SUPERIOR COURT OF THE STATE OF RIDGEWAY
CITATION: In re mandatorymorale,
RSC-CM-2118B
DATE OF JUDGEMENT:
2024-02-10
IN THE MATTER OF:
mandatorymorale
Respondent
JUDGEMENT ON DISQUALIFICATION OF COUNSEL
OF THE
HONOURABLE JUDGE KOALA4IIFE
I. Overview
[1] Mr. mandatorymorale and Mr. notsfeelings entered notices of appearance as
counsel for the accused CardinalMonterruh in the present matter of State of Ridgeway
v. CardinalMonterruh (RSC-CM-2118) on September 25, 2023.
[2] During a trial day on February 7, 2024, the government called Mr.
mandatorymorale as a witness to which Mr. notsfeelings objected, citing the fact that
the “supposed witness is counsel”.
[3] The objection was, of course, not valid insofar as to preclude Mr.
mandatorymorale from testifying. It was, however, the first time that Mr.
mandatorymorale’s conflict of interest was pointed out on the record.
[4] Mr. mandatorymorale was mentioned by name in the indictment entered
September 24, 2023 and in the government’s discovery disclosures entered September
29, 2023.
[5] In spite of all the signs pointing to a conflict of interest, Mr. mandatorymorale
had not previously and by himself disclosed said conflict on the record or to the court
in any way. Nor did the court, for oversight, take note of said conflict before being
alerted to it on February 7, 2024 by Mr. notsfeelings.
[6] Finally, when the conflict is revealed on the record, Mr. mandatorymorale
asserts that the Ridgeway State Rules of Professional Conduct permits a waiver of his
conflict of interest.
[7] While arising out of a single instance, three different issues present: whether
Mr. mandatorymorale must be disqualified from acting as counsel for being a witness,
whether Mr. mandatorymorale could obtain a waiver for his conflict of interest, and the
issue of failure to disclose a conflict of interest.
II. Disqualification from acting as counsel
[8] There is a list of non-exhaustive factors that courts have consistently applied in
considering whether counsel should be disqualified for being a witness:
• the likelihood that the witness will be called;
• the likelihood of a real conflict arising or that the evidence will be tainted;
• the significance of the evidence to be led;
• the impact of removing counsel on the parties' right to be represented by
counsel of choice; and
• the connection or relationship between counsel, the prospective witness
and the parties involved.
[9] In the present matter, there was near certainty that Mr. mandatorymorale would
be called as a witness—this fact had become evident to any observer on September 29,
2023 at the latest, but Mr. mandatorymorale knew this by September 25, 2023 at the
latest. In fact, before his appearance was entered, Mr. mandatorymorale had to sense to
notify his client of the conflict and supposedly obtained his client’s verbal waiver of
said conflict. I have no idea how a conflict of interest waiver can be properly done
verbally and I applaud Mr. mandatorymorale for his invention—what an accolade.
[10] The likelihood of real conflict was not equivocal. The circumstances of the
conflict is made even more absurd by the fact that Mr. mandatorymorale, who to be
clear has been actively acting as counsel in the present matter since September 25,
2023, is a (and the only) named victim in the indictment charging his client. Short of
putting a human tape recorder on the witness stand, I cannot begin to fathom what
might qualify as being more likely to taint evidence.
[11] The fourth factor is not relevant here.
[12] As one of the key eyewitnesses, there is no question that Mr. mandatorymorale
would be called to provide significant evidence. The significance of the evidence to be
led is only heightened with this being a criminal matter, charged by indictment.
[13] At this point, there is no doubt that Mr. mandatorymorale is disqualified from
acting as counsel for being a witness.
III. Consent to conflict of interest
[14] In any other case, this would have probably been the end of the analysis and
where I would have directed counsel to withdraw, but the Ridgeway State Rules of
Professional Conduct provides an exception:
“An attorney shall not act as an advocate in a trial in which the attorney is likely
to be a witness unless…the attorney has obtained informed consent from the
client”.
[15] This exception is peculiar because there are no enumerated qualifications or
requirements to engage the exception. The unqualified ability for clients to waive
conflicts of interest is unsustainable; a client’s prerogative to waive certain conflicts of
interest and retain counsel of his or her choice should at all times be balanced with the
public interest.
[16] The maintenance of high standards of the legal system and the integrity of our
system of justice requires that counsel not appear as advocate in certain cases in which
they will be witnesses or be in a conflict of interest with their clients, even if the client
personally agrees to set aside a conflict.
[17] The exception provided in rule 3.7(a)(3) of the Ridgeway State Rules of
Professional Conduct, to the extent that it allows a client to consent to a blanket waiver
of conflicts of interest, is not sustainable. In all cases where counsel engages the
exception in rule 3.7(a)(3), the court has a duty to independently assess whether counsel
is disqualified for being a witness based on relevant factors provided in part II, whether
on the motion of a party or on the court’s own motion.
IV. Excuse
[18] When Mr. mandatorymorale is confronted for his affront to professional
responsibility and ethics, he sings a similar refrain on many occasions: there is no
explicit rule or requirement to insert obligation.
[19] When asked for a copy of the waiver of conflict of interest, Mr.
mandatorymorale states that the waiver was done verbally; there is no specific
obligation that the waiver to be in writing.
[20] When asked how informed consent was obtained, Mr. mandatorymorale states
that he has no record of it; there is no specific obligation that this record be retained.
[21] When asked why the waiver, whether in writing or not, was not entered on the
court record, Mr. mandatorymorale asserts that there is no specific obligation that it be
entered into the court record.
[22] And of course, Mr. mandatorymorale is right in all three instances. This may or
may not be a valid excuse. I am inclined to say that any licensed attorney should have
done his due diligence and realised that a conflict of interest waiver should be in writing
and entered into the record. Any licensed attorney also ought to have known better and
questioned whether a conflict of interest waiver would be appropriate in the
circumstances. In a circumstance where counsel is a named eyewitness and the named
victim, one would hope that a licensed attorney could perceive that this constitutes an
unreconcilable conflict of interest that cannot be waived, much less verbally.
[23] Alas, in any other case, this must be the end of the analysis and where I would
have simply directed counsel to withdraw.
V. Failure to disclose conflict of interest
[24] A finding of whether a witness is disqualified to act as counsel is standard, if
not routine proceedings, but is not routine for counsel to continuously fail to disclose a
conflict of interest. But nor is it routine for such obvious conflict of interest to be
maintained for so long, so before I make my remarks on Mr. mandatorymorale’s
conduct, I take the time to apologize for how long it took before the conflict was
revealed and addressed and the court’s oversight on this issue.
[25] If Mr. mandatorymorale might be excused for not practicing due diligence on
account of deficiencies in the Ridgeway State Rules of Professional Conduct, he
cannot, is not, and must not be excused for failing to disclose and then attempting to
justify that failure to disclose what constituted a sustained and egregious conflict of
interest.
[26] First, unlike stating that no rule explicitly requires conflict of interest waivers
to be entered onto the record, Mr. mandatorymorale’s position that there is no specific
obligation to point out conflicts of interest is plain shocking. I am deeply disturbed that
a licensed attorney running afoul of basic ethical obligations—highly inappropriate as
it is—attempted to justify his contraventions on account of there being no explicit
written obligations, with a cavalier attitude no less. Unlike Mr. mandatorymorale, the
court does not consider conflicts of interest to be a game.
[27] Second, Mr. mandatorymorale submits that “it is wholly on the Government for
their failure to do their due diligence”, and continues at length:
“well, your honor, any reasonable attorney with a bare knowledge of our State's
ethical rules of practice for attorneys would reasonably construe that myself
continuing as counsel whilst likely to be called as a witness is a result of a
waived conflict...”
(Original emphasis reproduced)
[28] I do not know how to begin to understand these statements. If I would have
understood it correctly, Mr. mandatorymorale is issuing censure against the
government for not realising and pointing out that he had maintained a conflict of
interest. To some extent, that is a valid point of criticism: the government, and the court
for that matter, should have noticed a conflict of interest. But insofar as Mr.
mandatorymorale intended to assert those statements to conjure up a justification for
maintaining a conflict of interest, it is outrageously inappropriate. I am at once
disappointed and concerned that these submissions came from an experienced
practicing lawyer.
[29] Third, Mr. mandatorymorale’s comments were not born out of misplaced
ignorance, but out of knowing contempt. At one point, Mr. mandatorymorale
commented the following:
“the law is a precise endeavor your honor... to declare me incompetent and
recommend for my disbarment based on a rule that is not promulgated
ANYWHERE is wrong”
(Original emphasis reproduced)
[30] To borrow Judge Patrick Boyle’s words – Intoxicated with a sense of moral
righteousness, Mr. mandatorymorale had no problem telling the court that in effect, his
conduct, however prejudicial, wilfully blind, deceptive, blatant, or grossly
irresponsible, was not subject to sanctions because no enumerated rule in the Ridgeway
State Rules of Professional Conduct compelled the disclosure of conflicts of interest.
This is an insanely dangerous, contemptuous submission unbecoming of a licensed
attorney.
VI. Conclusion
[31] It is true enough that courts should be reluctant to make what may be premature
orders preventing counsel from continuing to act. At the same time, when faced with
an imminent or actual conflict of interest, courts have the duty and inherent jurisdiction
to remove from the record counsel who have a conflict of interest. And Mr.
mandatorymorale, by all ordinary standards, would be squarely disqualified from
acting as counsel in the present matter—there is no question about that.
[32] What is exceptional with this case is that Mr. mandatorymorale’s conduct in
relation to and following the revelation of his conflict of interest. If there is any doubt
that Mr. mandatorymorale’s conduct might be tolerable or excusable, let me be clear:
it is not. Mr. mandatorymorale has done a great disservice to his client and caused
disrepute to the justice system.
[33] Mr. mandatorymorale’s conduct was so egregious I had trouble finding
language strong enough to properly convey my bewilderment with his deleterious
conduct and thoroughly irresponsible submissions to the court. I do not believe I could
do it proper justice with words. Mr. mandatorymorale merits no less than the most
severe sanctions.
[34] I find that Mr. mandatorymorale incompetent to practice law on account of bad
faith and abusive conduct. I conclude that the necessary—and only appropriate
sanction—to protect the integrity of the judicial process is to declare that Mr.
mandatorymorale is disqualified from practicing law or acting as an advocate in the
State of Ridgeway.
Dated at the City of Palmer, in the State of Ridgeway on February 10, 2024.
“koala4Iife”
Judge koala4Iife
Note: A discretionary decision of a judge will be reversible where that judge
misdirected themselves, came to a decision that is so clearly wrong that it amounts to
an injustice, or gave no or insufficient weight to relevant considerations.
