King v. State
In King v. State, 810 P.2d 119, 123-24 (Wyo. 1991), King's former paramour, Thompson, was charged with delivery of a controlled substance.
While Thompson was in jail, an attorney came to represent her and arranged to get her out of jail and into a hospital for substance abuse treatment. Two other attorneys then handled Thompson's felony charges.
In negotiating a plea agreement, Thompson agreed to participate in a sting operation targeting King and to testify against him. At trial, King was represented by the same attorney who arranged to get Thompson out of jail and into treatment.
King, aware of his attorney's prior representation of Thompson, objected to this representation and asked the trial court to appoint a new defense attorney.
The district court refused, and King was convicted. 810 P.2d at 120-21.
The Court reversed King's conviction. In addition to concluding that King's counsel was ineffective in failing to interview or secure the testimony of two potential eyewitnesses, this court also concluded the district court abused its discretion in failing to evaluate "King's claim and put into the record the reasons for rejecting King's claim for ineffectiveness of counsel based upon a conflict of interest." 810 P.2d at 124.
The King court also discussed how an actual conflict of interest may arise in a case of former representation. The court summarized King's attorney's dilemma:
"While we do not know if his representation of King would necessarily be materially limited by his responsibilities with Thompson, "there is a presumption that an attorney receives confidential communications in the course of his representation of a client." United States v. Shepard, 675 F.2d 977, 980 (8th Cir. 1982). Because "the attorney may misuse confidential information obtained from the former client, or may fail to fully cross-examine for fear of misusing confidential information," id. at 979, the reliability of the adversarial process cannot be confidently relied upon." 810 P.2d at 124. In King, in addition to concluding the district court abused its discretion by failing to evaluate King's claim of a conflict of interest, this court also concluded that King's counsel was ineffective in failing to interview or secure the testimony of two potential eyewitnesses. King, 810 P.2d at 122-23.
Because the King court made this second conclusion, it was not faced with the question of what the appropriate remedy would be if only the conflict of interest issue existed. In his King dissent, Justice Cardine argued, relying on Wood v. Georgia, 450 U.S. 261 (1981), that the appropriate remedy on the conflict of interest issue was a remand for development of a record. 810 P.2d at 125-26.