Clark v. State

Decision Date13 May 1992
Docket NumberNo. 21780,21780
PartiesMark Bryan CLARK, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court
OPINION

PER CURIAM:

Appellant Mark Clark was found guilty of first-degree murder with the use of a deadly weapon in connection with the death of Allan Kilen, his former associate. Clark received one sentence of life in prison with the possibility of parole for the murder, and a second consecutive sentence of life with the possibility of parole as a deadly weapon enhancement. Clark's direct appeal to this court was dismissed. (Case No. 17596.) Clark then filed a petition for post-conviction relief, alleging that his trial counsel's ineffectiveness deprived him of his Sixth Amendment right to counsel. After a hearing on the petition, relief was denied, thus prompting the instant appeal. We now reverse.

Clark alleges that the derelictions of his trial counsel, David McElhinney, deprived him of his constitutionally guaranteed right to the effective assistance of counsel. We have determined that it is unnecessary to examine McElhinney's legal performance during the trial because of an egregious conflict of interest inherent in McElhinney's representation of Clark. The conflict of interest under which trial counsel labored is dispositive of this appeal.

Facts

Clark engaged McElhinney to defend him in his first-degree murder trial for $10,000.00. It was agreed that this fee would come from the proceeds of a personal injury settlement handled by McElhinney's firm on behalf of Clark. However, when the settlement proceeds were disbursed, a $4,785.05 medical lien on Clark's personal injury recovery was overlooked. The clinic holding the lien filed a complaint against Clark, his wife, and McElhinney's firm. McElhinney filed a cross-claim against Clark and his wife, and obtained a default judgment for $5,600.00 against Clark while Clark was in jail awaiting sentencing on his first-degree murder conviction. McElhinney recalls that his firm eventually had to satisfy the clinic's claim.

The district court conducted a hearing to evaluate Clark's ineffective assistance of counsel claim. During the hearing, McElhinney attempted to defend his actions, claiming that he had discussed the civil suit with Clark (in prison), explained that he was merely following the orders of a senior partner in filing the civil action, and assured Clark that the pursuit of the civil suit would not affect his representation. McElhinney indicated that Clark seemed satisfied with this explanation. McElhinney could not recall with certainty whether he had discussed the civil suit with Clark before or after filing it. The district court determined that the actions of McElhinney and his firm created a technical conflict of interest, but denied relief because it found no resultant prejudice to Clark.

Discussion

The standard governing ineffective assistance of counsel claims was enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). Under this two-prong test, a defendant who challenges the adequacy of his counsel's representation must show, first, that his counsel's performance was deficient, and second, that the defendant was prejudiced by this deficiency. The district court based its denial of relief upon Clark's failure to establish the second element--prejudice.

However, in certain limited instances, a defendant is relieved of the responsibility of establishing the prejudicial effect of his counsel's actions. An actual conflict of interest which adversely affects a lawyer's performance will result in a presumption of prejudice to the defendant. Strickland; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Mannon v. State, 98 Nev. 224, 226, 645 P.2d 433, 434 (1982). This exception is based, in part, on the difficulty in measuring the effect of representation tainted by conflicting interests. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. We conclude that an actual conflict of interest may well have had an adverse effect on McElhinney's performance, and therefore, the district court erred in requiring Clark to show that he was prejudiced by McElhinney's conflicting loyalties.

Every defendant has a constitutional right to the assistance of counsel unhindered by conflicting interests. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Harvey v. State, 96 Nev. 850, 619 P.2d 1214 (1980). "Conflict of interest and divided loyalty situations can take many forms, and whether an actual conflict exists must be evaluated on the specific facts of each case. In general, a conflict exists when an attorney is placed in a situation conducive to divided loyalties." Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991). 1 We have no doubt that "a situation conducive to divided loyalties" existed here. 2 Moreover, it is disturbing to this court that an attorney would pursue a civil action against his client, whom he...

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  • State v. Bacon
    • United States
    • Vermont Supreme Court
    • February 17, 1995
    ...of the adequacy of representation must be made independently from decisions on attorney compensation"); Clark v. State, 108 Nev. 324, 831 P.2d 1374, 1376 (1992) (whether actual conflict exists must be evaluated on specific facts of each case). Defendant cannot prevail on an ineffectiveness ......
  • Alberni v. McDaniel
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    ...court presumed prejudice from the alleged conflict. Relying on state law, the Nevada Supreme Court quoted its case Clark v. State, 108 Nev. 324, 831 P.2d 1374, 1376 (1992), for the proposition that "[a]n actual conflict of interest which adversely affects a lawyer's performance will result ......
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    ...on account of ineffective assistance without proving that the lawsuit actually affected his counsel's performance (Clark v. State (1992) 108 Nev. 324, 831 P.2d 1374, 1377), and that an in-house attorney who represented a corporation on employment matters was properly terminated for filing a......
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