Sept. 18, 2012 – A state appeals court recently rejected a prosecutor’s argument that a defense attorney should be disqualified from representing his Spanish-speaking client because he served as both counsel and interpreter during police questioning.
By translating, the defense counsel created a conflict by making himself a potential witness, the prosecutor argued. A circuit court agreed, disqualifying the attorney. But in State v. Gonzalez-Villarreal, 2011AP1259-CR (Sept. 18, 2012), the District I Wisconsin Court of Appeals reversed.
In mid-August 2009, the state charged Jose Gonzalez-Villarreal on five counts of possession child pornography. He retained attorney Michael Knoeller (who is bilingual) to represent him, and the two attended a conference at the district attorney’s office later that month. Two Milwaukee police detectives interviewed Gonzalez-Villarreal, and Knoeller served as the interpreter.
Ultimately, the state moved for disqualification of Knoeller as Gonzalez-Villarreal’s attorney on the grounds that Gonzalez-Villarreal made an incriminating statement during the interview. As a translator, Knoeller could be called as a witness to determine the accuracy of the interpretation.
The circuit court ruled that Knoeller created an “irreconcilable conflict" by serving as counsel and interpreter. Gonzalez-Villarreal appealed based on a Sixth Amendment right to select counsel of one’s choice.
However, Wisconsin Supreme Court Rule 20:3.7 states that a lawyer “shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless” the testimony relates to an uncontested issue, relates to the nature and value of legal services rendered, or disqualification would work a substantial hardship on the defendant.
The appeals court concluded that disqualification was not warranted because Knoeller was not likely to be a “necessary” witness for a number of reasons, including that fact that the interview was recorded and Knoeller’s testimony would not be required to prove statement accuracy.
“Where an interview has been recorded, and all parties have a copy of the recording, it is unlikely that a party to the interview is a necessary witness to the content of the interview,” wrote Judge Joan Kessler for a three-judge appeals panel, reversing the disqualification order.
Joe Forward is the legal writer for the State Bar of Wisconsin.