Monday, January 25, 2010

One Client Too Many

An attorney who had represented a criminal defendant at a trial in which the key witness (who made controlled drug purchases from the defendant) was also a client engaged in an impermissible conflict of interest warranting reversal of the conviction, according to a recent decision of the Kentucky Supreme Court. The attorney had represented the witness on charges that had led to probation and continued to represent the witness in probation revocation proceedings, where his testimony against the other client was relevant to the disposition.

When the defendant raised concerns prior to trial, the judge responded that the two matters were "unrelated." The defendant replied that it was his lawyer's other client who had "brung these charges against" him but could not articulate his concerns other than that his lawyer might have "bad thoughts" about him. The lawyer's response: " I defend everyone that I am appointed to represent equally."

At the trial, the lawyer attacked the credibility of the witness/client. On appeal, the court held that the trial judge had "confused prejudice resulting from the conflict with the conflict itself." The lawyer was confronted with the problem of helping one client at the expense of another. Trying to balance the competing interests was "a worse alternative, as it would require doing only half a job for both clients." There were also "subtler but no less real conflict[s]" due to the competing confidentiality interests of the two clients.

The court agreed with the defendant, who when asked how a conflict could exist, stated 'How could it not be a conflict of interest? "

Good question. (Mike Frisch)

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