Opinion
Court of Appeals No. A-10845 Trial Court No. 3PA-07-1881 Civ No. 5843
05-02-2012
MARK NASON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda Kerry, Girdwood, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge.
Appearances: Glenda Kerry, Girdwood, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
Mark Nason was charged with first-degree assault for shooting his girlfriend, Heather Gillespie. Nason was represented in this criminal case by attorney Larry A. Wiggins.
At about the same time, the State of Alaska instituted a child-in-need-of-aid proceeding against Nason and Gillespie, seeking custody of their child. Nason and Gillespie hired Wiggins to represent both of them in this CINA proceeding. Wiggins remained Gillespie's attorney in the CINA case until shortly before Nason's criminal trial.
Nason was ultimately convicted of the assault charge. He then filed a petition for post-conviction relief, asserting that he received ineffective assistance of counsel from Wiggins because Wiggins had a conflicting loyalty to Gillespie, the victim of the assault.
Wiggins's professional responsibilities to Nason were governed by Alaska Professional Conduct Rule 1.7(b) — more precisely, the 2001 version of Rule 1.7(b) which was in effect at the time of these events. Under this former version of Rule 1.7(b), a lawyer was prohibited from representing a client "if the representation of that client [might] be materially limited by the lawyer's responsibilities to another client or to a third person" — unless the lawyer "reasonably believe[d] [that their] representation [of the client] [would] not be adversely affected" by the lawyer's responsibilities to the other person, and "the client consent[ed] [to the lawyer's continued representation] after consultation."
Wiggins no longer represented Gillespie at the time of the substantive proceedings in Nason's criminal case (the pre-trial litigation of Nason's motion to suppress, and later the trial itself). Thus, at the time of those proceedings, Wiggins's professional responsibilities to Gillespie were not governed by Professional Conduct Rule 1.7, but rather by Professional Conduct Rule 1.9, the rule describing a lawyer's obligations when the interests of a former client may conflict with the interests of a current client or potential client.
Under Professional Conduct Rule 1.9(a) — again, the 2001 version of the rule — a lawyer who had formerly represented a client was prohibited from later "represent[ing] another person in the same [matter] or [in] a substantially related matter" if the other person's interests "[were] materially adverse to the interests of the [lawyer's] former client[,] unless the former client consent[ed] after consultation."
One might suppose that there is no clearer example of conflicting interests than between (1) a man accused of shooting his girlfriend and (2) the girlfriend who was shot. But life is not so simple. At Nason's trial, Gillespie steadfastly maintained that Nason had not shot her. She testified that the shooting was an accident — that the gun discharged when she (Gillespie) threw it on a table. Gillespie gave this exculpatory testimony even though (according to Gillespie) a representative of the Alaska Department of Health and Social Services threatened to take her child from her if she did not testify against Nason.
During the evidentiary hearing on Nason's petition for post-conviction relief, Wiggins testified that he spoke to Nason and Gillespie about their potentially conflicting interests. In particular, Wiggins knew that Gillespie had made inconsistent statements about the shooting, and that, in some of her statements, Gillespie accused Nason of shooting her. But Gillespie told Wiggins that she had said these things only because of the threats she received from the Department of Health and Social Services, and because of her fear that the State would take her child away.
Wiggins testified that he discussed the potential conflicts of interest "very clearly" with Nason and Gillespie. He told the court that he spoke to Nason about the possibility that the jury's view of the case, or the jury's assessment of the credibility of the testimony, might be affected by the knowledge that Nason and Gillespie were so closely aligned that they had formerly shared the same attorney. But because Gillespie was adamant that the shooting was an accident, and because both Nason and Gillespie assured him that there was no active conflict between them, Wiggins ultimately concluded that he could continue to represent Nason in the criminal case.
Nason took the stand at the post-conviction relief hearing and gave a very different account. He testified that Wiggins never discussed the potential conflicts of interest with him, and that he (Nason) never consented to have Wiggins continue to represent him despite the potential conflicts.
After hearing this conflicting testimony, Superior Court Judge Vanessa White concluded that Wiggins's version of events was credible, and that Nason and Gillespie had, in fact, knowingly consented to Wiggins's continued participation in the case even after he explained the potential conflicts. We have reviewed the record, and we conclude that the judge's finding on this issue is not clearly erroneous.
If, as Judge White found, Wiggins explained the contours of the problem to Nelson and Gillispie, and both Nason and Gillispie then consented to Wiggins's continued participation, the only potential remaining question is whether there was such an egregious conflict of interest between Nason and Gillispie that no reasonable attorney in Wiggins's position would have thought it proper to continue to represent Nason (even though Nason and Gillispie were willing to have Wiggins continue).
The answer is that the record does not reveal any active conflict. Even though these matters were extensively investigated during the post-conviction relief litigation, Nason failed to point out any instance where Wiggins's defense of Nason's criminal case was adversely affected by his purportedly conflicting loyalty to Gillespie.
For these reasons, the judgement of the superior court is AFFIRMED.