Opinion
March 25, 1976
Henry F. O'Brien, District Attorney (Richard M. Bronstein of counsel), for plaintiff.
John F. Middlemiss, Jr., and Edward M. Elliott for defendant.
This is an application by counsel for leave to withdraw as attorney for the defendant. It is counsel's contention that a conflict of interest has evolved by reason of the fact that counsel has previously represented the informer who may be called as a witness in this case.
The People resist the application on the basis of their given assurance that the prosecution has no intention of calling that individual as a witness.
Motion granted. The right of the potential witness to invoke CPLR 4503 which bars an attorney from disclosing evidence of a confidential communication and which excuses the client himself from disclosing such communication (Richardson, Evidence [10th ed], § 411, p 405) would severely hamper the defense upon direct examination of the said informer. Counsel has already stated during oral argument that it was the defense intention to call the said informer as a defense witness in the event the People decline to avail themselves of the said individual's testimony.
The order herein is to take effect the day substituted counsel is appointed and files his notice of appearance. The court hereby directs that substitute counsel be appointed from the rotating list and the matter set down upon the calendar for April 1, 1976, for the purpose of effecting the substitution of counsel.
In determining the within application, the court has examined and considered moving and opposing papers including defendant's notice of motion, supporting affirmation of counsel, in addition to the People's opposing affirmation. Therefore, pursuant to CPLR 2219 (subd [a]) the court directs that the memorandum decision herein shall constitute the order of the court.