831 P.2d 1374 (Nev. 1992), 21780, Clark v. State

Docket Nº:21780.
Citation:831 P.2d 1374, 108 Nev. 324
Party Name:Mark Bryan CLARK, Appellant, v. The STATE of Nevada, Respondent.
Case Date:May 13, 1992
Court:Supreme Court of Nevada

Page 1374

831 P.2d 1374 (Nev. 1992)

108 Nev. 324

Mark Bryan CLARK, Appellant,


The STATE of Nevada, Respondent.

No. 21780.

Supreme Court of Nevada.

May 13, 1992.

Page 1375

Muriel R. Skelly, Reno, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Dorthy Nash Holmes, Dist. Atty. and Gary H. Hatlestad, Deputy Dist. Atty., Washoe County, Reno, for respondent.



Appellant Mark Clark was found guilty of first-degree murder with the use of a deadly weapon in connection with the death of [108 Nev. 325] 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.


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...

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