BLACKWELL, Judge.
Crawford Lewis, a former superintendent of the DeKalb County School System, was charged with serious crimes involving, among other things, alleged corruption in the award and management of school construction contracts, and he hired Michael Brown, a lawyer with the firm Alston & Bird LLP, to defend him against these charges. On the motion of the prosecuting attorneys, the court below disqualified Brown and his firm from continuing to represent Lewis, based on a finding that the firm has a conflict of interest because it also represents the employer of a witness for the State, albeit with respect to matters unrelated to both the witness and the prosecution. We granted a petition for interlocutory review to consider whether the court below abused its discretion when it disqualified Brown and his firm. Upon our review of the record, we find no proper basis for the disqualification, and for this reason, we reverse the order disqualifying Brown and Alston & Bird.
Lewis served as the superintendent of the DeKalb County School System between 2005
Even before the grand jury returned its indictment, the school system apparently became aware of some problems and relieved Reid of her duties as chief operations officer in November 2009. At that time, the school system engaged Parsons Commercial Technology Group, Inc., a large engineering and construction firm with operations throughout the United States and overseas, to manage its ongoing school construction projects, which Reid previously had managed. Barbara Colman, a Parsons employee, was assigned to work from the offices of the DeKalb County School System and manage these construction projects. On September 17, 2010, the State provided Lewis with a witness list, which identifies Colman as one of seventy-three individuals from whom the State might elicit testimony at the trial of this case.
When Colman learned that she might be called as a witness at trial, she contacted an in-house lawyer at Parsons, and the Parsons lawyer then contacted a lawyer in the Charlotte, North Carolina office of Alston & Bird. The law firm, it seems, for several years has represented Parsons in a variety of matters and still represents Parsons today. For instance, the firm has represented Parsons in matters concerning the construction of light rail lines in a state other than Georgia, the purchase and sale of assets in states other than Georgia, employment disputes, and bid protests in connection with emissions projects in Georgia. Nothing in the record gives us any cause to believe, however, that Alston & Bird has represented Parsons in any matter concerning Colman or the testimony that she might give at trial. To the contrary, Brown told the court below at the hearing on the motion to disqualify, no lawyer at the firm ever has "met with, spoken to, or interviewed" Colman, and no lawyer at the firm ever has undertaken any representation of Parsons concerning its work for the DeKalb County School System.
The Parsons lawyer asked the Alston & Bird lawyer in Charlotte whether the firm could represent Colman in connection with
On September 28, the State filed a motion to disqualify Brown and Alston & Bird from continuing to represent Lewis, and the court below convened a hearing on the motion on September 30. In its motion, the State described Colman as "a witness for the State [who] has previously given statements to the District Attorney's Office concerning the improprieties of the actions of Lewis and [Reid]," and at the hearing, a prosecuting attorney described her as "a key State witness," but the record contains no more detailed information about the nature or substance of the testimony that prosecutors anticipate Colman will give at trial. Regardless of the nature and substance of her testimony, the State reasoned in its motion and at the hearing that, because Colman is expected to testify about things of which she acquired knowledge as a Parsons employee, Colman and Parsons are indistinguishable and are, for ethical purposes, one and the same person. And because Parsons would appear at trial in the person of Colman as, in the words of a prosecuting attorney, "a key State witness," Parsons and Lewis are directly adverse, the State contended, and Alston & Bird would be put in the ethically untenable position at trial of either "cross-examining one client on behalf of another client or not cross-examining one client on behalf of another client." Invoking the usual rule that no lawyer can represent one client in a matter directly adverse to another, the State asserted that Brown and Alston & Bird were absolutely prohibited from simultaneously representing both Parsons and Lewis.
At the hearing, Lewis responded that, according to settled law, Colman and Parsons are distinct persons for ethical purposes, Alston & Bird never has represented Colman, and Brown does not face the prospect, therefore, of representing one client in a matter directly adverse to another or cross-examining one client on behalf of another. Moreover, Lewis argued, although Alston & Bird has an established relationship with Parsons, it does not represent, and never has represented, Parsons in any matter related to Colman or her work for the DeKalb County School System, and in any event, Parsons has waived any conflict that might arise from the simultaneous representation of Parsons and Lewis. Nothing about the relationship between Alston & Bird and Parsons, Lewis asserted, would tend to impair a thorough and sifting cross-examination of Colman at trial on behalf of Lewis. Lewis himself also testified at the hearing and said that he had discussed the conflict issue with Brown, that he understood the conflict issue, and that he waived any conflict presented by the firm's simultaneous representation of Parsons.
On October 1, the court below entered an order granting the motion of the State and disqualifying Brown and Alston & Bird from continuing to represent Lewis, concluding that the circumstances presented the firm with "an actual conflict [of interest] which undermines effective representation." In its order, the court accepted that Colman would be a "key witness" and found that a thorough and sifting cross-examination of Colman might imperil the relationship between Alston & Bird and Parsons, a relationship that the court described as a "productive" and "successful" one. Given the desire of the law firm to continue to earn fees from this "productive"
On appeal, Lewis argues that the disqualification of his counsel was an abuse of discretion because the record simply does not show that the relationship between Alston & Bird and Parsons is reasonably likely to impair a thorough and sifting cross-examination of Colman. The State, on the other hand, continues to press its theory that Colman and Parsons are one and the same, that Parsons (in the person of Colman) will be directly adverse to Lewis at trial, and that Alston & Bird, therefore, absolutely cannot represent Parsons and Lewis simultaneously. The State also defends the alternative reasoning of the court below, arguing that the record is sufficient to show, even absent any direct adversity between Parsons and Lewis, a real risk that the simultaneous representation would chill the vigor of any cross-examination of Colman and thereby impair Lewis's right to the effective assistance of counsel. We will address these arguments in turn, but we begin first with some fundamental principles that guide our consideration of this case.
1. The Sixth Amendment guarantees the right of the accused in a criminal prosecution "to have the Assistance of Counsel for his defen[s]e," and Article I, Section I, Paragraph XIV, of the Georgia Constitution likewise guarantees that "[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel." As the United States Supreme Court has explained, "an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144(II), 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); see also Wheat v. United States, 486 U.S. 153, 159(II), 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) ("[T]he right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment...."); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ("It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice."); Registe v. State, 287 Ga. 542, 544(2), 697 S.E.2d 804 (2010) ("One element of the right to counsel in criminal prosecutions, as guaranteed by the Sixth Amendment ... [and] the Georgia Constitution of 1983, is the right of a defendant who does not require appointed counsel to choose who will represent him."). Indeed, the right to select the counsel of choice is, the United States Supreme Court has said, "the root meaning of the constitutional guarantee" of the right to the assistance of counsel.
In considering whether a lawyer is confronted with an actual or potential conflict of interest, we are guided by the ethical standards for lawyers set out in the Georgia Rules of Professional Conduct. See Registe, 287 Ga. at 544(3), 697 S.E.2d 804. The standard most relevant to this appeal is found in Rule 1.7(a), which provides that "[a] lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client ... will materially and adversely affect the representation of the client." The commentary accompanying Rule 1.7 explains that, under Rule 1.7(a), "a lawyer ordinarily may not act as advocate [directly] against a person the lawyer represents in some other matter, even if it is wholly unrelated."
Whether these ethical standards preclude a lawyer from representing an accused
"Because of the right involved and the hardships brought about [by its deprivation], disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly." Bernocchi, 279 Ga. at 462(2), 614 S.E.2d 775. And it is the burden of the party seeking to disqualify counsel to prove that the extraordinary remedy of disqualification is warranted. See Hastings v. Courtland, 197 Ga.App. 508, 509(1), 398 S.E.2d 747 (1990). With these principles in mind, we turn now to the disqualification of Brown and his firm in this case.
2. We first consider the contention of the State that Parsons and Colman are one and the same, that Parsons will be directly adverse to Lewis at trial because Parsons (in the person of Colman) will be a "key witness" against him, and that the Rules of Professional Conduct absolutely prohibit a lawyer from representing one client in a matter directly adverse to another. As a general rule, a corporation and its employees are distinct persons in the contemplation of the law, see Kilsheimer v. State, 250 Ga. 549, 550, 299 S.E.2d 733 (1983) ("[T]he cardinal rule of corporate law is that
Notwithstanding the usual rule that a corporation and its employees are distinct persons for the purposes of legal ethics, the State asserts that a departure from the usual rule is warranted in this case because, when Colman appears as a witness at trial, she will appear as a representative of Parsons and not on her own behalf. This argument seems to confuse the capacity in which Colman acquired personal knowledge of the facts about which she will testify and the capacity in which she will appear at trial. It may be true that Colman has knowledge of the matters about which she will testify by virtue of her employment with Parsons and her assignment by Parsons to work with the DeKalb County School System. But there is no reason to believe that, when Colman appears to testify at trial, she will do so on behalf of Parsons. In the first place, it was the prosecuting attorneys, not Parsons, who identified Colman as a witness for trial. Nothing in the record suggests that Parsons has any stake whatsoever, pecuniary or otherwise, in the outcome of the Lewis prosecution, such that its interests might be furthered by a representative appearing as a witness for the State, and nothing suggests that Parsons cares in the least whether any witness appears on its behalf at the trial. Moreover, although Colman presumably will be asked at trial to testify about matters of which she has knowledge by virtue of her work for Parsons, the fact remains that Colman will be asked to testify from her own personal knowledge, not the collective knowledge of her employer. The State fails to cite a single decision from any jurisdiction that supports its novel theory that Parsons and Colman are one and the same for ethical purposes, and our own research has turned up no such authority. Even if it might be appropriate in some case to treat an employer and its testifying employee as one and the same for purposes of a conflict analysis, we are unpersuaded that we should do so here, where the record shows nothing more than that the employee is likely to testify about subjects of which she has knowledge by virtue of her employment. That is not enough, we think, to disregard the settled distinction between employer and employee.
(a) We accept that the record supports the finding that a "productive" and "successful" relationship between Alston & Bird and Parsons exists, inasmuch as the law firm apparently has undertaken representations of Parsons in a number of matters, representations that presumably would not have been undertaken if both the law firm and Parsons did not find the relationship "productive" and "successful." And we accept that most every law firm has some interest in maintaining its "productive" and "successful" relationships with clients and continuing to receive fees for representing those clients. But the record tells us nothing about the financial significance of the relationship to Alston & Bird. The court below found that more than one lawyer, more than one practice group and more than one office of the law firm has done some amount of work for Parsons, but these facts seem rather unremarkable, considering that Alston & Bird is a law firm of approximately 800 lawyers, with numerous practice groups and multiple offices throughout the country. It might very well be that the relationship between Alston & Bird and Parsons is so lucrative that the law firm could hardly afford to lose Parsons as a client, but it might also be that the work Alston & Bird is doing for Lewis is more lucrative than the work it has done, and the work it might reasonably expect to do in the future, for Parsons. We simply do not know because the record says nothing about these things. And for this reason, although we accept the findings that Alston & Bird and Parsons share a "productive" and "successful" relationship and that the firm has an interest in continuing to earn fees as a result of the relationship, we do not think these facts tell us much, if anything, about the extent to which a member of the firm might be tempted to forego vigorous representation of another client to preserve the relationship.
(b) More important, we see nothing in the record to sustain the finding that a thorough and sifting cross-examination of Colman is likely to imperil the relationship between Alston & Bird and Parsons. The court below did not explain the basis for this finding, but we can think of a few reasons why the court might have thought that a vigorous cross-examination of Colman had the potential to harm the relationship, and we will address each in turn. Perhaps the court below thought that Parsons might have some stake in the Lewis case. But there is no reason to believe that Parsons has any interest in the outcome of the Lewis prosecution, that it
Maybe the court below worried that a thorough and sifting cross-examination of Colman might tend to embarrass Parsons or to cast the soundness of its practices or the quality of its work in a poor light, but nothing in the record gives any cause for such worry. We know, and the court below knew, virtually nothing meaningful about the nature and substance of the testimony that Colman is expected to give at trial, because the record simply is silent about the nature and substance of her testimony. It is true, of course, that the prosecuting attorneys described Colman in the proceedings below as "a key State witness" and someone who has some knowledge "concerning the improprieties of the actions of Lewis and [Reid]," but the former description is nothing but a bald conclusion, and the latter description is entirely unremarkable, inasmuch as most of the 73 witnesses identified by the State, we presume, have some knowledge of some facts that concern the alleged improprieties of one or more of the defendants.
Perhaps the court below worried that a vigorous cross-examination of Colman might embarrass her or otherwise be hurtful to her and that such a result would harm the relationship between Parsons and Alston & Bird. But an effective cross-examination does not necessarily require that the witness leave the stand humiliated or in tears. And because we know nothing about the substance and nature of the testimony that Colman is expected to give at trial, we have no reason to think that a thorough and sifting cross-examination of her would tend to cause any hurt feelings. We acknowledge that most people would not wish to be cross-examined by a
Finally, maybe the court below was concerned that Alston & Bird possesses information obtained in confidence from Parsons that might bear upon a cross-examination of Colman. The Georgia Rules of Professional Conduct require a lawyer generally to "maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client consents after consultation." Ga. R. Prof. Conduct 1.6(a). In its representations of Parsons, Alston & Bird undoubtedly has acquired confidential information that, by virtue of its continuing obligations to Parsons, it cannot use or disclose for the benefit of another client. But nothing in the record suggests any meaningful likelihood that the confidential information that the firm has acquired in its representations of Parsons has any bearing upon a cross-examination of Colman. The record is undisputed that no Alston & Bird lawyer has represented Parsons in any matter that involved Colman or the work that Parsons has done for the De-Kalb County School System. The possibility that Alston & Bird acquired confidential information from Parsons that might be of use in a cross-examination of Colman is purely conjectural, and conjecture is no reason to deprive Lewis of his counsel of choice. Cf. Rescigno v. Vesali, 306 Ga.App. 610, 613(1), 703 S.E.2d 65 (2010) (that lawyer acquired general financial information from a former client, and now represents another client adverse to the former client, does not require disqualification in the absence of a reason to believe that confidential information acquired from the first client would be of use to the second); Benson v. McNutt, 289 Ga.App. 565, 566, 657 S.E.2d 639 (2008) (same); Duvall v. Bledsoe, 274 Ga.App. 256, 259-260, 617 S.E.2d 601 (2005) (same).
(c) Finally, we turn to the finding that Brown might be tempted to forego a thorough and sifting cross-examination of Colman to preserve the "productive" and "successful" relationship between Alston & Bird and Parsons. Because the existence of that relationship is undisputed, we suppose that there is some risk that a member of the firm might not wish to cross-examine a witness employed by Parsons as vigorously as a witness who is not. But the extent of that risk is absolutely unknowable from the record in this case. We know practically nothing about the pecuniary significance of the relationship between the law firm and Parsons, except that more than one lawyer in more than one office of a firm of approximately 800 lawyers has represented Parsons; we know nothing about the relationship between Colman and Parsons, except that she is an employee; we know nothing about the substance and nature of the testimony she is expected to give, except the conclusion of the prosecuting attorneys that she will be a "key" witness and has something incriminating to say; we know nothing about the extent to which her testimony relates to the work that Parsons has done for the DeKalb County School System, except that she presumably will testify about some facts of which she acquired knowledge in the course of that work; we know absolutely nothing about any interest that Parsons might have in the outcome of this prosecution or in the testimony that Colman is expected to give at trial; and we know nothing about the likelihood that Alston & Bird has any confidential information that might bear upon a cross-examination of Colman.
Judgment reversed.
BARNES, P.J., and ADAMS, J., concur.
Gonzalez-Lopez, 548 U.S. at 150(III), 126 S.Ct. 2557. In other words, lawyers are not fungible, swapping one lawyer for another is not without great consequence, and the choice of a lawyer in some cases may effectively decide the outcome for the client.