Friday, July 11, 2008

Right To Unconflicted Counsel

The Kansas Court of Appeals held today that a trial court had abused its discretion by allowing a conflicted public defender to represent a client seeking to withdraw his guilty plea on a claim of ineffective assistance of counsel:

we are persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, the public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney's allegations of ineffectiveness, the public defender would be required to advocate against her client's legal position. This obviously placed the public defender in a tenuous position.

While Kansas has not adopted a per se rule on lawyer-client conflicts of interest:

The facts of this case do not require us to decide–and we decline to consider–whether defense counsel may properly advocate his or her own ineffectiveness and thereby avoid a claim that divided loyalties adversely affected counsel's performance.

  In the present case, Toney's public defender had an admitted concern about having a conflict of interest which resulted in her failure to present evidence and to advocate in support of Toney's motion to withdraw plea. As a consequence, her conflicted representation necessarily undermined any possibility that Toney's motion would be successful. Under these circumstances, we hold the divided loyalties of Toney's public defender adversely affected her performance as Toney's counsel and created an actual conflict of interest.

The matter was remanded for a hearing on the motion to withdraw the plea with representation by a conflict-free attorney. (Mike Frisch)

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Thanks for the post on a local case. I won't re-type all of my thoughts on this issue (you can see my blog entry at But I am certianly concerned with the court's suggestion that a defense attorney is expected to defend himself or herself at an IAC hearing. Although it feels like it, an IAC claim is not actually a claim against the attorney--it is a claim against the conviction. Because I think defense attorneys have a continuing duty of loyalty to a client--even a client that alleges IAC, I don't agree that defense attorneys should be working against their former clients in a habeas proceeding.

Posted by: Randall Hodgkinson | Jul 12, 2008 9:35:49 AM

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