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State v. Roberts10/26/1999
een sent to prison on at least three prior convictions for drug-related offenses. He is not a credible person. I don't care what he tells me any time before he's on the stand. I'm not giving him the pleasure of thinking about what his testimony is going to be. He'll lie through his teeth. That's why I say I don't want to talk to Mr. Billy Reyes until he's on the stand and he's giving a statement. There are going to be many, many inconsistencies, and we have full latitude to cross-examination {sic} of him. You'll see that when Billy Reyes is on the stand{;} he'll be fidgety and not able to handle it.
MR. KNODELL: . . . I don't hear Mr. Earl suggesting he should be able to use prior drug convictions to impeach Mr. Reyes.
MR. EARL: I'd love to use prior convictions. If he gets up on the stand and says he doesn't use drugs I think he opens up prior convictions.
Mr. Knodell has a real problem here with his witnesses. They are not the normal great witnesses in terms of background you'd have in this kind of case. They are not nice people. He can clean them up as best he can, but if Billy Reyes says I don't do drugs I will impeach seek to impeach him. Billy Reyes is dumb enough to do it.
During direct examination by the prosecutor during trial, Mr. Reyes admitted he had a prior conviction for tampering with a witness. He also testified he did not feel "too good" about testifying for the State because Mr. Roberts was a friend.
In an affidavit submitted in support of his motion for new trial, Mr. Roberts' new attorney reported Mr. Reyes "told me that he wouldn't say anything that would make the police or prosecutor mad. He also said that he didn't want to cause himself any more trouble with the police."
RPC 1.9 provides:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts; or
(b) Use confidences or secrets relating to the representation to the disadvantage of the former client, except as rule 1.6 would permit.
Mr. Roberts argues first that Mr. Earl should have been disqualified automatically under RPC 1.9 because he informed the court of a conflict of interest in a letter before trial. State v. White, 80 Wn. App. 406, 414, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996); State v. Hunsaker, 74 Wn. App. 38, 43, 873 P.2d 540 (1994). But Mr. Roberts' letter to the court did not reveal a conflict of interest; it merely alleged Mr. Earl was not preparing properly for trial and requested a continuance. The letter was not a basis for disqualifying Mr. Earl before trial. Mr. Roberts next contends the court erred in denying his motion for a new trial because Mr. Earl's former representation of Billy Reyes created a conflict with his duties to Mr. Roberts. He contends Mr. Earl's representation violated RPC 1.9 because it required him to maintain confidences or secrets he obtained in the course of his representation of Mr. Reyes.
An actual conflict of interest deprives a defendant of his Sixth Amendment right to effective assistance of counsel and is reversible error if the conflict adversely affects his lawyer's performance. In re Personal Restraint of Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983); see Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). A court's review in this circumstance is de novo. White, 80 Wn. App. at 410; Hunsa
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