Haner v. State, No. 290-7-07 Bncv (Wesley, J., May 12, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT                                                    BENNINGTON SUPERIOR COURT
BENNINGTON COUNTY                                                   DOCKET No. 290-7-07 Bncv


HAROLD HANER                                                        )
                                                                    )
           v.                                                       )
                                                                    )
STATE OF VERMONT                                                    )


      ORDER DENYING STATE’S MOTION TO PRECLUDE PETITIONER’S
                             EXPERT

           Introduction

           By his complaint for post-conviction relief pursuant to 13 V.S.A.§7131, Petitioner

Harold Haner seeks to set aside his conviction for sexual assault on a minor by alleging

ineffective assistance of counsel. He asserts that trial counsel’s performance was

deficient in several ways, including the failure to obtain an independent medical

examination of the complaining witness, A.H. Petitioner has retained Darah Kehnemuyi,

Esq., to render an opinion regarding trial counsel’s performance. In an affidavit dated

December 29, 2008, Mr. Kehnemuyi opined that Petitioner’s defense attorney should

have retained a medical expert to review A.H.’s records and conduct a physical exam,

and that failure to do so amounted to ineffective assistance of counsel.

           The State moves to exclude Mr. Kehnemuyi’s testimony claiming that he is

disqualified due to a conflict of interest under the Vermont Rules of Professional

Conduct. This claim stems from the commencement of concurrent juvenile and criminal

proceedings against Petitioner, resulting from A.H.’s allegations. A.H. was represented

in the juvenile proceeding by Marie Wood, Esq., of the Bennington County Public

Defender’s Officer. Although never having sought, nor obtained, assignment to represent
A.H. in the criminal case, Ms.Wood accompanied her Family Court client to A.H.’s

deposition scheduled by defense counsel in the sexual assault prosecution. Subsequently,

from March 1, 2009 through June 30, 2009, Mr. Kehnemuyi had a “caseload relief

contract”1 with the Defender General under which he covered arraignments in Windham

County on a rotating schedule with attorneys from the Windham County Public

Defender’s Office.2 By the terms of the contract, on those days specified by the Public

Defender’s rotation schedule, Mr. Kehnemuyi appeared in Windham District Court as the

sole Public Defender to be assigned to eligible defendants, and remained responsible for

each case to which he was assigned at such arraignments until resolution.

Legal Framework

         The State argues that Mr. Kehnemuyi has a conflict of interest under V.R.Pr.C.

1.9 and 1.10 that requires him to be disqualified as an expert in this case.3 The State


1
 Mr. Kehnemuyi also has an “assigned counsel contract” with the Defender General to provide services
when attorneys in the Windham County Public Defender’s Office have a conflict. The State does not
contend that this contract creates any conflict affecting his role as an expert for Petitioner in this case.
2
  The terms of the caseload relief contract do not indicate that it is specific to Windham County. However,
the Defender General testified that this was a county-specific contract, entered due to the extended personal
leave of an attorney in the Windham County Public Defender’s Office and the need avoid adding all new
cases coming in to the caseloads of the remaining staff. Mr. Kehnemuyi also testified that, under the
contract, he covered arraignments in Windham County District Court, and the State’s motion also indicates
that the caseload relief services were performed in Windham County only.
3
  The State’s standing to move for Mr. Kehnemuyi’s disqualification is suspect. Generally, to raise conflict
of interest as a basis for disqualification, there must have been an attorney-client relationship between the
party moving for disqualification and the party to be disqualified. Morgan v. N. Coast Cable Co. 586
N.E.2d 88, 90-91 (Ohio 1992) (“[A]s a general rule, a stranger to an attorney-client relationship lacks
standing to complain of a conflict of interest in that relationship.”); see also In re Yarn Processing Patent
Validity Litigation, 530 F.2d 83, 88 (5th Cir. 1976); Murchison v. Kirby, 201 F.Supp. 122, 124 (S.D.N.Y.
1961) (“Absent a complaint by the former or present client the moving party has no status to object to the
representation of the adverse party by an attorney of his choice.”). However, some courts have recognized
exceptions to this rule where the moving party has a sufficient interest in the outcome of the case or the
integrity of the judicial proceedings. See United States v. Cunningham, 672 F.2d 1064, 1072 n.7 (2d Cir.
1982) (state has a sufficient interest in maintaining the integrity of criminal proceedings to raise conflict of
interest as grounds for disqualifying defense counsel who had previously represented one of the state’s
witnesses); In re Gopman, 531 F.2d 262, 265–66 (5th Cir. 1976) (government has standing to disqualify
attorney for defendant because all attorneys have obligation to bring violations of ethics rules to the court’s
attention); State Farm Mut. Auto. Ins. v. K. A. W., 575 So.2d 630, 632–33 (Fla. 1991) (allowing insurer to


                                                       2
asserts that since V.R.Pr.C. 1.9 would prevent Ms. Wood from offering an opinion for

Petitioner that is adverse to the interests of her former client, and, because Mr.

Kehnemuyi provides public defense services under a contract with the Defender General,

therefore he is “associated in a firm” with Ms. Wood such that her conflict is imputed to

him under V.R.Pr.C. 1.10.4

         Where a lawyer is providing services to an organization on a temporary basis,

“[w]hether Rule 1.10 requires imputed disqualification must be determined case by case

on the basis of all relevant facts and circumstances, unless disqualification is clear under

the Rules.” ABA Formal Op. 88-356 (Dec. 16, 1988). Given the circumstances in this

case—Mr. Kehnemuyi is appearing as an expert, not an advocate; his opinion was formed

prior to entering the contract with the Defender General; Mr. Kehnemuyi is not an

employee of the Defender General or any public defender; and Mr. Kehnemuyi and Ms.

Wood provided services in separate county public defender offices—the Court concludes

stand in shoes of insured for purpose of asserting conflict of interest where it would be liable for verdict
against insured).
           The Vermont Supreme Court recently addressed a motion to disqualify for conflict of interest
raised by a party outside the attorney-client relationship. State v. Baker, 2007 VT 84, 182 Vt. 583. In that
case, the defendant moved to disqualify the prosecuting attorney, who had previously represented the co-
defendant on unrelated criminal charges. Id. at ¶¶ 1, 3. The Court analyzed the substance of the motion,
without addressing whether the defendant had standing to raise it. However, it did note that the language of
V.R.Pr.C. 1.9 would prevent the prosecutor from representing the state against his former client, the co-
defendant, but that here the rule was being used in an attempt to prevent representation against a person
other than the former client. Id. at ¶ 7 (“Rule 1.9 must be viewed with this important distinction in mind.”).
           Guided by Baker, as well as the authorities recognizing some latitude in the State’s role in seeking
clarification of seeming conflicts of interest, the Court reaches the merits of the claim here. Nevertheless,
especially in light of the concerns raised below regarding the strength of the State’s challenge, it bears
noting that the State does not represent A.H.; rather, it has an independent duty to assure the preservation of
justice. Its collateral attack on Defendant’s ability to present expert testimony in support of his claim of
ineffective assistance of counsel – justified by insisting that the success of such a challenge “would not be
in the interest of A.H.” – betrays a disquieting disregard for the possibility that other responsibilities could
be paramount to the State’s solicitude for a complaining witness, even one who is a minor having endured
the grueling experience of giving testimony in a sexual assault prosecution.
4
 Rule 1.10 states clearly that any disqualification of lawyers “associated in a firm with former or current
government lawyers is [exclusively] governed by Rule 1.11.” V.R.Pr.C. 1.10(d), cmt 7. However, Rule
1.11 only seems to control where a private lawyer has joined a government entity, or a government lawyer
has left public service to join a private firm. See V.R.Pr.C. 1.11 and comments. Since neither scenario is
present here, as the parties have done, the Court will analyze disqualification in this case under Rule 1.10.


                                                       3
that the alleged conflict is too attenuated to require disqualification of Mr. Kehnemuyi as

Petitioner’s expert. See State v. Baker, 2007 VT 84, ¶ 8, 182 Vt. 583 (mem.) (“[T]he

appearance of impropriety alone is simply too slender a reed on which to rest a

disqualification order except in the rarest of cases.” (quoting Stowell v. Bennett, 169 Vt.

630, 632 (1999) (mem.)).

         At the outset, it must be noted that this is a motion to preclude Mr. Kehnemuyi as

an expert; he has not been engaged to provide legal representation to Petitioner in these

post-conviction relief proceedings. In the absence of any Vermont case law setting forth a

standard for expert disqualification based on a conflict of interest, the Court looks to the

law of other states. Typically, to disqualify an expert because of a conflict of interest the

moving party must demonstrate that (1) it had a reasonable expectation of a confidential

relationship with the expert and (2) that actual confidences were divulged to the expert.

Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo. 1999); Formosa Plastics, Inc. v. Kajima

Intern, Inc. 216 S.W. 3d 436, 448 (Tex. App. 2006). This test was adapted from the test

for disqualifying conflicted attorneys to require proof that confidential communications

actually occurred, thus creating a higher burden for disqualification of experts.5 See

Mitchell, 981 P.2d at 175–76. This higher hurdle for expert disqualification is meant to

recognize the difference in the role of an expert (source of technical information and

neutral opinions for the trier of fact) and the role of an attorney (zealous advocate of

client’s cause). Id.

         Interestingly, there is little case law regarding the standard to apply when the

expert is an attorney. The Court could locate only one case on this point, W.R. Grace &

5
  To prove an attorney conflict, a party need only demonstrate the existence of an attorney-client
relationship that is substantially related to the present matter. See State v. Crepeault, 167 Vt. 209, 216
(1997). Once those facts are established it is presumed that confidential information passed. Id.


                                                       4
Co. v. GraceCare Inc., which itself notes the absence of other cases considering the issue.

152 F.R.D. 61, 64 (D.Md 1993). In W.R. Grace, the plaintiff sought to disqualify

defendant’s expert, Mr. Allen, a trademark attorney, where plaintiff had previously

contacted Mr. Allen as a potential expert witness for the same case. Id. at 64–65.

       In considering what test to use for the attorney-expert’s disqualification, the Court

said that even though Mr. Allen was contacted as an expert, it could not ignore that he is

an attorney and “the duties of an attorney-expert are greater than the ordinary expert.” Id.

at 65. The expert’s status as an attorney creates an assumption that any contact with him

took on a confidential character. Id. Therefore, the Court concluded it was appropriate to

apply the traditional conflict-of-interest analysis that would be used when the attorney

was appearing as an advocate— that is, where there is a confidential relationship with an

attorney-expert, the court need only look for the “reasonable probability” that

confidences have passed. Id. This Court accepts the logic of the Federal District Court of

Maryland in W.R. Grace, that whether an attorney is appearing as an expert or an

advocate, her position as an attorney dictates the ethical standards to which she must be

held. Therefore, the Court will apply the traditional test for attorney conflicts under the

Vermont Rules of Professional Conduct to this motion to preclude an attorney-expert.

       Mr. Kehnemuyi’s appearance as an expert in this case creates no direct conflict

with any current or former client of his as he was not involved in the underlying criminal

or juvenile proceedings. Thus, he can only be disqualified if he is “associated in a firm”

with a lawyer whose conflict with a current or former client would prevent them from

personally appearing as an expert in this case. See V.R.Pr.C. 1.10(a) (“While lawyers are




                                              5
associated in a firm, none of them shall knowingly represent a client when any one of

them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9. . . .”).

       In this case, deputy public defender Marie Wood represented the complaining

witness A.H. in juvenile proceedings stemming from the same events as the underlying

criminal charges against Petitioner. Under Rule 1.9, because of her former representation

of A.H., Ms. Wood would be prevented from now representing “another person in the

same or a substantially related matter in which that person’s interests are materially

adverse to the interest of the former client unless the former client gives informed

consent.” V.R.Pr.C. 1.9. Petitioner’s interest in setting aside his conviction for sexual

assault on A.H. is certainly adverse to her interests in having her assailant imprisoned,

and A.H. has not consented to Ms. Wood or Mr. Kehnemuyi testifying for Petitioner.

       The only real issue regarding Ms. Wood’s conflict is whether the juvenile

proceedings and the present action for post-conviction relief are substantially related.

Where a substantial relationship between the first and second representation is shown,

receipt of confidential information relevant to the second matter is presumed and

disqualification is required. See State v. Crepeault, 167 Vt. 209, 216–17 (1997).

“Substantiality is present if the factual contexts of the two representations are similar or

related.” State v. Baker, 2007 VT 84, ¶ 11 (quoting Crepeault, 167 Vt. at 216). This

determination “requires an analysis of the facts, circumstances, and legal issues of the

two representations.” Id.

       The legal issues and circumstances of the two representations in this case are very

different. In the juvenile proceeding, Ms. Wood’s role was to advocate for the best

interests of A.H. In this matter, the attorney’s task is to offer expert testimony regarding




                                              6
the performance of defense counsel at Petitioner’s trial. The present representation

concerns the way the court works, and seeks to ensure that a defendant’s constitutional

rights are protected; though it may indirectly affect A.H., the present case is not about her

best interests. However, there may be sufficient factual similarity between the two that

confidences obtained in the juvenile case could be implicated in an expert opinion

regarding the need for a medical examination of A.H.

       The situation here is similar to that in State v. Crepeault. There the attorney

prosecuting Ms. Crepeault for sexual assault on one of her children had previously

defended Ms. Crepeault in a juvenile CHINS proceeding regarding her ability to care for

her children. Crepeault, 167 Vt. at 214–15. Though the circumstances and legal issues in

the two proceeding were different, the Court still determined that there was enough

factual similarity between the two representations to warrant disqualification of the

prosecuting attorney.

       “The subject matter of [the prosecutor’s] prior representation of defendant
       in the CHINS proceeding concerned defendant's parenting abilities and her
       relationships with [her children]. In the course of that representation, [the
       prosecutor] could have been privy to any number of client confidences
       concerning defendant's treatment of the children. Although the immediate
       focus of the criminal prosecution focused specifically on defendant's
       alleged sexual abuse of J.C., it also involved underlying questions relating
       to the nature of her relationships with all of her children and the extremely
       troubled family dynamics.”

Id. at 217. Likewise, in the course of her representation of A.H., Ms. Wood presumably

learned details of the assault and A.H.’s physical condition that could be relevant in an

opinion as to whether an independent medical exam should have been performed on A.H.

Even Mr. Kehnemuyi acknowledged that if he were in Ms. Wood’s position, he would be

“uncomfortable” offering testimony in the present case. It is likely that the two matters




                                              7
are sufficiently related that it would be a conflict under Rule 1.9 for Ms. Wood to now

offer expert testimony in favor of Petitioner.

Association in a Firm

       Nevertheless, Mr. Kehnemuyi is subject to imputed disqualification only if he is

“associated in a firm” with Ms. Wood—it is here that the State’s argument fails. A

“firm” is “lawyers in a law partnership, professional corporation, sole proprietorship or

other entity or association authorized to practice law; or lawyers employed in a legal

services organization . . . .” V.R.Pr.C. 1.0(c). Government-run legal organizations are not

expressly included in this definition, though the comments suggest that a public defender

organization may be treated as a legal services organization. See V.R.Pr.C. 1.0 cmt 4.

Thus, assuming for the moment that a public defender’s office is a firm under the rule, to

be subject to disqualification, Mr. Kehnemuyi would have to be employed by the public

defender’s office when he rendered the opinion in this case.

       Mr. Kehnemuyi performed caseload relief services for the Windham County

Public Defender’s office pursuant to a contract with the Defender General. The Vermont

Supreme Court has explicitly stated that “a private attorney who represents indigent

defendants at the state’s expense pursuant to contract with the defender general is not a

state employee.” Reed v. Glynn, 168 Vt. 504, 505 (1998) (emphasis added). Though the

particular concern in that case was whether the contract attorney was a state employee for

the purposes of sovereign immunity, the Court applied the common law definition of

employee: if, under the contract, the party for whom the work is being done controls only

the result, and party performing the services can choose the means and methods to

accomplish that result, then he is not an employee. Id. at 506. The Court concluded,




                                                 8
given the express provisions of the contract that “the defender general had no power to

control the means and methods by which such representation was provided,” and

therefore the private attorney was not an employee. Id. at 507.

         Though the agreement at issue in Reed was a contract for conflict counsel, the

provisions relied on by the Court in reaching its decision—7 (defender general does not

supervise or control contractor), 10 (contractor maintains own liability insurance), and 11

(contractor acts in independent capacity not as officer or employee of the state)—are

identical to the provisions in Mr. Kehnemuyi’s caseload relief contract.6 Mr.

Kehnemuyi’s status as an independent contractor is further supported by his testimony, as

well as that of the Defender General, that Mr. Kehnemuyi is responsible for maintaining

his own office and malpractice insurance, he does not have a key to the public defender’s

office or access to his files, and the details of his representation are not supervised by the

Defender General. Thus, while carrying out his responsibilities for “caseload relief” in

aid of the Windham County Public Defender’s Office, Mr. Kehnemuyi is an independent

contractor for the Defender General—he is not an employee.

         The Court acknowledges that it is possible for an independent contractor to be

associated with a firm for the purpose of imputing a conflict of interest; however the

circumstances of this case do not support such a conclusion. Whether a temporary


6
  Compare provisions quoted in Reed v. Glynn, 168 Vt. at 504-05, with the following provisions in Mr.
Kehnemuyi’s contract:
7. Supervision of Contractor. The Defender General may not supervise or control in any way the
representation of persons receiving legal services as defined in paragraph 1 of this agreement. . . .
10. Insurance. Before commencing work on this contract the Contractor must provide the following
minimum insurance coverages. a) Professional liability insurance for any and all services performed under
this contract, with minimum coverage of $300,000.00 per occurrence . . . ..No warranty is made that the
coverages and limits listed herein are adequate to cover and protect the interests of the Contractor for the
Contractor's operations. . . .
11. Independence. The Contractor, and any agents and employees of the Contractor, shall act in an
independent capacity and not as officers or employees of the State.


                                                      9
contract attorney is associated with a firm “must be determined by a functional analysis

of the facts and circumstances involved in the relationship between the temporary lawyer

and the firm. . . .”, particularly whether there is access to confidential information of the

firm. ABA Formal Op. 88-356 Temporary Lawyers.

       Ultimately, whether a temporary lawyer is treated as being “associated
       with a firm” . . . depends on whether the nature of the relationship is such
       that the temporary lawyer has access to information relating to the
       representation of firm clients other than the client on whose matters the
       lawyer is working . . . . For example, a temporary lawyer who works for
       a firm, in the firm office, on a number of matters for different clients,
       under circumstances where the temporary lawyer is likely to have access
       to information relating to the representation of another firm clients, may
       well be deemed to be “associated with” the firm generally under Rule 1.10
       as to all other clients of the firm, unless the firm can demonstrate [limited
       access]. If such limited access can be demonstrated then the temporary
       lawyer should not be deemed to be associated with the firm under Rule
       1.10.”
Id.

       It is clear that Mr. Kehnemuyi had no access to confidential information in

the Windham County Public Defender’s office, let alone the Bennington County

office. Pursuant to the contract, Mr. Kehnemuyi maintained his own office and

worked from there; he did not have a key to the public defender’s office or access

to its files, even for the purposes of conflict checking; he did not work on matters

in conjunction with other attorneys in the public defender’s office but had sole

responsibility to see the cases he picked up on arraignment through to completion.

Moreover, he did not enter the caseload relief contract until March 1, 2009,

months after he initially offered an opinion in this case in December 2008. And

the contract ended on June 30, 2009, before Mr. Kehnemuyi has actually been




                                              10
called to testify.7 The Court concludes that Mr. Kehnemuyi was not employed by

or associated with the public defender’s office such that any conflict could be

imputed to him under Rule 1.10, even assuming that the Bennington County

Public Defender’s Office and the Windham County Public Defender’s Office are

properly considered one firm for the purposes of imputed disqualification.

State-Wide Public Defender System as a Firm

        Though not necessary to the conclusion just stated, the Court deems it prudent to

address the State’s contention that all public defender’s offices should be treated as one

state-wide firm. Of the cases the State cites in support of the “one firm” theory, none

actually hold that all regional public defender’s offices under the authority of a state

public defender or defender general are one firm for purposes of the Rules of Professional

Conduct. The closest holding is State v. Veale, 919 A.2d 794 (N.H. 2007), which

concludes that the Office of the Public Defender and the Office of the Appellate Defender

are one firm for the purposes of the Rules of Professional Conduct, given the structure of

those offices and “their close, and often overlapping, personnel and functions,” including

the sharing of confidential information. Id. at 796–97. Though Veale focuses on whether

the public defender and appellate defender are one firm, the Court also noted, without

discussion, that it is “obvious that the appellate defender and the public defender are,

individually, legal services organizations that qualify as firms.” Id. at 796.

        Yet, given the significant difference between the New Hampshire public defender

system and the Vermont public defender system, this conclusion is not so obvious in

Vermont. The New Hampshire public defender’s office is a private nonprofit


7
 At the time of the hearing on the State’s motion, Mr. Kehnemuyi still was engaged on behalf of a few
clients who were arraigned between March 1 – June 30, 2009, and whose cases had not yet resolved.


                                                   11
corporation that provides representation of indigent defendants through county offices,

under a contract with the state. See http://www.nhpd.org/employment.htm. It is not a

state-run defense organization like the Vermont system. As a private legal organization,

the New Hampshire public defender system is arguably a “firm” under the plain language

of the Rules of Professional Conduct. See V.R.Pr.C. 1.0 (c); 1.10 cmt 1. But however the

New Hampshire Supreme Court justified its conclusion that the public defender’s office

is “obviously” one firm, this Court is not persuaded that the same result pertains in

Vermont.

       Nor do the other cases cited by the State go so far as to hold that all regional

offices under the supervision of a state public defender are one firm. Rather, these courts

conclude that public defenders in the same regional office or judicial circuit should be

considered a “firm” in which the conflict of one attorney is automatically imputed to

other members of the office. See Okeani v. Sup. Ct. Maricopa Co., 871 P.2d 727, 729

(Ariz. Ct. App. 1993) (conflict is not relieved by substituting attorney from same county

public defender’s office for conflicted attorney); Ward v. State, 753 So. 2d 705, 708 (Fla.

Dist. Ct. App. 2000) (all branch offices of public defender of particular judicial circuit are

“firm” for purpose of rules of professional conduct); Perkins v. State, 487 S.E.2d 365,

368 (Ga. Ct. App. 1997) (“[F]or purposes of ineffective assistance claims, public

defenders in the same [county] office are treated as members of a law firm.”); State v.

Watson, 620 N.W. 2d 233, 241 (Iowa 2000) (conflict imputed to members of same

county public defender’s office); Jackson v. State, 495 S.E. 2d 768, 773 ( S.C. 1989)

(noting potential conflict of interest when attorneys in same county public defender’s

office represent co-defendants); In re Saladin, 518 A.2d 1258, 1260 n.4 (Pa. Super. Ct.




                                             12
1986) (“Even the representation of two clients by different attorneys employed by the

same Defender Association constitutes dual representation for the purpose of conflict of

interest analysis.”); see also Duvall v. State, 923 A.2d 81, 95 (Md. 2007) (“[E]ach district

office of the public defender should be treated as a private law firm for conflict of interest

purposes.”). Like the New Hampshire Supreme Court, these states simply declare that

the public defender’s office should automatically be treated the same way as a private

firm for the purposes of imputing conflicts of interest, without engaging any analysis of

the Rules of Professional Conduct or the policy reasons that would support treating a

government legal services agency the same as a private law firm.

        On the other hand, states that have declined to automatically consider regional

public defender’s offices as one firm couch their analysis with reference to the function

of a government agency providing public defense services, and the implications of

treating them the same as private firms. See e.g. State v. Severson, 215 P.3d 414, 426–27

(Idaho 2009); Bolin v. State, 137 P.3d 136, 145 (Wyo.2006). These cases do not rule out

the possibility that a regional office of the public defender could be treated as one firm

for conflict purposes;8 they simply decline to automatically treat the office as one firm

but instead determine on a case by case basis whether a there is a potential conflict and a

likelihood of prejudice that would require that the conflict be imputed to all attorneys in

an office. See People v. Daniels, 802 P.2d 906, 915 (Cal. 1991) (“[A] rule of automatic

disqualification is unnecessary, and would hamper the ability of public defenders' offices

to represent indigents in criminal cases.”); State v. Pitt, 884 P.2d 1150, 1156 (Haw. Ct.

App.1994) (rejecting per se disqualification of public defender office in favor of case


8
 These cases also focus only on whether attorneys in the same county or regional public defender’s office
should be treated as one firm—there is no discussion of all public defenders being one state-wide firm.


                                                   13
specific determination); State v. Severson, 215 P.3d 414, 426 (Idaho 2009) (adopting

case-by-case conflict analysis instead of automatic disqualification rule); People v.

Robinson, 402 N.E.2d 157, 162 ( Ill.1979) (declining to adopt a per se rule that

“individual attorneys who comprise the staff of a public defender are members of an

entity which should be subject to the rule that if one attorney is disqualified by reason of

a conflict of interest then no other member of the entity may continue with the

representation”); State v. Bell, 447 A.2d 525, 528 (N.J. 1982) (approving rejection of per

se disqualification in favor of showing conflict case by case); Bolin v. State, 137 P.3d

136, 145 (Wyo.2006) (“Wyoming has not adhered to a per se disqualification rule for

assistant district attorneys or public defenders when a conflict of interest is alleged.”).9

         These cases recognize essential differences between private firms and

government-run defense services that counsel against automatically disqualifying an

entire public defender’s office. First, due to the nature of a public defender’s role in the

defense of an individual client in a criminal matter, including the absence of any financial

obligations to the firm owed by the client, neither most defendants entitled to assigned

counsel, nor the public at large, are likely to view the potential for imputed conflicts

similarly to those that might arise from relationships with law firms engaged in private

practice. See Severson, 215 P.3d at 426–27; Bolin, 137 P.3d at 145. Second, and perhaps


9
  The State attempts to distinguish these cases as irrelevant because the public defender systems in those
states operate independently within counties, rather than under the supervision of a state office of the public
defender as in Vermont. However, a closer look reveals that several of the states declining to apply a per se
rule of disqualification—Hawaii, New Jersey, Wyoming—actually have a state public defender system.
See Haw. Rev. Stat. §§ 802-8–802-12, N.J. Stat. Ann. § 2A:158A-1 et seq, Wyo. Stat. Ann. § 7-6-103.
Conversely, at least two states that automatically treat a public defender’s office as a firm—Iowa and
Maryland—also have state public defender systems. See Iowa Code §§ 13b.1–.10; Md. Code. Ann., Crim.
Proc. §§ 16-202, -203, -207. While the structure of the state public defender system may play some role in
the conflict analysis, the Court is not convinced that the existence of a state public defender mandates that
all regional offices supervised by that authority be treated as a single firm.



                                                      14
more importantly, “a rule of automatic disqualification would significantly hamper the

[public defender’s] ability to provide legal representation of indigent clients.” Severson,

215 P.3d at 426; see also People v. Daniels, 802 P.2d 906, 915 (Cal. 1991). This

rationale is particularly convincing in a rural state like Vermont where relatively few

public defenders serve a relatively large client base. The test applied by courts taking a

case-by-case approach is “whether the circumstances demonstrate a potential conflict of

interest and a significant likelihood of prejudice. If so, there is a presumption that both

an actual conflict of interest and actual prejudice will arise” and the conflict should be

imputed to the entire office. Severson, 215 P.3d at 426 (citations omitted).

       In the absence of any Vermont case law considering whether a public defender’s

office should be treated as a firm, this Court finds compelling the rationale of the case-

by-case approach as the best way to balance access to legal services with a client’s right

to conflict-free counsel. See Severson, 215 P.3d at 426 (“Analyzing conflicts within a

public defender's office on a case-by-case basis permits flexibility and ensures that

indigent defendants receive adequate representation. At the same time, it protects

defendants who would otherwise be prejudiced by a public defender's conflict of

interest.”). Under the circumstances of this case, the application of this approach would

not disqualify Mr. Kehnemuyi as an expert, even if he had been considered a temporary

employee of the Windham County Public Defender’s Office. He is not actually

representing a person adverse to the former client, but is offering an expert opinion. Any

potential conflict did not exist at the time his opinion was formed because he did not

enter the caseload relief contract until months later. In performing services under the

contract, he was not supervised by the public defender’s office or the Defender General,




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nor did he have access to confidential information in the Windham County Public

Defender’s Office, whom the services were performed for, let alone the Bennington

Public Defender’s Office. Most critically, it is undisputed that he has never consulted

with Ms. Wood regarding any aspect of the case in forming his opinion, and has been

privy to none of A.H.’s confidences.

       In sum, Mr. Kehnemuyi was not, and is not, employed by the Defender General,

and thus he is subject to no imputed conflict arising from such employment by the former

attorney for the complaining witness. Moreover, even assuming Mr. Kehnemuyi’s

employment relationship could be described as one involving “temporary employment”

in the Windham County Public Defender’s Office, no automatic disqualification arises

from Ms. Wood’s employment in the Bennington County Public Defender’s Office. Not

only has the State failed to demonstrate any actual potential for the betrayal of

confidences, but the relationships at issue in this matter are so palpably attenuated that

they can not seriously stir concerns as to any appearance of impropriety.

       To the contrary, the Court must note that post-conviction relief cases are typically

characterized by severe challenges to an indigent prisoner’s ability to obtain an

experienced evaluation of the competence of trial counsel—opinions which are virtually

indispensable to the viability of most petitions for post-judgment relief. Thus, the State’s

effort to disqualify Petitioner’s expert in this matter affords a dramatic example of the

adverse consequences likely to result if imputed conflicts must be automatically

recognized in connection with Vermont’s state-wide administration of its public defender

system. Finding an expert with Mr. Kehnemuyi’s experience would surely not be a

matter of simple substitution. The State’s zeal in this matter presumably is explained by




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its desire to avoid any possibility of a retrial, and the negative impact that might have on

A.H. Yet, if Petitioner’s conviction was tainted by ineffective assistance of counsel, the

State no less than the Court is diminished by a process that fails to allow for a fair

examination of that claim. To grant the State’s motion as a matter of automatic

disqualification would jeopardize the integrity of these proceedings, and enshrine a

formalism likely to be broadly antithetical to the rights of indigent criminal defendants to

the services of competent legal counsel.

       In light of the foregoing, the State’s Motion to Preclude Petitioner’s Expert is

DENIED.

       Dated this ____ day of May, 2010 at Bennington, Vermont.



                                               _________________________________
                                               John P. Wesley, Presiding Judge




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