Commonwealth v. Delnegro (Lawyers Weekly No. 11-042-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-339 Appeals Court 16-P-340 COMMONWEALTH vs. DAVID DELNEGRO. Nos. 16-P-339 & 16-P-340. Hampden. January 6, 2017. – April 12, 2017. Present: Kafker, C.J., Hanlon, & Agnes, JJ. Practice, Criminal, Interlocutory appeal, Assistance of counsel. Supreme Judicial Court, Superintendence of inferior courts. Attorney at Law, Disqualification, Attorney as witness, Conflict of interest. Conflict of Interest. Witness, Attorney as witness. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Complaints received and sworn to in the Springfield Division of the District Court Department on February 4, 2014, and June 8, 2015. Motions for disqualification of counsel, filed on April 10, 2015, and October 15, 2015, were heard by Patricia T. Poehler, J., and Philip A. Contant, J., respectively. Kaily Hepburn for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. The defendant, David Delnegro, seeks interlocutory review of orders disqualifying his attorney, Kaily Hepburn, from representing him in two criminal cases. Hepburn was the sole passenger in the defendant’s vehicle when he was charged with operating a motor vehicle under the influence of alcohol and negligent operation. Hepburn was also present at a subsequent hearing on that matter in which the defendant got into an altercation with court officers and was charged with assault and battery on a public employee, disruption of court proceedings, and disorderly conduct. The defendant claims that Hepburn is not a necessary witness in the first case, and even though she is a necessary witness in the second case, that she can represent him in pretrial proceedings. He also argues that he has consented to any conflict of interest arising from the representations. We dismiss the interlocutory appeals because the defendant did not petition a single justice of the Supreme Judicial Court for interlocutory review pursuant to G. L. c. 211, § 3, and the doctrine of present execution does not provide for interlocutory review of disqualification of counsel orders in criminal cases. We nonetheless consider the propriety of Hepburn’s representation of the defendant, due to the important ethical considerations at stake, and conclude that she cannot represent him in either case at trial or any pretrial proceedings. Background. The Commonwealth alleges the following facts. On February 4, 2014, at approximately 2:00 A.M., the defendant was driving […]