLABUS

    1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

    2. Where an attorney has received confidential information from a prospective client, the attorney may be disqualified from representing another individual on grounds of actual or presumed conflict despite the absence of an actual attorney-client relationship.

    3. Before disqualification of counsel can be ordered on grounds of conflict arising from confidences presumably disclosed in the course of discussions regarding a prospective attorney-client relationship, the court must satisfy itself from a review of the available evidence, including affidavits and testimony of affected individuals, that confidential information was in fact discussed.

    4. When the information that is the subject of a disqualification motion predicated on prospective representation was “generally known” or otherwise disclosed to individuals other than prospective counsel, the information cannot serve as a basis for disqualification under Rule 1.9 of the Rules of Professional Conduct.

    5. When disqualification of counsel is raised in the criminal context, the issue must be resolved with careful concern for the defendant's right to assistance of counsel guaranteed under our federal and state constitutions.

    6. When presented with a disqualification motion involving communications between an individual and prospective counsel, trial courts must carefully examine all relevant evidence that bears on the pivotal issue of whether confidential information has been disclosed which would impinge upon the attorney's right to zealously represent the current client or his duty to protect the confidences of the prospective client.

    7. Trial courts must also recognize that in the criminal context, disqualification on the basis of the attorney's receipt of privileged information from a codefendant formerly represented by that attorney should only be considered upon a clear showing that the present and former clients' interests are adverse.

 

Albright, Justice:

    Petitioner Denver A. Youngblood, Jr., seeks a writ of prohibition to prevent the Circuit Court of Morgan County from enforcing its order entered on August 16, 2002, disqualifying Robert C. Stone from serving as his counsel. As grounds for the disqualification, the trial court cited Mr. Stone's access to allegedly confidential information that was transmitted by the wife of Mr. Youngblood's co-defendant, Michael Fleece, in a consultation between Mrs. Fleece and a paralegal employed by Mr. Stone. Upon our review of this matter, we determine that the entirety of the factual information related to the crime that was discussed by Mrs. Fleece is separately contained in other statements provided to the police by both Mr. and Mrs. Fleece. Accordingly, we find no basis for disqualification of Mr. Stone and, thus, determine that a writ of prohibition shall issue with regard to enforcement of the trial court's order disqualifying Mr. Stone from continued representation of Mr. Youngblood.

I. Factual and Procedural Background

    On February 27, 2001, eighteen-year-old Jessica Miller died of a heroin overdose. In connection with that death, Petitioner Youngblood and Mr. Fleece were indicted for felony murder, possession with intent to deliver a controlled substance, and delivery of a controlled substance.

    Initial counsel appointed to represent Petitioner Youngblood was required to withdraw due to his prior representation of a witness in the case. A second attorney was then appointed, but his representation of Mr. Youngblood ceased when Mr. Youngblood's family hired Mr. Stone on June 24, 2002. Two days later, Mr. Fleece entered into a plea agreement whereby he plead guilty to voluntary manslaughter and agreed to testify against Mr. Youngblood under the terms of the agreement.

    On July 19, 2002, the State filed a motion to disqualify Mr. Stone from representing Mr. Youngblood based on a meeting that took place on September 6, 2001, between Mrs. Fleece and Steven Askin, a paralegal employed by Mr. Stone. This meeting, which lasted for thirty minutes to an hour, was for the purpose of exploring Mr. Stone's representation of Mr. Fleece. In its motion, the State alleged that Mrs. “Fleece told personal and confidential facts regarding her husband Michael Fleece and his involvement in the death of Jessica Miller.” Due to financial reasons, Mr. Stone was not hired by the Fleeces.

    Two hearings were held by Judge Sanders on the State's motion to disqualify.   (See footnote 1)  During these hearings, the trial court was apprised of the fact that Mr. Askin had prepared a memorandum of his meeting with Mrs. Fleece.   (See footnote 2)  That two-page memorandum was lodged with the court and placed under seal.

    By order entered on August 16, 2002, the circuit court granted the State's motion for disqualification. Recognizing that “[i]t is not necessary that an attorney be formally retained for the Attorney Client Privilege to attach,” the trial court examined whether confidential information was communicated to Mr. Stone.   (See footnote 3)  In considering whether confidential information was communicated during the September 2001 meeting, the trial court reviewed the testimony of Mr. Askin and Mrs. Fleece upon this issue. The circuit court found that Mr. Askin testified that “nothing of substance was divulged.” Mrs. Fleece, according to the trial court, “gives only the bare assertion that confidential information regarding the case was provided.” Focusing on the contents of the inter-office memorandum prepared by Mr. Askin, the trial court concluded that “considerable material information [was] conveyed to Mr. Askin,” and that Mr. Stone was disqualified based on the existence of a conflict between his duty to zealously represent Mr. Youngblood and his duty to protect the confidentiality of the statements made by Mrs. Fleece to Mr. Askin.     

    Arguing that the trial court erred in its determination that confidential communications had been disclosed which required disqualification under the rules of professional conduct,   (See footnote 4)  the Petitioner seeks the issuance of a writ of prohibition to prevent enforcement of the trial court's order disqualifying his counsel of choice.

II. Standard of Review

    
This Court's standard for issuing writs of prohibition stemming from allegations that the lower court exceeded its authority is set forth in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):

        In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

    With regard to the specific use of writs of prohibition in connection with disqualification motions, we recently recognized in State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 557 S.E.2d 361 (2001), that

    the Court has consistently found that a party aggrieved by a trial court's decision on a motion to disqualify may properly challenge such ruling by way of a petition for a writ of prohibition. See State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 296, 430 S.E.2d 569, 575 (1993) (recognizing that a challenge to a circuit court's ruling on a motion to disqualify is appropriately brought through a petition for prohibition); see also State ex rel. DeFrances v. Bedell, 191 W.Va. 513, 516, 446 S.E.2d 906, 909 (1994) (per curiam); Farber v. Douglas, 178 W.Va. 491, 493, 361 S.E.2d 456, 458 (1985); State ex rel. Taylor Assoc. v. Nuzum, 175 W.Va. 19, 23, 330 S.E.2d 677, 682 (1985); State ex rel. Moran v. Ziegler, 161 W.Va. 609, 244 S.E.2d 550 (1978).

210 W.Va. at 311, 557 S.E.2d at 365.

    With these principles in mind, we proceed to determine whether a writ of prohibition should be issued under the facts of this case.

III. Discussion

    
Petitioner Youngblood argues that by disqualifying Mr. Stone from serving as his defense counsel, the State has violated his Sixth Amendment right to counsel.   (See footnote 5)  While this right to counsel is not absolute, it has been observed that:

    This constitutional guarantee generally ensures that a criminal defendant may be represented by any counsel who will agree to take his case. Although “[a] defendant's right to counsel of his choice is not an absolute one,” United States v. Ostrer, 597 F.2d 337, 341 (2d Cir. 1979), we have consistently recognized that the right of a defendant who retains counsel to be represented by that counsel is “'a right of constitutional dimension.'” United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir. 1973), (quoting United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969) (emphasis added).

Commonwealth v. Cassidy, 568 A.2d 693, 698 (Pa. Super. 1989).

    Acknowledging certain limitations on the right to counsel of choice,   (See footnote 6)  Petitioner recognizes that trial courts have a duty to determine that no conflict of interest exists with regard to defense counsel's representation of a criminal defendant. See United States v. Agosto, 675 F.2d 965, 969 (8th Cir. 1982) (recognizing that Sixth Amendment guarantee of assistance of counsel “includes the 'right to “the assistance of an attorney unhindered by a conflict of interest”'”) (quoting Cuyler v. Sullivan, 446 U.S. 335, 355 (1980) and Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978)). The law is clear that potential conflicts of interest are raised when an attorney undertakes to represent an individual charged with the same crime for which he or she has represented or is representing a co-defendant.   (See footnote 7)  This assumption of conflict in the instance of successive representation arises based on the concern that “privileged information obtained from the former client might be relevant to cross- examination” and thereby affect the attorney's advocacy.   (See footnote 8)  Agosto, 675 F.2d at 971; see also Syl. Pt. 2, State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993) (holding that “Rule 1.9(a) of the Rules of Professional Conduct, precludes an attorney who has formerly represented a client in a matter from representing another person in the same or a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation”). Petitioner contends that we are without controlling authority, however, concerning the issue presented by this case: whether disqualification is required when prospective counsel was not hired by one co-defendant following consultation, but later hired by the other co-defendant.

     In the case of State ex rel. DeFrances v. Bedell, 191 W.Va. 513, 446 S.E.2d 906 (1994), this Court briefly addressed the issue of whether communications made by a prospective client could preclude the attorney's law firm from subsequent representation of another individual based on the presumed conflict that arose from the presumed sharing of confidences. See Syl. Pt. 4, McClanahan, 189 W.Va. at 291, 430 S.E.2d at 570 (holding that once former client establishes attorney is representing individual in substantially related matter, presumption exists that former client divulged confidential information to attorney). We rejected the argument that counsel should be disqualified based on the mere appearance of conflict where the extent of the consultation meeting was a discussion of the general subject of estate law and taxation without any specific application of those laws to the prospective client's situation. We declined to expand the assumption that confidential information is disclosed during the course of actual representation to instances of prospective representation where the facts were limited to “a remote, isolated, non-productive meeting” and the attorney submitted an affidavit indicating that no confidential information was disclosed during that one meeting.   (See footnote 9)  Bedell, 191 W.Va. at 518, 446 S.E.2d at 911. Based on the absence of an attorney-client relationship and the non-disclosure of confidential information, we concluded that the attorney's law firm was not precluded from representation under those specific facts. Id.

    Recently, in State ex rel. Ogden Newspapers, Inc. v. Wilkes (“Ogden II”), 211 W.Va. 423, 566 S.E.2d 566 (2002), we identified a critical factor that must be examined in connection with determining whether alleged confidential disclosures require disqualification.

In discussing the issue of whether matters are substantially related for purposes of determining whether a conflict precluded representation, we observed:

    We recently added further definition to the substantial relationship test in syllabus point one of State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 557 S.E.2d 361 (2001), when we adopted the approach taken in § 132 Restatement (Third) of the Law Governing Lawyers and said that two matters are substantially related under Rule 1.9(a) if “there is a substantial risk that representation of the present client will involve the use of [confidential] information acquired in the course of representing the former client, unless that information has become generally known.” The express language of section (b) of Rule 1.9 likewise acknowledges that information which is or becomes commonly known lies outside the parameters of confidential information and may be used against a former client in subsequent actions.

211 W.Va. at __, 566 S.E.2d at 563-64 (emphasis supplied). Thus, when the confidential information at issue has been disclosed to other individuals, a conflict requiring disqualification cannot arise based on such “generally known” information. See State ex rel. Ogden Newspapers, Inc. v. Wilkes (“Ogden I”), 198 W.Va. 587, 590, 482 S.E.2d 204, 207 (1996) (discussing rationale underlying Professional Conduct Rule 1.9 and foundational underpinnings of attorney-client relationship); see also United States v. Johnson, 131 F.Supp.2d 1088, 1096-99 (N.D. Iowa 2001) (discussing distinction recognized by U.S. Supreme Court between disclosure of underlying facts and wavier of attorney-client privilege concerning communications).

    In arguing that disqualification is improper under the facts of this case, Petitioners rely on the absence of any attorney-client relationship between Mr. Stone and Mr. Fleece; the lack of any confidential information being transmitted during the consultation between Mrs. Fleece and Mr. Stone's paralegal;   (See footnote 10)  and the fact that the factual information contained in the internal memorandum prepared by the paralegal qualifies as “generally known” information. Petitioner argues that the limited factual information set forth in the internal memorandum is the same information that had been provided by both Mr. and Mrs. Fleece in multiple written and transcribed oral statements given to the police. Accordingly, the State cannot demonstrate that disqualification is required based on the existence of a conflict or due to Mr. Stone's inability to zealously represent Mr. Youngblood pursuant to the ethical requirements of the Rules of Professional Conduct.

    Worthy of comment is the fact that the lower court never made a finding that the subject communications between Mrs. Fleece and Mr. Askin contained confidential information. Instead, the trial court observed that the internal memorandum reflected that “considerable material information [was] conveyed” and that “immediate action was advised.” Viewing its decision on disqualification as dependent on whether anything of substance was discussed during the meeting between Mrs. Fleece and Mr. Askin, the trial court opined during the August 2, 2002, hearing:

    Here the memo gives all of the indicia of a jump start and actual steps in representation, recommendations, assessment of the strengths of the case, steps to be taken, and the Court can't construe what we have seen as something that is as slight or as passing or as something which is nonsubstantive as those cases which find an attorney may continue in representation after this type of communication is shared.

In its order of August 16, 2002, the circuit court concluded that disqualification was required because it “cannot construe the statements as slight or passing and without substance.”

    While the nature of the conversation is certainly a factor to be considered in making the determination of whether a conflict exists which necessitates disqualification, the objective of the court's inquiry in this case was to determine whether any confidential communications were shared by Mrs. Fleece with Mr. Askin. As we noted in Ogden II, it is “the reviewing courts responsibility to weigh and balance carefully all relevant factors in order to guard against the risk of disclosure of confidential information when addressing qualification issues.” 211 W.Va. at __, 566 S.E.2d at 565. In deciding that disqualification was required in this case, the trial court appears to have placed undue emphasis on the dictated remarks that Mr. Askin made while in the presence of Mrs. Fleece as to whether the case was a felony murder case; his instructions to Mrs. Fleece regarding preparation of written factual accounts of the events surrounding the death of Miss Miller; and the need to get character witnesses. All of this generalized discussion, which would necessarily take place in any client consultation involving prospective representation of a criminal defendant, has absolutely no bearing on whether confidential information related to the crime was provided by Mrs. Fleece to Mr. Askin. For the trial court to inferentially conclude that confidential information was discussed, based solely on a generalized discussion that included such basic matters as fees; arranging for bail; the setting of a trial date; and the possible need for forensic experts, was improper when viewed against the entirety of the record.

    The trial court should have examined the factual statements that Mrs. Fleece made to Mr. Askin related to her husband's involvement in the crime against those statements already provided to the police to determine if there was any information that had not previously been included in the prior statements. If she had provided distinct factual information that had not been disclosed to the police previously, then arguably the issue of a potential conflict between Mr. Stone's representation of Mr. Youngblood would be raised. Upon our review of the various oral and written statements made by Mrs. Fleece and Mr. Fleece against the factual statements included in the internal memorandum prepared by Mr. Askin, we can discern no information that had not previously been related to the police. Because the information that Mrs. Fleece related to Mr. Askin regarding her husband's involvement with Miss Miller's death is also contained in several police reports, that information clearly qualifies as “generally known” under the recognized exception to Rule 1.9 of the Rules of Professional Conduct. W.Va.R.Prof.Conduct 1.9(b).

    While most conflict of interest issues in the criminal context are raised post- conviction, when an issue of disqualification based on conflict is raised pre-trial, the trial court must balance “individual constitutional protections, public policy and public interest in the administration of justice, and basic concepts of fundamental fairness.” Agosto, 675 F.2d at 970 (quoting United States v. Garcia, 517 F.2d 272, 273 (5th Cir. 1975)). When disqualification is raised pretrial, “there is of necessity less certainty as to whether conflicts will actually arise and as to the nature of those conflicts.” Agosto, 675 F.2d at 970; accord Wheat, 486 U.S. at 162-63 (observing that “the likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials”). Accordingly, “the standards applicable to making that assessment [potential for conflict] must be flexible.” Agosto, 675 F.2d at 970.
    
    Given the lack of rulings in this area of the law, we hold today that where an attorney has received confidential information from a prospective client, the attorney may be disqualified from representing another individual on grounds of actual or presumed conflict,   (See footnote 11)  despite the absence of an actual attorney-client relationship. However, before disqualification of counsel can be ordered on grounds of conflict arising from confidences presumably disclosed in the course of discussions regarding a prospective attorney-client relationship, the court must satisfy itself from a review of the available evidence, including affidavits and testimony of affected individuals, that confidential information was discussed. When the information that is the subject of a disqualification motion predicated on prospective representation was “generally known” or otherwise disclosed to individuals other than prospective counsel, the information cannot serve as a basis for disqualification under Rule 1.9 of the Rules of Professional Conduct.

    We recognize that when disqualification of counsel is raised in the criminal context, the issue must be resolved with careful concern for the defendant's right to assistance of counsel guaranteed under our federal and state constitutions.   (See footnote 12)  Intrinsic to the assistance of counsel right guaranteed to criminal defendants is the principle firmly rooted in this country's system of jurisprudence that the trial process must be fundamentally fair. The often difficult task of identifying conflicts of interest, especially at the pre-trial stage of the proceedings, compels us to adopt a flexible approach to gauging the existence of or possibility for such conflicts. When presented with a disqualification motion involving communications between an individual and prospective counsel, trial courts must carefully examine all relevant evidence which bears on the pivotal issue of whether confidential information has been disclosed that would impinge upon the attorney's right to zealously represent the current client or his duty to protect the confidences of the prospective client. Trial courts must also recognize that “[i]n the criminal context, disqualification on the basis of the attorney's receipt of privileged information from a codefendant formerly represented by that attorney should only be considered upon a clear showing that the present and former clients' interests are adverse.” Agosto, 675 F.2d at 973.

    Borrowing from Justice Thurgood Marshall's comments in his dissent to Wheat,   (See footnote 13)  the Pennsylvania court in Cassidy articulated that:

        When a defendant's selection of counsel, under the particular facts and circumstances of a case, places the fairness and integrity of the defendant's trial in jeopardy, the defendant's right to counsel of choice may be justifiably denied. However, a presumption must first be recognized in favor of the defendant's counsel of choice; to overcome that presumption, there must be a demonstration of an actual conflict or a showing of a serious potential for conflict. . . . The right to counsel of choice “should not be interfered with in cases where the potential conflicts of interest are highly speculative. . . .” United States v. Flannagan, 679 F.2d 1072, 1076 (3rd Cir. 1983), rev'd on different grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).

568 A.2d at 698 (emphasis in original and citations omitted). In clear recognition of the presumption in favor of defendant's selected counsel, “[c]ourts generally give substantial weight to defense counsel's representations regarding conflicts of interest.” Agosto, 675 F.2d at 972.

    Applying the principles we announce here today to the case sub judice, we do not find that the presumption in favor of Petitioner's choice of counsel has been overcome by a sufficient showing of potential conflict. Because the information tendered to Mr. Askin by Mrs. Fleece is contained in an independent source -- the police reports, the factual information qualifies as “generally known” information which is outside the protections of Rule 1.9 of the Rules of Professional Conduct. Based on the information submitted in support of the alleged conflict, we cannot conclude that the fairness and integrity of the trial process will be affected by permitting Mr. Stone to represent the Petitioner. Absent the necessary showing of potential conflict, we cannot deny to Petitioner his right to counsel of his choice. Accordingly, we find that Petitioner is entitled to a writ of prohibition to prevent the lower court from enforcing its disqualification order.

    The cautionary remarks that we first announced in Ogden II are equally valid here:

        We stress that the result we have reached in this case should in no way be read as an erosion of this Court's resolve to shield the attorney-client relationship. We have simply recognized that a court faced with a Rule 1.9 motion must consider all relevant factors on a case-by-case basis in order to decide whether disqualification is warranted and that one such factor may be the amount of time which has passed since the former representation occurred. In some instances, no amount of time will remove the subsequent representation prohibition. A lawyer's formidable ethical responsibility of protecting the attorney-client relationship in a manner which steadfastly guards against improper disclosure, misapplication or misuse of protected information obtained from a former client remains unaltered. The frank and honest discourse which is the hallmark of the attorney-client relationship can be preserved only if lawyers are faithful to selecting cases in a prudent and judicious manner so as to protect the best interests of all clients.

211 W.Va. at __, 566 S.E.2d at 567.

    Based on the foregoing, we hereby grant a writ of prohibition to Petitioner to prevent enforcement of the order of disqualification entered by the Circuit Court of Morgan County on August 16, 2002.

Writ granted.


Footnote: 1

    The first of these hearings was held on July 26, 2002, and the second hearing was held on August 2, 2002.
Footnote: 2
    The memorandum was dictated while in the presence of Mrs. Fleece.
Footnote: 3
    During oral argument of this matter, Mr. Stone indicated that, upon the State's filing of the motion to disqualify, he read the memorandum that Mr. Askin dictated contemporaneous to his meeting with Mrs. Fleece.
Footnote: 4
    See W.Va.R.Prof.Conduct 1.8; 1.9.
Footnote: 5
    The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
Footnote: 6
    See generally Wheat v. United States, 486 U.S. 153, 159 (1988) (recognizing bar on representation by individual not admitted to legal profession; by attorney whom defendant cannot afford; by attorney who declines to assume representation; and by attorney having prior or current relationship with opposing party).
Footnote: 7
    Provided that there is a showing that the second client's interests are “materially

adverse” to the interests of the former client, a conflict is presumed to exist under Rule 1.9 of the Rules of Professional Conduct.


Footnote: 8
    The concern is two-pronged: “(a) the attorney may be tempted to use that confidential information to impeach the former client; or (b) counsel may fail to conduct a rigorous cross-examination for fear of misusing his confidential information.” Agosto, 675 F.2d at 971.
Footnote: 9
    Evidence as to confidential communications was limited to the attorney under challenge since the prospective client was deceased.
Footnote: 10
    Under recognized principles of agency, confidential communications made by Mr. Fleece's wife would still be entitled to protection under the attorney-client privilege. See Holstein v. Grossman, 616 N.E.2d 1224, 1240 (Ill. App. 1993) (recognizing that attorney- client relationship can be established by third party).
Footnote: 11
    See United States v. Register, 182 F.3d 820, 829-30 (11th Cir. 1999) (recognizing that direct evidence of actual conflict of interest is not required to disqualify defense counsel in criminal case and stating that trial court should consider whether there has been a “'showing of a serious potential for conflict'”) (quoting Wheat v. United States, 486 U.S. 153, 164 (1988)); accord Johnson, 131 F.Supp.2d at 1096; Cassidy, 568 A.2d at 698.
Footnote: 12
    See U.S. Const. amend. VI; W.Va. Const. art. III, §14.
Footnote: 13
    While Justice Marshall's thoughts were articulated in a dissent (which questioned the majority's decision to accord deference to district court decisions on whether potential conflict justifies disqualification of counsel), he specifically noted with regard to his discussion of the presumption that attaches to counsel of choice, that “[i]n these respects, I do not believe my position differs significantly, if at all, from that expressed in the opinion of the Court.” Wheat, 486 U.S. at 166 (Marshall, J., dissenting).