People v. Harlan, 01SA356.

• Citation: 54 P.3d 871
• Decision Date: 16 September 2002
• Docket Number: No. 01SA356.,01SA356.
• Parties: In re The PEOPLE of the State of Colorado, Plaintiff, v. Robert HARLAN, Defendant.
• Court: Supreme Court of Colorado

54 P.3d 871

In re The PEOPLE of the State of Colorado, Plaintiff, v. Robert HARLAN, Defendant.

No. 01SA356.

Supreme Court of Colorado, En Banc.

September 16, 2002.

Rehearing Denied October 7, 2002.¹

Robert S. Grant, District Attorney, Steven L. Bernard, Assistant District Attorney, Brighton, Colorado, Attorneys for Plaintiff.

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy, Denver, Colorado, Attorneys for Defendant. Justice MARTINEZ delivered the Opinion of the Court.

In this original proceeding, petitioner Robert Harlan seeks to vacate the district court's order disqualifying his longtime counsel of choice. The district court disqualified Harlan's counsel of choice on an oral motion by the People during post-conviction proceedings. Harlan contends that the district court abused its discretion in ordering disqualification. We issued a rule to show cause and now make the rule absolute.

After reviewing the relevant facts and procedure, we review the principles governing disqualification. As our discussion indicates, a determination regarding disqualification encompasses several considerations, including a defendant's right to continued representation by his counsel of choice, his right to conflict-free counsel, his right to waive the right to conflict-free counsel, and the public interest in preserving the integrity of the judicial process. Our discussion reveals that in Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), we articulated a balancing test that encompasses these considerations in determining whether disqualification is necessary and proper. Because our determination that disqualification was not warranted in this case turns on the nature of the alleged potential conflict of interest, we discuss the alleged conflict in detail. Finally, applying the Rodriguez balancing test to this case, we conclude that the district court abused its discretion when it ordered disqualification of Harlan's counsel of choice.

I. Facts & Procedure

After a jury trial, Harlan was found guilty of first-degree murder, two counts of attempted murder, second-degree kidnapping, and first-degree assault. The jury returned a sentence of death on the capital murder conviction. On April 20, 2001, we issued a mandate affirming the sentence and conviction and instructed the district court to vacate the sentence for one attempted murder count. See People v. Harlan, 8 P.3d 448 (Colo.2000)

.

At the time we issued our mandate, there was a motion pending in the district court. That motion, captioned Motion to Vacate the Death Sentence Due to Juror's Use of the Bible During Penalty Phase Deliberations ("the Bible Motion"), was filed by Harlan in 1995 upon counsel's discovery that jurors had allegedly brought Bibles into their penalty phase deliberations. The trial court did not consider the Bible Motion before Harlan's notice of appeal had to be filed and we did not address it on appeal. Upon our issuance of the mandate, the People took the position that the Bible Motion was no longer pending. The People's procedural position, along with the merits of the Bible Motion, were being briefed by counsel when the People successfully moved to disqualify Harlan's counsel for all purposes. It is the district court's order disqualifying Harlan's counsel that is the subject of this C.A.R. 21 proceeding. Because the disqualification order was appealed immediately, all matters, including the Bible Motion, were effectively stayed pending our resolution of this C.A.R. 21 proceeding.

Prior to the hearing at which the district court disqualified Harlan's counsel, and before Harlan filed a Crim. P. 35(c) motion, he filed a motion seeking the appointment of alternate defense counsel (ADC) to investigate and present any claims of ineffective assistance of counsel. This motion was filed notwithstanding the fact that no allegations had been made that Harlan's counsel of choice was ineffective. At a hearing on August 2, 2001, the district court agreed that conflict-free ADC should be appointed to represent Harlan to review any possible ineffective assistance of counsel claims that might be asserted at some time in the future. At that same hearing, the People asserted that the public defender should no longer be involved with the case. The district court rejected the People's assertion and scheduled another hearing for August 20, 2001 for the appointment of conflict-free ADC. Finally, the district court notified counsel that all future matters would be heard by another division and ordered that any motions to be heard at the August 20 hearing be filed by August 13.

After the August 13 deadline passed, the People filed two pleadings, one of which asserted that the public defender should be required to withdraw as counsel unless Harlan agreed to waive any claims of ineffective assistance of counsel.² The People based this pleading on what it contended was the certainty that Harlan would assert ineffective assistance of counsel claims against his counsel of choice, which would create an impermissible conflict of interest. The People rely on this same argument in this C.A.R. 21 proceeding. The People did not file a motion to disqualify Harlan's counsel.

At the August 20 hearing, the People orally requested that the district court disqualify Harlan's counsel for all purposes. The People made this request notwithstanding the fact that only two defense matters were set to be heard on August 20, neither of which was a motion to disqualify counsel.³ Over defense counsel's objection, the court heard argument on the disqualification issue and ordered that Harlan's counsel be disqualified immediately. At the time of counsel's disqualification, there were two pending motions, the Bible Motion and Harlan's Combined Crim. P. 35(a) and 35(b) Motion. In disqualifying Harlan's counsel, the district court stated:

I think having the Public Defender's office continue as Mr. Harlan's counsel in this case does create a tension, a significant one, in that he has the right to raise ineffective assistance of counsel issues, and likely those issues will be raised. . . . Although ineffective assistance of counsel claims haven't been raised yet, they likely will be raised. In fact, I expect them to. No one expects otherwise. And once those issues are raised, I think it puts Mr. Harlan and the Public Defender's office in a very difficult situation.

The district court did not advise Harlan of the nature of any potential conflict, nor did it advise Harlan of his right to waive any potential conflict of interest, although it stated that it assumed that Harlan was prepared to waive his right to conflict-free counsel. The district court then appointed interim counsel, who continues to act only as interim counsel.

After the district court's ruling, Harlan's counsel filed a motion to reconsider. That motion amended Harlan's request regarding the scope of representation he was seeking from his counsel of choice. Specifically, the motion to reconsider asked only that Harlan be permitted to retain his counsel of choice for the limited purposes of litigating the Bible Motion and the Crim. P. 35(a) Motion.⁴ The district court denied the motion to reconsider. Harlan's counsel filed the present C.A.R. 21 motion, requesting a rule to show cause. We issued the rule to show cause and the matter has been fully briefed. We now make the rule absolute and hold that the district court improperly disqualified Harlan's counsel of choice.

II. Disqualification of Counsel: Controlling Principles

A. Disqualification: General Concepts

Very generally, disqualification of a defendant's counsel of choice is utilized to remedy situations in which continued representation would in some way tarnish the judicial process. See generally Taylor v. Grogan, 900 P.2d 60 (Colo.1995)

. In determining whether disqualification is warranted "[t]he critical question is whether the litigation can be conducted in fairness to all parties. Disqualification should not be imposed unless the claimed misconduct in some way `taints' the trial or legal system." Id. (quoting Fed. Deposit Ins. Co. v. Isham, 782 F.Supp. 524, 528 (D.Colo.1992)). We have held that an important consideration in determining whether disqualification is necessary is the "presence of a real and substantial conflict that place[s] the defense attorney in a situation inherently conducive to and productive of divided loyalties." People v. Castro, 657 P.2d 932, 945 (Colo.1983). Thus, we have found a "substantial" conflict warranting withdrawal where a public defender was appointed to represent two defendants with conflicting interests. Allen v. Dist. Ct., 184 Colo. 202, 204, 519 P.2d 351, 352 (1974). Similarly, the United States Supreme Court has recognized that the trial court could require disqualification of counsel who represented codefendants in a conspiracy case where one defendant was offered a plea agreement that would make him a witness against the other. Wheat v. United States, 486 U.S. 153, 160, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

Disqualification is a severe remedy that should be avoided if possible. "Courts should impose the least severe sanctions necessary to remedy improper conduct by the parties," People v. Palomo, 31 P.3d 879, 885 (Colo.2001), and should "shape a remedy which will assure fairness to the parties and the integrity of the judicial process." People v. Garcia, 698 P.2d 801, 806 (Colo.1985). As a result, disqualification is only proper when it appears reasonably necessary to ensure "the integrity of the fact-finding process, the fairness or appearance of fairness at trial, the orderly or efficient administration of justice, or public trust or confidence in the criminal justice system." Id. at 806.

In Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), we articulated a balancing test for determining whether disqualification is proper. Rodriguez directs that a court must "...