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 haddivided loyalties at the hearing. Her purported ineffectiveness in investigating Toney’s case priorto the plea was critical to her client’s motion to withdraw plea. In order to faithfully andeffectively represent Toney at the hearing, the public defender would be obligated to advocate andprove her own professional ineffectiveness. On the other hand, in order to defend herself againstToney’s allegations of ineffectiveness, the public defender would be required to advocate againsther 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 toconsider–whether defensecounsel may properly advocate his or her own ineffectiveness and thereby avoid a claim thatdivided loyalties adversely affected counsel’s performance.

  In the present case, Toney’s public defender had an admitted concern about having aconflict of interest which resulted in her failure to present evidence and to advocate in support ofToney’s motion to withdraw plea. As a consequence, her conflicted representation necessarilyundermined 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 asToney’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)