A Choice
The Oregon Supreme Court reversed a criminal conviction and remanded for a new trial over the defendant’s right to be represented by retained counsel
The record in this case reveals that: (1) defendant retained attorneys Mackeson and Hall to represent him after he was indicted on criminal charges; (2) on the first scheduled trial date, the court granted defense counsel’s request to postpone the trial so that they could investigate photographs that had been anonymously delivered to Hall’s office; (3) on the next scheduled trial date, the trial court granted defense counsel’s request to withdraw due to an ethical conflict that would likely arise from the prosecutor’s plan to cross-examine defendant about those photographs; (4) nine days later, at the next court appearance, the same attorneys appeared and asked to be allowed to represent defendant; and (5) the trial court noted that the ethical conflict “may or may not have resolved itself,” but it denied defendant’s request due to its “concerns” about the ethical obligations that had been previously raised.
Although that record shows that the trial court gen–erally understood that defendant’s right to be represented by retained counsel of his choice could be qualified by ethical or efficiency concerns, it does not demonstrate that the trial court weighed the relevant considerations and acted within the permissible range of its discretion in denying defendant’s request to be represented by Mackeson and Hall. This record does not reveal whether there was a sufficient risk that allowing that representation would unduly delay or disrupt the trial, or whether Mackeson and Hall’s representation of defendant at trial would have violated any ethical or professional standards of conduct.
Record insufficient
Contrary to the state’s assertion, characterizing the ethical conflict that led Mackeson and Hall to withdraw in the first place as “significant” is not enough to support the trial court’s exercise of discretion, especially considering the court’s acknowledgment that the original conflict “may or may not” have been resolved. Instead, to show that its decision was a permissible exercise of discretion, the court itself needed to explain the nature of its concerns, why it determined that those concerns were justifiable under the circumstances, and why it determined that they might unduly delay or disrupt the trial. Making an adequate record does not mean that trial courts must invade the attorney-client privilege or pressure a defendant to waive that privilege, and it may require the court to address the defendant or defense counsel on the record but outside the presence of the prosecutor, and to seal the record to preserve confidentiality.The record in this case does not demonstrate that the trial court’s denial of defendant’s constitutional right to be represented by the attorneys he retained to represent him at trial was a permissible exercise of its discretion. Accordingly, as in Stanton and Hightower, the appropriate result is to reverse and remand for a new trial.
(Mike Frisch)