Don't argue with yourself

Monique K. Centeno, Lawrence W. Williamson, Jr., and Sean Shores won in State v. Toney, No. 97,326 (Kan App. July 11, 2008), remanding for a new hearing on Mr. Toney's motion to withdraw his plea in a Sedgwick County burglary prosecution. The claim on appeal was that Mr. Toney's attorney at his hearing on his motion to withdraw his plea was the subject of the motion itself. The COA agreed that the situation was likely to cause a conflict of interest:

[W]e are persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, the public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney's allegations of ineffectiveness, the public defender would be required to advocate against her client's legal position. This obviously placed the public defender in a tenuous position.

In the present case, Toney's public defender candidly acknowledged her conflict to the district court. The prosecutor concurred with this assessment on the additional ground that both the chief public defender and the public defender would be necessary witnesses in support of Toney's claim. This situation could implicate ethical considerations.

We are persuaded that the subject matter of Toney's legal argument and his public defender's in-court acknowledgment of divided loyalties were sufficient to establish a conflict of interest at the time of the hearing on the motion to withdraw plea.

The COA went on to consider whether it should reverse:

The facts of this case do not require us to decide–and we decline to consider–whether defense counsel may properly advocate his or her own ineffectiveness and thereby avoid a claim that divided loyalties adversely affected counsel's performance.
In the present case, Toney's public defender had an admitted concern about having a conflict of interest which resulted in her failure to present evidence and to advocate in support of Toney's motion to withdraw plea. As a consequence, her conflicted representation necessarily undermined 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 as Toney's counsel and created an actual conflict of interest.

Here is coverage on the Legal Professon Blog, and here is coverage at Law of Criminal Defense. This is an interesting issue with several even more interesting permutations.

We frequently have cases where we have had a client on appeal before and worry about the possibility that we could have to argue our own IAC in order to raise an issue in a subsequent appeal. In fact, it is one of the main reasons that we seek to withdraw from cases. The COA opinion certainly supports that position.

One issue I would have with the COA's opinion is the idea that an attorney is required to or encouraged to "defend herself against Toney's allegations of ineffectiveness." We frequently enounter defense attorneys (mostly private counsel, but not exclusively) in district court who are quite "defensive" when it comes to a claim of IAC. But I don't think that the attorney is a party to an IAC claim--it is client versus the state. In a malpractice claim or an ethical charge, the attorney is directly affected by the clients claim and therefore is entitled to defend without limitation. But in an IAC claim the attorney is at most a witness. I think the COA reaches the right conclusion, but maybe for (in part) the wrong reason.

I have been somewhat appalled at times to have defense attorneys resist an IAC investigation on the grounds that it might be "setting them up" for a malpractice claim or an ethical charge. And I have even gone to IAC hearings in district court and seen defense attorneys "strategizing" with the prosecutor prior to the hearing. Don't we have a continuing duy of loyalty to these clients? Are we entitled to totally disregard that duty just because the client seeks habeas relief? Obviously, we can't lie or obstruct in habeas proceedings. On the other hand, it seems contrary to our duty to our fomer client to actively work against their interests in the habeas proceeding. I've never felt like I was obstructing when I refused to help a prosecutor who was trying to get me to rat out my client in a habeas proceeding.

Don't get me wrong. I don't like it when I am accused of IAC and I like it even less when I provided IAC. But I would rather fix it than hide it.

Although there could be overlap between IAC, ethical considerations, and malpractice liability, I don't think one necessarily or even usually follows the other. I have raised literally hundereds of IAC claims on appeal (if you include Ortiz type issues, then it would be several hundred), but have never reported a defense attorney for unethical conduct. And I have been found ineffective (see here) and did not self report. I just think the issues are quite separate.

Perhaps some of my private counsel colleagues can take the counter-point here. I am admittedly ignorant of some of the realities of the world of private practice. Does an IAC finding affect your malpractice rates? Does an IAC finding so negatively impact your reputation that you feel it necessary to advocate against your client in a habeas proceeding?

[Update: the state did not file a PR and the mandate issued on August 14, 2008].