People v. Frisco, No. 05SA17.

• Decision Date: 12 September 2005
• Docket Number: No. 05SA17.
• Citation: 119 P.3d 1093
• Parties: In Re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: David G. FRISCO.
• Court: Colorado Supreme Court

Page 1093

119 P.3d 1093

In Re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: David G. FRISCO.

No. 05SA17.

Supreme Court of Colorado.

En Banc.

September 12, 2005.

Larry R. Abrahamson, District Attorney, Loren B. Schall, Deputy District Attorney, Fort Collins, for Plaintiff.

Joseph Saint-Veltri, Denver, for Defendant.

COATS, Justice.

David Frisco, a criminal defendant charged in a multi-count grand jury indictment, petitioned pursuant to C.A.R. 21 for relief from the district court's pre-trial order disqualifying his chosen attorney. The district court ruled that disqualification was required by Rule 1.9(a) of the Colorado Rules of Professional Conduct because the defendant's attorney did not have the consent of a former client, who was both an alleged co-conspirator and prospective prosecution witness, and whose expected testimony the defense would be forced to challenge and characterize as blame shifting.

Because it was not reasonable to find, from the available record, a substantial risk that confidential information as would normally have been obtained by counsel in the prior representation would materially advance the position of the defendant in the current prosecution, Rule 1.9 imposed no duty on defense counsel to obtain his former client's consent. The rule is therefore made absolute.

I.

In April 2004, the defendant, David Frisco, was indicted by the state-wide grand jury on multiple counts of theft; theft by receiving; forgery; criminal impersonation; attempt to influence a public servant; second degree perjury; possession, conspiracy to distribute, and distribution of schedule II controlled substances; false imprisonment; solicitation for prostitution; possession of a forged instrument, explosives, and hazardous substances; being an accessory to a crime; and engaging in racketeering activities in violation of the Colorado Organized Crime Control Act. Prior to trial, the People moved to disqualify Frisco's counsel,¹ on the ground that his former representation of a prospective prosecution witness, Dean Mangeris, created a conflict of interest, which had not been waived by the former client. Following the arguments of counsel, the district court granted the motion.

Frisco's counsel had represented Mangeris for some months, beginning in early 2003, against charges of manufacturing and conspiring with a third person to manufacture methamphetamine over a three-day period in September 2002. The representation appears to have consisted largely of arranging for Mangeris' continued release on bond, which ended when Mangeris failed to appear for a hearing in March and was arrested in California in April. Mangeris was returned to Colorado in May and, in June, testified before the grand jury about criminal activities involving Frisco. As part of a broader plea agreement, the drug charges with regard to which he had been represented by Frisco's counsel were dismissed in July. It is undisputed that Frisco's counsel withdrew from representation of Mangeris immediately upon Mangeris' capture and return to the state, and that he had no involvement in Mangeris' cooperation with the government or his subsequent plea arrangement.

As relevant to Mangeris' drug activities, the grand jury indictment indicated that between June 2002 and July 2003, Frisco was aware of Mangeris' drug manufacturing activities, provided him materials and instructions, and took a share of the drugs. In moving for disqualification, the People emphasized that Mangeris' testimony at trial would not only implicate Frisco in the distribution and manufacture of drugs, as charged in the indictment, but also that Mangeris manufactured methamphetamine for Frisco as payment for posting the very bond that had been arranged with the assistance of Frisco's attorney. There was no suggestion, however, that defense counsel participated in or was aware of any such illegal arrangements.

The district court granted the motion to disqualify, solely on the ground that Rule 1.9(a) of the Colorado Rules of Professional Conduct imposed a duty on Frisco's counsel to obtain the consent of his former client. The court found the current case substantially related to counsel's former representation of Mangeris (as well as some of Mangeris' other prosecutions) because both involved controlled substances and, without greater elaboration, because of "the facts and circumstances" that would be at issue in the current case. It also found that Frisco's defense would be materially adverse to the interests of Mangeris, whether or not he testified and was subjected to cross-examination, because it would necessarily involve characterizing him as a liar, as a person who had committed multiple crimes, and as a person trying to shift the blame for his own conduct.

Frisco petitioned for relief pursuant to C.A.R. 21.

II.

The Sixth Amendment right of criminal defendants to counsel of their choice is not absolute and must give way under certain circumstances. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). In addition to protecting the rights of the defendant and ensuring that their own judgments remain intact on appeal, courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. See id. at 159-60, 108 S.Ct. 1692. Even an otherwise effective waiver of conflict-free representation is therefore not always sufficient to permit representation by a defendant's counsel of choice. See id.

There can be no doubt that a court may decline a proffer of waiver in the face of an actual conflict of interest, id. at 162, 108 S.Ct. 1692, but in order to fully protect the various interests at stake in a timely manner, courts must also be able to decline such a waiver upon a mere showing of serious potential for conflict, id. at 164, 108 S.Ct. 1692; see also Rodriguez v. Dist. Court, 719 P.2d 699 (Colo.1986). As this court has previously made clear, however, where the court's concern is protecting the interests of former clients rather than protecting the defendant, avoiding mistrial or reversal from later-materializing actual conflicts, or undermining public confidence in the impartiality and fairness of the process, a defendant's choice of counsel will not lightly be denied. See Rodriguez, 719 P.2d at 706-08.

In Rodriguez v. District Court, while recognizing defense counsel's obligation under the Canons of Professional Responsibility to preserve the confidences of a former client, we held that at least where the former client (and prospective witness against the defendant) did not join the prosecution's motion to disqualify, and where there also appeared to be unprivileged materials available for impeachment, the former client's interests could be adequately protected by the vigilance of the trial court. On balance, therefore, a presumption in favor of the defendant's choice of counsel was not overcome. Id. at 707-08.

Since that time, however, the Canons of Professional Responsibility have been superceded, in this jurisdiction, by the Colorado Rules of Professional Conduct. The Rules continue to limit attorneys in using or revealing information relating to a prior representation, but unlike the Canons, Rule 1.9(a) actually bars subsequent representation, under limited circumstances, without a former client's consent. See C.R.P.C. 1.9 (2004) (Conflict of Interest: Former Client);² see also People ex rel. Peters v. Dist. Court, 951 P.2d 926, 931-33 (Colo.1998) (applying Rule 1.9(a), in conjunction with 1.7 and 1.10, to disqualify criminal defense counsel).

The rule obviously does not require the consent of a former client to all future representation but only to the representation of "another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." Because the use of information from a prior representation to the disadvantage of the former client is separately restricted by Rule 1.9(c), Rule 1.9(a) applies only to situations involving an inherent and substantial risk of violating an attorney's duty of loyalty to former clients. Its prohibition is therefore limited to representations that combine the same or substantially related legal disputes with a motive to harm a former client, in order to advance the interests of a current client.

Unless both matters involve the same transaction or legal dispute, they are considered "substantially related" only if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. See Model Rules of Professional Conduct Rule 1.9 cmt. 3 (2002); see also Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir.1983); Koch v. Koch Indus., 798 F.Supp. 1525, 1536 (D.Kan.1992); see generally Restatement (Third) of The Law Governing Lawyers § 132 cmt. d(iii) (2000). Any meaningful assessment of this risk cannot be limited to the consideration of ultimate legal issues, but must account for facts and circumstances, legal theories and strategies, and even the nature and scope of the attorney's involvement in the former representation.

Although there appears to be no clear consensus about precisely how the "substantial relationship" test should be applied without simultaneously exposing the very matters to be protected, see generally ABA/BNA Lawyers' Manual on Professional Conduct 51:223-25 (2002), assessing whether the two representations are "substantially related" has been described as a process of factual reconstruction, see Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir.1978); see generally Charles W. Wolfram, Symposium: Restatement of the Law Governing Lawyers, 10 Geo. J. Legal Ethics...