NO. 95-262
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff
v.
TROY MICHAEL JONES,
Defendant
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender (argued),
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg Coughlin, Ass't Attorney General (argued),
Helena, Montana
Mike Weber, Richland County Attorney, Sidney,
Montana
For Amicus Curiae:
Keith A. Maristuen, Chair, and Michael G. Alterowitz
Attorneys at Law (for Ethics Committee, State Bar
of Montana), Helena, Montana
Michael Donahoe, Attorney at Law (for Criminal
Defense Section, State Bar of Montana), Helena,
Montana
Argued: April 19, 1996
Submitted: April 30, 1996
Decided:~,.'~:September 11, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Troy Michael Jones (Jones) appeals from the judgment and
sentence entered by the Seventh Judicial District Court, Richland
County, on a jury verdict finding him guilty of the offense of
felony assault. We reverse and remand.
The dispositive issue on appeal is whether the District Court
abused its discretion in denying Jones' counsel's motion to
withdraw.
The State of Montana (State) charged Jones with felony
assault, in violation of § 45-5-202, MCA, alleging that Jones
purposely or knowingly caused bodily injury to Kirby Sowers
(Sowers) by striking Sowers "about the head and face with a beer
bottle. . .'I T. R. Halvorson (Halvorson) was appointed to
represent Jones and, thereafter, Jones pled not guilty to the
charged offense. Trial was set for November 3, 1994. Two days
prior to trial, Halvorson moved to withdraw as Jones' counsel. The
State opposed the motion and requested an evidentiary hearing on
the grounds for withdrawal.
The hearing on Halvorson's motion to withdraw as Jones'
counsel was not, strictly speaking, an evidentiary hearing; no
sworn testimony was presented. The District Court merely invited
Halvorson to establish a factual basis for his motion and Halvorson
did so through narrative statements and various arguments.
Halvorson based his motion, in part, on Rules 1.16(a) (1) and
(b) (I), Montana Rules of Professional Conduct (MRPC). In this
regard, Halvorson told the District Court that Jones had stated an
2
intent to testify falsely.
Halvorson also based his motion on Rule 1.16(b) (3), MRPC. The
bulk of Halvorson's statements, disclosures and arguments in
support of his motion to withdraw were based on his belief that
Jones' decision to reject the plea agreement Halvorson had
negotiated with the State and proceed to trial was repugnant or
imprudent. Halvorson detailed the offense and Jones' role in it,
and disclosed Jones' admission that he "punched [Sowers] with a
bottle of beer in [Jones'] right hand." Halvorson indicated that
a felony assault had occurred and that Jones admitted having
committed it. In addition, Halvorson stated that he did not have
a defense to present to a jury on Jones' behalf. He opined that it
was repugnant to deny criminal culpability to a jury where on an
"open and shut basis . there is guilt." Halvorson also
indicated that Jones' decision to go to trial rather than accept a
plea agreement "when [Jones] stands virtually no chance of an
acquittal" was repugnant to him and constituted good cause for his
withdrawal as counsel.
Jones denied that he had communicated an intent to testify
falsely to Halvorson and stated that, in fact, he did not intend to
testify at his trial. He asserted that Halvorson had "lied about
a few things" and that It [he] disagree[dl with everything
[Halvorson] said, and that's fine if [Halvorson] drops out of [the]
case." The District Court indicated that it was accepting Jones'
statements as "argument and testimony."
Based on Jones' statement that he did not intend to testify,
3
the District Court denied Halvorson's motion to withdraw. Several
months l a t ea ,
r jury convicted Jones of felony assault and the
District Court sentenced him and entered judgment. Jones appeals.
Did the District Court abuse its discretion in denying
Halvorson's motion to withdraw as Jones' counsel?
Jones argues on appeal that the District Court abused its
discretion in denying Haivorson's motion to withdraw. While
advancing alternative bases for his argument, Jones' primary
contention is that Halvorson had a conflict of interest which
resulted in a denial of Jones' constitutional rights to a fair
trial and to the effective assistance of counsel. The State
disagrees, arguing that no conflict of interest existed in this
case.
The grant or denial of a lawyer's motion to withdraw is within
the discretion of the district court. See United States v. Keys
(9th Cir. 19941, 67 F.3d 801, 807; Petition of Jones (1963), 143
Mont. 309, 309-10, 387 P.2d '712, 712. We review such discretionary
matters to determine whether the court abused its discretion. See
State v. Craig (1995), 274 Mont. 140, 149, 906 P.2d 683, 688
(citations omitted)
GENERAL DUTIES OF ATTORNEY TO CLIENT
The Sixth Amendment to the United States Constitution and
Article II, Section 24 of the Montana Constitution guarantee a
criminal defendant the right to the assistance of counsel. Mere
representation by counsel is not sufficient, however; the
assistance must be effective to give true meaning to that right and
to the right to a fair trial. State v. Enright (1988), 233 Mont.
4
225, 228, 758 P.2d 779, 781. MOreOVer, a criminal defendant's
constitutional right to the effective assistance of counsel is
comprised of two correlative rights: the right to counsel of
reasonable competence and the right to counsel's undivided loyalty.
State v. Christenson (1991), 250 Mont. 351, 355, 820 P.2d 1303,
1306 (citations omitted). In the latter regard, the Sixth
Amendment right to counsel contemplates the assistance of an
attorney devoted "solely to the interests of his client." Frazer
v. United States (9th Cir. 1994), 18 F.3d 778, 784 (quoting Von
Moltke v. Gillies (1948), 332 U.S. 708, 725-26, 68 S.Ct. 316, 324,
92 L.Ed. 309, 322). The duty of loyalty is "perhaps the most basic
of counsel's duties." Strickland v. Washington (1984), 466 U.S.
668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696.
An attorney owes a duty of confidentiality to his or her
clients. Rule 1.6, MRPC. The duty of confidentiality is
correlative to an attorney's duty of loyalty. &, e.q., Damron v.
Herzog (9th Cir. 1995), 67 F.3d 211, 215. Thus, a defense
attorney's disclosure of confidential information in violation of
Rule 1.6, MRPC, necessarily implicates the attorney's duty of
loyalty as well as the defendant's constitutional right to the
effective assistance of counsel.
DISCLOSURE OF PERJURY
Rule 1.16, MRPC, provides in pertinent part:
(a) . . a lawyer . . . shall withdraw from the
representation of a client if:
(1) the representation will result in violation of the
rules of professional conduct or other law;
. . .
(b) . . a lawyer may withdraw from representing a
5
client . . if:
(1) the client persists in a course of action involving
the lawyer's services that the lawyer reasonably believes
is criminal or fraudulent. . .
Halvorson contended that his continued representation of Jones
would result in a violation of a rule of professional conduct or
other law because Jones intended to commit perjury.
Rule 1.16(a) (l), MRPC, requires an attorney to withdraw where
continued representation will result in a violation of the rules of
professional conduct or other law. Halvorson stated that he had a
conversation with Jones in which Jones communicated an intent to
testify falsely and, in response, he informed Jones of the
consequences of perjury and that he could take no part in
presenting perjured testimony to the District Court. He further
stated that he gave Jones a weekend over which to further consider
Jones' intent to commit perjury and his advice in this regard. The
record does not reflect that Halvorson checked back with Jones
after the weekend passed, to ascertain whether Jones had
reconsidered based on his advice, before filing his motion to
withdraw.
Halvorson conceded at the hearing on his motion to withdraw
that Jones may have reconsidered and decided not to testify
falsely. Thus, the record before us contains only an alleged
possible intent to commit perjury. It does not support Halvorson's
contention that his continued representation of Jones would result
in a violation of the rules of professional conduct or other law
and, as a result, it also does not support his motion to withdraw
under Rule 1.16(a) (l), MRPC.
6
Rule 1.16(b) (l), MRPC, on which Halvorson also based his
motion, permits an attorney to withdraw if the client persists in
a course of conduct the lawyer reasonably believes is criminal or
fraudulent. Webster's Ninth New College Dictionary (1988) defines
"persist" as "to go on resolutely or stubbornly in spite of
opposition, importunity, or warning." Here, nothing of record
indicates that Jones was "persisting" in his alleged intent to
testify falsely after considering Halvorson's advice and warning.
The record before us does not support withdrawal based on Rule
1.16(b) (l), MRPC.
In this regard, Jones and the amici curiae urge our adoption
of a variety of standards of knowledge which an attorney should be
required to possess prior to moving to withdraw based on a criminal
defendant client's intent to commit perjury. Jones contends that
a "firm factual basis" must exist. The Criminal Defense Section of
the State Bar of Montana asserts that counsel must be "absolutely
convinced in his own mind, and in fact beyond a reasonable doubt"
that the client will commit perjury before moving to withdraw. The
State Bar of Montana Ethics Committee recommends that counsel must
"know" that the defendant intends to perjure himself or herself and
that a maintained and reiterated statement of intent to do so
should be sufficient.
We decline to adopt a particular knowledge standard in this
case where no findings of fact have been made by the trial court.
Moreover, it is unnecessary to do so in this case because it is
clear that Halvorson did not meet any standard of knowledge prior
7
to moving to withdraw. Because the record does not support any
persistence by Jones in the alleged intent to commit perjury it
follows that Halvorson could not, in the language of Rule
1.16 (b) (I), MRPC, reasonably believe that Jones was persisting in
a course of action involving Halvorson's services which was
criminal or fraudulent.
Halvorson also relied on Nix v. Whiteside (1986), 475 U.S.
157, 106 S.Ct. 988, 89 L.Ed.2d 123, in support of his motion to
withdraw as Jones' counsel because of Jones' alleged intent to
commit perjury. In Nix, the defendant was charged with murder, but
claimed that he had stabbed the victim in self-defense. Nix, 475
U.S. at 160. He told his attorney that the victim "'was pulling a
pistol from underneath the pillow on the bed[, 1 "' but admitted that
he had not actually seen a gun. Nix, 475 U.S. at 160. During
trial preparation, however, the defendant told his attorney for the
first time that he had seen something "metallic" in the victim's
hand; his explanation for the change was that "[ilf I don't say I
saw a gun, I'm dead." The attorney explained that it was not
necessary to prove the victim actually had a gun to succeed on a
claim of self-defense, but the defendant continued to insist on
testifying falsely. a, 475 U.S. at 161. The attorney advised
that he would not allow the defendant to testify falsely and that,
if the defendant did so, he would be required to advise the court
that the defendant was committing perjury and would move to
withdraw as counsel. a, 475 U.S. at 161.
The defendant testified at trial that he "knew" the victim had
8
a gun, but conceded on cross-examination that he did not actually
see a gun in the victim's hand. Nix, 475 U.S. at 161-62. He was
convicted of second-degree murder and subsequently moved for a new
trial, claiming that he had been deprived of a fair trial due to
his attorney's admonitions not to testify that he saw something
metallic in the victim's hand. Nix, 475 U.S. at 162. The trial
court denied the motion and the Iowa Supreme Court affirmed,
holding that neither the right to counsel nor the attorney's duty
to his client extended to assisting the client in committing
perjury. Nix, 475 U.S. at 162.
The defendant filed a federal habeas corpus petition alleging,
among other things, that he had been denied effective assistance of
counsel by his attorney's refusing to allow him to give perjured
testimony. &j& 475 U.S. at 162. The issue before the United
States Supreme Court was whether the Sixth Amendment right to
counsel is violated when an attorney refuses to cooperate with a
criminal defendant in presenting perjured testimony. Nix 475 U.S.
__,
at 159.
The Supreme Court observed that the first part of the
Strickland test requires a defendant to establish "constitutionally
deficient" performance by counsel. Nix, 475 U.S. at 164-65.
Having recognized counsel's duty of loyalty in Strickland, the Nix
Court determined "that duty is limited to legitimate, lawful
conduct compatible with the very nature of a trial as a search for
truth." Nix, 475 U.S. at 166. While an attorney's duty of
confidentiality and loyalty extends to a client's admission of
9
guilt, it does not require the attorney to assist the client in
presenting false evidence. a, 475 U.S. at 166, 174. Thus,
whether the attorney's conduct in Nix was seen as a successful
attempt to persuade the defendant not to commit perjury, or as a
threat to withdraw and disclose the defendant's perjury if and when
it occurred, the Supreme Court held that the attorney's
representation of the defendant fell "well within accepted
standards of professional conduct and the range of reasonable
professional conduct acceptable under Strickland." Nix
-I 475 U.S.
at 171.
In reaching its conclusion in Nix, the Supreme Court surveyed
and set forth various rules of professional conduct and
interpretations of such rules. For example, the Supreme Court
stated that it is "universally agreed" that an attorney's first
duty when confronted with a client's stated intention to testify
falsely is to attempt to dissuade the client from the unlawful
course of conduct. Nix, 475 U.S. at 169. Moreover, where the
client actually gives perjured testimony, an attorney may reveal
the perjury to the trial court. Nix, 475 U.S. at 170. In
addition, withdrawal may be appropriate where a client states an
intent to testify falsely. Nix, 475 U.S. at 170. The Supreme
Court was careful to note, however, that it was not intruding into
the proper authority of the states to define and apply standards of
professional conduct applicable to those admitted to practice in
state courts. &, 475 U.S. at 165. Indeed, as pointed out by
Justice Brennan in his concurring opinion, "the Court's essay
10
regarding what constitutes the correct response to a criminal
client's suggestion that he will perjure himself is pure discourse
without force of law." Nix, 475 U.S. at 177 (Brennan, J.,
concurring).
Neither the facts nor the holding in Nix support Halvorson's
motion to withdraw based on Jones' alleged intent to testify
falsely in this case. The only pertinent facts in Nix were the
attorney's advice, in response to the client's stated intent to
commit perjury, that he would not allow the client to testify
falsely and, if the client did so, he would disclose the perjury to
the trial court and move to withdraw; the client did not commit
perjury. Here, in response to Jones' alleged intent to testify
falsely, Halvorson advised of the potential consequences. To this
extent, Halvorson's actions mirrored those of counsel in Nix.
Halvorson, however, followed his advice by moving to withdraw and
making disclosures to the District Court of client confidences.
These significant facts were not present in Nix.
Moreover, the holding in Nix on the Sixth Amendment issue
presented by the facts referenced above is that counsel's advice to
his client about the potential consequences of the client's intent
to commit perjury did not fall outside the range of reasonable
professional conduct required by Strickland. See Nix, 475 U.S. at
171. The case now before us does not involve the propriety or
constitutionality of Halvorson's advice to Jones; rather, it
involves, initially, the propriety of Halvorson's actions
thereafter in moving to withdraw from further representation of
11
Jones, In this regard and based on the record before us in this
case, we concluded above that neither subsection (a) (1) nor
subsection (b) (1) of Rule 1.16, MRPC, authorized Halvorson's motion
to withdraw.
Furthermore, while we agree with the Supreme Court that an
attorney's "universally accepted" initial duty when faced with a
client stating an intent to commit perjury is to attempt to
dissuade the client from doing so (see Nix, 475 U.S. at 169), we
also agree with Justice Brennan that the Supreme Court's extensive
survey and discussion regarding standards of professional conduct
under various rules and commentaries is, for the most part, dicta
and without force of law. - -I 475 U.S. at 177 (Brennan, J.,
See Nix
concurring). In the Nix context, that survey and discussion is
background material which bears little relationship to the facts
and actual issue in that case. It is neither binding, nor
necessarily persuasive, authority to this Court regarding the
Montana Rules of Professional Conduct and our interpretation of
those Rules vis-a-vis regulating the conduct of attorneys in the
courts of Montana.
As a final argument relating to Halvorson's motion to withdraw
based on Jones' alleged intent to commit perjury, the State
contends that the disclosures Halvorson made to the District Court
in this regard were required by Rule 3.3(a) (2), MRPC. Rule 3.3,
MRPC, provides, in pertinent part:
(a) A lawyer shall not knowingly:
i2j fail to disclose a material fact to a tribunal when
disclosure is necessary to avoid assisting a criminal or
12
fraudulent act by the client. . .
The State asserts that Halvorson knew Jones intended to commit
perjury and, as a result, that Rule 3.3(a) (2) imposed an obligation
to disclose Jones' intent to testify falsely to the District Court
in order to avoid assisting Jones in the criminal or fraudulent act
of perjury. However, as discussed above, Halvorson did not know
Jones' intent in this regard. Therefore, Rule 3.3 does not support
Halvorson's disclosure of Jones' alleged possible intent to commit
perjury.
We conclude, on the record before us, that Halvorson's motion
to withdraw was improper under Rules 1.16(a) (1) and (b) (l), MRPC,
and was not supported by Nix.
CONFLICT OF INTEREST
An attorney who abandons his or her duty of loyalty may create
a conflict of interest. Frazer, 18 F.3d at 782. A defense
attorney who essentially joins the prosecution's efforts in
obtaining a conviction and acts on a belief that the defendant
should be convicted "suffers from an obvious conflict of interest."
Fraser, 18 F.3d at 782 (citation omitted). Such an attorney
"'fail[sl to function in any meaningful sense as the Government's
adversary."' Frazer, 18 F.3d at 782 (quoting United States v.
Swanson (9th Cir. 1991), 943 F.2d 1070, 1074)
While defense counsel in a criminal case assumes a dual
role as a "zealous advocate" and as an "officer of the
court," neither role would countenance disclosure to the
Court of counsel's private conjectures about the guilt or
innocence of his client. It is the role of the judge or
jury to determine the facts, not that of the attorney.
13
United States ex rel. Wilcox v. Johnson (3rd Cir. 1977), 555 F.2d
115, 122. Where an attorney wilfully discloses confidential
information communicated by his client, he inhibits mutual trust
necessary for effective representation. Wilcox, 555 F.2d at 122.
Here, the record clearly establishes that Halvorson put his
personal interest in not wanting to take Jones' case to trial ahead
of Jones' constitutional right to an attorney devoted solely to
Jones' interest in exercising his right to a trial by jury.
Halvorson informed the District Court that he had negotiated a
favorable plea agreement for Jones and indicated that he considered
Jones' decision to decline the agreement and exercise his right to
trial repugnant. In the course of further explaining Jones'
"repugnant" decision, Halvorson reminded the court of the pending
felony assault charge, premised on the State's allegation that
Jones committed the assault by striking Sowers "with either a beer
bottle, or a glass, or some glass object[,l" and disclosed a
confidential admission Jones made to him that Jones "punched
[Sowers] with a bottle of beer in [Jones'] right hand."
This disclosure was improper. As discussed above, Rule 1.6,
MRPC, expressly prohibits the disclosure of information relating to
the representation without the client's consent except in specified
circumstances where the duty to disclose necessarily overrides the
duty of confidentiability and loyalty. Rule 3.3(a) (2), MRPC,
provides an additional duty to disclose under carefully limited
circumstances, even when compliance would reveal information
otherwise protected by Rule 1.6, MRPC. The circumstances contained
14
in Rule 3.3(a) (2), MRPC, relate to disclosure necessary to avoid
assisting in a client's criminal or fraudulent act, however, and
bear no relationship to Halvorson's extensive disclosure in this
case regarding his "repugnance" to taking Jones' case to trial.
Moreover, Halvorson's contention that Jones' "repugnant"
decision to exercise his right to a jury trial, rather than accept
a plea agreement, constitutes good cause for withdrawal runs
directly afoul of Rule 1.2(a), MRPC, which provides in relevant
part:
In a criminal case, the lawyer shall abide by the
client's decision, after consultation with the lawyer, as
to a plea to be entered, whether to waive jury trial and
whether the client will testify.
The obligations imposed by this Rule are paramount, and
unqualified. Thus, while Halvorson may not have agreed with Jones'
decision to decline a plea agreement and exercise his right to a
jury trial, that decision did not--and cannot--constitute cause for
withdrawal.
Halvorson also indicated that, in his opinion, on an "open and
shut basis . . there is guilt and is the plea [sic1 that probably
should be entered." To illustrate his point, Halvorson detailed
for the District Court and the prosecution why he believed Jones
was so clearly guilty. He laid out the facts leading up to the
alleged assault, which involved Sowers physically removing Jones
from a bar and, immediately thereafter, walking into the bar
covered with blood. He then stated:
Now, on probabilities, who else would have done it?
[Jones] just had this physical disagreement with
[Sowers] .
15
. . .
There is no other person that the State has ever
suspected, and there's no other person that [Jones] has
indicated should be a suspect, and there's no other
person that any witness I know of has indicated should be
a suspect. so, you know, the range of possible
explanations . . is narrow. It would be like threading
a needle to come up with any other explanation.
.
In my mind, under the study of Montana law, there's no
doubt but what that [sic] beer bottle is a weapon, and,
even if it weren't, there's no doubt in my mind that the
degree of injury . is serious bodily injury.
It's a felony assault, and my client has admitted to me,
essentially, that he did it.
Halvorson's narrative detailed for the District Court and the
prosecution why he believed Jones was guilty of felony assault and
should not go to trial. The State cites to no authority, and we
have found none, supporting disclosure by a defense attorney of a
client's confidential admission of guilt and detailing for the
court and the prosecution the reasons his client is guilty in
support of a motion to withdraw from further representation.
The record before us establishes that, at the hearing on
Halvorson's motion to withdraw, Halvorson totally abandoned his
adversarial role on Jones' behalf against the State, essentially
joining the prosecution's efforts in obtaining a conviction. In
acting on his own belief that Jones should be convicted and in
essentially joining the State's efforts in obtaining a conviction,
we conclude that Halvorson created I1 an obvious conflict of
interest" and abandoned his duty of loyalty to Jones. & Fraser,
16
18 F.3d at 782.
Ordinarily, a criminal defendant's constitutional right to the
effective assistance of counsel is violated only when counsel's
performance was deficient and the deficient performance prejudiced
the defendant's right to a fair trial, and the defendant must
establish both elements. Strickland, 466 U.S. at 687. The
Strickland Court noted the availability of "presumed prejudice,"
however, in situations where counsel is "burdened by an actual
conflict of interest. In those circumstances, counsel breaches the
duty of loyalty, perhaps the most basic of counsel's duties."
Strickland, 466 U.S. at 692. Similarly, the Ninth Circuit Court of
Appeals has recognized an exceptional situation regarding the
prejudice requirement where an egregious actual conflict of
interest exists of record between the client's interests and the
attorney's sympathies. & Frazer, 18 F.3d at 782-83.
In Frazer, the Ninth Circuit addressed a defendant's
allegations that his appointed counsel had called him a "stupid
nigger son of a bitch and said he hopes I get life[;]" the
conversation allegedly was overheard by others and the defendant
attempted without success to have a different lawyer appointed.
Fraser, 18 F.3d at 780. He subsequently filed a pro se motion for
relief from the sentence imposed, alleging that the treatment he
received from counsel was so fatally defective as to constitute an
abandonment of the attorney's duty of loyalty. Without holding an
evidentiary hearing, the magistrate judge dismissed Frazer's
assertions as mere conclusory allegations and, in any event,
17
to his interest in exercising his right to trial. The conflict
between Halvorson's sympathies and Jones' rights and interests is
unmistakable and egregious and, under such circumstances, Halvorson
can be said to have represented Jones only "'through a tenuous and
unacceptable legal fiction."' See Frazer, 18 F.3d at 782-83
(citation omitted). We conclude that this case constitutes the
very rare instance in which a presumption of prejudice is
warranted.
We will continue to require strict compliance with the
prejudice prong of Strickland in ordinary ineffective assistance
cases involving allegations of deficient performance by counsel.
In that regard, our deference to counsel's tactical and strategic
decisions will continue unabated. Given this record, however, we
refuse to indulge in nice calculations regarding the amount of
prejudice attributable to the clear and unequivocal conflict of
interest Halvorson created.
We hold that, faced with Halvorson's clear conflict of
interest and abandonment of his duty of loyalty to Jones, the
District Court abused its discretion in denying Halvorson's motion
to withdraw as Jones' counsel. We vacate Jones' conviction and
sentence and remand this case to the District Court for a new
trial.
determined that Frazer was not prejudiced because counsel's actual
performance was not demonstrably erroneous. Frazer, 18 F.3d at
780.
The issue on appeal in Frazer was whether the trial court
abused its discretion in failing to hold an evidentiary hearing on
whether the defendant's Sixth Amendment right to counsel was
violated. The Ninth Circuit held that
the facts as alleged in this case, if proved, would
render so defective the relationship inherent in the
right to trial counsel guaranteed by the Sixth Amendment
that Mr. Frazer would be entitled to a new trial with a
different attorney.
Frazer, 18 F.3d at 784. According to the Ninth Circuit, the
defect, if proved, would be so egregious that a presumption of
prejudice would be appropriate without review of the attorney's
actual conduct at the trial. Frazer, 18 F.3d at 785 (citing United
States v. Cronic (1984), 466 U.S. 648, 660, 104 S.Ct. 2039, 2047,
80 L.Ed.2d 657, 668).
Notwithstanding the differences in procedural context and
bases for abandonment of the duty of loyalty between Frazer and the
case before us, we adopt and apply the Frazer rationale here. Our
duty as judges is "to ensure that the right to counsel, as a
jurisdictional prerequisite to depriving a person of his or her
liberty, is fully honored." Frazer, 18 F.3d at 784. The record
before us in this case is clear. Halvorson totally abandoned his
duties of loyalty and confidentiality to Jones by putting his
personal interest in not wanting to take Jones' case to trial ahead
of Jones' interest in representation by an attorney devoted solely
18
we concur:
September 11, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William F. Hooks, Esq.
Appellate Defender
Box 200145
Helena, MT 59620-0145
Hon. Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant Attorney General
215 N. Sanders
Helena MT 59620
Mike Weber, County Attorney
201 West Main
Sidney MT 59270
Gary Ryder
Attorney at Law
P.O. Box 72
Hysham, MT 59038
Keith A. Maristuen, Chair
State Bar of Montana Ethics Committee
P.O. Box 7152
Havre, MT 59501
David F. Ness, Chairperson
Criminal Defense Section of the State Bar
P.O. Box 8358
Missoula, MT 59807-8358
Michael Donahoe
Attorney At Law
Box 258
Helena MT 59624-0258