When a Defense Attorney Needs To Be Removed From a Case

We’ve all heard of cases where a plaintiff, defendant or an attorney might ask a judge to consider recusing himself or herself from a case.  Maybe the judge has a conflict of interest like one of the party’s involved being a friend or relative.  Perhaps the judge has a personal friendship with an attorney or one of the witnesses. Or maybe it’s a drunken driving case and the judge suffered the death of a loved one in an accident involving a drunk driver.

There are plenty of circumstances under which justice could be better served if the judge were to step aside. Likewise, there are a number of ongoing concerns where an attorney stepping aside would be the best alternative.

For example, from the start when our firm meets with a client, we always want to make sure there is no conflict with co-defendants or a prior representation in some way that would start a conflict. We have had cases where a particular witness was a prior client. This situation causes the need for the attorney to withdraw because at that point a potential witness against our client is someone for which we formerly advocated. It’s a conflict of interest because it would appear that one way or another this witness’ testimony would be contrary to the current client’s goals in the big picture. If a witness is a former client of yours, you can’t do your job properly.

In drug cases we see many circumstances in which a person who set up the person who is now in trouble (we call them confidential informants) may have been a prior client of the firm.  That, of course, would start a conflict and we would have to refer the defendant to another firm.

As things progress, if there is a victim in the case, we need to make sure there is no personal relationship which might cause a conflict in which we can’t fully advocate for our client. Another conflict we run into is a breakdown in communications such as a personality conflict that prevents the attorney from zealously advocating for the client. Perhaps some factual issues have come up.

All of these are the types of issues in which defense attorneys may want to consider asking to be removed from a case. The attorney finds himself or herself in an ethical dilemma which prevents them from zealously advocating for their client.

Fortunately, the state bar of Wisconsin has a great resource through their ethics hotline where if the attorney has an ethical dilemma, the ethics panel will give guidance for the appropriate avenue to take, given the facts of the case.

To sum things up, the public needs to realize that there are many reasons why attorneys need to withdraw from a given case.  You also need to know that those reasons cannot be disclosed for reasons of confidentiality.  When the attorney gets into this type of bind, the state bar of Wisconsin’s ethics hotline can provide an avenue for the best way for the attorney to step aside so a new attorney can take over and get the case back on course.

About Attorney Mark Powers
Attorney Mark Powers is a partner at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha. Previously, Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office and is currently serving as a municipal judge in North Prairie. He focuses in the area of criminal defense, and has handled many cases involving operating a motor vehicle while intoxicated, domestic disputes, and drug offenses.

Powers attended Valparaiso University School of Law, where he received his Juris Doctorate. Prior to law school, Mark attended the University of Wisconsin, Lacrosse where he received his bachelor of science in Political Science.

For more information, please call 262.549.5979 or visit www.waukeshacriminalattorneys.com.