Attorney Reprimanded, Conviction Of Client Reversed

The Arkansas Professional Conduct Committee – Panel A – has reprimanded an attorney who engaged in a conflict of interest by representing both husband and wife in a case involving felony sexual abuse allegations made by the wife’s daughter

The conduct of Max M. Horner, Jr. violated AR Rule 1.7(a) in that (1) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest; and his representation of Mrs. Rackley was directly adverse to Horner’s stated trial defense strategy for her husband. (2) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter, and Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mr. Rackley would be materially limited by the lawyer’s responsibilities to Horner’s other joint client, Mrs. Rackley. (3) Horner attempted to jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mrs. Rackley would be materially limited by the lawyer’s responsibilities to another client, Mr. Rackley; and at Mr. Rackley’s trial, Horner had Mrs. Rackley take the Fifth Amendment to attempt to keep her testimony from Mr. Rackley’s jury, when her testimony clearly might have been favorable to Mr. Rackley, especially to counter or explain adverse testimony by State witnesses Luebke and Thessing about their conversations with Mrs. Rackley. Arkansas Rule 1.7(a) requires that, except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.

The husband’s conviction was reversed as a result by the Arkansas Supreme Court

Because Mr. Horner was required under his ethical obligation to adequately represent both clients’ interests, even if conflicting, he was not free to explore all avenues in developing his trial strategy to present the best possible defense for appellant at trial. In developing his impeded trial strategy, Mr. Horner ethically could not ignore the fact that Mrs. Walters’ testimony, whether favorable to appellant or not, could further implicate her as well. Therefore, even though he testified that he believed that her interests were “united” with appellant’s, he was faced with the ethical dilemma of representing two clients simultaneously who had conflicting interests.

(Mike Frisch)