Commonwealth v. Zabek (Lawyers Weekly No. 11-135-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1292 Appeals Court COMMONWEALTH vs. TIMOTHY A. ZABEK. No. 13-P-1292. Franklin. March 5, 2014. – October 28, 2014. Present: Kafker, Fecteau, & Agnes, JJ. Attorney at Law, Attorney as witness, Conflict of interest, Withdrawal. Constitutional Law, Assistance of counsel. Practice, Criminal, New trial, Assistance of counsel. Witness, Attorney as witness. Conflict of Interest. Indictments found and returned in the Superior Court Department on November 16, 2009. The cases were tried before John A. Agostini, J., and a motion for a new trial was considered by him. William A. Korman for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. AGNES, J. It is a cardinal principle of both Federal and State law that the right to the effective assistance of counsel requires that the defendant not only have an opportunity to obtain the advice and guidance of counsel, but also to rely on the undivided loyalty of counsel to represent the defendant “with full force and zealousness.” Commonwealth v. Perkins, 450 Mass. 834, 850 (2008), quoting from Commonwealth v. Downey, 65 Mass. App. Ct. 547, 553 (2006). ”A conflict of interest arises whenever an attorney’s regard for one duty, such as that owed to a third party or in service of his own interests, leads the attorney to disregard another duty, such as that owed to his client.” Perkins, supra at 851. See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986) (“An actual or genuine conflict of interest arises where the independent professional judgment of trial counsel is impaired, either by his own interests, or the interests of another client”) (internal quotation marks omitted). In the present case, a serious, potential conflict of interest became apparent shortly before trial commenced. Appropriate steps were taken by the judge to identify the risks of defense counsel’s continued representation of the defendant. The judge was warranted in concluding that, based on the evidentiary landscape prior to trial, defense counsel’s prospective testimony as the sole witness to a statement made by one of the victims would not be required. We commend the judge for conducting a thorough colloquy with the defendant prior to the trial to ensure that the defendant was fully informed of his attorney’s potential conflict of interest and could make a voluntary decision to continue to have counsel represent him. See Perkins, […]