Speculative Conflict Does Not Justify Disqualification

The Iowa Supreme Court has reversed an order disqualifying retained counsel in a criminal matter.

Carlos Ramon Mulatillo privately retained attorney Steven Gardner to defend him on felony drug charges. Gardner had represented Mulatillo for fifteen months. Less than two weeks before the jury trial was to commence, the State filed additional minutes of testimony listing the name of a confidential informant who would testify against Mulatillo concerning five controlled drug buys he made from Mulatillo. This was the first time Mulatillo and Gardner were informed of the name of the confidential informant and the potential conflict of interest involving this individual. Gardner had previously represented the confidential informant for approximately one month in October 2014 on felony drug charges. Those drug charges led to the confidential informant agreeing to cooperate and assist the State. This cooperation agreement ultimately led to the confidential informant making controlled buys from Mulatillo.

The State moved to disqualify the defense attorney and at the hearing

The only evidence the State provided was hearsay statements from attorney Mitchell claiming Gardner had conversations with the drug task force or former prosecutor about the possibility of Davidson working as a confidential informant. While the district court properly considered these hearsay statements since Gardner never objected to this evidence, these statements did not rise to the level of substantial evidence that would support disqualifying Gardner.

Although the attorney for Davidson claimed Gardner had conversations with the former drug prosecutor about Davidson becoming a confidential informant, there is no further evidence to support this claim. The State did not have the former prosecutor, or any individual from the drug task force, testify about their interactions with Gardner while he was representing Davidson. The hearsay statements from attorney Mitchell alone did not amount to substantial evidence that would outweigh the important interest to Mulatillo in exercising his constitutional right to counsel of his choice. Rather, these statements speak to the speculative nature of the serious potential for an actual conflict of interest.

Most significantly, as in McKinley, the record is bereft of any evidence “tending to establish any confidence or secret learned during the [defense counsel’s] prior representations of [Davidson] on unrelated matters” that could be used against Davidson during cross-examination or to materially benefit Mulatillo, or conversely that could impede Gardner’s cross-examination of Davidson…

In this case, the evidence provided by the State did not rise to the level of substantial evidence that is necessary to prove that Gardner’s continued representation of Mulatillo creates a serious potential for an actual conflict of interest. The district court order disqualifying Gardner, based primarily on speculative evidence of a potential conflict, constitutes an untenable ground for the district court to exercise its discretion.

(Mike Frisch)