PD having to argue own ineffectiveness was a conflict
07/12/08
PD having to argue own ineffectiveness was a conflict
Defendant moved to set aside his guilty plea for burglary which was to be concurrent to a federal sentence. After his plea, the USMS refused to take custody of the defendant, and that led to the motion to withdraw the plea. The motion of necessity involved a claim his public defender was ineffective. The public defender had a conflict of interest in arguing her own ineffectiveness. State v. Toney, 97,326 (Kan. App. July 11, 2008):
With regard to the first question, we 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.
Similar divided loyalties were highlighted in Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995), wherein the defendant sought to withdraw his guilty plea because of coercion allegedly exerted by his attorney. The Second Circuit observed, "To argue in favor of his client's motion would require admitting serious ethical violations and possibly subject [counsel] to liability for malpractice; on the other hand, '[a]ny contention by counsel that defendant's allegations were not true would ... contradict his client.'" 58 F.3d at 41.
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. See Kansas Rule of Professional Conduct 3.7 (2007 Kan. Ct. R. Annot. 523).
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.
. . .
Some jurisdictions have concluded as a general matter that "[c]ounsel cannot be expected to argue his or her own ineffectiveness." State v. Ballew, 89 Ohio St. 3d 204, 205, 729 N.E.2d 753 (2000); see United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996); Sullivan v. United States, 721 A.2d 936, 937 (D.C. 1998); State v. Molina, 271 Neb. 488, 535, 713 N.W.2d 412 (2006). The Illinois Court of Appeals has held, for example, that "[a] per se conflict of interest arises when attorneys argue motions in which they allege their own ineffectiveness." People v. Keener, 275 Ill. App. 3d 1, 5, 655 N.E.2d 294 (1995).
"Kansas has not recognized a per se conflict of interest with regard to the attorney-client relationship." State v. Robertson, 30 Kan. App. 2d 639, 641, 44 P.3d 1283 (2002).
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.
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