September 6, 2012
Submitted: August 28, 2012
Danielle J. Brennan, Esquire James K. McCloskey, Esquire Deputy Attorneys General Department of Justice
Gordon L. McLaughlin, Esquire
Jerome O. Herlihy Judge
Motion to Exclude Defense Counsel – DENIED
The State has moved to disqualify the Law Office of Gordon McLaughlin (or McLaughlin and Bowers, LLP) from further participation in this case. The basis is that a new associate in the firm, Kenneth Wan, performed various tasks on this case while working in the Attorney General's Office and now is employed in the firm.
The Court sees no need to delve into the potential ethical issues raised in the State's motion. There are several reasons. First, on August 20, 2012 the Court granted Mr. McLaughlin's motion to admit, pro hac vice, Fortunato N. Perri, to represent Fowler. The implication of Mr. McLaughlin's response to the State's motion is that Mr. Perri will be lead chair in this case.
Mr. McLaughlin also indicates that his father, unfortunately, has significant health issues which probably could interfere with his participation in th case and may even cause him to be absent at times when he has to be here. This raises the second reason why the Court need not directly address the State's motion.
That reason starts with an explanation of th Court' s practices involving proh ac counsel. This Court's practice, at a minimum, is that Delaware counsel co-sign all papers filed in this Court which have been signed by pro hac counsel. Further, Delaware counsel must be present with pro hac counsel during jury selection. It is between Delaware counsel and pro hac counsel, unless the Court directs otherwise, to determine if local counsel is to sit in during the trial.
But with the risk that Mr. McLaughlin may not be able to fulfill these obligations, the Court directs that new local counsel be found to (1) seek readmission of Mr. Perri, (2) approve and sign all papers filed with the Court, and (3) participate in jury selection. What local counsel does beyond that is for Mr. Perri and new local counsel to decide, subject to the Court approval. This should be accomplished promptly as one local private counsel has already been permitted to withdraw from this case. Until new local counsel is formally in the case, Mr. Wan is to have nothing to do with it.
As a reminder, final case review is scheduled for October 15th and the trial for October 23rd.
For the reasons stated herein, the State's motion to exclude is DENIED, without prejudice.