Allen v. District Court In and For Tenth Judicial Dist.
| Decision Date | 25 February 1974 |
| Docket Number | No. 26247,26247 |
| Citation | 519 P.2d 351,184 Colo. 202 |
| Parties | Harlin J. ALLEN, Petitioner, v. The DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT, State of Colorado, and the Honorable Jack F. Seavy, one of the District Judges in and for the Tenth Judicial District, State of Colorado, Respondents. |
| Court | Colorado Supreme Court |
Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Denver, Larry Morin, Randall D. Jorgensen, Kenneth Dresner, James H. Frasher, Jr., Deputy State Public Defenders, Pueblo, for petitioner.
Bollinger, Flick & Young, George M. Bollinger, Pueblo, for respondents.
This original proceeding in the nature of prohibition seeks to prohibit the district court from forcing the State Public Defender to represent both Harlin J. Allen and Mary Tonia Hernandez. We issued a rule to show cause and now make the rule absolute.
On June 13, 1973, Mary Tonia Hernandez was charged with the crime of theft for allegedly obtaining welfare assistance by fraud. 1971 Perm.Supp., C.R.S.1963, 40--4--401. The Pueblo Public Defender's Office was appointed to represent the defendant, Hernandez. Harlin J. Allen, who was then an employee of the welfare department, was endorsed as a witness against the defendant, Hernandez. Evidence adduced at the preliminary hearing disclosed that the defendant, Hernandez, made an incriminating statement to Allen and that Allen's testimony would be essential to the prosecution's case.
On July 12, 1973, Allen was indicted for theft and conspiracy to commit theft in connection with alleged fraudulent welfare payments. 1971 Perm.Supp., C.R.S.1963, 40--4--401; 1967 Perm.Supp., C.R.S.1963, 119--9--17. A second indictment was returned against Allen on September 12, 1973, charging him with embezzlement of public property. 1971 Perm.Supp., C.R.S.1963, 40--8--407. The public defender was appointed to represent Allen on both charges.
Shortly thereafter, the public defender filed motions to withdraw as counsel for Allen. The public defender contends that under the facts in this case conflicting interests exist between the two defendants which prevent the public defender from effectively defending both Allen and Hernandez.
The motion to withdraw was made in both cases in which Allen was charged. The cases against Allen were pending in different divisions of the district court and were heard by different judges. The public defender's motion to withdraw from the theft and conspiracy case was granted, but the motion to withdraw from the embezzlement case was denied. Thereafter, the public defender filed this original proceeding alleging that the judge's denial of the public defender's motion to withdraw from the embezzlement case constituted an abuse of discretion and that there was no plain, speedy, or adequate remedy other than prohibition.
The need for defense counsel to be completely free from a conflict of interest is of great importance and has a direct bearing on the quality of our criminal justice system. See H. Drinker, Legal Ethics, 103--31 (1953).
The Code of Professional Responsibility, C.R.C.P. Appendix C, Canon 5, DR 5--105(B) states:
'(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client. . . .' See also DR 5--105(D).
DR 5--105 is intended to guarantee the independence of counsel from the conflicting interests of other clients in order to preserve the integrity of the attorney's adversary role. See C.R.C.P., Appendix C, Canon 5, EC 5--1, 5--14. It is of the utmost importance that an attorney's loyalty to his client not be diminished, fettered, or threatened in any manner by his loyalty to another client. American Bar Association Standards for Criminal Justice Relating to The Defense Function § 3.5.
In this case, the trial judge's denial of the motion to withdraw placed the public defender in an untenable position. In the Hernandez case, Allen is an essential prosecution witness. The allegations of fraud which relate to the operation of the welfare department require that the public defender make a full investigation not only in the Allen case, but also in the...
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