Kelly v. State

• Decision Date: 22 September 1982
• Docket Number: No. 62289,62289
• Citation: 640 S.W.2d 605
• Parties: Fred KELLY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 605

640 S.W.2d 605

Fred KELLY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 62289.

Court of Criminal Appeals of Texas.

Sept. 22, 1982.

Rehearing Denied Nov. 10, 1982.

Nick Warden, McKinney, on appeal only, for appellant.

Tom O'Connell, Dist. Atty., and Bill Schultz, Asst. Dist. Atty., McKinney, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P.J., and ROBERTS and McCORMICK, JJ.

OPINION

ROBERTS, Judge.

The appellant was convicted of aggravated robbery. The trial court assessed punishment at confinement for ten years.

In his first ground of error, the appellant contends that the trial court erred in denying his court-appointed counsel's motion to withdraw and erred in refusing to hold a hearing on the motion.

The motion to withdraw as counsel stated:

"NOW COMES, Richard Abernathy, court appointed attorney for Fred Kelly, Jr., in the above-referenced cause and makes this his motion to withdraw and would show the court the following:

I.

"On July 14, 1978, Richard Abernathy, a licensed attorney in the State of Texas, was appointed by the Honorable John McCraw to Represent Fred Kelly, Jr., in the above-referenced cause.

II.

"Said accused, Fred Kelly, Jr., was arrested on or about April 13, 1978 within the corporate city limits of McKinney, Texas by officers of the McKinney Police Department.

III.

"Said court appointed attorney for the accused is the prosecutor for the Municipal Court of the City of McKinney, Texas. Moreover, a partner in the firm of Abernathy & Roeder, of which said court appointed attorney is associated, serves on the City of McKinney Planning and Zoning Commission. Said relationship with the City of McKinney creates a conflict of interest in said attorney's representation of the accused and respectfully request permission to withdraw as counsel for the accused." (sic)

The motion was filed on July 18, 1978.

On July 21, at a pre-trial hearing, the following occurred "THE COURT: ... Mr. Abernathy, I have noted your Motion to Withdraw. Now do you have any specific knowledge of this case, prior to being appointed?

"MR. ABERNATHY: No, sir.

"THE COURT: Do you have any dealings with your defendant regarding this case in your scope of employment, prior to your being appointed?

"MR. ABERNATHY: No, sir.

"THE COURT: I will deny your motion. I will assure you that you will do an adequate job."

On December 6, 1978, after a jury had been empaneled, the following occurred:

"MR. ABERNATHY: I would like to reurge to the court my Motion to Withdraw. I would like for the Court to consider it. I am, at this time, the attorney for the City of McKinney. My partner, who is Bob Roeder, with the law firm of Abernathy & Roeder, is on the Planning and Zoning Commission. I have been City Prosecutor since May or June of 1978, and as such, work very closely with the Police Department in the City of McKinney.

"At this trial today, I feel there is a conflict of interests for the reason that there have been at least five police officers in the McKinney Police Department called to testify. They include Officer Marksberry, Officer Hughes, Officer Young, Officer Honea, or Detective Honea, and Officer Barton. Because of my position with the City of McKinney, and being juxtaposed--anyway, being placed with or against the police officers in the City of McKinney at this time would create a conflict of interests. That being my reason for the objection, I respectfully request the Court's consideration of my Motion to Withdraw.

"MR. SCHULTZ [the prosecutor]: Your Honor, may I ask Mr. Abernathy some questions in connection with this Motion?

"THE COURT: The Court recognizes that Mr. Abernathy is a professional with the McKinney Police Department, and it also recognizes the responsibility of the attorneys, and I think that there would not be anything--that it would probably benefit him to be able to represent Mr. Kelly.

"MR. SCHULTZ: Your Honor, my question is going to be directed, not in opposition, but perhaps in support of the Motion. From the State's position, I would like to ask Mr. Abernathy one or two questions in that regard, if the Court will permit me.

"THE COURT: Well, after the jury has been selected on this matter, I don't think--at this time it is not a proper time. The Court has made the ruling.

"MR. ABERNATHY: Note our objection.

"THE COURT: So noted.

"MR. SCHULTZ: We support the defense's Motion in this case."

Thus, the record in this case shows that the appellant's attorney recognized and brought to the trial court's attention the potential conflict of interest which existed for him. He did so just four days after receiving the court appointment, and renewed his motion just before trial began. Furthermore, the State joined in the appellant's motion.

The appellant argues that, at the minimum, the trial court should have held a hearing to explore the potential conflict of interest, and determine whether the appellant's counsel could fairly and impartially represent the appellant. We agree.

Canon 5 of the Code of Professional Responsibility (Rules Governing the State Bar of Texas, Article 12, Section 8) states: "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client." Among the ethical considerations listed under that canon are:

"EC 5-1. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desire of third persons should be permitted to dilute his loyalty to his client.

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* * * "EC 5-14. Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse or otherwise discordant.

"EC 5-15. If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests...."

Among the disciplinary rules under Canon 5 are:

"DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

"(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests.

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"DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.

"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

"(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, except to the extent permitted under DR 5-105(C).

"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

Canon 9 of the Code of Professional Responsibility states: "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." Among the ethical considerations listed under that canon are:

"EC 9-2. Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer.... When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

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"EC 9-6. Every lawyer owes a solemn duty ... to strive to avoid not only professional impropriety but also the appearance of impropriety."

The American Bar Association's Standards Relating to the Defense Function, Standard 4-3.5(d) provides:

"It is unprofessional conduct for a lawyer to defend a criminal case in which the lawyer's partner or other professional associate is or has been the prosecutor."

The commentary following this standard is instructive:

"The particular form of conflict that arises when two lawyers who are associated in the practice of law appear on both sides of a case has been the subject of legislation in many states. These statutes typically make it a misdemeanor and provide for the revocation or suspension of the license of an attorney who in any way participates as a prosecutor and then advises in the defense of the same case.

"A number of courts have imposed professional discipline upon a lawyer who appeared on both sides of the same case, either first as prosecutor and later as defense counsel or first as defense counsel and later as prosecutor. But where the circumstances have shown no division of loyalties, courts have recognized that it is permissible for one who holds prosecutorial office to act as defense counsel in another jurisdiction.

"In...