(dissenting) —
[A]n attorney who adopts and acts upon a belief that his client should be convicted “fail[s] to function in any meaningful sense as the Government’s adversary.”[2]
The belief in, and assertion of, one’s own innocence is not a “trial tactic” which should be summarily discarded simply because counsel doesn’t agree. Darold Stenson’s right to protest his innocence is protected by no less than the Fifth Amendment right against self-incrimination. His right to effective assistance of counsel is guaranteed by the Sixth Amendment; if the relationship between lawyer and client completely collapses, the refusal to appoint new counsel violates that Sixth Amendment right. United States v. *758Moore, 159 F.3d 1154, 1158 (9th Cir. 1998) (citing Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970)). A defendant need not show prejudice when an irreconcilable difference between attorney and client results in complete denial of counsel; it is presumed. Id.3
At its core, the conflict between Stenson and his attorneys was not simply about a theory of defense. Rather, it was a fundamental dispute over whether Stenson was entitled to protest his innocence, even at the expense of his life.4 Stenson consistently proclaimed his innocence and wanted his trial conducted accordingly. Report of Proceedings (RP) (July 13, 1994) at 3124-25. His attorney disagreed, estimating Stenson’s odds of acquittal as “one in a thousand at best,” id. at 3124, and saying, “I will not be a party to a strategy that is going to result in his conviction and sentencing to death. I didn’t sign on to this case to watch him commit suicide,” id. at 3125. Thus, against Stenson’s wishes, his attorneys essentially chose to bargain for his life in the penalty phase by forfeiting his innocence in the guilt phase preceding it. This judgment was much more than a trial tactic and, most importantly, was not for the attorneys to decide.5
The Sixth Amendment right to counsel “means more than just the opportunity to be physically accompanied by a person privileged to practice law,” and “contemplates open *759communication unencumbered by unnecessary impediments to the exchange of information and advice.” Frazer v. United States, 18 F.3d 778, 782 (9th Cir. 1994) (citations omitted). Although the Sixth Amendment does not guarantee “a right to counsel with whom the accused has a ‘meaningful attorney-client relationship,’ ” Morris v. Slappy, 461 U.S. 1, 3-4, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), “ ‘to compel one charged with [a] grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.’ ” United States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979) (quoting Brown, 424 F.2d at 1170).
I. Application of the Moore Factors Demonstrates Irreconcilable Conflict
In Moore the Ninth Circuit applied the test for substitution of counsel to an attorney-client dispute and found the conflict to be irreconcilable. Moore, 159 F.3d at 1160. Application of the Moore test, (1) the extent of the conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion, demonstrates the irreconcilable conflict in this case warranted substitution of counsel.
A. Extent of Conflict
The conflict between Stenson and his attorneys started as early as January 1994 when Fred Leatherman called him a liar, causing Stenson to leave the meeting “[o]ut of sheer frustration.” Personal Restraint Pet., App. C at 1. On two separate occasions during the following months Stenson told his attorneys he no longer wanted their representation, telling Leatherman in May that “his decision to not defend me in the guilt phase of the trial would be against my wishes.” Id. On July 12, 1994 Stenson petitioned the court to substitute counsel or allow him to proceed pro se because of his concern that Leatherman “was not planning to defend me during the guilt phase of the trial.” Id. at 2. During the July 13 in camera hearing, Leatherman stated:
It is Mr. Neupert’s and my opinion . . . that the guilt phase is *760not winable and we do not want to do anything during the course of the guilt phase which .... [would] prejudice Mr. Stenson’s defense in the penalty phase.
Put another way, from the perspective of the lawyers, the only issue in this case is whether Mr. Stenson lives or dies. From the perspective of Mr. Stenson, the only issue that is important to him is whether he is acquitted or not.”
RP (July 13, 1994) at 3118 (emphasis added). The irreconcilable nature of the conflict could not have been clearer yet the trial court denied Stenson’s motion to substitute counsel and three subsequent requests to proceed pro se. State v. Stenson, 132 Wn.2d 668, 764-65, 940 P.2d 1239 (1997) (Sanders, J., dissenting).
Two and a half weeks later on August 3 Leatherman himself petitioned the court to be removed as counsel, saying:
And I’m very concerned about the nature of the attorney-client relationship.
Right now I don’t feel like I have an attorney-client relationship with Mr. Stenson. I’m extremely frustrated with him to the point of really not wanting to go on with this case. . . . Quite frankly, I can’t stand the sight of him.
[T]he nature of my relationship with Mr. Stenson has been getting worse and worse and worse. To the point now where I don’t think we are even communicating. I’m certainly not communicating with him and he’s not communicating with me and we are heading in different directions on this case.
RP (Aug. 3, 1994) at 1501-02 (emphasis added).6 Somehow *761the majority distinguishes this case from Brown and Frazer, saying the breakdowns there were “tantamount to a total lack of communication.” Majority at 730. Since both parties here characterized the relationship as just that, a total lack of communication, it is unclear what more would be needed for this case to have risen to that level in the eyes of the majority. The conflict and lack of communication was so bad it made Stenson “afraid to go forward with them and [ ] afraid to go forward without them, too.” RP (Aug. 3,1994) at 1506. This was an irreconcilable conflict under the first Moore factor.
B. Extent of Inquiry
Despite the obvious and irreconcilable conflict, not to mention the express wishes of both attorney and client, the trial court denied the motion to withdraw saying, “there is no evidence from which I could even begin to conclude that Mr. Stenson was not receiving very competent and professional counsel.” RP (Aug. 3, 1994) at 1503 (emphasis added). The trial court went on to say that “competent representation” was required and “[t]hat’s what’s present.” Id. at 1504. The majority justifies its decision by saying “whatever the disagreements between Stenson and his counsel. . . there is no evidence to suggest that the representation Stenson received was in any way inadequate.” Majority at 730 (emphasis added).
Both the trial court and the majority err by applying generalized standards of adequacy and competency as the measure of irreconcilable conflict between attorney and client. If mere adequacy were the standard, “whatever the disagreements between [a defendant] and his counsel,” id., an attorney could, over the client’s objection, convince a jury his client is guilty and get him convicted as long as the attorney does an “adequate” job of it.
The Ninth Circuit has found error in cases where the court focused on attorney competency rather than the *762actual conflict, saying “the proper focus of such an inquiry is on the nature and extent of the conflict between defendant and counsel, not on whether counsel is legally competent.” United States v. Walker, 915 F.2d 480, 483 (9th Cir. 1990), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). The court also noted that, as in this case, the belief that legal incompetence was the basis of the complaint would only “demonstrate the inadequacy of the court’s inquiry into the true cause of [defendant’s] dissatisfaction.” Walker, 915 F.2d at 483.
The majority goes so far as to call the effects of the breakdown in communication “negligible.” Majority at 729. I can scarcely imagine such effects being negligible where (1) two convictions for first degree murder are at stake; (2) the penalty may be death; (3) the attorney and client disagree on whether the “only issue in the case” is the client’s guilt and innocence or life and death; (4) the client asks for substitution of counsel or, in the alternative, to proceed pro se (several times); (5) the attorney doesn’t feel like he has an attorney-client relationship, is not communicating with the client, can’t stand the sight of him, doesn’t want to go on with the case, and asks to be removed; (6) and the client is left in a position where he is afraid to go on with his attorney but also afraid to go on without him. Far from negligible, these circumstances begged for the appointment of new counsel. Both the majority and trial court’s focus on competency serves only to “demonstrate the inadequacy of the court’s inquiry into the true cause of [defendant’s] dissatisfaction,” and does not satisfy the inquiry into the nature of the conflict itself required under the second factor of the Moore test. Walker, 915 F.2d at 483.
C. Timeliness of Motion
Stenson filed his motion for substitution of counsel and alternative request to proceed pro se on July 12, 1994, two days before the jury was empaneled on July 14. Stenson, 132 Wn.2d at 730, 733. The majority summarily dispenses with the third factor of the Moore analysis by saying the factor of timeliness “weighs against” finding irreconcilable *763conflict, majority at 732, utterly ignoring the settled rule in the Ninth Circuit that a request to proceed pro se “is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay.” Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997).7
The motion was clearly not a tactic to secure delay; Stenson had other attorneys who were immediately willing to take the case if appointed. Stenson, 132 Wn.2d at 733. The delay caused by substitution would have been only the time needed for the new attorneys to review the case and prepare for trial. Majority at 732. This would have been a small imposition compared to the specter of facing a death penalty proceeding represented by an attorney with an irreconcilable conflict. Because there is no evidence the motion was made to secure delay and the motion was timely made before the jury was empaneled, the third Moore factor militates for substitution of counsel.
Consideration of the three Moore factors reveals (1) an irreconcilable conflict and total breakdown of communication; (2) an inadequate and misdirected inquiry into the competence of the attorneys rather than the nature of the conflict itself; and (3) a timely motion for substitution of counsel that at most would have resulted in relatively minimal delay considering the import of the proceedings.
II. A Conflict of Interest Existed Which Deprived Stenson of His Right to Effective Counsel
The majority also completely dismisses Stenson’s conflict of interest claim saying “[c]ase law does not support the application of the concept of a conflict of interest to conflicts between an attorney and client over trial strategy.” Majority at 722. This is characteristic of the wrongheaded notion that counsel’s behavior was merely a matter of strategy. In fact, the Ninth Circuit has joined the Tenth Circuit in holding an attorney may create a conflict of interest by *764abandoning the duty of loyalty8to his client:
“A defense attorney who abandons his duty of loyalty to his client and effectively joins the state in an effort to attain a conviction or death sentence suffers from an obvious conflict of interest. Such an attorney, like unwanted counsel, 4 “represents” the defendant only through a tenuous and unacceptable legal fiction.’ In fact, an attorney who is burdened by a conflict between his client’s interests and his own sympathies to the prosecution’s position is considerably worse than an attorney with loyalty to other defendants, because the interests of the state and the defendant are necessarily in opposition.”
Frazer v. United States, 18 F.3d 778, 782-83 (9th Cir. 1994) (emphasis added) (citation omitted) (quoting United States v. Swanson, 943 F.2d 1070, 1075 (9th Cir. 1991) (quoting Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988))).
Stenson is entitled to appointed counsel who does not, against his wishes, effectively concede his guilt as a matter of “strategy.” By so doing, Stenson’s counsel essentially joined the state in its effort to secure a conviction and “ ‘utterly failed to “subject the prosecution’s case to meaningful adversarial testing.” ’ ” Frazer, 18 F.3d at 782 (citation omitted) (quoting Swanson, 943 F.2d at 1074) (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). Contrary to the majority’s assertion that conflict of interest analysis does not apply to this case, Stenson’s attorneys (for reasons I understand) deprived him of his right to adversarial representation contrary to constitutional guaranties.
III. Deprivation of the Right to Counsel at the In Camera Hearing
On July 13, 1994, the court considered Stenson’s motion to substitute counsel or proceed pro se at an in camera hearing in which he was represented by the very attorneys *765he was trying to replace. Stenson, 132 Wn.2d at 731.9 The majority rejects Stenson’s claim concerning the lack of representation at the July 13, 1994 in camera hearing “because Wadsworth[10] may be distinguished from this case.” Majority at 739. The majority is disingenuous in its portrayal of Wadsworth, selectively choosing a passage that suits its purpose and saying it represents what happened in Stenson’s case. Majority at 739. Wadsworth does include a second alternative indicating substitution of counsel on the day of trial would not be allowed because of a disagreement on the theory of defense. Wadsworth, 830 F.2d at 1510. However, the majority does not mention the first scenario discussed, in which the court says:
[I]f the court determined that the disagreement had escalated to total breakdown in the attorney-client relationship, the court would have been required to dismiss counsel and appoint another attorney, after admonishing the defendant that the law did not permit an accused to control the theory of defense.
Id. at 1510. Contrary to the assertion of the majority at 739, Wadsworth does not support its position in this case. In fact, Wadsworth requires the appointment of new counsel where a total breakdown in the attorney-client relationship has occurred. Id.11
CONCLUSION
The conflict between Stenson and his attorneys far ex*766ceeded any dispute about trial tactics or strategy. When both attorney and client complain the relationship has broken down to the point that there is no communication and unanimously ask for the appointment of new counsel, it is unclear whose interests are being served by denying their collective request. Certainly not the interests of justice, nor the interest that the constitutional rights of the accused be upheld at all cost.
I dissent.
Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988) (quoting United States v. Cronic, 466 U.S. 648, 666, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)).
The deprivation of the right to counsel is so inconsistent with the right to a fair trial that it can never be treated as harmless error. Frazer v. United States, 18 F.3d 778, 782 (9th Cir. 1994) (citing Chapman v. California, 386 U.S. 18, 23 n.8, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).
“Leatherman would attempt to save Stenson’s life at the possible expense of allowing a finding of guilt. Stenson would contest guilt at the possible price of his life. The conflict could not he greater: it went to the very soul of the proceeding.” State v. Stenson, 132 Wn.2d 668, 763, 940 P.2d 1239 (1997) (Sanders, J., dissenting) (emphasis added).
The majority cites the American Bar Association guidelines to support its argument that strategic and tactical decisions are the province of the lawyer, majority at 736, but ignores the fact that those same guidelines require the accused to decide what plea to enter. 1 ABA, Standards foe Criminal Justice std. 4-5.2(a)(i) (2d ed. Supp. 1986). It follows that, where a defendant pleads not guilty and continues to protest his innocence, his lawyers should not be allowed to essentially concede his guilt by their defense.
The majority blithely says the conflict is not comparable to Ninth Circuit precedent. Majority at 730. However, in Brown the court found sufficient conflict to require substitution where, as here, a defendant “was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate.” Brown v. Craven, 424 F.2d 1166, 1169 (9th Cir. 1970). Furthermore, in Williams the defendant was deprived of his right to counsel due to the “state of disagreement, bad relationship, and lack of communication ....” Williams, 594 F.2d at 1260. As in this case, rather than denying the conflict “the response of counsel tended to confirm that the course of the client-attorney relationship had been a stormy one with quarrels, bad language, threats, and counter-threats.” Id. Similarly in Moore, an irreconcilable conflict existed where *761the defendant testified he and his attorney “ ‘don’t have any communication at all.’ ” United States v. Moore, 159 F.3d 1154, 1159 (9th Cir. 1998).
This is also the express rule of the Second Circuit, United States v. Walker, 142 F.3d 103, 108 (2d Cir. 1998); the Seventh Circuit, United States v. Johnson, 223 F.3d 665, 668 (7th Cir. 2000); and the Tenth Circuit, United States v. Akers, 215 F.3d 1089, 1097 (10th Cir. 2000).
do not question for an instant that Mr. Leatherman was motivated solely to save the life of his client and that he could not have been more “loyal” to his client’s interests in that sense. However, ultimately there are some decisions reserved to the client, even when his lawyer honestly, and completely, believes the client fails to promote his self-interest in the best possible fashion.
The majority weakly asserts that Neupert continued to represent Stenson even if Leatherman did not. Majority at 739. The record is devoid of support for this contention (and the majority offers none), and it flies in the face of Leatherman’s comments during the in camera proceeding indicating that he was the ultimate decision maker and that Stenson disagreed with “Mr. Neupert’s and my opinion” as “the lawyers.” See RP (July 13, 1994) at 3117-20.
United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987).
Wadsworth also refutes the majority’s assertion that Stenson was represented because “both counsel aided Petitioner in preparing his motion for substitution.” Majority at 739. Wadsworth requires substitution of counsel where the disagreement has escalated to a total breakdown in the relationship even in a scenario where counsel has “filed a timely motion for a substitution on behalf of his client. .. .” Wadsworth, 830 F.2d at 1509-10 (emphasis added).