STATE OF OHIO v. JOCQUEZ I. ROSS
C.A. No. 17CA011220
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 4, 2018
2018-Ohio-3524
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 17CR095533
CALLAHAN, Judge.
{1} Defendant-Appellant, Jocquez Ross, appeals from an order of the Lorain County Court of Common Pleas, disqualifying his retained counsel of choice. This Court affirms.
I.
{2} Mr. Ross was charged with a litany of offenses, including two counts of capital murder, following the deaths of a man (“the first victim“) and the man‘s wife (“the second victim“). He chose to retain counsel and, over the next few months, either his retained counsel or his retained counsel‘s law partner appeared on his behalf at several pre-trials. At one of those pre-trials, the State notified the court that it had become aware of a potential conflict of interest. It was the State‘s position that retained counsel had a conflict of interest because: (1) he had represented the first victim on a drug-trafficking case in 2009; (2) his law partner was representing the first victim on a drug-trafficking case at the time of his death; and (3) his law partner previously had represented both the second victim and the first victim‘s mother, a
{3} Mr. Ross now appeals from the trial court‘s order, disqualifying his retained counsel of choice. He raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DISQUALIFIED DEFENDANT‘S COUNSEL OF CHOICE, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION[.]
{4} In his assignment of error, Mr. Ross argues that the trial court erred when it granted the State‘s motion to disqualify. He contends that his retained counsel had no conflict of interest and the State failed to prove that retained counsel would not act competently and diligently on his behalf. On review, this Court does not agree that the trial court erred in its disqualification order.
{5} Criminal defendants enjoy a constitutional right to counsel.
{6} Though fundamental, the constitutional right to one‘s counsel of choice is not absolute. Miller at ¶ 9, quoting Wheat v. United States, 486 U.S. 153, 159 (1988). A defendant has no right to “an attorney with a conflict of interest * * *.” Miller at ¶ 9, quoting State v. Howard, 5th Dist. Stark No. 2012CA0061, 2013-Ohio-2884, ¶ 39. Both an actual conflict and “a showing of a serious potential for conflict” justify a trial court‘s removal of a defendant‘s counsel of choice. Wheat at 164. That is because trial courts have an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Gonzalez-Lopez at 152, quoting Wheat at 160.
Thus, “[t]rial courts have the inherent authority to regulate the conduct of attorneys, including the disqualification of attorneys in accordance with the Ohio Rules of Professional Conduct.” Harold Pollock Co., LPA v. Bishop, 9th Dist. Lorain No. 12CA010233, 2014-Ohio-1132, ¶ 7. See also Avon Lake Mun. Utils. Dep‘t v. Pfizenmayer, 9th Dist. Lorain No. 07CA009174, 2008-Ohio-344, ¶ 13. They enjoy broad discretion when considering motions to disqualify counsel and, therefore, ““[w]e review a trial court‘s determination regarding a motion to disqualify counsel for an abuse of discretion.” In re E.M.J., 9th Dist. Medina No. 15CA0098-M, 2017-Ohio-1090, ¶ 5, quoting Pfizenmayer at ¶ 13.
Rivera at ¶ 8. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{7} The Ohio Rules of Professional Conduct provide, in relevant part, that a conflict of interest exists “if * * * there is a substantial risk that [a] lawyer‘s ability to consider, recommend, or carry out an appropriate course of action for [a] client will be materially limited by the lawyer‘s responsibilities to another client, a former client, or a third person or by the lawyer‘s own personal interests.”
[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 do either of the following:
(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;
(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.
{8} It is undisputed that, during the timeframe relevant to this appeal, Mr. Ross’ retained counsel had a law partner, and his partner appeared in his stead at several of Mr. Ross’ pre-trials. The State informed the trial court that the first victim was a former client of retained counsel and, at the time of his death, a current client of the law partner. In both instances, the first victim had been facing drug-trafficking charges; a serious point of concern for the State because drugs were a possible motive for his murder. The State noted that, at the time of the first victim‘s death, the law partner had already been representing him for two years. The law partner also had represented the second victim in a prior criminal matter and, following the first victim‘s
{9} Based on the foregoing relationships and the concerns cited by the State, the trial court found that there was “a serious potential conflict of interest that exist[ed] which could affect [retained] counsel‘s representation of [Mr. Ross].” Accordingly, it granted the State‘s motion to disqualify. Mr. Ross argues that the court erred by doing so because there was no conflict. He notes that, pursuant to
{10} Having reviewed the record, this Court cannot conclude that the trial court abused its discretion when it granted the State‘s motion to disqualify. See In re E.M.J., 2017-Ohio-1090, at ¶ 5, quoting Pfizenmayer, 2008-Ohio-344, at ¶ 13. Because retained counsel and his law partner practiced law together, they were considered a “firm” for purposes of the Rules of Professional Conduct. See
{11} Notably, both an actual conflict and “a showing of a serious potential for conflict” justify a trial court‘s removal of a defendant‘s counsel of choice. Wheat, 486 U.S. at 164. The trial court, acting in its sound discretion, reasonably could have concluded that there was a serious potential for conflict if retained counsel continued to represent Mr. Ross. See id. Accordingly, this Court cannot conclude that it erred in its decision to disqualify retained counsel. Mr. Ross’ sole assignment of error is overruled.
III.
{12} Mr. Ross’ sole assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
CARR, J.
CONCUR.
JACK W. BRADLEY, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NICHOLAS A. BONAMINIO, Assistant Prosecuting Attorney, for Appellee.