Defense Counsel Was Prosecutor’s Campaign Treasurer; Conviction Nonetheless Affirmed

The Tennessee Court of Criminal Appeals affirmed a conviction for rape of a child and related offenses, rejecting a claim that defense counsel had labored under an impermissible conflict of interest such that a new trial was required

This case involves the Defendant’s alleged sexual abuse of his biological daughter, the victim, over a continuous period from November 5, 2006, to July 31, 2018.

The alleged conflict

the Defendant avers that defense counsel had “an impermissible conflict of interest” at all relevant times during his trial in violation of the Sixth Amendment and article I, section 9 of the Tennessee Constitution. Specifically, the Defendant asserts that there existed an improper conflict of interest as a result of defense counsel’s acting as treasurer for the prosecuting assistant district attorney general’s (“the ADA”) campaign for a Knox County General Sessions Court judgeship. In support of this contention, the Defendant cites to Tennessee Supreme Court Rule 8, Rule of Professional Conduct (“RPC”) 1.7(a)(2), which states that “[a] concurrent conflict of interest exists if: . . . there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” He further relies on Comment 8 thereto—which provides guidance for identifying conflicts of interest based upon “material limitations”— and on State v. White, 114 S.W.3d 469, 476-80 (Tenn. 2003) (finding an actual conflict of interest where a defense attorney also served as a part-time prosecutor in that jurisdiction), as examples in support of his claim.

Applicable standard

At this juncture, it is important to note that our Supreme Court recently clarified that an appearance of impropriety standard no longer remains an independent ground for vicarious disqualification because the Rules of Professional Conduct did not retain that concept relative to conflicts of interest.

The eyebrows test

A reasonable person, knowing all the facts, certainly might raise an eyebrow and question the effect defense counsel’s relationship with the ADA had on his zealous representation of the Defendant and the resulting guilty verdict. We in no way mean to disparage defense counsel or the ADA, nor do we intend to insinuate that any of the aforementioned dynamics were actually at play in this case or would have been in play after the election. But, applying the objective standard set forth in the Rules, there exists a significant risk that defense counsel’s ability to consider, recommend, or carry out an appropriate course of action for the Defendant was materially limited as a result of his responsibilities to the ADA as her campaign treasurer. Given the fiduciary nature of the relationship between the lawyers, these circumstances are sufficient to cause a reasonable person to harbor doubts about defense counsel’s loyalty and independent judgment, and as such, the Defendant has met his burden of establishing a concurrent conflict of interest.

No waiver

while the trial court did mention that the campaign relationship might impact defense counsel’s ability to provide the Defendant with zealous representation, such statement was cursory in nature and did not extrapolate further on the potential dangers of representation by counsel with a conflict of interest. The trial court did not establish the Defendant’s understanding of his rights, confirm that the Defendant desired to waive his right to conflict-free representation, or specifically verify with the Defendant that he understood the ramifications of his waiver. In fact, the trial court seemingly did not question the Defendant at all. This can hardly amount to “a full explanation on the record how the matter could affect him[.]” 

Prejudice

Our review of the record indicates that defense counsel conducted thorough cross-examinations of the State’s witnesses and made appropriate objections when necessary. The Defendant has not posited any plausible alternative defense strategy or tactic that might have been considered, recommended, or pursued absent defense counsel’s service as treasurer for the ADA’s judicial campaign.

Dissent of Judge Montgomery, who would grant a new trial

The majority faults the Defendant in the present case for not objecting during the trial and, instead, raising his objection during his sentencing allocution and later, after the appointment of substitute counsel, raising it in his motion for a new trial. The majority considers these actions not to have been a timely objection. I disagree. The discussion of the conflict of interests, which occurred after the close of proof at the trial and after the Defendant first learned of the conflict, was hardly a neutral judicial inquiry into the propriety of the representation and the Defendant’s understanding of the actual conflict. Rather, the trial court assured the Defendant that, in the court’s opinion, defense counsel and the prosecutor were zealous and ethical advocates. The judge disclosed his own prior, collegial relationship with defense counsel from the judge’s time in private practice. The Defendant stated that he had confidence in his counsel and the prosecutor and that he was not concerned about the attorneys’ relationship as judicial candidate and campaign treasurer. The court did not question the Defendant to ensure his understanding of the conflict of interests, did not give the Defendant an opportunity to consult with independent counsel, and did not clarify that the Defendant’s purported waiver of the conflict was knowingly and voluntarily given. In my view, the Defendant cannot be faulted for not objecting at this point, having just learned of the conflict and having been assured by the court that he had no cause for concern.

Result

Because I conclude that the Defendant’s objection to the representation and the attendant conflict of interests was timely, I also conclude that the Defendant was represented at his trial, a critical stage of the proceedings, by a conflict-laden attorney without the trial court’s having ascertained that the Defendant knowingly and intelligently consented to the representation despite the existence of the conflict. Therefore, I conclude that Cuyler compels reversal of the Defendant’s convictions and the grant of a new trial, at which the Defendant’s constitutional right to counsel shall be preserved.

(Mike Frisch)