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There is no per se rule prohibiting representation of the defendant by counsel who has previously represented a government witness. However, where counsel who has previously represented a prosecution witness subsequently represents the defendant against whom the witness is to testify, the potential for a conflict of interests exists in 'that defense counsel may not be able to effectively cross-examine the witness for fear of divulging privileged information. This same concern, as well as other rather obvious concerns, arise when counsel simultaneously represents the defendant and a prosecution witness. Whether counsel's representation of the witness occurs before or is simultaneous with the representation of the defendant, the potential for conflict is great where there is a substantial relationship' between the two cases.
Appellant, Aaron Coleman, was charged with unlawful distribution of a controlled substance. At trial, the State’s case against appellant consisted of the testimony of the confidential informant ("CI"), Elba Police Officer Leslie Hussey, and John Brunner from the Alabama Department of Forensic Sciences. Subsequently, the defense counsel moved to withdraw because he simultaneously represented defendant and the CI. The motion was denied, and the appellant was convicted of the crime charged. On appeal, appellant argued that the court erred in denying counsel's motion to withdraw from the case. According to the appellant, he was denied of the effective assistance of counsel.
Did conflict of interest exist by the counsel’s simultaneous representation of the defendant and the CI?
The court noted that the Sixth Amendment right to counsel included the right to representation that was free from conflicts of interest. An actual conflict of interest existed when an attorney owed loyalty to a client whose interests were adverse to another client. In this case, the court held that there was at least a potential conflict under Ala. R. Prof. Conduct 1.7(a). Where a counsel who has previously represented a prosecution witness would subsequently represent the defendant against whom the witness was to testify, the potential for a conflict of interests exists in that defense counsel may not be able to effectively cross-examine the witness for fear of divulging privileged information. The matter was remanded with instructions.