Case Law Update: 2011-2014 Cumulative Edition

Holding: An attorney’s statement to a client for additional fees to take a case to trial is not itself coercive. However, a financial conflict of interest arises when a defendant’s inability to pay creates a divergence of interest between counsel and defendant such that counsel pressures or coerces a defendant to plead guilty. Here, Movant pleaded facts which, if true, would warrant relief: Counsel filed motions to withdraw, which were denied; Movant paid counsel $11,500, but counsel said it would cost an additional $20,000 to go to trial; plea counsel pressured Movant by telling him she would not take the cases to trial until additional fees were paid; Movant could not pay the additional $20,000; Movant would not have pleaded guilty had counsel not coerced his decision. The State argues the claim is refuted by the record. But the guilty plea court never informed Movant that if he could not afford counsel for trial, the court would appoint counsel for trial. Movant’s general answers that he was not coerced or threatened and was satisfied with counsel do not refute allegations that Movant’s counsel told him she would not take the case to trial until he paid more fees and that this pressured him to plead guilty. Remanded for evidentiary hearing.
State ex rel. Thompson v. Dueker, No. ED96570 (Mo. App. E.D. 8/9/11):

Even though Husband consulted with Attorney about a potential divorce case, where Husband did not end up hiring Attorney, Husband was only a “prospective client” of Attorney under Rule 4-1.18, and where Wife later hired Attorney in regard to the divorce, Husband could not disqualify Attorney without showing that Attorney received confidential information that could be significantly harmful to Husband in the matter.

Facts: Husband met with Attorney about a potential divorce case, and Husband claimed he discussed confidential matters with Attorney. Husband ended up, however, hiring a different lawyer for the case. Wife later hired Attorney in relation to the divorce case. Husband moved to disqualify Attorney, claiming he was a former client of Attorney under Rule 4-1.9. Trial court disqualified Attorney.

Holding: A writ of prohibition is proper where a court disqualifies a lawyer from representing a client because the judgment, if erroneously entered, would cause considerable hardship and expense and the issue would otherwise escape appellate review. Rule 4-1.9(a) applies to conflict of interest with former clients. To establish a conflict under Rule 4-1.9, a movant for disqualification must prove (1) the Attorney had a former attorney-client relationship with movant; (2) the interests of Attorney’s current client are materially adverse to movant’s interests; and (3) the current representation involves the same or substantially related matter as Attorney’s former representation of movant. Here, however, Husband (movant) did not have an attorney-client relationship with Attorney because Husband did not seek or receive any legal advice from Attorney. Rule 4-1.18(a) provides that “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Rule 4-1.18(b) provides that an Attorney must keep information of prospective clients confidential. However, Rule 4-1.18(c) provides that a lawyer shall not represent former prospective clients in the same or substantially related matter only if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. This provides a more restrictive standard for disqualification than does 4-1.9 for former clients. Under 4-1.18(c), the movant asserting disqualification bears the burden of proving that Attorney received “significantly harmful” information. Mere speculation of receipt of such information is not enough. Here, Husband did not demonstrate what “significantly harmful” information Attorney had received. Disqualification of Attorney reversed.
State v. Lemasters, 2014 WL 2838613 (Mo. App. S.D. June 20, 2014)(en banc):

Even though Defendant’s public defender joined the Prosecutor’s Office during Defendant’s case, where ex-public defender was screened from Defendant’s case, trial court did not abuse discretion in denying a motion to disqualify Prosecutor’s Office.

Facts: Defendant was represented by a public defender. During the pendency of his case, public defender joined the Prosecutor’s Office. Defendant then moved to disqualify the Prosecutor’s Office. The Prosecutor’s Office claimed it did not have to be disqualified because ex-public defender was screened from Defendant’s case. The trial court overruled the motion to disqualify.

Holding: The rules of professional responsibility prohibit a government attorney’s participation in a matter where the attorney participated personally and substantially prior to joining the government agency, but, contrary to the practice involving private attorneys, see Rule 4-1.10, they do not impute the attorney’s conflict to the entire agency. Because of the special problems raised by imputation with a government agency, Rule 4-1.11(d) does not impute the conflicts of a government lawyer currently serving as an employee of the government to other associated government officers or employees, although it will ordinarily be prudent to screen such lawyers. Here, the Prosecutor’s Office screened ex-public defender from Defendant’s case, so there was no abuse of discretion in overruling the motion to disqualify. The appellate court recognizes that prior cases, such as State v. Reinschmidt, 984 S.W.2d 189 (Mo. App. S.D. 1998) and State v. Croka, 646 S.W.2d 389 (Mo. App. 1983), held that an entire Prosecutor’s Office is disqualified when an ex-public defender joins the Office. But those cases relied on a prior version of the rules of professional conduct which was repealed in 1986. These prior cases did not rely on current Rule 4-1.11, and are not persuasive in light of new Rule 4-1.11.
Wilson v. State, No. 2013 WL 6407682 (Mo. App. S.D. Dec. 9, 2013):

Holding: Where motion court denied pro se Rule 24.035 motion without appointing counsel even though Movant had completed the in forma pauperis section of his Form 40, this violated Rule 24.035(e) which provides that counsel “shall” be appointed for Movant; appointment of counsel is mandatory, not discretionary.
State ex rel. Volner v. Storie, No. SD32066 (Mo. App. S.D. 7/10/12):

Holding: Where judge failed to appoint counsel for indigent postconviction movant who filled out in forma pauperis affidavit on postconviction motion, writ of mandamus issues to require appointment of counsel as required by Rule 29.15(e).
Sanford v. State, No. WD72291 (Mo. App. W.D. 7/26/11):

Holding: Where motion court failed to appoint counsel for movant in 24.035 case who had indicated she was indigent, this was erroneous because Rule 24.035(e) mandates that counsel be appointed for indigent movants.
* Kaley v. U.S., ___ U.S. ___, 94 Crim. L. Rep. 597, 134 S.Ct. 1090 (U.S. 2/25/14):

Holding: There is no constitutional right to revisit a grand jury’s finding of probable cause in a pretrial hearing challenging the restraint of forfeitable assets needed to hire counsel; “With probable cause, a freeze [on assets] is valid”; “The grand jury gets to say – without any review, oversight or second-guessing – whether probable cause exists to think that a person committed a crime”; this rule avoids the inconsistent result of a judge finding no probable cause to restrain potentially forfeitable assets, but probable cause to allow the criminal case to proceed.

* Martel v. Clair, ___ U.S. ___, 90 Crim. L. Rep. 749 (U.S. 3/5/12):

Holding: Where federal habeas petitioners seek replacement of appointed counsel, the court should apply the “interest of justice” standard, and must also inquire into the reasons for the petitioner’s request.
* Turner v. Rogers, ___ U.S. __, 89 Crim. L. Rep. 472 (U.S. 6/20/11):

Holding: Whether defendant in civil contempt proceeding for failure to pay child support is entitled to appointed counsel depends on applying the balancing test of Mathews v. Edridge, 424 U.S. 319 (1976).

Editor’s Note: Missouri on this matter is case on this subject is State ex rel. Family Support Division v. Lane, No. WD70715 (Mo. App. W.D. 6/8/10)(in order for a court to impose imprisonment for contempt for failure to pay child support, it must appoint private counsel for indigent defendants or they must waive counsel; Public Defender cannot be appointed).
U.S. v. Collins, 2012 WL 34044 (2d Cir. 2012):

Holding: During ex parte exchange which occurred without consultation with counsel, the trial court emphasized the importance of reaching a verdict to a dissenting juror, thereby depriving defendant of his right to be present, which was not harmless error.
U.S. v. Smith, 89 Crim. L. Rep. 244 (4^th Cir. 5/17/11):

Holding: Even though Defendant pleaded guilty, this did not waive a claim that there was a breakdown of communication so bad as to constitute constructive denial of counsel.
McAfee v. Thaler, 2011 WL 38034 (5^th Cir. 2011):

Holding: Defendant has 6^th Amendment right to counsel for preparation of post-trial, preappeal new trial motion.
U.S. v. Sellers, 2011 WL 1935735 (7^th Cir. 2011):

Holding: Denial of Defendant’s pretrial motion for a continuance to change counsel, without conducting a balancing test to determine if a continuance was warranted, denied Defendant his 6^th Amendment right to counsel of his choice.
Plunk v. Hobbs, 2013 WL 3333101 (8^th Cir. 2013):

Holding: Counsel had an actual conflict of interest that adversely affected his performance where he represented Defendant and his girlfriend in drug case, and negotiated a “package deal” whereby girlfriend got probation in exchange for Defendant getting a 99-year sentence; counsel should have advised Defendant of the conflict of interest that prevented counsel from exploring more favorable plea options for Defendant.
Ayala v. Wong, 93 Crim. L. Rep. 755, 2013 WL 4865145 (9^th Cir. 9/13/13):

Holding: Habeas relief granted where defense counsel was excluded from Batson hearing at state trial; federal court was not required to give deference to state court’s ruling that this was not prejudicial.
Becker v. Martel, 2011 WL 1630816 (S.D. Cal. 2011):

Holding: Even though Defendant had previously waived counsel, the subsequent addition of 12 new counts and increased penalty was a substantial change that required court to readvise Defendant about right to counsel; failure to do so was prejudicial per se under 6^th Amendment.
Stokes v. Scutt, 2011 WL 5250848 (E.D. Mich. 2011):

Holding: State court unreasonably applied clearly established federal law in determining that petitioner waived right to counsel, where petitioner was compelled to represent himself after being informed by the trial judge that substitute counsel would not be appointed following petitioner’s expression of dissatisfaction with counsel and the judge’s failure to resolve the complaints.
U.S. v. Massimino, 2011 WL 6371883 (E.D. Pa. 2011):

Holding: The defendant’s attorney’s conflict of interest due to prior representation of codefendant who had pleaded guilty and would testify at the defendant’s trial as a cooperating witness was waivable so long as both the defendant and the cooperating witness provided informed waivers.
U.S. v. Patel, 2012 WL 3629355 (W.D. Va. 2012):

Holding: Where the Gov’t was holding certain assets for forfeiture, due process required that Defendant be granted a hearing to show that the assets were being wrongfully restrained and that he needed to use the assets to retain counsel of his choice.
Wilbur v. City of Mount Vernon, 94 Crim. L. Rep. 338 (W.D. Wash. 12/4/13):

Holding: Cities’ Public Defender System resulted in systemic violation of 6^th Amendment right to effective counsel, because the system essentially resulted in a “meet and plead” system. Court orders creation of a “Public Defender Supervisor” to review case files and ensure attorneys are providing effective assistance.
Stone v. State, 89 Crim. L. Rep. 167, 2011 WL 1519382 (Alaska 4/22/11):

Holding: Where state law permitted a sentence review of guilty plea, Defendant had right to counsel for the appeal since Halbert v. Michigan, 545 U.S. 605 (2005) held that 14^th Amendment requires states to provide counsel to guilty-pleading indigent defendants for first-tier appellate review.
In re People v. Nazolino, 93 Crim. L. Rep. 9 (Colo. 3/15/13):

Holding: Even though Public Defender’s supervisor was going to be called as a witness at trial, court should not have disqualified Public Defender based only this potential conflict of interest; Defendant waived conflict and had a right to go forward with lawyers who had represented him from the beginning.
Public Defender v. State, 93 Crim. L. Rep. 271, 2013 WL 2248965 (Fla. 5/23/13):

Holding: Public Defender Office may withdraw from cases and refuse to take new ones when there is a substantial risk that its large caseload will prevent it from carrying out is ethical obligation to provide conflict-free representation.
Johnson v. State, 90 Crim. L. Rep. 512 (Fla. 1/5/12):

Holding: The state agency that steps in when the public defender’s office must withdraw over a conflict of interest has no standing to challenge the public defender’s good faith assertion that it has a disqualifying conflict.
State v. Pitts, 2014 WL 235462 (Haw. 2014):

Holding: Even though Defendant waived counsel mid-trial, he was allowed to reinvoke counsel and should have been provided counsel for his new trial motion and sentencing, as these were “critical stages” to which right to counsel attached.
State v. Cramer, 2013 WL 1797763 (Haw. 2013):

Holding: Where trial court refused to allow Defendant to substitute privately-retained counsel for a Public Defender at sentencing, this violated right to counsel of choice.
Hall v. State, 94 Crim. L. Rep. 338, 2013 WL 6225673 (Idaho 12/2/13):
Holding: Statutory right to counsel requires that postconviction counsel be free of conflicts and effective; “This statutory right to counsel would be a hollow right if it did not guarantee the defendant the right to effective assistance of counsel.”
Jewell v. State, 90 Crim. L. Rep. 323 (Ind. 11/30/11):

Holding: Indiana Const. prohibits police from interrogating a person about an uncharged offense that is inextricably intertwined with a charged offense on which defendant has counsel.
Johnson v. State, 89 Crim. L. Rep. 471 (Ind. 6/8/11):

Holding: Trial judge had inherent obligation to inquire as to indigent defendant’s complaints about appointed counsel and should not simply refer the complaint to the Public Defender’s Office; judge “must at the very least receive assurances from the public defender’s office that the complaint has been adequately addressed.”
State v. Walker, 2011 WL 4501966 (Iowa 2011):

Holding: Defendant’s statutory right to see and consult confidentially with an attorney was violated where defendant and his attorney were separated by a glass barrier, which prevented the attorney from giving defendant informed legal advice regarding whether defendant should submit to a breathalyzer test.
State v. Stovall, 94 Crim. L. Rep. 280, 312 P.3d 1271 (Kan. 11/22/13):

Holding: Counsel had an actual conflict of interest that adversely affected her performance where counsel failed to pursue a theory on Defendant’s behalf that a former client of counsel actually committed the offense.
State v. Cheatham, 92 Crim. L. Rep. 492 (Kan. 1/25/13):

Holding: Flat fee in capital murder case created a conflict of interest and ineffective assistance of counsel.
State v. Smith, 88 Crim. L. Rep. 591 (Kan. 2/11/11):

Holding: Even though defense counsel believes his client is guilty, counsel is not precluded from presenting truthful documentary evidence that would demonstrate client may not be guilty and arguing that the truthful evidence demonstrates client is not guilty; this is true even though counsel believed his client was the person shown on crime scene video; trial court should have inquired further into whether counsel who refused to present documentary evidence of alibi for Defendant should have been replaced.
Mitchell v. Com., 2014 WL 68365 (Ky. 2014):

Holding: Trial court’s denial of request for “hybrid” representation, based on mistaken belief that Defendant was required either to accept counsel or go pro se, misstated the law and was reversible error.
State v. Carter, 90 Crim. L. Rep. 604 (La. 1/24/12):

Holding: A defense lawyer did not have an actual conflict of interest requiring either his disqualification or an express waiver from the client absent any evidence that counsel’s own troubles with the law undermined his ability to act with undivided loyalty.
Gambrill v. State, 94 Crim. L. Rep. 678, 2014 WL 775173 (Md. 2/27/14):

Holding: Where Defendant’s public defender requested a “postponement” to allow Defendant to look into hiring private counsel, the trial court was required under state Rules to ask about the reasons for the desire for change of counsel and advise Defendant of his rights.
DeWolfe v. Richmond, 94 Crim. L. Rep. 7 (Md. 9/25/13):
Holding: Maryland Constitution gives indigent defendants right to appointment of counsel at initial appearance where bail will be set.
Taylor v. State, 2012 WL 3629058 (Md. 2012):

Holding: Where attorney filed suit against client for failing to pay legal fees before a case is concluded, this raised a presumption of prejudice and conflict of interest, though not necessarily ineffective assistance.
DeWolfe v. Richmond, 2012 WL 10853 (Md. 2012):

Holding: Bail hearing was a “stage” of criminal proceedings, requiring appointment of counsel for indigent arrestees.
State v. Goldsberry, 2011 WL 1544808 (Md. 2011):

Holding: Failure to develop factual record to support trial court’s decision to remove defense counsel of Defendant’s choice denied him 6^th Amendment right to counsel.
Com. v. Gautreaux, 88 Crim. L. Rep. 543 (Mass. 1/20/11):

Holding: Article 36 of the Vienna Convention on Consular Relations creates an individually enforceable right to consular notification, but to obtain a new trial for violation, Defendant must show a substantial risk of miscarriage of justice.
Com. v. McNulty, 2010 WL 4630695 (Mass. 2010):

Holding: Police violated state constitutional right to counsel by not informing Defendant who was undergoing interrogation that an attorney wanted to speak with him and was telling him not to talk to police.
State v. Krause, 2012 WL 3023199 (Minn. 2012):

Holding: Failure to provide counsel at hearing to determine whether Defendant had forfeited his right to appointed counsel violated due process.
Hill v. State, 94 Crim. L. Rep. 554 (Miss. 2/6/14):
Holding: Even though there is no 6^th Amendment right to “standby” or “advisory” counsel, where the trial court appointed such counsel and then ordered her not to reveal a confidential informant to Defendant even though this would have helped the defense, the Defendant was deprived of his right to effective assistance of counsel, because the trial court blocked counsel from rendering effective help.
Kiker v. State, 88 Crim. L. Rep. 696, 2011 WL 539065 (Miss. 2/17/11):

Holding: Defense counsel’s actual conflict of interest was not cured by his co-counsel taking the lead role at defendant’s trial.
People v. Cortez, 94 Crim. L. Rep. 496 (N.Y. 1/21/14):

Holding: Trial court erred in deferring to defense counsel’s representation that she had discussed a co-defendant conflict with Defendant and that he knowingly waived it; trial court must actively instruct a defendant about dangers of waiving conflicts of interest.
People v. Kordish, 2013 WL 5637741 (N.Y. 2013):

Holding: Appellate court erroneously failed to appoint counsel for indigent defendant/appellant before dismissing the appeal for failure to perfect appeal.
People v. Lopez, 88 Crim. L. Rep. 635 (N.Y. 2/22/11):

Holding: Under New York constitution’s right to counsel, police are required to ask suspects whether they already have counsel if “there is a probable likelihood” that they do on the offense they are being interrogated about; suspect may not be questioned in counsel’s absence.
State v. Chambliss, 89 Crim. L. Rep. 130 (Ohio 4/19/11):

Holding: Trial court’s removal of retained defense counsel may be immediately appealed.
State v, Langley, 2012 WL 1038674 (Or. 2012):

Holding: No waiver of the defendant’s constitutional right to counsel could be inferred from the defendant’s pattern of misconduct and noncooperation prior to trial.
State v. Fuentes, 94 Crim. L. Rep. 560 (Wash. 2/6/14):
Holding: Where police (jailers) listened to taped phone conversations between Defendant and his lawyer, there is a presumption of prejudice, and the conviction must be vacated unless the State can prove beyond a reasonable doubt that the eavesdropping did not cause any prejudice.
State v. Bevel, 93 Crim. L. Rep. 398 (W.Va. 6/13/13):

Holding: Under West Virginia Constitution, a defendant who has been arraigned and appointed counsel can validly waive the right to counsel only if he initiates the conversation with police (disagreeing with Montejo v. Louisiana, 556 U.S. 778 (2009)).
Osterkamp v. Browning, 2011 WL 681098 (Ariz. Ct. App. 2011):

Holding: Indigent movant was entitled to appointment of counsel to represent him in second PCR proceeding alleging ineffective assistance of PCR counsel.
People v. Smith, 2012 WL 1528804 (Cal. App. 2012):

Holding: The defendant should have been informed of his right to misdemeanor prosecution with a jury trial and appointed counsel for “woblette” offense (an offense categorized as a hybrid between an infraction and a misdemeanor) of being a minor in possession of an alcoholic beverage.
Penn v. State, 2011 WL 115941 (Fla. App. 2011):