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State v. White - 114 S.W.3d 469 (Tenn. 2003)

Rule:

In determining whether to disqualify an attorney in a criminal case, a trial court must first determine whether the party questioning the propriety of the representation met its burden of showing that there is an actual conflict of interest. An actual conflict of interest includes any circumstances in which an attorney cannot exercise his or her independent professional judgment free of compromising interests and loyalties. In the context of multiple employment, for example, an actual conflict arises where an attorney's continuance of such employment would be likely to involve the lawyer in representing differing interests. Tenn. Sup. Ct. R. 8, DR 5-105(B). If a conflict exists, it may only be cured if it is obvious that the lawyer can adequately represent the interest of each client and if each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent professional judgment on behalf of each. Tenn. Sup. Ct. R. 8, DR 5-105(C). An appearance of impropriety, on the other hand, exists under the Tennessee Code of Professional Conduct in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.

Facts:

Jeremy White was indicted by the Shelby County Grand Jury, for the offenses of attempt to commit first degree murder, especially aggravated robbery, especially aggravated burglary, and especially aggravated kidnapping arising out of events that occurred in Shelby County, Tennessee. He retained Mark S. McDaniel as his defense counsel. Prior to trial and during the time McDaniel was serving as White's defense counsel, McDaniel was also serving as a part-time prosecutor for a town in Shelby County, Tennessee, and had been appointed and sworn in as an assistant district attorney for Shelby County. Rresponding to a request from the Shelby County District Attorney's office, the Board of Professional Responsibility for the State of Tennessee issued an unpublished advisory opinion, which concluded that such representation was unethical because the prosecutor's duties to the public and the criminal defense lawyer's duties to the accused are inherently antagonistic and cannot be waived by the public. Based on the Board's opinion, the State filed a motion to disqualify McDaniel from representing Jeremy White, which was granted by the trial court and affirmed by the Tennessee Court of Criminal Appeals. The Supreme Court of Tennessee granted White's application for appellate review in which  White argued that the court of criminal appeals erred by finding that an actual conflict of interest existed for his defense counsel.

Issue:

Did the court of criminal appeals err by finding that an actual conflict of interest existed for his defense counsel?

Answer:

No

Conclusion:

The Supreme Court of Tennessee rejected White's argument. Counsel's dual roles as assistant district attorney general and defense counsel in the same county were inherently antagonistic and thus, created an actual conflict of interest. The ethical obligations of those dual roles required counsel to represent the interests of two adverse parties simultaneously and forced him to attempt to reconcile his duty to vigorously prosecute criminal offenses on behalf of the State with his duty to zealously represent White. In his capacity as an assistant district attorney, for example, his ethical duties required him to advocate for the public and to seek justice. In his capacity as defense counsel, however, his ethical duties required him to be a zealous advocate of White and an adversary to his fellow assistant district attorneys. The State showed that counsel's dual roles in the same county created an actual conflict of interest that the State could not be forced to waive. In addition, that conflict of interest superseded White’s right to the counsel of his choosing.

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