September 11, 2009
Judge, Then Counsel
The Kansas Supreme Court concluded that an attorney representing a client convicted of first degree murder had labored under a conflict of interest as a result of his earlier service as a judge pro tempore in the very same case:
The record establishes a conflict of interest in this case. Tuley's appointment as counsel for Boldridge in her trial for first-degree murder (and his acceptance of that appointment) after having authorized the issuance of subpoenas for telephone records in the investigation of that same murder case was clearly improper under the KRPC regulating attorneys and the Code of Judicial Conduct. Due to the nature of that conflict, the district court should not have appointed Tuley as Boldridge's counsel. Likewise, Tuley should have refused to accept an appointment that required an ethical violation. See KRPC 1.12(a).
We recognize that the Code of Judicial Conduct and the Kansas Rules of Professional Conduct for attorneys in this state provide for a waiver of such a conflict in circumstances where all parties give informed consent to the conflicted representation and where this consent is memorialized in writing. We must emphasize, however, that an oral statement by a defendant accepting counsel's appointment, without more, does not satisfy the waiver requirements. Although statements on the record by the court and the parties may in some instances substitute for the writing required by the KRPC, the record we examine today falls short of establishing any such waiver.
The hearing on Boldridge's waiver of the conflict was vague at best and did not explain the nature of the conflict at issue--that Tuley signed subpoenas authorizing government officers to obtain telephone records that would later be used as evidence of Boldridge's motive and opportunity at trial. Had this information been disclosed and the conflict more fully explored by the court and counsel, it is doubtful that Tuley would have been appointed to represent Boldridge. Boldridge testified at her K.S.A. 60-1507 hearing--the only proceeding where she was able to fully explain her understanding of the conflict in question--that she was "under the impression it really wasn't that big of a deal."
We conclude that the district court's rulings that Tuley's actions as a pro tempore judge in signing the subpoenas were "ministerial" and that Boldridge knowingly waived any conflict arising from those signatures were not supported by substantial evidence. The record does not support a conclusion that either party affirmatively waived or confirmed their consent to this conflicted representation in writing. Evidence presented at the K.S.A. 60-1507 hearing calls into question whether Boldridge truly appreciated the nature of Tuley's prior actions as pro tempore judge. For these reasons, we conclude that Boldridge has demonstrated that trial counsel acted under a conflict of interest when he accepted his appointment as her defense counsel.
The court nonetheless found that the conflict had not adversely affected the representation but remanded on other issues relating to the alleged ineffectiveness of trial counsel. (Mike Frisch)
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