DISTRICT 29A
COA16-71
NORTH CAROLINA COURT OF APPEALS
*****************************************
STATE OF NORTH CAROLINA,
Plaintiff,
FROM RUTHERFORD COUNTY
Nos. 15 CRS 153, 154, 164
VS.
BROOKE MCFADDEN
COVINGTON, SARAH
COVINGTON ANDERSON, and
JUSTIN BROCK COVINGTON,
Defendants.
****************************************
APPELLANTS' BRIEF
*****************************************
INDEX
TABLE OF CASES AND AUTHORITIES
ISSUES PRESENTED
1
I.
DID THE TRIAL COURT ERR IN ITS 6 AUGUST 2015 RULING
TO DISQUALIFY APPELLANTS' COUNSEL AND IN ITS 28
AUGUST 2015 RULINGS DENYING RECONSIDERATION OF
THE DISQUALIFICATION, IN CONFLICT WITH DECISIONS OF
1
THIS COURT?
II.
DID THE TRIAL COURT ERR BY DENYING APPELLANTS'
RIGHT TO COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
AND BY ARTICLE I, SECTION 19 AND 23 OF THE NORTH
CAROLINA CONSTITUTION?
III.
1
DID THE TRIAL COURT ERR IN DISQUALIFYING
APPELLANTS' COUNSEL BY DISREGARDING COUNSEL'S
COMPLIANCE WITH THE NORTH CAROLINA RULES OF
2
PROFESSIONAL CONDUCT?
STATEMENT OF THE CASE
STATEMENT OF FACTS
GROUNDS FOR APPELLATE REVIEW
2
3
9
STANDARD OF REVIEW
9
ARGUMENT
10
I.
THE TRIAL COURT ERRED IN ITS 6 AUGUST 2015 RULING TO
DISQUALIFY APPELLANTS' COUNSEL AND IN ITS 27
AUGUST 2015 RULINGS DENYING REVIEW OF THE
DISQUALIFICATION, IN CONFLICT WITH DECISIONS OF THIS
10
COURT
II.
THE TRIAL COURT ERRED IN DENYING THE PETITIONERS
THEIR RIGHT TO COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES CONSITUTION AND
BY ARTICLE I, SECTIONS 19 AND 23 OF THE NORTH
17
CAROLINA
III.
THE TRIAL COURT ERRED INDISQUALIFYING THE FIRM
FROM ITS REPRESENTATION OF THE APPELLANTS BY
DISREGARDING THE FIRM'S COMPLIANCE WITH THE
NORTH CAROLINA RULES OF PROFESSIONAL CONDUCT.. ..20
CONCLUSION
.27
CERTIFICATE OF COMPLIANCE
29
CERTIFICATE OF SERVICE
.30
APPENDIX
31
TABLE OF CASES AND AUTHORITIES
Cases:
Brady v. United States
397 U.S. 742, 748 (1970)
13
Cuyler v. Sullivan
446 U.S. 335, 347 (1980)
21
Holloway v. Arkansas
435 U.S. 475, 482-83, 485 (1978)
In re Appeal of The Greens of Pine Glen Ltd. P'ship
356 N.C. 642, 647, 576 S.E.2d 316,319 (2003)
11,21
10
Ornelas v. United States
517 U.S. 690, 696-97 (1996)
9
Piedmont Triad Reel Water Auth. v. Sumner Hills, Inc.
353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001)
9
Powell v. Alabama
287U.S. 45,53 (1932)
. 17,18
State v. Choudhry
365 N.C. 215, 223,717 S.E.2d 348, 354 (2011)
12
State v. McFadden
292 N.C. 609, 613-14, 234 S.E.2d 742, 746 (1977)
19
State v. Morris
275 N.C. 50, 55, 165 S.E.2d 245, 248 (1969)
11, 17
State v. Rogers
325 N.C. 119, 124, 529 S.E.2d 671,674-75 (2000)
9
State v. Speller
230 N.C. 345, 351, 53 S.E.2d 294, 298 (1949)
18
State v. Williams
362 N.C. 628,632-33, 669 S.E.2d 290, 294 (2008)
10
State v. Yelton
87 N.C. App. 554, 557-62, 361 S.E.2d 753, 756-59 (1987)
11, 12, 13, 14, 15, 16, 17, 20, 21
United States v. Atkinson
565 F.2d 1283-84 (4th Cir. 1977)
United States v. Gonzalez-Lopez
548 U.S. 140-41 (2006)
12, 17
10
Rules:
United States Constitution, Sixth Amendment
17
North Carolina Constitution, Article I, Section 19
18
North Carolina Constitution, Article I, Section 23
18
NCRPC 1.7
.22, 23
NCRPC 1.7(a)
22
NCRPC 1.7(b)
22
NCRPC 1.7, Comment 4
25
NCRPC 1.7, Comment 8
23
NCRPC 1.8(g)
24
NCRPC 1.9(a)
25
NCRPC 1.9(c)
25
DISTRICT 29A
COA16-71
NORTH CAROLINA COURT OF APPEALS
*****************************************
STATE OF NORTH CAROLINA,
Plaintiff,
From Rutherford
Nos. 15 CRS 153, 154, 164
VS.
BROOKE MCFADDEN
COVINGTON, SARAH
COVINGTON ANDERSON, and
JUSTIN BROCK COVINGTON,
Defendants.
****************************************
BRIEF FOR DEFENDANTS-APPELLANTS
*****************************************
ISSUES PRESENTED
I.
DID THE TRIAL COURT ERR IN ITS 6 AUGUST 2015 RULING
TO DISQUALIFY APELLANTS' COUNSEL AND IN ITS 27
AUGUST 2015 RULINGS DENYING RECONSIDERATION OF
THE DISQUALIFICATION, IN CONFLICT WITH DECISIONS OF
THIS COURT?
II.
DID THE TRIAL COURT ERR BY DENYING APPELLANTS'
RIGHT TO COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES' CONSTITUTION AND
BY ARTICLE I, SECTIONS 19 AND 23 OF THE NORTH
CAROLINA CONSTITUTION?
-2III. DID THE TRIAL COURT ERR IN DISQUALIFYING
APPELLANTS' COUNSEL BY DISREGARDING COUNSEL'S
COMPLIANCE WITH THE NORTH CAROLINA RULES OF
PROFESSIONAL CONDUCT?
STATEMENT OF THE CASE
Defendants, Brooke McFadden Covington, Sarah Covington Anderson,
and Justin Brock Covington (collectively, "Appellants"), were indicted on 20
January 2015 on criminal charges including second-degree kidnapping and simple
assault in Rutherford County. (R. pp 37-40). These criminal cases proceeded with
various pre-trial matters being handled in the following months. On 24 July 2015,
the State moved to disqualify Appellants' retained counsel. (R. pp 136-37). The
Honorable Marvin Pope, Jr., Rutherford County Superior Court Judge, presiding,
heard arguments on the motion on 3 August 2015. An order granting the motion to
disqualify was entered on 6 August 2015. (R. pp 163-69). On 20 August 2015 the
Appellants moved the trial court to reconsider its disqualification ruling and stay
these cases pending appeal of the disqualification issue to this Court. (R. pp 220-59).
Arguments on these motions were heard before Judge Pope on 27 August 2015, after
which the Appellants' motions for reconsideration and a stay were denied. (R. p
290). On 27 August 2015 the trial court also granted — though unclear under what
authority — a motion by the State asking the court to dismiss notices of appeal filed
-3by the Appellants with regard to the 6 August 2015 disqualification order. (R. pp
345-46).
On 15 September 2015, the Appellants submitted a joint petition for
certiorari, petition for writ of supersedeas and motion for temporary stay. (R. pp 131). On 5 October 2015, this Court issued writs of certiorari and supersedeas and a
temporary stay of the trial court proceedings. Transcripts of the 3 August 2015
hearing and 27 August 2015 hearing were ordered on 1 September 2015 and
delivered 24 October 2015. The record was docketed by the Court of Appeals on 27
January 2016.
STATEMENT OF FACTS
Indictments
The Appellants, along with Robert Louis Walker, Jr. and Adam Christopher
Bartley, were indicted on 20 January 2015 on criminal charges including seconddegree kidnapping and simple assault arising from events occurring nearly two years
prior involving the alleged assault and kidnapping of Richard Matthew Fenner, III.
(R. pp 37-42).
Retainer of Counsel
Following the indictments, all five co-defendants retained attorneys Joshua B.
Farmer and Mark N. Morris of the firm Tomblin, Farmer & Morris, PLLC, now
known as Farmer & Morris Law, PLLC (the "Firm"). Each co-defendant executed a
-4detailed fee agreement including written consent to joint representation after
disclosure of the potential for conflicts of interest, including the possibility that one
co-defendant may receive a plea offer. (R. pp 45-64).
State's Plea Offer to Mr. Bartley
On 22 July 2015, the State offered co-defendant Bartley a plea offer providing
for dismissal of a kidnapping charge in exchange for Mr. Bartley's guilty plea to
, simple assault and his testifying truthfully in the prosecution of remaining codefendants. (R. p 135). Prior to the plea offer, Mr. Bartley had signed an affidavit
asserting his innocence and the innocence of his co-defendants. (R. pp 43-44).
State's Motion to Disqualifr the Firm; Mr. Bartley Retains Substitute Counsel
Some six months after the indictments and after multiple court hearings at
which the Firm represented all co-defendants, the State filed a motion on 24 July
2015 asking the trial court to disqualify the Firm from representing the codefendants, asserting a "non-waivable, concurrent, conflict of interest." (R. pp 13637).
Following this motion, Mr. Bartley retained substitute defense counsel
independent of the Firm. Further, Mr. Bartley gave written consent to the Firm's
continued representation of the Appellants and co-defendant Walker. (R. p 198).
In light of the pending motion to disqualify, the Appellants herein — Brooke
McFadden Covington, Sarah Covington Anderson, and Justin Brock Covington
5
[mother, daughter, and son] — consulted with independent legal counsel as to the
risks and advantages of the Firm's continued joint representation. All three were
independently advised regarding their constitutional rights to counsel of their choice
and were advised that the Firm's continued joint representation was — in the opinion
of independent counsel — permissible. They were further advised that a nonwaivable, concurrent conflict of interest did not exist. (R. pp 155-62).
On 3 August 2015, the trial court heard arguments on the motion to disqualify.
Mr. Farmer argued the motion on behalf of the Appellants and Mr. Walker,
presenting for the court's consideration the fee agreement/conflict waiver signed by
each co-defendant as well as opinion letters of independent counsel. The trial court
entered an order on 6 August 2015 granting the State's motion to disqualify (the
"Disqualification Order"). (R. pp 163-69). The court found that:
The fact that [Bartley] has been offered a plea bargain in
exchange for truthful testimony of Mr. Bartley against the
other four co-defendants raises the distinct possibility of a
conflict of interest, breach of previous confidences to the
defense counsel, difficulty in effective cross examination
of Mr. Bartley as well as other procedural issues. (R. p
167, emphasis added).
[T]he potential for conflict of interest where one codefendant is offered a plea agreement to testify against the
other co-defendants is too great of risk to be disregarded
by this Court. (Id.).
-6The court concluded as a matter of law that the Finn's representation of Appellants
and Mr. Walker:
[I]s a concurrent conflict of interest which exists and
cannot be waived by a defendant absent knowledge of
what a co-defendant may testify on behalf of the State
against the remaining co-defendants. (R. p 168).
Mr. Bartley Rejects the Plea Offer
On 13 August 2015, Mr. Bartley, now represented by substitute counsel,
signed an affidavit in which he reaffirmed his innocence in this matter and that of all
his co-defendants. (R. p 200-205). Mr. Bartley further attested that he did not intend
to testify in any manner inconsistent with his prior protestations of innocence. (Id.).
Mr. Bartley stated that he had no conversations with the Firm in which he made
statements that he had not made to anyone else who had asked him about the matter
(R. p 206-207), implying that he did not relate any confidential statements or
information to the Firm. In this writing, Mr. Bartley consented to the Firm's
continued representation of the Appellants and Mr. Walker. Mr. Bartley further
acknowledged that he had been apprised of the possibility that the Firm could crossexamine his testimony while complying with its duty to him as a former client
according to North Carolina Rule of Professional Conduct ("NCRPC") 1.9. (Id.).
Finally, Mr. Bartley executed a separate writing wherein he stated, "I reject any plea
offer as I did nothing wrong." (R. p 205).
7
Mr. Walker Retains Substitute Counsel
On 18 August 2015, co-defendant Walker retained substitute defense counsel.
(R. pp 208-209). As with Mr. Bartley, Mr. Walker proceeded to give written consent
for the Firm's continued representation of the remaining co-defendants, having been
fully informed of the possibility that the Firm could cross-examine his testimony
while complying with its duty to him as a former client according to NCRPC 1.9.
(R. p 210). He further executed an affidavit in which he reaffirmed his and his codefendants' innocence, declared that he had no intention to testify in any manner
inconsistent with prior protestations of innocence, and stated that he had no
conversations with the Firm in which he made confidential statements that he had
not made to anyone else who had asked him about the matter. (R. pp 211-12).
Motion for Reconsideration
Following the Disqualification Order and Mr. Walker's retaining separate
counsel, the Appellants executed affidavits in which they reaffirmed their innocence
and the innocence of their co-defendants. (R. pp 242-48). Each Appellant further
stated that, after further consultation with independent counsel, he or she had no
intention or desire to accept a plea offer similar to the one offered to Mr. Bartley.
(Id.) Each Appellant also signed written waivers of their rights to post-conviction
appeal due to ineffective assistance of counsel based on a conflict of interest arising
from Appellants' joint representation by the Firm. (Id.)
-8On 20 August 2015, the Appellants — through the Firm as well as Angela
Becker of the Henderson County bar — filed a joint motion asking the trial court to
reconsider the Disqualification Order on the grounds of substantial changes in
circumstances. (R. pp 220-24). The Appellants also filed written notices of appeal
from the Disqualification Order (R. pp 251-59) and a joint motion to stay
proceedings pending appeal of the Disqualification Order (R. pp 249-50). On 24
August 2015, the State responded by a motion to dismiss Appellants' motion for
reconsideration. (R. pp 260-62). The State also filed a motion to strike Appellants'
20 August 2015 filings and, thus, to dismiss the notices of appeal. (R. pp 274-84).
Arguments on these various motions were heard on 27 August 2015. The same
day, the trial court entered written orders which, without making findings or
conclusions, denied the motion for reconsideration (R. p 290), granted the State's
motion to dismiss notices of appeal (R. p 345), and denied the motion to stay
proceedings (R. p 346).
Petition to this Court for Relief
On 15 September 2015, the Appellants filed with this Court petitions for writ
of certiorari and supersedeas regarding the trial court's disqualification of the Firm
as Appellants' defense counsel. On 5 October 2015, writs of certiorari and
supersedeas were issued as well as a stay of the trial court proceedings. As of the
imposition of the stay, these criminal charges against Mrs. Covington, Mrs.
9
Anderson, and Mr. Covington have not gone to trial and multiple important pre-trial
issues remain to be decided.
GROUNDS FOR APPELLATE REVIEW
Pursuant to the aforementioned grant of Appellants' petition for writ of
certiorari, the Appellants seek review by this Court of the Disqualification Order of
6 August 2015 as well as the related orders entered by the trial court on 27 August
2015.
STANDARD OF REVIEW
The standard of review in this case is that of de novo review, due to the trial
court's violation of the Appellants' constitutional right to counsel. "It is well settled
that de novo review is ordinarily appropriate in cases where constitutional rights are
implicated." Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343,
348, 543 S.E.2d 844, 848 (2001)
State v. Rogers, 352 N.C. 119, 124, 529
S.E.2d 671, 674-75 (2000) (noting that whether to grant a motion to continue is in
the trial court's discretion; however, when a constitutional question is implicated, de
novo review is appropriate)). See also Ornelas v. United States, 517 U.S. 690, 69697 (1996) (noting that in reviewing constitutional standards that are not "finelytuned," de novo review is necessary for appellate courts to maintain control of and
clarify the legal principles, to "unify precedent," and to provide a defined set of
rules). In such de novo review, "the court considers the matter anew and freely
- 10 substitutes its own judgment' for that of the lower tribunal." State v. Williams, 362
N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citing In re Appeal of The Greens of
Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citations
omitted)).
As the United States Supreme Court established in the case of U.S. V.
Gonzalez-Lopez, 548 U.S. 140 (2006), if a criminal defendant's Sixth Amendment
right to counsel of his choice is violated, such a "structural error" yields results that
are "unquantifiable and indeterminate." Gonzalez-Lopez, 548 U.S. at 141. Thus, any
conviction in such case would not be subject to harmless error analysis and would
require a new trial because "[it is impossible to know [post-trial] what different
choices the rejected counsel would have made, and then to quantify the impact of
those different choices on the outcome of the proceedings." Id. Thus, it is imperative
that this Court grant the Appellants relief from the erroneous deprivation of their
constitutional rights at this stage, to prevent from more irreparable harm being done.
ARGUMENT
I.
THE TRIAL COURT ERRED IN ITS 6 AUGUST 2015 RULING TO
DISQUALIFY APPELLANTS' COUNSEL AND IN ITS 27 AUGUST
2015 RULINGS DENYING REVIEW OF THE
DISQUALIFICATION, IN CONFLICT WITH DECISIONS OF
THIS COURT.
In light of prior decisions of this Court and other established jurisprudence,
the trial court erred in depriving Appellants of their constitutional right to counsel
- 11 by disqualifying the Firm from representing the Appellants in these criminal matters.
In State v. Yelton, 87 N.C. App. 554, 361 S.E.2d 753 (1987), this Court established:
In joint representation cases, only where there is an actual conflict of
interest which denies the defendants the effective assistance of counsel
does a problem arise. A potential conflict of interest, as distinguished
from an actual conflict of interest, is not sufficient to warrant the State's
interference with the constitutionally guaranteed right of a criminal
defendant to retain and be represented by the counsel of his choice.
Id. at 561, 361 S.E.2d at 758 (emphasis added). Further, this Court has recognized
the significant advantages that can be obtained by proper joint representation:
Joint representation is a means of insuring against reciprocal
recrimination. A common defense often gives strength against a
common attack.
Yelton, 87 N.C. App. at 560-61, 361 S.E.2d at 758 (qtlgag
l Holloway v. Arkansas,
435 U.S. 475, 482-83 (1978)). Indeed, "[t]he accused's [constitutional] right to
counsel includes the right to select and retain an attorney of his choice." Id. at 559,
(citing State v. Morris, 275 N.C. 50, 55, 165 S.E.2d 245, 248 (1969)). Thus, the State
cannot have a defense attorney disqualified from representing a co-defendant in a
multiple defendant case unless it shows either significant prejudice to defendants or
an attorney's attempt to disrupt orderly processes of justice. Yelton, 87 N.C. App. at
560, 361 S.E.2d at 757-58.
Additionally, this Court in Yelton explained, following well-established
federal and state jurisprudence, that "the [trial] court must conduct a full and
searching inquiry to determine whether an actual conflict of interest exists . .
- 12 Foremost in the court's inquiry must be the preservation of the accused's
constitutional rights." Yelton, 87 N.C. App. at 557, 361 S.E.2d at 756. See also State
v. Choudhry, 365 N.C. 215, 223, 717 S.E.2d 348, 354 (2011). In conducting such
an inquiry, "the defendants 'more than anyone, including the court, [are] in a position
to know what facts might be developed at trial' and they can determine whether
such joint representation is "advantageous." Yelton, 87 N.C. App. at 561, 361 S.E.2d
at 758 (citing U.S. v. Atkinson, 565 F.2d 1283, 1284 (4th Cir. 1977)).
In Yelton, this Court granted certiorari and reversed a trial court's order that
disqualified an attorney from jointly representing father and son co-defendants.
Yelton, 87 N.C. App. at 560-61, 361 S.E.2d at 758. This Court held that the State
had shown no actual conflict of interest and that the co-defendants, insisting on the
joint representation, had knowingly waived their right to bring challenge on appeal
that they were denied effective assistance of counsel because of the joint
representation. Id.
As in Yelton, the Appellants here voluntarily chose to retain the Firm to
represent them on the felony criminal charges they face — certainly the most serious
matters they have faced in their lives. The Appellants have decided to stand together
in this "common defense. . . against a common attack." Id. at 560-61, 361 S.E.2d at
758 (citation omitted). This decision was made after the Appellants were sufficiently
apprised by the Firm of the potential risks and benefits of joint representation. At the
- 13 beginning of their engagement with the Firm, the Appellants were informed in
writing of the fact that joint representation would involve the sharing of documents
and individual co-defendant's communications; the potential that differences may
become evident during the course of the representation; the option for any one codefendant to obtain his own independent counsel; the potential that the State may
offer a plea offer which may harm the case of the other co-defendants; the potential
that one defendant may plead guilty and testify against the other defendants; the
potential of limitation upon the Firm's attorneys with regard to cross-examination of
the co-defendants; and the potential that helpful evidence to one co-defendant may
harm another co-defendant's case. (R. pp 45-64).
After being made aware of these potential risks of joint representation, the
Appellants proceeded with their joint representation and expressly waived any
resultant conflict in a knowing and intelligent manner "with sufficient awareness of
the relevant circumstances and likely consequences." See Yelton, 87 N.C. App. at
558, 361 S.E.2d at 756 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
If there were doubt as to the sufficiency of their waivers, each Appellant consulted
with independent legal counsel who analyzed the risks of the joint representation,
explained the constitutional rights at play, and concluded that the joint representation
is entirely appropriate in this case. (R. pp 155-62). Following this independent
advice and being aware that Mr. Bartley and Mr. Walker had retained other counsel,
- 14 the Appellants reaffirmed in writing their desire for the joint representation to
continue. (R. pp 242-48).
Even if this Court were to disregard the substantial efforts expended to ensure
that the Appellants could make an informed decision regarding joint representation,
the trial court's decision to disqualify the Firm should be reversed. As established in
Yelton, the State has failed to show that an actual conflict of interest has arisen from
the Firm's continued joint representation of the Appellants. The trial court found a
"distinct possibility of a conflict of interest, breach of previous confidences to the
defense counsel, difficulty in effective cross examination of Mr. Bartley as well as
other procedural issues." (R. p 167). A "distinct possibility" is not equivalent to an
actual conflict sufficient to deny the Appellants their constitutional right to counsel
of their choice. Yelton, 87 N.C. App. at 561, 361 S.E.2d at 758. The trial court's
concern about breach of previous confidences was nullified by Mr. Bartley and Mr.
Walker subsequently attesting they had conveyed no confidential information to the
Firm. (R. pp 200-207, 210-12).
The Disqualification Order includes a finding that "the potential for conflict
of interest where one co-defendant is offered a plea agreement to testify against the
other co-defendants is too great of risk to be disregarded by this Court." (R. p 167)
[emphasis added]. This finding appears to stem from the State's contention that Mr.
Bartley would become an adverse party and testify against his co-defendants if he
- 15 accepted the plea offer. (T.1 pp. 47-51). This finding disregards the plain language
of the plea offer to Mr. Bartley — to "provide truthful testimony in the prosecution
of the remaining co-defendants." (R. p 135). The State did not predicate the plea
offer on Mr. Bartley testifying against co-defendants. In any event, the source of any
such concern was eliminated when Mr. Bartley rejected the plea offer and reasserted
both his own innocence and that of his co-defendants. (R. pp 199-202).
Even assuming the possibility of an actual conflict sufficient to trump the
Appellants' choice of counsel, the trial court erred by failing to "conduct a full and
searching inquiry to determine whether an actual conflict of interest exists" with the
foremost goal being "the preservation of the accused's constitutional rights." Yelton,
87 N.C. App. at 557, 361 S.E.2d at 756. As the record and transcripts herein reflect,
the trial court conducted no inquiry of the Appellants themselves at any stage,
despite the Yelton court's apt observation that defendants often are best positioned
to know what facts might develop at trial. Yelton, 87 N.C. App. at 561, 361 S.E.2d
at 758. Further, the Appellants presented to the trial court a variety of items
evidencing that no actual conflict existed, including such items as the initial fee
agreement/conflict waiver forms, the opinion letters by independent counsel, as well
as other affidavits and writings offered in support of the Appellants' motion to
reconsider the Disqualification Order. (R. pp 170-98, 226-48, 291-314, 325-44).
- 16 Nothing more than the existence of a plea offer [later rejected] was presented by the
State to support the existence of an actual conflict.
Were an actual conflict of interest to be found among the circumstances at
hand, the Appellants maintain that such a conflict could be waived. That is, the trial
erred in by concluding that a "concurrent conflict of interest. . . exists and cannot
effectively be waived by a defendant absent knowledge of what a co-defendant may
testify on behalf of the State against the remaining co-defendants." (R. p 168). The
Appellants, analogous to the defendants in Yelton, are in the best "position to know
what facts might be developed at trial." Yelton, 87 N.C. App. at 561, 361 S.E.2d at
758. As with the defendants in Yelton, the Appellants have expressly and repeatedly
waived any potential conflict that might preclude the Firm's joint representation, and
have repeatedly asserted both their own innocence and that of their co-defendants.
(R. pp 45-56, 308-14). Further, as with the defendants in Yelton, it is extremely
unlikely that the Appellants — mother, daughter, and son — would testify against each
other. See id. at 559, 361 S.E.2d at 757.
Finally, the trial court erred in disregarding the Appellants' waivers of any
right to appeal or otherwise seek to set aside a conviction based on a conflict of
interest arising from the Firm's joint representation. (R. pp 242-48); see Yelton, 87
N.C. App. at 557-58, 361 S.E.2d at 756. Following entry of the Disqualification
Order, Mr. Bartley's rejection of the State's plea offer, and Mr. Bartley's and Mr.
- 17 Walker's retention of substitute defense counsel, the Appellants executed such
waivers with the advice of independent legal counsel. (R. pp 242-48).
II. THE TRIAL COURT ERRED IN DENYING THE
PETITIONERS THEIR RIGHT TO COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES' CONSTITUTION AND BY ARTICLE I,
SECTIONS 19 AND 23 OF THE NORTH CAROLINA
CONSTITUTION.
Criminal defendants are guaranteed the right to counsel of choice by Article
1, Sections 19 and 23 of the North Carolina Constitution and by the Sixth
Amendment to the United States Constitution. Yelton, 87 N.C. App. at 559, 361
S.E.2d at 757 (citing Powell v. Alabama, 287 U.S. 45, 53 (1932) and State v. Morris,
275 N.C. 50, 55, 165 S.E.2d 245, 248 (1969)). The erroneous ruling of the trial court
to disqualify the Firm is a violation of the Appellants' fundamental constitutional
protections. The Sixth Amendment to the United States Constitution states as
follows:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.
U.S. Const. Amend. VI. Sections 19 and 23 of the North Carolina Constitution
establish:
- 18 Sec. 19. Law of the land; equal protection of the laws. No person shall
be taken, imprisoned, or disseized of his freehold, liberties, or
privileges, or outlawed, or exiled, or in any manner deprived of his life,
liberty, or property, but by the law of the land. No person shall be
denied the equal protection of the laws; nor shall any person be
subjected to discrimination by the State because of race, color, religion,
or national origin.
Sec. 23. Rights of accused. In all criminal prosecutions, every person
charged with crime has the right to be informed of the accusation and
to confront the accusers and witnesses with other testimony, and to have
counsel for defense, and not be compelled to give self-incriminating
evidence, or to pay costs, jail fees, or necessary witness fees of the
defense, unless found guilty.
N.C. Const. Sec. 19; N.C. Const. Sec. 23.
Both federal and state courts have consistently emphasized the importance of
a criminal defendant's right to counsel of his choosing. See State v. Speller, 230
N.C. 345, 351, 53 S.E.2d 294, 298 (1949) (holding that "[Noth the State and Federal
Constitutions secure to every man the right to be defended in all criminal
prosecutions by counsel whom he selects and retains . . . This right is not intended
to be an empty formality); see also Powell v. Alabama, 287 U.S. 45, 53 (noting that
"[lit is hardly necessary to say that the right to counsel being conceded, a defendant
should be afforded a fair opportunity to secure counsel of his own choice"). Notably,
in State v. McFadden, the Supreme Court of North Carolina held:
The state should keep to a necessary minimum its interference with the
individual's desire to defend himself in whatever manner he deems
best, using any legitimate means within his resources and that desire
can constitutionally be forced to yield only when it will result in
significant prejudice to the defendant or in a disruption of the orderly
- 19 processes of justice unreasonable under the circumstances of the
particular case.
State v. McFadden, 292 N.C. 609, 613-14, 234 S.E.2d 742, 746 (1977).
As with McFadden, the Appellants seek to be represented by the Firm without
any intent to "disrupt[] the orderly processes of justice," and are not prejudiced by
the Firm's joint representation. Id. Appellants have sought to persuade the trial court
that the opposite is true — that the joint representation is not a detriment but is rather
a substantial, meaningful advantage to their common defense. Just as the State has
failed to establish that an actual conflict of interest exists, the State has not shown
and cannot show that the Appellants are or will be prejudiced by the joint
representation or that the joint representation will result in an unreasonable
disruption of these criminal proceedings. Thus, the Appellants contend that the trial
court has erred in denying them — without sufficient basis — the counsel of their
choosing. The Appellants desire to maintain a united front with regard to the serious
charges against them.
In light of these constitutional rights, the Appellants ask this Court to carefully
scrutinize the Firm's disqualification so as to combat the notion that, in any criminal
case where one law firm represents multiple co-defendants, the State could fashion
a non-waivable conflict merely by making a plea offer to one co-defendant. In
advancing its motion to disqualify the Firm, the State essentially contends that the
mere offer of a plea agreement to Mr. Bartley creates a non-waivable conflict of
- 20 interest as (1) the offer was made to one of several co-defendants represented by the
same law firm, and (2) this co-defendant agrees to testify truthfully as a term of the
plea agreement. Were this permitted, it would be an "interference" surely proscribed
by the constitutional rights set forth above and one which should not be
countenanced by our judicial system.
If the trial court's disqualification of the Firm is allowed to stand, the
Appellants would be left to endure criminal proceedings on serious felony charges
without the Firm's counsel — counsel in which they have reposed their trust and
confidence for over a year. The Appellants acknowledge there are circumstances
which warrant a limitation of the right to counsel of one's choice due to an actual
non-waivable conflict of interest and further acknowledge a trial court's inherent
authority to disqualify attorneys appearing before it in such cases. No such actual
non-waivable conflict of interest is present in this case. The Appellants ask that the
constitutional right to counsel of their choosing not be trampled upon but rather be
carefully safeguarded by this Court.
III. THE TRIAL COURT ERRED IN DISQUALIFYING THE
FIRM FROM ITS REPRESENTATION OF THE
APPELLANTS BY DISREGARDING THE FIRM'S
COMPLIANCE WITH THE NORTH CAROLINA RULES OF
PROFESSIONAL CONDUCT.
The trial court's disqualification of the Firm despite the Firm's compliance
with the North Carolina Rules of Professional Conduct deprives the Appellants of
- 21 their constitutional right to counsel. As this Court set forth in Yelton, "the attorney
is in the 'best position professionally and ethically' to determine when and where
conflicts may arise." Yelton, 87 N.C. App. at 562, 361 S.E.2d at 758, citing Cuyler
v. Sullivan, 446 U.S. 335, 347 (1980). See also Holloway v. Arkansas, 435 U.S. 475,
485 (1978) (holding that an "attorney representing two defendants in a criminal
matter is in the best position professionally and ethically to determine when a
conflict or interest exists or will probably develop in the course of a trial"). Indeed,
"Nhe Rules of Professional Conduct already allocate to the attorney the obligation
of assuring his compliance with the rules." Yelton, 87 N.C. App. at 562, 361 S.E.2d
at 758-59.
The attorneys of the Firm take their ethical responsibilities very seriously and
understand their obligation to assess any possible conflicts in every case and to
ensure that no conflict arises which would impair the competent representation of a
client. At the 3 August 2015 hearing on the State's motion to disqualify, Mr. Farmer
attempted to persuade the trial court of his commitment and scrupulous adherence
to the North Carolina Rules of Professional Conduct:
An attorney's ethical obligations are obviously very serious matters.
My ethical obligations are very serious matters that are near and dear
to my heart. I didn't spend 20 years in school and 10 years in practice
to disregard them. We have been very mindful of our obligations to
each of our clients throughout this process. . . A significant amount of
effort has been made, and a significant relationship of trust has
developed both ways between the client and the attorney, the attorney
and the client.
- 22 -
(T.1 pp 53-54). As disclosed to the trial court, the Firm has contacted the North
Carolina State Bar on more than one occasion throughout its representation of the
Petitioners and has confirmed its full compliance with the North Carolina Rules of
Professional Conduct.
Notably, the North Carolina Rules of Professional Conduct do not prohibit
joint representation, and clearly provide for client consent to representation even
when certain conflicts of interest exist:
Rule 1.7. Conflict of Interest: Current Clients.
(a)Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
(1)the representation of one client will be directly adverse to
another client; or
(2)the representation of one or more clients may be materially
limited by the lawyer's responsibilities to another client, a
former client, or a third person, or by a personal interest of the
lawyer.
(b)Notwithstanding the existence of a concurrent conflict of interest
under paragraph (a), a lawyer may represent a client
(1)the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each
affected client;
(2)the representation is not prohibited by law;
- 23 (3)the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in
the same litigation or other proceeding before a tribunal; and
(4)each affected client gives informed consent, confirmed in
writing.
NCRPC 1.7 (emphasis added). In fact, NCRPC 1.7, Comment 8, indicates that "[t]he
mere possibility of subsequent harm [from a material limitation in representation due
to a conflict] does not itself preclude the representation or require disclosure and
consent." NCRPC 1.7, Comment 8. Further, "[t]he critical questions are the
likelihood that a difference in interests will eventuate and, if it does, whether it will
materially interfere with the lawyer's independent professional judgment in
considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client." Icl.
Here, the Firm's representation of each Appellant is not directly adverse to its
representation of another. All Appellants have consistently maintained their
innocence and that of their co-defendants, (R. pp 242-48), and have decided to retain
joint representation by the counsel of their choice. Further, the Firm's former
representation of Mr. Bartley and Mr. Walker does not materially limit its
representation of the Petitioners due to the Firm's absence of the acquisition of any
confidential information from either Mr. Bartley or Mr. Walker; Mr. Bartley's and
Mr. Walker's consistent declarations of their own innocence and that of their codefendants; and Mr. Bartley's and Mr. Walker's informed consent to the Firm's
- 24 continued representation of the Petitioners. (R. pp 198, 200-207, 210-12). Even if
there were to be found a concurrent conflict of interest in this case, the Firm has fully
complied with the requirements of NCRPC 1.7, as the Finn's attorneys reasonably
believe that they will be able to provide competent and diligent representation of
each of the Petitioners; there is no law prohibiting the Firm's joint representation of
the Petitioners; there is no assertion of a claim by one Petitioner against another one
of the Petitioners; and each of the Petitioners have given informed consent to joint
representation numerous times, even after two consultations with independent legal
counsel. (R. pp 170-81, 190-97, 242-48).
The State has maintained its assertion that the very offer of a plea to Mr.
Bartley immediately created a non-waivable conflict of interest precluding the
representation of any of the co-defendants in this case. (R. pp 135). This erroneous
stance is refuted by NCRPC 1.8(g), which specifically contemplates a situation in
which an attorney would be negotiating an aggregate plea deal and notifying all of
the co-defendants as to the plea offers made to the others:
(g) A lawyer who represents two or more clients shall not participate in
making an aggregate settlement of the claims of or against the
clients, or in a criminal case an aggregated agreement as to guilty
or nobo contendere pleas, unless each client gives informed consent,
in a writing signed by the client . . .
NCRPC 1.8(g). If a lawyer could no longer jointly represent multiple defendants
upon a plea offer to any one of them, NCRPC 1.8(g) would serve no purpose.
- 25 Finally, the North Carolina Rules of Professional Conduct provide for the
continued representation of one client when a former client has retained independent
counsel, pursuant to the obligation of the lawyer's duties to the former client. See
NCRPC 1.7, Comment 4. The Firm has fulfilled its duties and will continue to fulfill
such duties to Mr. Bartley and Mr. Walker in accordance with NCRPC 1.9(a) and
1.9(c):
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or substantially
related matter in which that person's interests are materially adverse
to the interests of the former client unless the former client gives
informed consent, confirmed in writing . . .
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter
shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules would
permit or require with respect to a client, or when the
information has become generally known; or
(2)reveal information relating to the representation except as
these Rules would permit or require with respect to a client.
(NCRPC 1.9(a); NCRPC 1.9(c)). Pursuant to NCRPC 1.9, materially adverse
interests exist where (1) the attorney acquired confidences during the course of
representing the former client and (2) use of the former client's confidences in the
latter client's case cause significant harmful impact to the former client. Id. Here, this
high burden of showing a materially adverse interest is absolutely not met. Both Mr.
-26 Bartley's and Mr. Walker's interests are not materially adverse to the Petitioners'
interests. The Petitioners, Mr. Bartley, and Mr. Walker have all consistently
maintained both their own innocence and that of their co-defendants, and they have
all indicated their unwillingness to accept any plea offer due to their innocence. (R.
pp 43-44, 200-207, 210-19). Mr. Bartley and Mr. Walker have given informed
consent for the Firm's continued representation of the Petitioners and have provided
sworn affidavits that they "have had no conversations with the Firm in which [they]
have made statements that [they] did not make to anyone else who has asked [them]
about this matter." (R. pp 198,200-207, 210-12). Thus, the Firm has not obtained any
confidential information from its former clients that could even potentially be used
against them at any time in the future.
Here, the trial court has deprived the Appellants of their constitutional right
to counsel while both the Firm and the Appellants have consistently complied with
this Court's decisions and with the North Carolina Rules of Professional Conduct. If
allowed to stand, such a foreclosure of the Appellants' rights will impose upon the
Appellants denial of the due process of law which is a treasured fundamental right
guaranteed to every individual not only in North Carolina, but in all fifty states of
the United States of America. Such harmful error would undermine the integrity and
justice upon which this nation's legal system was founded and continues to stand.
The Petitioners thus urge this Court to reverse the disqualification rulings of the trial
- 27 court, and to allow the Petitioners to exercise their undeniable constitutional right to
choose the Firm as their defense counsel at this crucial time in their lives.
CONCLUSION
WHEREFORE, in light of the foregoing arguments demonstrating the legal
errors of the trial court in its serious deprivation of the Appellants' constitutional
rights, the Appellants respectfully pray this Court to reverse the 6 August 2015 and
27 August 2015 decisions of the Superior Court of Rutherford County in the
Appellants' cases, to thus allow the Appellants to proceed in their cases with the
Firm's representation, the representation of their choosing, and that the Appellants
have such other relief as to the Court may seem proper.
Respectfully submitted, this 2,q4t, day of February, 2016.
FARMER & MORRIS LAW, PLLC
Electronically filed
Joshua B. Farmer
Attorney for Defendants-Appellants
Post Office Box 632
Rutherfordton, North Carolina 28139
(828) 286-3866
State Bar No. 32669
[email protected]
- 28 -
*1 certify that all of the attorneys listed below have authorized me to list their
names on this document as if they had personally signed it.
FARMER & MORRIS LAW, PLLC
Electronically filed
Mark N. Morris
Attorney for Defendants-Appellants
Post Office Box 632
Rutherfordton, North Carolina 28139
(828) 286-3866
State Bar No. 32846
[email protected]
-29 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28(j) of the Rules of Appellate Procedure, counsel for the
Appellants certifies that the foregoing brief, which is prepared using a proportional
font, is fewer than 8,750 words (excluding cover, indexes, tables of authorities,
certificate of service, this certificate of compliance, and appendixes) as reported by
the word processing software.
This the 2944' day of February, 2016.
FARMER & MORRIS LAW, PLLC
Electronically filed
Joshua B. Farmer
Attorney for Defendants-Appellants
Post Office Box 632
Rutherfordton, North Carolina 28139
(828) 286-3866
State Bar No. 32669
[email protected]
- 30 CERTIFICATE OF SERVICE
The undersigned hereby certifies that he/she this day served a copy of the
foregoing APPELLANTS' BRIEF upon the counsel listed below by depositing the
same in the United States mail, postage prepaid, addressed as follows:
North Carolina Department of Justice, Appellate Section
ATTN.: Joseph Hyde, Assistant Attorney General
Post Office Box 629
Raleigh, NC 27602
Rutherford County District Attorney's Office
Attn: Mr. Garland Byers
229 North Main Street
Rutherfoitton, NC 28139
This the 2q4h day of February, 2016.
FARMER & MORRIS LAW, PLLC
Electronically filed
Joshua B. Farmer
Attorney for Defendants-Appellants
Post Office Box 632
Rutherfordton, North Carolina 28139
(828) 286-3866
State Bar No. 32669
[email protected]
DISTRICT 29A
COA16-71
NORTH CAROLINA COURT OF APPEALS
*****************************************
STATE OF NORTH CAROLINA,
Plaintiff,
FROM RUTHERFORD COUNTY
Nos. 15 CRS 153, 154, 164
VS.
BROOKE MCFADDEN
COVINGTON, SARAH
COVINGTON ANDERSON, and
JUSTIN BROCK COVINGTON,
Defendants.
****************************************
APPENDIX TO APPELLANTS' BRIEF
*****************************************
Excerpts of Trial Court Transcript:
Transcript 1 pp 47-51
App. 1
Transcript 1 pp 53-54
.App. 5
App 1
47
other four defendants who have no prior record and who -- best
2 case scenario for them if they are convicted is to receive a
3 probationary sentence. That's the situation that we have. I
think on its face it is a conflict -- an obvious conflict to
5 those who are lawyers in the legal community, and probably to
6 people on the street as well, if you are -- if a lawyer is
representing five defendants, we have to look at it, Judge,
regarding an individual defendant. You forget the other four,
look at what is in that defendant's best interest, and a lawyer
10 has to have -- as Mr. Byrd testified and the Court knows -- has
11
o have a conversation about that offer with that defendant
12 forgetting everything else, duty of loyalty being to that
13 client.
14
Regardless of what that clients says, that
15 conversation has to be very candid and the fact that you are
16 going to have that candid conversation about, Hey, you know,
17 you could testify against my other four clients over here.
18 That's the reason why this is not waivable. It is a
19
non-waivable conflict of interest. The fact that the
20 defendants executed a waiver is of no consequence. The reason
21
why I say that is because the State's interest here, Judge, is
22 to assure a process, a criminal process -- a prosecution
23 process that is free from error, that is free from reversible
24 error, that this process is clean, so to speak. It is
25 maintained in a clean manner.
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1
48
We have a duty not only to prosecute this case,
2 but to protect the individual rights of the defendants. Even
3 if their lawyers argue against that. That's our duty. That's
4 our job as administer of justice.
5
The rules in this case are pretty clear. I am
6 going to skip through the part of my motion regarding standing.
7 I think it's obvious that we have standing. Rule 1.7(a)
8 defines a concurrent conflict of interest as follows: Case
9
with a representation of one client will be directly adverse to
10 another client.
11
That is illustrated by the fact that a plea offer
12 has been made to the defendant, and it could be further
13 illustrated if the district attorney's office were to withdraw
14 that offer and say, We are not going to offer that to you now
15 because it wasn't accepted. It's normal practice for us
16 here -- and I know Your Honor has been here for a period of
17 time now -- since June. We normally make a plea offer and we
18 put a deadline on it. If this offer isn't accepted by this
19 day, this offer is off the table and we are going to trial.
20
I didn't do that in this case because I recognize
21 the issue regarding counsel, and that this Court is going to
22 have to make an inquiry whether those lawyers continue in the
23 case. But imagine the process where the State -- if the State
24 revoked that offer and the defendant is convicted and goes to
25
jail because he didn't accept the offer on the advice of
State of North Carolina v. Brooke McFadden Covington, et al.
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49
lawyers who represent four defendants -- codefendants who would
2 be impacted by that advice. On its face, it's a conflict,
3 Judge. The fact -- at this point I also want to say
4 Mr. Denton, however, represents Mr. Bartley. His involvement
5 now doesn't cure the conflict. The conflict exists regardless
6
because if there is a conflict as to one, there is a conflict
7 as to all under the rules.
Of course, talking about close attorney/client
9
relationships during this period of time, I believe it would be
10
appropriate for the Court to assume that confidential
11
information has been given by Mr. Bartley to these lawyers. Is
12 that information they could now use against him at the trial of
13 this matter? If Mr. Bartley were to take the stand for the
14 State, what has he told these lawyers that they wouldn't know
15 otherwise that they are now going to be able to cross-examine
16
him with here today in court? That's the situation that we
17
have.
18
I would just go on to say that Rule 1.7(b) for
19 the Rules of Conduct talk about the fact that the only
20 exception to the rule is that a lawyer may represent a client
21 despite a concurrent conflict of interest if the lawyer
22 reasonably believes that the lawyer will be able to provide
23 competent and diligent representation to each affected client.
24
25
Judge, I think as Mr. Byrd pointed out, I think
it's reasonable to conclude that looking forward at this --
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50
this being folks involved in the case -- I don't think it's
2 reasonable to think that a conflict can't occur. You can't
3 always foresee that. We have a vested interest in making sure
that this is a clean process.
Part B of that says the representation is not
prohibited by law. I would allege, Your Honor, that
ineffective assistance of counsel is a standard, and it doesn't
only mean that the lawyer doesn't assert a defense or doesn't
9 present a claim well. It doesn't mean that the lawyer doesn't
10 know what the lawyer is doing. It means that the lawyer may
11 have a conflict.
12
Ineffective assistance of counsel is a recognized
13 issue before the Court -- before the Supreme Court. The state
14 of North Carolina has a compelling interest in making sure that
15 that does not occur here. The fact that this conflict issue is
16 all over this case, upon a conviction I would believe that
17 there would be an appeal. I didn't want an appellate court
18 judge thinking we didn't catch this now. That's why I am
19 bringing it to the Court's attention. So I believe it would be
20 prohibited by law.
21
Finally, the other exception is it does not
22 involve the assertion of a claim against another client
23 represented by the lawyer in the same litigation or other
24 proceeding before a tribunal. That's exactly what we have
25
here. If Mr. Bartley were to take the stand for the State, the
State of North Carolina v. Brooke McFadden Covington, et al.
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51
fact he is a State's witness, and the fact they are calling him
a witness makes him adverse to the other four defendants.
I don't think that a criminal defendant on the
front end of the case can prospectively waive an ineffective
assistance of counsel. I don't think they can do that
primarily because of the State's interest in making sure that
these things don't get appealed. I want to try this case one
time. I don't want to try it two times or three times -especially over this issue. This issue being as obvious as it
is.
It talks about consentability. Note 15 of Rule
1.7 it says, Consentability is typically determined by
considering whether the interest of the clients will be
adequately protected if the clients are permitted to give their
informed consent to representation burdened by a conflict of
interest. Representation is prohibited when the circumstances
the lawyer cannot reasonably conclude that the lawyer will be
able to provide competent and diligent representation.
think at this point in time it's not reasonable
to conclude that. Also, Note 23 says, The potential for
conflicts of interest -- this is in the notes to the revised
rules -- the potential for conflicts of interest in
representing multiple defendants in a criminal case is so grave
that ordinarily a lawyer should decline to represent more than
one codefendant.
State of North Carolina v. Brooke McFadden Covington, et al.
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53
1 the brief filed in this case -- the change being -- the motion
2 to change venue talked about the public perception involved in
3 this case.
4
Judge, we think this is a conflict. We think
5 this is an obvious conflict. We allege it's a conflict.
6 don't think that the fact there is a conflict of interest
7 requires me, as a lawyer, to report this to the bar. I have
8 told counsel in chambers that's not what this is about. The
9 Court has jurisdiction. The bar is aware of it. This is an
10 issue for the Court.
11
We ask Your Honor to disqualify these lawyers
12 from representing these defendants. We think these defendants
13 deserve independent counsel who don't have a conflict. We ask
14 that so that we can protect the integrity of the process so
15 that we don't have to try this case again when an issue arises
16 involving conflict of interest and the Court of Appeals says,
17 No, you had a conflict, and it should have been caught.
18
19
That's the State's position, Judge, and we ask
you to enter an appropriate order. Thank you.
20
ARGUMENT ON BEHALF OF THE DEFENDANTS
21
MR. FARMER: Thank you, Your Honor.
22
An attorney's ethical obligations are obviously
23 very serious matters. My ethical obligations are very serious
24 matters that are near and dear to my heart. I didn't spend 20
25
years in school and 10 years in practice to disregard them. We
State of North Carolina v. Brooke McFadden Covington, et al.
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54
1 have been very mindful of our obligations to each of our
2 clients throughout this process. As to the issue of time,
3 Mr. Byers told you that Mr. Bell's office has been involved in
4 this case since January 1. This is coming up eight months
5 later. We have represented these defendants for a significant
6 period of time. A significant amount of effort has been made,
7 and a significant relationship of trust has developed both ways
8
between the client and the attorney, the attorney and the
9
client.
10
At the very outset of this proposed joint
11 representation, my office contacted the state bar and said, We
12 would like to discuss any ethical prohibitions against joint
13 representation of the defendant. Despite the comment that
14 Mr. Byers read in the Rules of Professional Conduct, the rules
15 do not prohibit joint representation. In fact, the expert you
16
heard testify earlier testifies that, perhaps, while I don't
17 ordinarily do it, I have done it and found circumstances where
18
19
it should be done.
Mr. Byers speaks that he has come to our office
20 several points earlier in this summer and says, You have a
21
conflict. Now, at the time that he has come to us, each of our
22 clients have consistently maintained their innocence and the
23 innocence of each other. Their factual stories are not
24
materially adverse to each other. No conflict existed at that
25 point. No conflict at all. Despite the fact that no conflict
State of North Carolina v. Brooke McFadden Covington, et al.
August 3, 2015 - 15 CRS 154/155/164
Volume