A bit of case history:

Defendant files grievance on defense attorney. Defense attorney does not discuss with Judge, but discusses with other attorneys, including prosecutors. Defense attorney approaches Judge (with prosecutor present) to say that a grievance exists (of course, the case is set for trial the following week) and that he plans to withdraw based on an oral motion to withdraw. The judge recesses for lunch, and holds a hearing on the motion to withdraw after lunch. The State is not present or represented at the hearing (State would not have opposed a withdrawal). Instead of withdrawing, the defense lawyer says he still wants to represent the client and does not withdraw. From what I understand, the judge had the defendant "waive all rights to appeal." (Huh?) The State filed a motion for rehearing on the matter, and that's where we are now.

My question - is this a conflict of interest that the State has a say in? I read a disciplinary rule somewhere saying (somewhere along the lines) that no trial can proceed if it will cause an undue financial burden on a party. I have never run across this issue before, mainly because I've never seen a defense attorney willing to represent a client who has grieved him/her. Is this conflict of interest something the defendant can waive? I feel that there would be an inherent issue with the defendant not being able to be advised as to the effect of waiving the conflict of issue, but this advisement should come from an attorney without an interest in the case. Without waiving this, I feel like it could come back on appeal as ineffective, and that would place the financial burden on the State to try this case again.

It's Monday, so my thoughts are jumbled. I hope this makes sense and that someone wiser than me can advise. I know there's a Supreme Court case out there somewhere that discusses the type of conflicts of interest and that there is a TDCAA book on ethical dilemmas, but we don't have it in our office and my rehearing is Thursday. Help!

It is unclear to me whether you are more concerned about when the case goes to trial or who will be serving as defense counsel at trial. Furthermore, it appears you are likely moving to disqualify defense counsel based on potential violation of an ethical rule. I do not believe the mere filing of a grievance establishes that any conflict actually exists under disciplinary rule 1.06(b)(2), although it is often used as a basis for withdrawal. Your concern about avoiding an ineffective assistance claim deals with the performance of counsel at trial and actual prejudice. While there may currently be red flags raised, I am not certain you can do anything about them until counsel's limitations become more apparent. I would certainly try to question counsel about why he feels qualified to proceed. But, the Sixth Amendment does not exist merely to promote an amiable relationship between counsel and client. Is counsel retained or appointed? If the judge remains content with the appointment, then I think you have done all that you can do.

Thanks for your input. I don't care who tries the case or when the case goes to trial, my only concern is that I do not want to have to take this case to trial, only to try the case again based on an issue that could have been addressed properly in the beginning. I want to make sure that there is nothing I am required to do, now that I'm imputed with this information.

Take a look at Owens v. State, 357 S.W.3d 792. I don’t know the specifics of your case, but Owens sounds similar to the facts recited in your post.

It’s particularly noteworthy that in these type of IAC claims, Cuyler applies instead of Strickland. Acosta, 233 SW3d 349 (CCA), is also cited in the opinion and is probably worth reading before your hearing.

Hope this helps!