NY Lawyer Can't Represent Suspect and Alleged Victim (MORE, CLICK HERE)

Too Many Clients: NY Lawyer Can't Represent Suspect and His Alleged Victim
The New York Law Journal by Mark Fass - March 17, 2008

A Westchester judge has ruled that a single attorney cannot defend both a defendant in a domestic violence case and the defendant's purported victim in her suit against the town and the prosecutor she claims coerced her into providing evidence in the case.

"While multiple representation is not per se, ineffective assistance, such representation should be entered into very cautiously because of the danger of conflicting interests," Supreme Court Justice Sam D. Walker wrote in People v. Tancredi, 07-60256. "It is clear that defense counsel has an ethical obligation to avoid conflicting representations and to notify the court if such a conflict occurs during the course of a trial. Given the facts presented, it is practically guaranteed that should the victim testify at trial defense counsel would be placed in the irregular position of having to cross examine his own client."

In October 2007, Westchester prosecutors charged defendant Ralph Tancredi, a suspended Harrison police officer and former head of its patrolmen's union, with harassment following two incidents that took place the preceding summer.

In the first incident, in June 2007, Mr. Tancredi allegedly hid outside his ex-girlfriend Sofia Saenz's house. When she returned, prosecutors said that, among other things, he pulled down her dress, called her a "slut" and a "whore," and took off in her car, which he did not return until the following day.

Then in August, Mr. Tancredi purportedly confronted Ms. Saenz outside of Annie's Cafe in Harrison, where she worked, asking her why she allowed her boyfriend Joshua Clark "to touch her," according to Justice Walker's decision. "As Mr. Clark took the victim's hand in his, defendant slapped Mr. Clark's hand," the judge wrote.

Mr. Tancredi was arrested and charged with harassment. The Harrison Town Court also issued an order of protection, which Mr. Tancredi repeatedly violated by text messaging Ms. Saenz and by encouraging his mother to call her to plead with her not to press charges, according to the decision.

Three months later, on Nov. 21, Mr. Tancredi's counsel, Lovett & Gould, filed a federal action on Ms. Saenz's behalf against the town of Harrison and Westchester Assistant District Attorney Barbara Egenhauser. (Ms. Saenz has since withdrawn the claim as to Ms. Egenhauser.)

"In the suit the victim [alleges] that on August 20, 2007 [she] was detained several times by the Harrison police and coerced to offer evidence against the defendant," Justice Walker wrote. "The victim's complaint states that ADA Egenhauser and Harrison Police Officer Edward Lucas threatened the victim with deportation if she did not assist them."

The Westchester County District Attorney's Office moved for the court to appoint Ms. Saenz with independent counsel. In a recently handed down decision, Justice Walker granted that motion.

"Defense counsel's mutual representation of the victim in the federal civil rights suit and the defendant in a related criminal matter poses a conflict that warrants the appointment of independent counsel to meet with and advise the victim," he wrote.

"Given the serious allegations present in the case at bar it is a very proper exercise of this Court's discretion to assure that the victim has been fully informed of the potential for conflict that exists in selecting counsel who also represents the defendant in this criminal prosecution."

The court cited the Westchester County Integrated Domestic Violence Court's status as a unit in the "community's coordinated response to domestic violence" as a factor in its order.

"It would be contrary to our purpose and mission, if individuals charged with domestic violence offenses are permitted to utilize such a questionable attorney client relationship, as a sword, and thereby strategically block the prosecution of their cases," Justice Walker wrote. "In such a perverse fashion, defendants would be permitted to proceed, aided by their attorneys in complete disregard of the lawyer's ethical obligations."

Justice Walker said the court would provide Ms. Saenz with a list of advocate organizations that could refer her to "an independent and experienced attorney who is fully familiar with the special and unique dynamics of representing a victim of domestic violence."

The judge said the attorney would be directed to inform her of the potential for conflict and the possible consequences of recanting previous statements or refusing to testify. Reached by phone Friday, Jonathan Lovett, the attorney for both Mr. Tancredi and his purported victim Ms. Saenz, called the decision "garbage."

He called the case against Mr. Tancredi "retaliation" for his ongoing civil rights claims against the police department, in which Mr. Tancredi alleged among other claims that the department secretly tape recorded officers' private conversations. A spokesman for the district attorney's office did not return a call seeking comment.