Wednesday, October 3, 2012

Trial court erred when disqualifying retained counsel from the case (10 3 2012)

A Mahoning County Judge removing the attorney the defendant retained from the case. The defense attorney heard the defendant tell an assistant prosecutor that he took pictures on the night he allegedly raped his wife. The assistant prosecutor was placed on the defendant’s witness list. Later that assistant prosecutor was removed on the defendant’s motion. The same day she was removed, the State filed a motion to have retained defense counsel removed from the case. The judge held a brief hearing and then removed retained defense counsel because it was "possible" that the defense attorney "could be" called as a witness. The defendant appealed from this ruling while further proceedings were stayed in the trial court until the issue was resolved on appeal.

On appeal the Seventh District Court of Appeals for Mahoning County remanded the matter because the trial judge did not apply the proper test in removing defense counsel. The trial court should have first whether the defense attorney’s testimony was "necessary." If defense counsel’s testimony is "necessary" then the defense counsel should be removed (disqualified) unless one of the exceptions to Professional Conduct Rule 3.7(a) apply.

Prof.Cond.R. 3.7 states a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless one or more of the following applies: (1) the testimony relates to an uncontested issue, 2) the testimony relates to the nature and value of legal services rendered in the case, 3) the disqualification of the lawyer would work substantial hardship on the client. State v. Ponce, 2012-Ohio-4572.

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