Animosity between attorneys not basis for removal

Listen to this article

Acrimony between a defendant's trial and postconviction attorneys is not grounds for a court to disqualify his choice of counsel.

An Aug. 20 opinion from the Wisconsin Court of Appeals acknowledged that a judge can disqualify an attorney for a conflict of interest, even if the defendant waives the conflict.

However, the court found that no conflict was apparent, despite possible ill will between the attorneys.

Todd E. Peterson was convicted of sexual assault of a child, as a persistent repeater, in Winnebago County Circuit Court. At trial, he was represented by Attorney Leonard Kachinsky.

Peterson then retained Attorney Gregory Petit to represent him. Petit and Kachinsky were former law partners.

Petit moved for a new trial on several grounds, including ineffective assistance of trial counsel. At the motion hearing, Judge Thomas J. Gritton sua sponte disqualified Petit, holding there was an appearance of a conflict of interest as a result of the acrimonious dissolution of the law partnership.

Peterson then obtained counsel from the state public defender, and an evidentiary hearing was held. Judge Gritton denied the motion, and Peterson appealed on several grounds.

In an opinion by Judge Harry G. Snyder, the Court of Appeals reversed, holding that the disqualification of Attorney Petit was erroneous.

The trial court explained the reasons for the disqualification as follows: "I have a concern and I guess I want to put this right out front that there is a conflict here, meaning, the conflict of the relationship between Mr. Petit and Mr. Kachinsky. Everybody knows the history there, and I want to be confident in my view that that does not come into play here."

However, the Court of Appeals found nothing in the record to suggest that Petit's representation of Peterson posed any risk to Peterson or the integrity of the judicial system.

The court concluded, "the [circuit] court did not explain what problem it anticipated if Petit continued, the court did not describe any potential ethical violation that might arise, and the court did not engage in any sort of dialogue with Peterson before deciding to disqualify Petit."

The court therefore remanded the case to the circuit court, without addressing the merits of the appeal.

In an interview, Attorney Petit said the holding was "not a huge shock." Petit said, "I couldn't fathom, for the life of me, why I shouldn't be on the case."

Petit acknowledged there could be a problem if he and Kachinsky had still been partners when the trial occurred, but the trial took place after dissolution of the firm.

Subconsciously, he said, there would be a bigger problem if the attorneys involved in a Machner hearing were close friends.

Petit said he would wait to hear from Peterson or his family to see if they want him to resume representation of Peterson.

Attorney Ralph J. Sczygelski, of Zczygelski Law Firm LLC in Manitowoc, who successfully argued the appeal, likewise does not know if he will continue on the case or be replaced.

Sczygelski said, "It was interesting; we made law where there wasn't much before. Judge Gritton basically found that there was bad blood between the attorneys, and he wanted to avoid it. But when I started researching the issue, I found there was no authority for doing that."