State Of Mo. Ex Rel. Wendy Wexler Horn v. The Honorable Thomas Ray

• Decision Date: 21 September 2010
• Docket Number: No. ED 94968.,ED 94968.
• Parties: STATE of Missouri ex rel. Wendy Wexler HORN, Prosecuting Attorney, St. Francois, County, Missouri, Relator, v. The Honorable Thomas RAY, Circuit Court, St. Francois County, Twenty-Fourth Judicial Circuit, Associate Division III, Respondent.
• Court: Missouri Court of Appeals

325 S.W.3d 500

STATE of Missouri ex rel. Wendy Wexler HORN, Prosecuting Attorney, St. Francois, County, Missouri, Relator,

v.The Honorable Thomas RAY, Circuit Court, St. Francois County, Twenty-Fourth Judicial Circuit, Associate Division III, Respondent.

No. ED 94968.

Missouri Court of Appeals, Eastern District,Writ Division Two.

Sept. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Joseph J. Lanter, Farmington, MO, for relator.

Carl D. Kinsky, Ste. Genevieve, MO, for respondent.

LAWRENCE E. MOONEY, P.J.

The relator, the prosecuting attorney for St. Francois County (“the State”), petitioned this Court for a writ of prohibition, requesting that the respondent, the Honorable Thomas Ray, be restrained from denying the State's motion to disqualify counsel Carl Kinsky from simultaneously representing both the defendant and his alleged victim (collectively “the clients”) in the State's prosecution of the defendant for second-degree domestic assault. After a hearing, the trial court denied the State's motion to disqualify counsel. We issued our preliminary order in prohibition. The respondent has filed an answer. We dispense with further briefing and make the preliminary order permanent.

Under the Missouri Supreme Court Rules of Professional Conduct, counsel's dual representation of both the defendant and his alleged victim (whom we hereinafter refer to as “the victim”) in the State's prosecution of the defendant for the crime allegedly committed against the victim constitutes a concurrent conflict of interest, to which a client cannot consent. Further, such dual representation could compromise the defendant's Sixth Amendment rights. Finally, such dual representation undermines the court's institutional interest in maintaining the integrity of the judicial system and public confidence in the system. Therefore, we conclude that the respondent abused his discretion when he denied the State's motion to disqualify counsel. Our preliminary order in prohibition is made permanent, and we direct the trial court to grant the State's motion to disqualify counsel.

Facts

Farmington police responded to a report of a woman shouting and striking a parked car. A.L., the victim, told police that her husband, the defendant T.L., pushed her against a wall and then down to the floor several times. The police observed redness and bruising on the victim. The State charged the defendant with second-degree domestic assault, in violation of section 565.073 RSMo. (2000), and the trial court conditioned the defendant's bond on his having no contact with the victim. The State further charged that the defendant was a prior domestic-violence offender, having been found guilty in 2009 of third-degree domestic assault. Counsel entered his appearance on the defendant's behalf in February 2010. Three months later when the case came up for preliminary hearing, counsel informed the State and the trial court that he represented both the defendant and the victim in this case, and that the victim did not wish to testify against the defendant and would not speak to the prosecutor. Each client purported to consent to the conflict of interest in writing.

The State sought to disqualify counsel from the dual representation. The trial court held a hearing. The record does not disclose whether the victim attended the hearing. The defendant and another attorney were the only witnesses. The defendant testified that he had a conversation with attorney Kathleen Aubuchon about a conflict of interest in counsel's joint representation of the defendant and the victim. Counsel was not present during the conversation. The defendant testified that attorney Aubuchon explained the nature of the conflict and discussed its waiver with him. The defendant confirmed that he waived the conflict and had no questions for Aubuchon. Attorney Renee Murphy testified that she is familiar with Aubuchon from their time in the public defender's office. Attorney Murphy offered hearsay testimony that Aubuchon intended to discuss the waiver and the defendant's rights with the defendant. Murphy said she saw Aubuchon talking to the defendant.

The trial court received into evidence short written statements from Aubuchon and Murphy. Aubuchon's statement recorded that she discussed the conflict and its waiver with the defendant, and that he knowingly waived the conflict. Murphy's statement explained that she discussed the conflict with the victim, who waived the conflict. The record, however, contains no evidence of what was explained to the clients-other than the right not to testify-to secure these waivers.

The respondent then overruled the State's motion. The respondent found that Missouri Supreme Court Rule 4-1.7 does not apply in this case because the victim is not a party to the litigation, ¹ and that the victim's engagement of counsel was voluntary. The State suggests in its writ petition that the respondent may have relied on an outdated version of Rule 4-1.7, which did not contain the explicit conditions for consentable conflicts now contained in Rule 4-1.7(b). Indeed, counsel provided an outdated copy of Rule 4-1.7 (2007) to the respondent judge. The judge thereafter announced that he would analyze the question of whether a conflict existed between the defendant and a material witness, rather than a conflict between the defendant and the victim.

The State petitioned this Court for a writ of prohibition, requesting that the respondent be restrained from denying the State's motion to disqualify counsel. The respondent, through counsel, concedes that a conflict exists, at least potentially, but asserts that the defendant and the victim have each properly waived it. ² The record before this Court contains affidavits executed by the clients waiving “any conflict of interest” and asserting that neither client will testify. Other than the right not to testify, the record offers no insight into what information was explained to the clients about the conflict of interest and the ways in which the conflict might affect counsel's representation of each client.

Discussion

Standard of Review

A writ of prohibition does not issue as a matter of right, but lies within the sound discretion of the Court in which the petition has been filed. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001); State ex rel. Bannister v. Goldman, 265 S.W.3d 280, 283 (Mo.App. E.D.2008). We will issue a writ of prohibition to prevent an exercise of extra-jurisdictional power, to prevent an abuse of judicial discretion, or to avoid irreparable harm to a party. Linthicum, 57 S.W.3d at 857; Bannister, 265 S.W.3d at 283.

The disqualification of counsel lies within the trial court's sound discretion. Polish Roman Catholic St. Stanislaus Parish v. Hettenbach, 303 S.W.3d 591, 598 (Mo.App. E.D.2010). A writ of prohibition, however, is an appropriate remedy where a judge's refusal to disqualify counsel amounts to an abuse of discretion. State ex rel. Burns v. Richards, 248 S.W.3d 603, 604 (Mo. banc 2008); St. Stanislaus, 303 S.W.3d at 598.

Nature of the Conflict

As an initial matter, counsel and the respondent have mischaracterized the nature of the alleged conflict. The conflict is not merely between a defendant and a material witness as argued by counsel and as analyzed by the trial court. The conflict is between a defendant and his victim, who had accused the defendant of committing a violent crime against her. The Illinois Supreme Court observed that the victim's role in the case is distinctive from that of a material witness. People v. Hernandez, 231 Ill.2d 134, 324 Ill.Dec. 511, 896 N.E.2d 297, 307 (2008). “While it is certainly true Cepeda could have been a witness for the state, the distinctive feature here, which the appellate court failed to recognize, is that Cepeda was also the alleged victim of defendant's crime.

” Id. (emphasis added). In United States v. Alex, the court determined that counsel's attempt “to represent one of the alleged perpetrators of the criminal activity when he and his firm previously represented individuals who were allegedly victims of the very same criminal activity ” in itself strongly militated in favor of disqualification. 788 F.Supp. 359, 364 (N.D.Ill.1992)(emphasis in original).

The Missouri Constitution confirms the unique status of the victim in the criminal-justice system, and provides victims with many enumerated rights: to be present at all criminal-justice proceedings at which the defendant has such a right; to be informed of and heard at guilty pleas, bail hearings, sentencing hearings, probation-revocation hearings, and parole hearings; to be informed of trials and preliminary hearings; to restitution; to speedy disposition and appellate review of their case; to reasonable protection from the defendant; to information concerning the escape of an accused and the defendant's release from incarceration; and to information about the workings of the criminal-justice system. Mo. Const. art I, sec. 32. Material witnesses have no comparable bill of rights. Here, the respondent failed to recognize the victim's distinctive status in the criminal-justice proceedings.

Analysis

Three broad and overlapping considerations compel our conclusion that counsel cannot represent the interests of both the defendant and the victim. First, such dual representation violates Rule 4-1.7 of the Rules of Professional Conduct. Second, such dual representation compromises the defendant's Sixth Amendment right to the effective assistance of the counsel. Third, such representation threatens the integrity of the judicial system and public confidence in the system. We shall address each in turn.

A. Ethical standards under the Rules of Professional Conduct

“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Mo. R. Prof'l Conduct, pmbl., para. [1]...