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Legal Ethics

NY Appeals Court OKs Retrial for Convict Who Waived Conflict re Lawyer’s Civil Work for Witness Cop

Posted Oct 31, 2012 11:52 AM CDT
By Martha Neil

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Attorney Michele Bergevin told a New York man she was defending in a child sex-abuse case that she also had as a client, in an unrelated civil matter, a police officer who was a witness in the criminal case.

Although she obtained defendant Michael Soloman's consent to a waiver of the conflict, the Appellate Division, Fourth Department of the state supreme court determined the waiver was invalid: A trial judge should have determined whether the defendant truly understood the nature of the conflict.

The Fourth Department found, however, that Soloman didn't show he was adversely affected by the conflict, so it refused to grant him a new trial. That led to a further ruling Tuesday by the state's highest court, which said that an actual conflict that has not been waived requires reversal of the defendant's conviction, due to ineffective assistance of counsel, Reuters reports.

The officer, Larry Kuebler, testified at trial that Soloman had confessed, said Judge Robert Smith in the unanimous New York Court of Appeals opinion (PDF). But, he wrote, "It was very much in defendant's interest either to discredit that testimony or to show that the confession had been obtained by some unlawful or unfair means; Kuebler's interest was the opposite."

The news agency couldn't reach Bergevin for comment.

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