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A positional conflict of interest arises when two or more clients have opposing interests in unrelated matters.
The appellant Joseph Williams filed these consolidated appeals from his conviction and death sentence for first-degree murder. Williams' lawyer, Bernard J. O'Donnell, has filed a motion to withdraw. The motion also requested that substitute counsel be appointed by this Court to represent Williams on appeal. O'Donnell asserted that, on appeal, Williams could raise an arguable issue that the Superior Court erred when it concluded it was required to give "great weight" to the jury's 10-2 recommendation in favor of the death penalty for Williams. O'Donnell contended, however, that he may have a conflict in presenting this argument because he had advocated a contrary position on behalf of a different client in another capital murder appeal pending before this Court. In Garden v. State, Nos. 125 & 162, 2001, O'Donnell argued in his opening brief that the Superior Court erred when it failed to give great weight to the jury's 2-10 vote rejecting the imposition of the death penalty for Garden. O'Donnell was concerned that his representation of both clients on this issue will create the risk that an unfavorable precedent will be created for one client or the other. O'Donnell also was concerned that it may invite questions about his credibility with this Court and his clients' perception of his loyalty to each of them.
Did the case present a positional conflict of interest warranting the grant of O’Donnell’s motion to withdraw?
The high court agreed that O'Donnell faced a positional conflict of interest within the meaning of Del. Law. R. Prof. Conduct 1.7(b), and that withdrawal and substitution was the proper course.