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Counsel – Conflict of Interest – Prior Representation by Prosecutor: “Reverse Representation”

State v. David Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428
For Kalk: John A. Pray, UW Law School

Issue: Whether the defendant satisfied his burden of showing an actual conflict of interest stemming from his prior representation by the prosecutor on an unrelated charge.

Holding: Given the trial court’s findings of historical fact, defendant did not show that his prosecution was influenced by the prior representation.Analysis: Kalk’s prosecutor had previously represented him on an unrelated charge. Kalk didn’t object until a postconviciton motion asserting conflict of interest. Though Kalk asserted that during this prior case he revealed to the prosecutor damaging information about himself, the trial court found that he hadn’t, and also that the current prosecution wasn’t influenced by the prior representation. The court of appeals says that this “reverse representation” case, though novel, is similar to any other conflict of interest situation: where no objection is lodged, the defendant must show by clear and convincing evidence an actual conflict, which in this context would be that the prosecutor had a competing loyalty which adversely affected Kalk’s interests. ¶16. The trial court’s findings are entitled to deference, and given those findings, along with the absence of any connection between the prior and present cases, the court discerns no competing loyalties. ¶¶19-21.

What happens when counsel for a defendant on a pending case lands a job with the prosecutor? See Johnson v. State, 2003 WY 9, 61 P.3d 1234, setting down the following guidelines “which must be followed”:

1. Oral and written directions must be given to all staff members that the attorney will not participate in any matter in which the attorney participated as a public defender or criminal defense attorney. A written screening policy must be put in place to ensure this requirement is met.2. A letter should be directed to every former client of the attorney announcing the new employment relationship. This letter may be sent to the client, care of the client’s current attorney. Ideally, this letter should appear in the court record of an affected criminal case.

3. The prosecuting attorney’s screening policy should be sent to every judge in the district, circuit, and/or county affected.

4. A copy of the screening policy should be placed in every active case file in which the attorney participated.

5. All office employees should be advised both orally and in writing that any violation of the screening process must be reported immediately and that inattention to the screening policy will result in discipline.

6. In a prominent location near case files, post a list of all cases from which the attorney is to be screened.



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