Disqualifying Fannick: Rule of Professional Conduct 1.0

Rule of Professional Conduct 1.0. Terminology states:

“Informed consent” denotes the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

A lawyer who is consulted by a prospective client but is not retained is obliged to protect the confidentiality of the information received. Rule1.18 Rules of Professional Conduct.

“The rule essentially treats such prospective clients for conflicts purposes as subject to the conflict of interest provisions relating to former clients (See Rule 1.9 Duties to Former Clients), except that the prohibition on subsequent adverse representation is limited to circumstances where the lawyer received information that would, if disclosed, be significantly harmful to the prospective client in the matter.” Attorney Thomas Wilkinson, pastco-chair of the PBA Committee of Legal Ethics, 27- APR Pa.Lawyer 47(2007).

Rule 1.18 Rules of Professional Conduct provides that “a lawyer owes a duty of confidentiality to a person who discusses with the lawyer the possibility of forming an attorney-client relationship, even though no relationship ensues. The rule follows ABA Model Rule 1.18 and Comment with the exception of the requirement that the prospective client’s informed consent to a conflict waiver be ‘confirmed in writing’.” The rule essentially codifies existing case law and Section t 5 of the Restatement of the Law Governing Lawyers (2000)” Attorney Thomas Wilkinson, 27-APR Pa. Lawyer 47 (2007).

Disqualifying Fannick: Lawyer's Duties to a Prospective Client

The Restatement of Law 3rd The Law Governing Lawyers states in full text:

Section 15 A Lawyer’s Duties to a Prospective Client:

(1) When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, the lawyer must:

(a) not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client as stated in §6t-67;

(b) protect the person’s property in the lawyer’s custody as stated in §44-46; and

(c) use reasonably care to the extent the lawyer provides the person legal services,“

A lawyer subject to Subsection (1) may not represent a client whose interests are materially adverse to those of a former prospective client in the same or a substantially related matter when the lawyer or another lawyer whose disqualification is imputed to the lawyer under § 123 and 134 has received from the prospective client confidential information that could be significantly harmful to the prospective client in the matter, except that such a representation is permissible if:

(d)(i) any personally prohibited lawyer takes reasonable steps to avoid exposure to confidential information other than information appropriate to determine whether to represent the prospective client, and (ii) such lawyer is screened as stated in § 1 24(2)(b) and (c); or

(e) Both the affected client and the prospective client give informed consent to the representation under the limitations and conditions provided in § 122.

Disqualifying Fannick: Comment

Comment:

a. Scope and cross-references. This Section summarizes the duties of a lawyer to a person seeking legal services. Duties attach even when no client-lawyer relationship ensures. On application of the attorney-client privilege to communications with a prospective client, see §72. Application of rules parallel to those of § 132(2) on former-client conflicts of interest and those of § § 123-124 on imputation of conflicts is considered in Comment c hereto. Whether a person who consults a lawyer forms a client-lawyer relationship is determined under § 14. On duties owed by a lawyer to non-clients, see §and 56.

b. Rationale. Prospective clients are like clients in that they often disclose confidential information to a lawyer, place documents or other property in the lawyer’s custody, and rely on the lawyer’s advice. But a lawyer’s discussions with a prospective client often are limited in time and depth of exploration, do not reflect full consideration of the prospective client’s problems, and leave both prospective client and lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients, as indicated in the Section and following Comments.

c. Confidential information of a prospective client It is often necessary for a prospective client to reveal and for the lawyer to learn confidential information (see § 59) during an initial consultation prior to their decision about formation of a client-lawyer relationship. For that reason, the attorney-client privilege attaches to communications of a prospective client (see § 70, Comment c). The lawyer must often learn such information to determine whether a conflict of interest exists with an existing client of the lawyer or the lawyer’s firm and whether the matter is one that the lawyer is willing to undertake. In all instances, the lawyer must treat that information as confidential in the interest of the prospective client, even if the client or lawyer decides not to proceed with the representation (see Subsection (1)(a); see also §60(2). The duty exists regardless of how brief the initial conference may be and regardless of whether screening is instituted under Subsection 2(a)(ii). The exceptions to the principles of confidentiality and privilege apply to such communications (see § 61-67).

“Subsection (2) states rules parallel to those governing former client conflicts under § 132, but it relaxes two analogous former-client rules. First, personal disqualification of a lawyer who deals with a prospective client occurs only when the subsequent matter presents the opportunity to use information obtained from the former prospective client that would be“significantly harmful.” In contrast, § 132 applied whenever there is a“substantial risk” of adverse use of the former client’s confidential information, regardless of the degree of threatened harm. Second,screening is permitted under Subsection (2)(a) so long as the lawyer takes reasonable steps to limit his or her exposure to confidential information during the initial consultation. In contrast, screening under § 1 24(2)(a) is permissible only when information obtained in the earlier representation would not likely be of significance in the subsequent representation.”

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 appears necessary for that purpose. Where that information indicates that a conflict of interest or other reasons for non representation exists, the lawyer should so in form the prospective client or simply decline the representation. If the prospective client still wishes to retain the lawyer, and if consent is possible under § 1220), consent from any other affected present or former client should be obtained before confidential information is elicited. The lawyer may also condition conversations with the prospective client on the person’s consent to the lawyer’s representation of other clients (see § 122, Comment d) or on the prospective client’s agreement that any information disclosed during the consultation is not to be treated as confidential (see § 62). The prospective client’s informed consent to such an agreement frees the lawyer to represent a client in a matter and to use in that matter, but only if the agreement so provides, confidential information received from the prospective client. A prospective client may also consent to a representation in other ways applicable to a client under § 122.”

“Even in the absence of such an agreement, when a consultation with a prospective client does not lead to a lawyer’s retention the lawyer is not always prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter. A prospective client’s assurances of confidentiality through prophylactic prohibition as broad as that required in the case of a former client under § 132 must yield to a reasonable degree to the need of the legal system and to the interests of the lawyer and of other clients, including the need of a lawyer to obtain information needed to determine whether the lawyer may properly accept the representation without undue risk of prohibitions if no representation ensues. Thus, under Subsection (2), prohibition exists only when the lawyer has received from the prospective client information that could be significantly harmful to the prospective client in the matter. In such an instance and absent the prospective client’s consent, the lawyer must withdraw from a substantially related representation commenced before the prospective client communicated with the lawyer and must not represent a client in such a matter in the future, including a client the lawyer ordinarily represents on a continuing basis.”

“When a tribunal is asked to disqualify a lawyer based on prior dealings with a former prospective client, that person bears the burden of persuading the tribunal that the lawyer received such information. The prohibition is imputed to other lawyers as provided in § 123, but may be avoided if all personally prohibited lawyers are screened as stated in § t24(2)(b) and (2)(c) (see Subsection (2)(a)). In that situation, screening avoids imputation even when the requirements of § 1 24(2)(a) have not been met. In deciding whether to exercise discretion to require disqualification, a tribunal may consider whether the prospective client disclosed confidential information to the lawyer for the purpose of preventing the lawyer or the lawyer’s firm from representing an adverse party rather than in a good-faith endeavor to determine whether to retain the lawyer. The tribunal may also consider whether the disclosure of significantly harmful confidential information resulted from the failure of the lawyer or the prospective client to take precautions reasonable in the circumstances. In addition to screening, Subsection (2)(b) permits representation if both the former prospective client and any affected present client consent.”

Disqualifying Fannick: Illustrations

Illustrations:

1. “Person makes an appointment with Lawyer to discuss obtaining a divorce from Person’s Spouse. During the initial consultation, Lawyer makes no effort to limit the conversation or obtain any agreement on Person’s part to non-confidentiality. During the course of the one-hour discussion, Person discusses his reasons for seeking a divorce and the nature and extent of his and Spouse’s property interests. Because Person considers Lawyer’s suggested fee too high, Person retains other counsel.Thereafter, Spouse seeks Lawyer’s assistance in defending against Person’s divorce action. Lawyer may not accept the representation of Spouse. If Lawyer is screened as provided in § 124(2)(b) and (c), Lawyer’s disqualification is not imputed to other members of Lawyer’s firm (see Subsection (2)(a)).”

2. “The President of Company A makes an appointment with Lawyer, who had not formerly had dealings with Company A. At the outset of the meeting, Lawyer informs President that it will first be necessary to obtain information about Company A and its affiliates and about the general nature of the legal matter to perform a conflicts check pursuant to procedures followed in Lawyer’s firm. President supplies that information in a 15-minute meeting, including the information that the matter involves a contract dispute with Company B. The ensuing conflicts check reveals a conflict of interest with another Client of the firm(other than Company B), and Lawyer accordingly declines the representation. Lawyer and the other firm lawyers may continue representing Client (see Subsection (2)(a)).”

3. “Same facts as Illustration 2, except that Lawyer is later approached by Company B to represent it in its contract dispute with Company A. Both Lawyer and other firm lawyers may accept the representation unless Company A had disclosed to Lawyer confidential information that could be significantly harmful to Company A in the contract dispute. Even if such a disclosure had been made, if Lawyer is screened as provided in §124(2)(b) and (c), Lawyer’s disqualification is not imputed to other members of Lawyer’s firm (see Subsection (2)(a)).”

4. Same facts as Illustration 2, except that President wishes their first meeting both to discuss conflicts facts and to review Lawyer’s preliminary thoughts on the merits of the contract dispute. Lawyer states willingness to do so only if Company A agrees that Lawyer would not be required to keep confidential information revealed during the preliminary discussion. President agrees, and the preliminary discussion ranges over several aspects of the dispute. Lawyer later declines the representation because of a conflict involving another firm client.Thereafter, Lawyer is approached by Company B to represent it in its contract dispute with Company A. Lawyer may not accept there presentation. Because of President’s agreements, Lawyer is not required to keep confidential from Company B information learned during the initial consultation.

“Protecting a prospective client‘s property. When prospective clients confide valuables or papers to a lawyer’s care, the lawyer is under a duty to safeguard them in the same way as valuables or papers of any person that are in the lawyer’s possession as the result of a professional relationship (see § 44-46). Ordinarily, if no client-lawyer relationship ensures, the lawyer must promptly return all material received from the prospective client.”

“A lawyer’s duty of reasonable care to a prospective client. When a prospective client and a lawyer discuss the possibility of representation, the lawyer might comment on such matters as whether the person has a promising claim or defense, whether the lawyer is appropriate for the matter in question, whether conflicts of interest exist and if so how they might be dealt with, the time within which action must be taken and, if the representation does not proceed, what other lawyer might represent the prospective client. Prospective clients might rely on such advice, and lawyers therefore must use reasonable care in rendering it. The lawyer must also not harm a prospective client through unreasonable delay after indicating that the lawyer might undertake the representation. What care is reasonable depends on the circumstances, including the lawyer’s expertise and the time available for consideration (see § 52).”

“If a lawyer provides advice that is intended to be only tentative or preliminary, the lawyer should so inform the prospective client. Depending on the circumstance, the burden of removing ambiguities rests with the lawyer, particularly as to disclaiming conclusions that the client reasonably assumed from their discussion, for example whether the client has a good claim.”

“Other duties to a prospective client. In addition to duties of confidentiality and care, the lawyer is subject to general law in dealing with a prospective client. The lawyer, for example, may not give the prospective client harmful advice calculated to benefit another client. (see § 5 1(2) & 56).”

“Compensation of a lawyer for consultation with a prospective client. In the absence of circumstances indicating otherwise, prospective clients would ordinarily not expect to pay for preliminary discussions with a lawyer. When a client-lawyer relationship does not result, a lawyer is not entitled to be compensated unless that has been expressly agreed or it is otherwise clear from the circumstances that payment will be required.”

Disqualifying Fannick: Reporter's Note

REPORTER’S NOTE

Comment c. Confidential information of a prospective client. See § 72,Comment d, and Reporter’s Note thereto. The position in the Comment is in most respects consistent with the position in ABA Formal Opin. 90-358(1990). Few cases address explicitly the question of the later disqualifying effect of having learned the minimum information necessary to decide whether or not the lawyer would have a conflict of interest taking a case. The position taken in the Comment follows from the principles of this Section and § 132 on former-client conflicts of interest. See also, e.g., Poly Software Int’l, Inc. v. Su. 880 F.Supp. 1487 (D.Utah. 1995) (no disqualification when lawyer avoided learning details of case in half-hour consultation with opposing party); Bennett Silvershein Assoc. v. Furman 776 F.Supp. 800 (S.D.N.Y.1991) (no disqualification warranted by brief consultation 10 years earlier about tenuously related matter); B.F. Goodrich Co. v. Formosa Plastics Corp. 638 F.Supp. 1050 (S.D.Tex.1986) (no disqualification where prospective client held on-day discussion of case with lawyer as part of “beauty contest” but client’s inside legal counsel regulated disclosures and there was no showing that confidential information disclosed could be detrimental to client); INAUnderwriters Insurance Co. v. Rubin, 635 F.Supp. 1 (E.D.Pa.1983) (no disqualification where lawyer held only preliminary arising out of same facts); Lovell v. Winchester, 941 S.W.2d 466 (Ky.1997) (consultation with parties who expected lawyer to represent them bars later representation of opposing party). On the relevance of a prospective client’s disclosures allegedly intended to produce disqualification, see In re American Airlines Inc. 972 F.2d 605, 613 (Cir. 1992).

Comment d. Protecting a prospective client’s property. See § 44, Comment b, and Reporter’s Note thereto; ABA Model Rules of Professional Conduct Rule 1.15 (1983 (referring to “property of clients or third persons”).

Comment e. A lawyer’s duty of reasonable care to a prospective client. Meighan v. Shore 40 Cal, Rptr.2d 744 (Cal.Ct.Ap.1995) (lawyer who speaks to wife and injured husband but represents only husband should advise wife of existence of loss-of consortium claim); Miller v. Metzinger 154Cal.Rptr.22 (Cal.Ct.App.1979) (Lawyer who advises potential client must mention statute-of-limitations expiration); Togstad v32Vesely. Otto. Miller & Keefe 291 N.W.2d 686 (Minn.1980) (lawyer who tells prospective client that client has no claim is liable for negligence in that opinion); Procanik v. Cillo 543 A.2d 985 (N.J.Super.Ct.App.Div.1988) (lawyer who states reasons for declining case must be professionally reasonable in those reasons, but need not disclose lawyer’s opinion on how likely it is that courts will over rule adverse precedent); compare Flatt v. Superior Court 885 P.2d 950 (Cal.1994) (after initially interviewing prospective client, lawyer determined from conflict check within firm that intended defendant in suit was present firm client; no duty to inform prospective client to file suit within limitation period).

... to be continued...

I'm Crazy for You...

A routine occurrence that has to be done in all Death Penalty Cases is that Harlow Cuadra and Joseph Kerekes will both have to undergo a psychiatric evaluation... from the Defendant's side and the Prosecution's. The following text is from a motion filed by the Prosecution on November 6, 2007:

INDEPENDENT PSYCHIATRIC EVALUATION:

The Commonwealth believes that the defendants may present expert psychiatric testimony during the penalty phase of the instant trial. As such, the Commonwealth filed a Motion to Compel an Independent Psychiatric Evaluation of the defendants in order to rebut psychological testimony presented by the defense.

The Commonwealth is entitled to have its expert conduct an independent psychiatric evaluation of each Defendant in a capital case where defendants may raise their mental capacity as an issue in the penalty phase of trial.

The Commonwealth of Pennsylvania filed a Notice of Aggravating Circumstances for both defendants on October 1, 2007, indicating its intention to seek the death penalty in the instant matter.

The Commonwealth is unsure of whether the Defendants intend to present any expert psychiatric report and testimony during the penalty phase of the instant trial.

If the Defendants intend to present psychological evidence during the penalty phase, the Commonwealth is entitled to the defense expert's report prior to the commencement of the the penalty phase.

In addition, pursuant to the decision of the Pennsylvania Supreme Court, the Commonwealth is entitled to have an independent psychiatric evaluation performed on each defendant prior to the guilt phase of trial when the defendants indicate that they may present psychiatric evidence in the penalty phase. Commonwealth v. Sartin 751 A.2d 1140 (Pa. 2000).

The Pennsylvania Supreme Court stated that the Fifth Amendment privilege against self-incrimination "does not preclude the government from gaining a balanced perspective of the Defendant's psychological make-up when the Defendant has expressed his intent to offer expert psychiatric testimony at the guilt or penalty phase. Commonwealth v. Sartin 751 A.2d at 1143.

The Pennsylvania Supreme Court recognizes that the Commonwealth "may only utilize the results of its psychological examination in a rebuttal capacity, and only as to those issues which have been implicated by the expert testimony of the Defendant's psychiatrist."

The Court, employing additional safeguards, required that the independent expert conducting the examination for the Commonwealth "not discuss his examination with anyone unless and until the results were released and that the results only be released if a penalty phase hearing took place at which the Defendant confirmed his intent to offer mental health or mental condition evidence in mitigation."

Any prior medical and psychological examinations of the defendants would be relevant in an examination of the defendants as requested herein.

In order to conduct a full and fair psychological examination of Defendants, the Commonwealth's expert is entitled to review any and all medical records obtained by or in the possession of the Correctional Facilities where the Defendants have been incarcerated, specifically any MMPI tests and any other records of medical and psychiatric tests or examinations.

In order to perform a full and fair psychological examination, the Commonwealth's expert must be provided with the results and raw data of any testing performed by the (doctors) who have already seen the defendants if such results and data exist.

The Commonwealth has retained the services of Dr. John O'Brien to conduct the examination of each Defendant. Dr. John O'Brien has advised the Commonwealth that he would be available to perform the examination.

WHEREFORE, the Commonwealth respectfully requests that this Honorable Court compel Defendants to undergo and independent psychiatric evaluation to be conducted by the Commonwealth's expert, Dr. John O'Brien, and that such report generated be submitted to the Court and placed under seal until such time as the Defendants confirm their intent to present mental health or mental condition evidence in mitigation at the penalty phase. The Commonwealth further respectfully requests that this Honorable Court compel the Lackawanna and Luzerne County Correctional Facilities and the doctors employed by the Defendants to submit any and all records of medical and psychological tests or examinations and the raw data from those tests of the defendants to the Commonwealth's expert, Dr. John O'Brien.

Kerekes says he only Discussed Legal Fees with Fannick

The Times Leader is reporting that homicide suspect Joseph Kerekes only spoke with attorney Demetrius Fannick about legal fees.

That’s it, Kerekes said Thursday.

He never discussed a defense strategy.

He never discussed his whereabouts on the day Bryan Kocis was killed.

He never discussed the merits of his case.

He never discussed cooperating with prosecutors.

And he never accepted any legal advice or opinions from Fannick.

“Absolutely not,” Kerekes testified Thursday.

The testimony came in the second day of a hearing to determine whether Fannick should be disqualified from representing Kerekes’ co-defendant, Harlow Cuadra.

Cuadra and Kerekes are awaiting trial in the January 2007 slaying of Kocis, 44, inside his Dallas Township home. Luzerne County prosecutors are seeking the death penalty for both suspects.

But first they are seeking to have Fannick removed from the case because he had met with Kerekes before being hired on behalf of Cuadra.

Prosecutors believe Kerekes and Fannick discussed more than just legal fees in the more-than-five hours they met in eight meetings in prison. And that, they said, creates a conflict with Fannick now defending Cuadra.

But Kerekes and Fannick have both said there is no conflict because they only discussed fees.

And Kerekes Thursday morning maintained that stance on the witness stand, being questioned by one of his attorneys, John Pike, prosecutor Mike Melnick, and Court of Common Pleas Judge Peter Paul Olszewski Jr.

Kerekes said each of his eight meetings with Fannick lasted just five or 10 minutes. Eight meetings, he said, was not a lot when discussing more than $100,000 in fees, he said.

But that’s all the meetings were about.

Melnick challenged Kerekes, though. The prosecutor wanted to know: If Kerekes and Fannick only discussed fees, why did he tell Fannick, prior to a past court hearing, that he didn’t want the attorney to use anything the two spoke about in their meetings?

Kerekes said he was “emotional” that day. He meant he didn’t want Fannick using any “inferences” he might have drawn from the meetings.

“It was an emotional reaction,” he said. “I was a little emotional that morning.”

Kerekes was the only witness to testify Thursday.

Olszewski now needs to conduct a hearing to determine whether Kerekes and Cuadra can legally waive any conflict that might exist before he can rule on the Fannick issue.

That hearing is set for March 14.
----

Update @ 4:25 PM: The Commonwealth Attorney's office has filed two additional supplemental briefs regarding Attorney Fannick's disqualification. (I'll try to have more on this later).

Update @ March 7 9:00 AM: The Citizen's Voice also covers yesterday's hearing, and adds the following: “Eight times isn’t a lot of times to discuss $100,000,” a handcuffed Kerekes testified. After his last meeting with Fannick, Kerekes said he made it clear that neither he nor his family could afford to pay for Fannick’s services.

Assistant District Attorney Michael Melnick contended during a closing argument that an implied agreement occurred and threatens the trial overall.

“The appearance of fairness … is paramount,” said Melnick, who lead a team of four prosecutors in the case. “To condone this conflict of interest is just wrong.”

Melnick said that by allowing Fannick to remain as Cuadra’s attorney, Luzerne County Judge Peter Paul Olszewski Jr. would be giving the defendants a possible grounds for appeal if found guilty.

Today's Status Conference

Judge Peter Paul Olszewski has made the following rulings so far, in today's status conference for the murder trial(s) of Harlow Cuadra and Joseph Kerekes.

1. Attorney for Defendant shall pick up Discovery at DA's Office personally.
2. Commonwealth's Motion to Strike Joseph Kerekes' Omnibus Pretrial Motion has been denied.

Update @ 2:24 PM: A court watcher has informed me that the hearing is still on-going... I'll be able to provide more information as soon as it's over.

Update @ 5:40 PM: The hearing wrapped up at 4:30 p.m. for today. It lasted more than 7 hours. It will resume at 9:30 a.m. tomorrow.

Update @ 5:40 PM: There has been no decision made on Atty. Demetrius Fannick representing Harlow Cuadra.

Update @ 6:00 PM: The Times Leader is reporting that even if homicide suspect Joseph Kerekes says there is no conflict with attorney Demetrius Fannick representing a co-defendant, Kerekes should be ignored, an expert said.

Robert Davis, a legal ethics expert, said the events that have unfolded in the case, including a recent courtroom outburst by Kerekes, leads him to believe that the “fairness” and “integrity” of the proceedings could be impacted if Fannick remains on board.

“There should be a disqualification,” Davis said.

But his opinion, and the information he used to form it, was later vigorously challenged by other attorneys.

Davis was one of six witnesses assistant district attorneys Mike Melnick, Tim Doherty, and Shannon Crake called to testify Wednesday at a hearing on their attempt to have Fannick disqualified from defending Harlow Cuadra.

Cuadra and Kerekes are awaiting trial in the January 2007 slaying of Bryan Kocis inside his Dallas Township home. Prosecutors are seeking the death penalty for both suspects.

Prosecutors say Fannick should be removed from the case because he had previously met with Kerekes. But Fannick and Kerekes’ attorneys say there is no conflict because Fannick and Kerekes did not discuss anything confidential or material to the case.

Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. called a hearing on the issue Wednesday. The hearing lasted more than seven hours and will resume at 9:30 a.m. Thursday. Fannick might testify.

Update @ 6:04 PM: "The whole hearing was pretty much about the Fannick issue." The two other issues mentioned above were quickly resolved... according to a court watcher.

Update @ March 6 5:42 AM: The Times Leader added a little more to their story overnight: Prosecutors say a conflict is evident because of the eight meetings Fannick had with Kerekes before being hired on behalf of Cuadra. And it’s evident Kerekes discussed some confidential material with Fannick because of Kerekes’ courtroom outburst Feb. 20, Davis said.

The outburst occurred outside the presence of the judge and prosecutors. But court clerk Lindsay McFarland and Deputy Sheriff Eugene Gurnari rehashed the incident for Olszewski.

McFarland said Kerekes told Fannick he would have Fannick removed from the case if the attorney used anything they spoke about during their meetings. Kerekes seemed angry, Gurnari said.

That outburst was one of the issues Davis used in forming his opinion. It showed Fannick has “detrimental information” about Kerekes, he said.

But if Kerekes waives any Fannick conflict, like he has indicated he will, a judge could still disregard it, Davis said. Olszewski, in this case, should do that, Davis said. But Olszewski said he still needs to consider Cuadra’s right to counsel.

Update @ March 6 5:57 AM: Meanwhile, the Citizen's Voice also carries the story with much of the same information, but with a few more details: Kerekes was to pay Fannick $50,000 to defend him, $25,000 up front, said Robert Wallace, Kerekes’ former cellmate at Luzerne County Correctional Facility. Defense attorneys questioned Wallace’s credibility during cross-examination.

In other news, prosecutors will revise their list of witnesses who could rebut Kerekes possible alibi defense.