State v. Rogers, 219 N.C. App. 296 (Mar. 6, 2012)

The trial court did not err by removing the defendant’s retained counsel, Wayne Eads, based on the possibility that Eads might be called to testify as a witness at trial. The defendant was charged with attempted murder and felony assault. The defendant was having an affair with the victim’s wife and the victim’s wife had discussed with the defendant the possibility of leaving her husband. Prior to the incident at issue, the victim’s wife also communicated with Eads, who was the defendant’s best friend and attorney, about her relationship with the defendant and the consequences of a divorce. The trial court’s action was proper given “a serious potential for conflict” based on Eads’ relationship with the defendant and communication with the victim’s wife. The court stated:

Eads was aware of personal and sensitive information, including the nature of their affair, which was a major factor leading to the shooting. Had Eads remained as defendant’s counsel, he might have been called to testify, at which time he might have been asked to disclose confidential information regarding the relationship between defendant and [the victim’s wife], which information may have divulged defendant’s motive for shooting [the victim], which in turn could compromise his duty of loyalty to his client.

The court went on to conclude that competent evidence supported the trial court’s conclusion that Eads was likely to be a necessary witness at trial and that none of the exceptions to Rule 3.7 of the N.C. Revised Rules of Professional Conduct applied.