People v Fairman

[*1] People v Fairman 2012 NY Slip Op 51129(U) Decided on June 12, 2012 Supreme Court, Bronx County Fabrizio, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2012
Supreme Court, Bronx County

The People of the State of New York

against

Damien Fairman, Defendant.



23647C2012

Ralph A. Fabrizio, J.

In this domestic violence-based prosecution, the Court is faced with a somewhat novel and narrow issue. Does an attorney who was retained by a victim of domestic violence assault to represent the defendant accused of that crime face disqualification due to a potential conflict of interest as well as the possibility of being a witness in the criminal matter? The Court is ordering a hearing to establish a sufficient record prior to issuing its ruling.

Defendant was arrested on April 19, 2012, at about 12:55 pm, in the confines of the 49th Precinct. The details of the arrest are currently unknown to the Court. Later that day, the complaining witness, who is the mother of defendant's child, came to the complaint room of the Bronx County District Attorney's Office. She signed a felony compliant at eight minutes after midnight on the morning of April 20, 2012. The defendant is charged in the felony compliant with strangulation. (Penal Law § 121.12), as well as with several misdemeanors, including criminal possession of a weapon in the fourth degree (Penal Law 265.01(2)) and endangering the welfare of a child (Penal Law 260.10(1)).

The accusatory instrument contains a factual narrative of events that are alleged to have taken place in the complaining witness's Bronx apartment nearly a month earlier, on March 25, 2012. In the complaint, the victim states, in substance, that defendant threw her down on a bed, and in the presence of a two year old child who said, "No, Leave Mommy Alone," twisted the complaining witness's shirt around her neck until she was unable to breathe. The complaining witness alleges she then fled into the bathroom and locked the door, but defendant broke open the lock to that room. Then, the complaining witness alleges she picked up her son and ran back into her bedroom and locked that door. She alleges that defendant punched a hole in the bedroom door, came into the bedroom, threw her onto the bed, choked her with her own shirt until she was again unable to breathe, and that this time she also experienced blurry vision. In a post-arrest statement, defendant is alleged to have said in substance, "I didn't hit her. I grabbed her by the shirt. The reason she has a scratch is because the inside of her shirt had a seam."

Defendant was arraigned on the felony complaint on April 21, 2012. Defense counsel, a retained attorney, appeared to represent the defendant. The prosecutor noted on the record that defense counsel had approached her and told her the complaining witness was in the courtroom "and wanted to speak with me about dropping the charges . . . I made an note to the assistant (assigned to prosecute this case) to call complainant and figure out what's going on." The prosecutor asked the [*2]arraignment judge to set bail, as well as to issue an order of protection. In response, defense counsel told the judge, "It's true that the complaining witness wants to drop the charges . . . she has retained us to represent the defendant." Counsel advocated on behalf of the complaining witness, telling the court, "Judge, she wants him to come back home." When the arraignment judge said, "Well, that's not going to happen right now. She signed the complaint," counsel again advocated on the complainant's behalf, saying, "Well, Judge, she wants to withdraw the complaint." The judge issued a full order of protection, and adjourned the case to the Domestic Violence (DV) part on May 16, 2012. The People served defendant with written notice that they intended to present the case to the grand jury at 10:00 am on May 16, 2012. Defendant served notice he intended to testify before the grand jury.

On May 16, 2012, the People told the Court that there had been no grand jury action. The defendant's other retained attorney appeared in court that day. The arraignment judge had written on the court file that the complaining witness had retained the attorney to represent defendant, and the Court inquired whether counsel represented the complaining witness. The prosecutor said she had the same note on her file; the prosecutor also said the complaining witness was refusing to speak with her. Based on the notations made on the file, the prosecutor asked whether defense counsel had a conflict. Counsel was clearly surprised by the Court's and the prosecutor's inquiry, apparently unaware of the record made before the arraignment judge. Counsel seemed to agree that the complaining witness contacted him, but said unequivocally that defendant himself had signed the retainer agreement.[FN1] The Court adjourned the case for two weeks to allow the parties to discuss the issue.

On May 30, 2012, the prosecutor once again indicated she had not presented the case to the grand jury, and said the complaining witness still refused to speak with her. The prosecutor also told the Court that defense counsel assured her he did not represent the complaining witness, and based on that representation she did not wish to press the conflict question any further. The Court had obtained the arraignment minutes and memorialized what counsel had said on the record about having been retained by the complaining witness. Counsel indicated that he had received a telephone call from another lawyer who may have represented the complaining witness in the past, and that lawyer asked him if he would take this case. Counsel indicated that he would leave it to the Court to determine whether there was a conflict.

The line between proper representation and conduct that can place an attorney in ethical hot water is often very thin, and sometimes not readily visible. Domestic Violence prosecutions, in particular, can cause problems which may result in a conflict of interest, and disqualification of counsel. This can occur when a defense attorney engages in lengthy, fact-based conversations with the complaining witnesses, and then advocates on behalf of that witness as well as the defendant. Defense attorneys are [*3]duty-bound to investigate all charges, and may interview witnesses as part of their investigations. In domestic violence prosecutions, given the emotional state of the complaining witnesses, who are quite vulnerable and conflicted, conversations can lead to conflict and possible disqualification when the attorneys learn information which transforms them from advocate to potential witness. " Where lawyers become intertwined with the merits [of a case] . . . they begin to look more like a traditional fact witness. In these situations, any factual statements that a lawyer makes should be subject to the same vetting that all witnesses receive including the requirement that the witness be sworn and subject to cross-examination.'"(People v. Berroa, 99 NY2d 134, 143, n.4 [2002] citing McMorrow, The Advocate as Witness: Understanding Context, Culture and Client, 70 Fordham L. Rev 945, 946 [2001]).

An extreme example of precisely this situation occurred in People v. Bell, 99Q013474 (Crim Ct Queens Cty 1999), an unpublished decision by Justice Deborah Steven Modica. In that domestic-violence case, the defendant was charged with assaulting his intimate partner and endangering the welfare of a child. The defendant was assigned counsel from a public defender organization. The complaining witness had signed a sworn misdemeanor information. The defendant's attorney met with the complaining witness. Following their discussion, the defense attorney drafted and notarized a second sworn statement from the complaining witness, which contradicted the facts alleged in the accusatory instrument. The prosecutor moved to have counsel, and the entire public defender office, relieved in the matter.

Justice Modica granted the application. She found the attorney had violated what was then DR 5-102 of the Code of Professional Responsibility, which required that an attorney withdraw from representing a defendant in a case when it was clear that the attorney would have to be a witness in the criminal matter. But Justice Modica went even further. She sua sponte assigned "counsel pursuant to 18(b) of the County Law to [represent] the complaining witness in this case." In doing so, Justice Modica expressed her "strong disapproval of the action by defense counsel of inducing a vulnerable witness to sign a sworn statement outside a courtroom contradicting a previous sworn statement already signed by her, thus subjecting her to possible criminal liability (see, for example EC 7-10)." EC 7-10, formerly part of the Code of Professional Responsibility, stated that "the duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid legal harm."

There is no allegation in this case that counsel induced the complaining witness to retain them to represent her alleged assailant. Nor is there any suggestion that they induced or coerced her to make an application to withdraw her complaint. Nonetheless, this Court has concerns that are as yet unanswered about the scope of the relationship between the attorneys and the purported crime victim who retained them to represent her alleged assailant.

Even if counsel does not now formally represent the complaining witness through any separate retainer agreement, this does not foreclose the possibility counsel and the complaining witness had entered into a de facto attorney-client relationship. "Such a relationship arises only when one contacts an attorney in his capacity as such for the purpose of obtaining legal advice or services.." (Matter of Priest v. Hennessey, 51 NY2d [*4]62, 68-69 [1980]) (citations omitted).The mere "payment of legal fees by a third person [does not], in and of itself, create an attorney-client relationship between the attorney and his client's benefactor" in terms of whether communications between the third party and the lawyer are privileged. Hennessey, 51 NY2d at 70. However, where a third party retains an attorney to represent an another individual, this "may, in a proper case, create a conflict of interest even though it does not form the basis of a privilege." Id. at 70, n. 3. A per se conflict "exists where defense counsel simultaneously represents defendant and the primary prosecution witness." (People v. Harris, 99 NY2d 202, 210 [2002] citing People v. Wandell, 75 NY2d 951 [1990]).

Based on the arraignment minutes, the conclusion is inescapable that the complaining witness discussed the facts of the case with the attorneys she retained to represent the defendant, and potentially sought legal advice and asked them to advocate on her own behalf, as well as defendant's. Undoubtedly, these applications made in connection with the bail application about the complaining witness's desire to "drop the case" and have the defendant come home without an order of protection did to some extent benefit defendant. However, if any conversations between counsel and the complaining witness resulted in detailed factual disclosures and the dispensing of any legal advice, the potential exists for a serious conflict of interest, and perhaps disqualification of counsel. (See People v. Carncross, 14 NY3d 319, 327-28 [2010]; Berroa, 99 NY2d at 139-40).

Moreover, the very fact that the complaining witness may have initially retained the attorneys creates another potential ethical problem. The Code of Professional Conduct contains strict rules that must be observed in situations in which one individual pays the legal fees on behalf of another individual.[FN2] Rule 1.8 of the Code of Professional Conduct (NYCRR § 1200.8(f)(1)) prohibits a lawyer from accepting compensation for legal services from someone other than the client "unless: 1 the client gives informed consent; 2 there is no interference with the lawyer's professional judgment or with the client-lawyer relationship; and 3 the client's confidential information is protected as required by Rule 1.6." In interpreting a similar provision of their own state ethical rules, an appellate court in Missouri ruled that an attorney who was retained to represent a criminal defendant in a domestic violence case by the victim of that crime had to be disqualified as a result of that retainer agreement. In State v. Ray, 3125 SW3d 500, 507 (Missouri Court of Appeals, Eastern District 2010), the court found that where an attorney-client relationship was established between the lawyer and both the crime victim and the accused, "[w]e fail to see how either client would even be free to tell counsel his or her version of the events leading to the charges against the [*5]defendant. In doing so, each client would almost certainly reveal information advantageous to one and detrimental to the other that counsel would ethically be prohibited from using." The prosecution moved to disqualify the lawyer when the existence of a potential conflict came up. In granting the application, the court recognized that "[t]he victim may ultimately refuse to testify, but we are at a preliminary stage of the proceedings. At this juncture, the victim should be considering her options. Counsel's duty of loyalty to the defendant, however, prevents counsel from fairly presenting to the victim all possible courses of action, because some of those options - most notably testifying against the defendant- would be detrimental to the defendant."

This Court has many of the same concerns as those expressed in Ray. A hearing is ordered to determine the extent of not only any attorney-client

relationship between counsel and the complaining witness, but also whether

the discussions between counsel and the complaining witness would result in counsel's becoming a witness in the case.. (See People v. Lombardi, 61 NY2d 97, 102 [1984]). As this potential conflict has been brought to this Court's attention, it is obligated to conduct "a record inquiry of each" individual whose past or present representation may be "conflict-ridden." (See People v. McDonald, 68 NY2d 1, 8 [1986]). If a conflict exists, it must be waived by both individuals. Id. The complainant is no less a "vulnerable witness" than the complaining witness in Bell. As in that case, the Court is requesting that counsel be assigned from the 18B panel to represent her at the hearing, in order that she can be properly advised if called as a witness, and also to be advised by separate counsel about whether she wishes to waive any conflict. The Court has already directed the District Attorney's Office to contact the Administration for Children's Services, to see what, if anything, has been done in terms of the allegations involving the other vulnerable complaining witness, the two-year-old child.

Until this matter is resolved, the Court, sua sponte, finds "good cause" to suspend the People's obligations under CPL § 30.30. If they are unable to speak with their complaining witness because an attorney-client relationship between defense counsel and that witness resulted in the dispensing of legal advice, and as a result of that advice the complaining witness changed her mind about cooperating with the prosecutor, the People should not have to incur any "pre-readiness" delay sanctions until a ruling on the ethical issue is resolved.

This constitutes the Decision and Order of the Court.

Dated: June 12, 2012_________________________

Hon. Ralph Fabrizio Footnotes

Footnote 1:During defendant's interview with the Criminal Justice Agency, he indicated he was unemployed and had no income source. This raises a question about whether, even if he signed the retainer agreement, someone else paid for legal fees up front before he did so, as well as whether the attorney is aware of whether the complaining witness is really responsible for all legal fees.

Footnote 2:There are even stricter rules in regards to representation in a "domestic relations matter." Rule 1.5 (NYCRR § 1200.5(d)(5). These rules involve retention by an attorney in cases in either Supreme Court or Family Court, in matters involving "divorce, separation, annulment, custody, visitation, maintenance, child support or alimony . . . " 1200.0(g). These rules do not appear to apply to a criminal matter involving domestic violence in either Supreme Court or any other court, although in many cases orders of protection issued in these cases can have an effect on custody, visitation and other matters in other courts.