attack would be based upon Stout's contention that he did not receive effective assistance of counsel because his attorney did not raise Sprague's disqualification as the grounds for a new trial on direct appeal. Obviously to succeed in such a proceeding, Sprague would have to attack my reasoning or the facts upon which I depended in disqualifying him in the first place. In that regard he might wish to present evidence, including his own testimony. He could hardly be both attorney and witness. Any agreement on Sprague's part not to call himself as a witness might be a disservice to Stout. I am hard-pressed to imagine a more inappropriate thing then to allow Sprague to be the attorney who attacks Sprague's disqualification for the purpose of obtaining a new trial for Stout.
Stout's right to have Sprague represent him in collateral proceedings is far less compelling than was his right to have Sprague represent him at the time of trial. The reasons why Sprague should not be allowed to represent Stout in the collateral proceedings Stout contemplates are far more compelling than the reasons for disqualifying Sprague in the first place.
Finally, Sprague has not suggested any reason why some other attorney could not effectively represent Stout in such proceedings.
My order disqualifying Sprague "from participation in this case" must stand.
ORDER - July 9, 1993, Filed
AND NOW, this 9th day of July, 1993, it is hereby determined that representation by Richard A. Sprague, Esquire, of Earl Stout in collateral proceedings contending that there was ineffective assistance of counsel would be a violation of my order dated October 11, 1989.
BY THE COURT:
J. William Ditter, Jr., J.
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