75 N.E.3d 73
Mass. App. Ct.2017Background
- On Feb. 4, 2014, Delnegro was arrested for OUI and negligent operation; Kaily Hepburn was the sole passenger and allegedly confronted police at the scene.
- Hepburn sought to represent Delnegro in that case; the Commonwealth moved to disqualify her as a percipient witness.
- On June 8, 2015, at a later court hearing, an altercation occurred; Hepburn was in the gallery, allegedly participated and attempted to record events; charges followed (assault on a public employee, disruption, disorderly conduct).
- The trial judges in both matters disqualified Hepburn: in the first because she was the only witness who could contradict police; in the second because she was both a percipient witness and actively involved.
- Delnegro sought interlocutory review in the Appeals Court but did not petition a single justice under G. L. c. 211, § 3; the Appeals Court dismissed the appeals for lack of an appropriate interlocutory route but addressed the merits.
Issues
| Issue | Commonwealth's Argument | Delnegro's Argument | Held |
|---|---|---|---|
| Whether disqualification orders in criminal cases are immediately appealable via present execution | Present execution doctrine should allow immediate appeal (analogous to civil cases) | Orders are immediately appealable; relied on civil precedent | Not appealable via present execution; interlocutory review requires G. L. c. 211, § 3; appeals dismissed |
| Whether Hepburn is a "necessary witness" under Mass.R.Prof.C. 3.7(a) for the Feb. 4 OUI case | Hepburn was the sole passenger and only person who could rebut police; thus a necessary witness | Defendant contended she was not necessary and could represent him | Hepburn is likely a necessary witness and cannot represent Delnegro at trial under Rule 3.7(a) |
| Whether Hepburn's presence/participation at the June 8 hearing creates disqualification | Hepburn was actively involved and would be a percipient witness to events in issue | Defendant argued Hepburn could still represent him in pretrial matters | Hepburn was both a witness and participant; disqualification appropriate for trial and pretrial on conflict grounds |
| Whether Delnegro can waive the conflict and consent to Hepburn's continued representation | Waiver insufficient because lawyer’s personal interest creates significant risk of materially limiting representation | Delnegro consented to Hepburn’s representation and argued consent cures conflict | Court held consent inadequate: Hepburn’s personal interest makes competent, detached representation unreasonable; disqualification extends to pretrial under Rule 1.7 |
Key Cases Cited
- Flanagan v. United States, 465 U.S. 259 (1984) (criminal disqualification orders are not collateral orders; prejudice presumed on appeal with remedy of new trial)
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) (collateral-order doctrine elements)
- Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (clarifies narrow collateral-order exception)
- United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (erroneous deprivation of counsel of choice is structural error)
- Maddocks v. Ricker, 403 Mass. 592 (1988) (civil disqualification orders are immediately appealable under present execution)
- Smaland Beach Assn., Inc. v. Genova, 461 Mass. 214 (2012) (pretrial disqualification immediately appealable in civil property contexts)
- Commonwealth v. Patterson, 432 Mass. 767 (2000) (defense counsel necessary witness where only person able to refute police version)
- Commonwealth v. Rondeau, 378 Mass. 408 (1979) (remedy for improper disqualification in criminal cases is a new trial; prejudice presumed)
- Borman v. Borman, 378 Mass. 775 (1979) (test for when an attorney ‘ought’ to be called as witness; counsel’s testimony requirement defeats representation)
- Commonwealth v. Perkins, 450 Mass. 834 (2008) (concurrent conflict standard; informed consent required for waiver)