Tuesday, February 26, 2008

DA's Brief in Support of Motion to Disqualify Fannick

Demetrius Fannick

Here's a summary of the Commonwealth's Brief in Support of Motion to Disqualify Attorney Demetrius Fannick from Representation of Harlow Cuadra. Since the entire Brief is 32 pages, I figured it would be easier to sum things up by just posting the Conclusion to the Brief:

The Commonwealth requests this Honorable Court to disqualify Attorney Fannick from representing Harlow Cuadra in this case. First, the Commonwealth contends that the attorney-client relationship was formed with Joseph Kerekes and Attorney Fannick. Attorney Fannick in his press release stated his desire to represent Mr. Kerekes and thereafter, issued a statement proclaiming his opinion that the case was very defendable. As the United States Supreme Court has acknowledged, sometimes a lawyer's duties encompass defending a client in the court of public opinion. Attorney Fannick did just that.

Attorney Fannick met with Joseph Kerekes eight times. Undoubtedly, there was a discussion as to the attorney's fee. It stands to reason that Mr. Kerekes also discussed sensitive privileged matters with Attorney Fannick such as his defense of the charges, since Attorney Fannick announced that the "case was very defendable". If an attorney-client relationship existed, Joseph Kerekes may waive the conflict of interest created by Attorney Fannick. The Court may reject such a waiver. Such a proffered waiver should be rejected by the Court. In a penalty phase of this case, there may be finger pointing by the two Defendants as to who is more culpable, ie., who slit the victim's throat. This potential conflict, combined with Attorney Fannick's extensive discussions with Kerekes, while representing Harlow Cuadra, require Attorney Fannick's disqualification.

"In order to avoid acquiring disqualifying information, a lawyer considering whether or not to undertake a new matter may limit the initial interview to such confidential information as reasonably necessary for that purpose". Comment 4 to Rule of Professional Conduct 1.8.

Here, Attorney Fannick had extensive contact with Joseph Kerekes; in fact, Attorney Fannick's contact with Kerekes was much more extensive than his contact with Cuadra. Furthermore, Attorney Fannick did no screening of Mr. Kerekes. The Rule provides this as a way to avoid disqualification. Attorney Fannick has the resources of the Criminal Law Center to screen clients but failed to do so. As noted in the Restatement of the Law Governing Lawyers, section 15, Reporter's Notes, the extent and scope of Attorney Fannicks discussions with Joseph Kerekes require his disqualification. See Comment C.

Allowing Attorney Fannick to represent Cuadra would likely result in reversible error should either or both of the Defendants be found guilty of the crimes charged, therefore, the Commonwealth respectfully requests that this Honorable Court grant the Commonwealth's motion to disqualify Attorney Fannick from representing Harlow Cuadra.