         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      June 13, 2001 Session

                      KEVIN BURNS v. STATE OF TENNESSEE

              Interlocutory Appeal from the Criminal Court for Shelby County
                         No. P-21820 James C. Beasley, Jr., Judge



                     No. W2000-02871-CCA-R9-PD - Filed August 9, 2001


The petitioner, currently represented by the Office of the Post-Conviction Defender, was originally
convicted of felony murder and sentenced to death. The petitioner's conviction and sentence were
affirmed on direct appeal. See State v. Burns, 979 S.W.2d 276 (Tenn. 1998). After the filing of a
post-conviction relief petition, the post-conviction court granted the state’s request to disqualify the
Post-Conviction Defender since a member of the Post-Conviction Defender Commission was related
to the victim of the crime. In this interlocutory appeal, the petitioner argues: (1) there is no conflict
of interest; and (2) if a conflict exists, it can be waived. After a thorough review of the record, we
conclude that (1) there is no actual conflict, and (2) any alleged impropriety may be waived by the
petitioner after full disclosure. We reverse and remand for further proceedings.

 Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Criminal Court
                                  Reversed; Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which NORMA MC GEE OGLE, J., and
CORNELIA A. CLARK, Sp. J., joined.

Donald E. Dawson, Post-Conviction Defender, and Marjorie A. Bristol, Assistant Post-Conviction
Defender, Nashville, Tennessee, for the appellant, Kevin Burns.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John W. Campbell and Thomas D. Henderson,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                              OPINION

       The Office of the Post-Conviction Defender (hereinafter “PCD”) was created to provide
representation to indigent persons convicted and sentenced to death. Tenn. Code Ann. § 40-30-302.
The PCD must operate “consistent with professional standards and shall not compromise
independent professional judgment, or create a professional or institutional conflict of interest, [or]
appearance of impropriety . . . or other violation of the Tenn. Code of Professional Responsibility
. . .” Id.

       The PCD’s Office is controlled by a nine-member commission. See Tenn. Code Ann. § 40-
30-303. The commission is responsible for appointing a qualified attorney as PCD, preparing an
annual budget for the office of the PCD, administering the funds made available to the office, and
overseeing the expenditure of the funds. Tenn. Code Ann. § 40-30-304(c), (d).

        The PCD was appointed to represent petitioner, Kevin Burns, in his petition for post-
conviction relief. Petitioner was originally convicted of first degree murder and sentenced to death.
Approximately one year after the appointment, the state sought to disqualify the PCD alleging that
one of the PCD Commission members was a cousin of the victim in this crime. The post-conviction
court found the PCD had an actual conflict of interest, declared that the conflict was not waivable
by petitioner, and disqualified the PCD. This interlocutory appeal followed.


                                         BACKGROUND

        The underlying facts and procedural history relevant to this issue are undisputed. On
November 4, 1999, the PCD was appointed to represent the petitioner on his petition seeking post-
conviction relief. The affidavits of the Post-Conviction Defender and the petitioner indicate that the
PCD actually began its involvement in this case in November 1998, a year before its appointment
in the post-conviction proceeding, immediately after the Tennessee Supreme Court denied relief in
the direct appeal. The PCD’s affidavit also indicates that the PCD assisted in the filing of a petition
to rehear with the Tennessee Supreme Court and a petition for writ of certiorari in the United States
Supreme Court. It further indicated that the PCD assisted in the preparation of the pro se petition
for post-conviction relief along with motions to appoint counsel and stay execution.

        Carolyn Watkins, a member of the PCD Commission, was a second cousin once removed
to the victim since the victim's grandmother was the first cousin of Watkins' grandfather. The
victim's mother called Watkins on September 26, 2000, and inquired why witnesses were being
subpoenaed. Watkins called the district attorney's office and was informed that the petitioner was
seeking post-conviction relief. After Watkins' call, the state filed a motion to disqualify, which was
subsequently granted by the trial court.


                          HEARING ON MOTION TO DISQUALIFY

A. Testimony

       Carolyn Watkins testified at the disqualification hearing that she is currently employed with
the Shelby County Office of Equal Opportunity Compliance; she is a member of the PCD's
Commission; and at the time of the petitioner’s trial, she was employed by the Shelby County Public

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Defender’s Office as a member of the capital defense team. It was her recollection that the Shelby
County Public Defender’s Office was never involved in the representation of the petitioner since
Watkins was the cousin of the victim. She explained her relationship with the victim and his family,
prior to the victim’s murder, as follows: she had never met the victim; she met the victim’s mother
in 1992; she had previously known the victim’s grandmother; and she saw the victim’s grandmother
approximately once every two years. Watkins stated that she “just ran into [the victim’s
grandmother and mother] in the hall” of the courthouse during the petitioner’s trial. She further
stated that she could not recall if she first learned of the victim’s death during that meeting. Watkins
stated that she did not “sit through the [petitioner’s] trial,” but she would periodically check on her
relatives and “explain what was going on in the proceedings.”

        On September 26, 2000, almost two years after the Tennessee Supreme Court affirmed
petitioner’s death sentence, Watkins was contacted by the victim’s mother inquiring why a trial
witness was again being subpoenaed. Watkins then contacted the district attorney’s office, was
referred to the prosecutor in this case, learned for the first time of the post-conviction proceedings,
learned that the PCD represented the petitioner, and informed the prosecutor of her position on the
PCD Commission.

         During examination by the court, Watkins stated that she merely explained the legal process
to the victim’s family during the trial. Additionally, Watkins stated that she did not recall conferring
with the victim’s family concerning the facts of the murder, defense strategies, plea negotiations, or
the penalty phase of the trial. She further explained that the victim’s family was primarily concerned
with why the case was continued numerous times.

        Watkins summarized the PCD Commission’s duties to include: hiring, proposal of the
budget, oversight of the budget, and policy suggestions. She stated that the commission meets
approximately once or twice per year, often by telephone or video conferencing. When asked if the
PCD’s Office’s continued representation of petitioner would affect her work on the commission, she
stated that she “can’t foresee how it would.” She further expressed her strong belief in the rights of
criminal defendants.

        The petitioner also filed his own affidavit in which the details of the alleged conflict were
fully disclosed; he stated he understood the details of the dispute involving the alleged conflict; he
stated he had developed trust in the PCD; he expressed his desire that the PCD continue to represent
him; and he waived any conflict. Time records documenting over 1500 hours of work performed
by the PCD staff were also filed as part of the record. The affidavit of the PCD indicates that the
distant familial relationship between Watkins and the victim would have no effect on the
representation of petitioner.

B. Trial Court’s Findings

       At the hearing, the trial court indicated that Watkins’ relationship to the victim’s family
created both an “appearance of a possible conflict” and an actual conflict. In its written order, the

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trial court found that the relationship created an actual conflict which required disqualification, and
the trial court further implicitly found that the conflict could not be waived by the petitioner.


                                            CONFLICT

A. Standard of Review

        Pursuant to its inherent authority, our supreme court promulgated the disciplinary rules
defining and regulating ethical requirements applicable to practicing attorneys. See Clinard v.
Blackwood, __S.W.3d__, __, 2001 WL 530834, at *2 (Tenn. May 18, 2001); Tenn. Sup. Ct. R. 8.
A trial court’s ruling on the disqualification of counsel will be reversed only upon a showing of an
abuse of discretion. Id. An abuse of discretion occurs when the trial court applies an incorrect legal
standard, or reaches a decision which is against logic or reasoning that causes an injustice to the
complaining party. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). Our supreme court stated:

               As the above authorities suggest, this Court owes a special obligation to
       ensure proper application of our rules and administration of the legal profession. Our
       review of a lower court’s interpretation of the ethical rules promulgated by this Court
       is plenary. See In re: Burson, 909 S.W.2d 768, 774 (Tenn. 1995); Belmont v. Bd. of
       Law Examiners, 511 S.W.2d 461, 462 (Tenn. 1974); Anderson, 676 S.W.2d at 333-
       34. Accordingly, we will closely scrutinize a trial court’s disqualification of an
       attorney or that attorney’s firm for an abuse of discretion arising from improper
       interpretation or application of our rules. Accord Cheves v. Williams, 993 P.2d 191,
       205 (Utah 1999) (“The proper standard of review for decisions relating to
       disqualification is abuse of discretion. However, to the extent this court has a special
       interest in administering the law governing attorney ethical rules, a trial court’s
       discretion is limited.”).

Clinard, __ S.W.3d at __, 2001 WL 530834, at *2.

B. Applicable Ethical Requirements

        The presented issue involves the application and interaction of two separate and distinct
ethical requirements; namely, Tenn. Sup. Ct. R. 8, Canon 5, DR 5-101(A) (refusing employment
when the interests of the lawyer may impair the lawyer’s independent professional judgment), and
Tenn. Sup. Ct. R. 8, Canon 9 (avoiding the appearance of impropriety). We will examine both
requirements and whether a conflict is waivable.

                                      (1) Conflict and Waiver

        Although one seeking post-conviction relief has no constitutional right to counsel or effective
assistance of counsel, he or she does have a statutory right to counsel. See Tenn. Code Ann. § 40-30-

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207(b)(1); Leslie v. State, 36 S.W.3d 34, 38 (Tenn. 2000). By implication, we believe this statutory
right, even though not a Sixth Amendment right, includes the right to be represented by conflict-free
counsel. See Wilcoxson v. State, 22 S.W.3d 289, 320 (Tenn. Crim. App. 1999) (noting right to
conflict-free counsel is inherent in cases which involve the Sixth Amendment right to counsel).

        Generally, an attorney with an “actual conflict of interest” should withdraw or be subject to
disqualification. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). An “actual conflict of interest”
usually involves one attorney representing two or more persons with diverse interests. State v. Tate,
925 S.W.2d 548, 552 (Tenn. Crim. App. 1995). In essence, it is where an attorney is placed in a
position of divided loyalties. Id. at 553 (citations omitted).

        Most conflicts can be waived by the client after full disclosure. See id. However, trial courts
should have substantial latitude in refusing waivers of conflicts since the likelihood and dimensions
of conflict are often difficult to predict. Wheat v. United States, 486 U.S. 153, 162-63, 108 S. Ct.
1692, 100 L. Ed. 2d 140 (1988). The Wheat allowance of substantial latitude to the trial court in
accepting or refusing waivers appears to be based, at least in part, upon the federal courts’
independent interest in ensuring ethical compliance and the appearance of fairness. Id at 160. Since
the State of Tennessee has the same independent interest, we see no reason to deviate from the
Wheat rationale.

                          (2) DR 5-101: Independent Professional Judgment

        Withdrawal or disqualification under DR 5-101 is required only when “professional
judgment . . . will be or reasonably may be affected by the lawyer’s own financial . . . or personal
interests.” We further note that the rule expressly provides that the conflict may be waived “with
the consent of the client after full disclosure.” DR 5-101.

                                (3) Canon 9: Appearance of Impropriety

       Withdrawal or disqualification may also be required where there is an “appearance of
impropriety” as set forth in Canon 9.1 See Clinard, __ S.W.3d at __, 2001 WL 530834, at *6;
Culbreath, 30 S.W.3d at 313. The existence of an appearance of impropriety is determined from the
perspective of a reasonable layperson. Clinard, __ S.W.3d at __, 2001 WL 530834, at *7 (citation
omitted). The mere possibility of impropriety is insufficient to warrant dismissal. Id. at ___, 2001
WL 530834, at *6. Disqualification of counsel on this basis alone is a “drastic remedy” to be
employed only in “rare case[s].” Id. at ___, 2001 WL 530834, at *7.



        1
           The Tennessee Supreme Court noted that the “appearance of impropriety” standard has been widely criticized
and has been rejected by the A merican Bar Asso ciation’s M odel Ru les of Profe ssional Co nduct. Clinard, __ S.W.3d
at __, 2001 WL 530834, at *6. The court also noted that future revisions to our Code could yield a similar rejection.
Id. at n. 7. Since the ultima te outc ome of Clinard was based upon the “appearance of impropriety” provision, the
Clinard holding may n ot be lasting precede nt.

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                                             (4) Summary

         In summary, a post-conviction petitioner is statutorily entitled to conflict-free counsel. A
violation of DR 5-101 (impaired independent professional judgment) or Canon 9 (appearance of
impropriety) creates a conflict. These conflicts may usually be waived after full disclosure, except
the trial court is given substantial latitude in determining whether to accept a waiver. The appellate
court reviews the trial court’s determination on disqualification issues under an abuse of discretion
standard; however, this court closely scrutinizes disqualification since it involves an interpretation
of rules governing ethical behavior of attorneys.

C. Analysis: DR 5-101

        Watkins’ testimony at the hearing revealed that she is distantly related to the victim (second
cousin once removed); she never met the victim; she was unaware of the post-conviction
proceedings until September 2000; she was unaware that the PCD’s Office was appointed to
represent petitioner until she called the district attorney general’s office; she had limited contact with
the victim’s family; the petitioner’s continued representation by the PCD’s Office would not affect
her work on the commission; she is one of nine commissioners on the PCD Commission; the
commission meets one or two times per year mostly by telephone or video conference; and she has
no real involvement as a commission member with the day-to-day operations of the PCD. The
affidavit of the PCD states that Watkins’ situation would not affect the representation of the
petitioner.

        The only argument that can realistically be made with regard to an actual conflict is that, as
one of nine commission members, Watkins votes to hire the PCD and oversees the budget. We
conclude that Watkins’ distant familial relationship with the victim and his family and her de
minimus authority over petitioner’s counsel are not sufficient to establish an actual conflict or a
serious potential for a conflict. We further conclude that there is no indication that the PCD’s
professional judgment will be or reasonably may be affected by these circumstances. Thus, there
is no violation of DR 5-101.

D. Analysis - Appearance of Impropriety

        However, our analysis does not end with our finding of no actual conflict, for “even ‘[i]f
there is no actual conflict of interest, the court must nonetheless consider whether conduct has
created an appearance of impropriety.’” Clinard, __ S.W.3d at __ , 2001 WL 530834, at *7 (citing
Culbreath, 30 S.W.3d at 312-13).

         In Clinard, our supreme court held that the mere appearance of impropriety justified the
removal of counsel where a member of the counsel’s law firm formerly represented the adversaries
of the firm’s current clients in the same litigation. Id. The court described the situation as follows:


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       [Counsel’s] firm now stands as adversary against the [former clients] in the very
       litigation in which [counsel] once represented them and gained their confidences. To
       analogize to baseball, [counsel] has not only switched teams, he has switched teams
       in the middle of the game after learning the signals. That [counsel] has been benched
       by his new team does little to ameliorate the public perception of an unfair game.

Id. The case at bar does not in any way involve confidences gained by the PCD that can be used
against a former client. There has been no switching of teams.

        Even though there has been no switching of teams in the case at bar, an appearance of
impropriety is not limited to such a scenario. See id. at ___, 2001 WL 530834, at *6 (observing that
ethical rules must be broad, and the appearance of impropriety standard is appropriate when more
specific rules may be ineffective). Accordingly, “from the perspective of a reasonable lay person,”
we conclude that in this capital case representation by appointed counsel under these circumstances
could create, to some degree, an appearance of impropriety. See id. at ___, 2001 WL 530834, at *7
(holding appearance of impropriety is determined “from perspective of a reasonable lay person”).
To the extent that there is an appearance of impropriety, we must now determine whether petitioner
should be able to waive it.

E. Analysis - Waiver

           The Clinard court qualified the standard for disqualification under Canon 9, stating “[w]e
recognize that disqualification of one’s counsel is a drastic remedy and is ordinarily unjustifiable
based solely upon an appearance of impropriety. We remain convinced, however, that in a rare case
. . . the taint of the appearance of impropriety can be purged only by disqualification.” Id. (emphasis
added). We must now determine whether the case at bar is one of those “rare case[s]” in which the
taint of the appearance of impropriety can be purged only by the drastic remedy of disqualification.

       The state in its brief concedes that any conflict in this matter is waivable by the petitioner
upon full disclosure; however, it insists the post-conviction court is not required to accept the waiver
under the circumstances. See Wheat, 468 U.S. at 162-63.

        In determining whether the trial court abused its discretion in disqualifying the PCD without
the opportunity for waiver, we should consider all the facts and circumstances surrounding this case.
We appreciate the concerns of the trial court. This is a death penalty case which will be closely
scrutinized by the courts of this state and perhaps the federal courts as well. However, we also
recognize that the statute contemplates representation by the PCD absent an ethical impropriety.
Certainly, the PCD is not the only counsel who can provide competent representation of the indigent
petitioner. Nevertheless, the PCD was specifically created to provide specialized knowledge and
competent representation in death penalty cases. We also note that the request for disqualification
came long after the PCD’s original involvement with the petitioner and his case. This involvement
apparently began in November 1998 immediately after the Tennessee Supreme Court denied relief
on direct appeal, has continued, and has resulted in over 1500 hours of work performed on

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petitioner’s behalf. According to petitioner’s affidavit, he has developed trust in the PCD and desires
their continued representation. Although the indigent petitioner is not entitled to counsel of his
choice, his relationship with his appointed counsel is relevant to our evaluation as to whether
disqualification is the only “drastic remedy” available to purge the taint of any appearance of
impropriety. See Clinard, ___ S.W.3d at ___, 2001 WL 530834, at *7; see also Morris v. Slappy,
461 U.S. 1, 23, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) (Brennan, J., concurring) (suggesting that
the relationship with appointed counsel should be considered in determining whether continued
representation is possible).

F. Our Conclusion

         After a careful review of the evidence, the ethical requirements, and the case law, we
conclude that this is not one of the rare cases in which the drastic remedy of disqualification is
necessary. A waiver, after full disclosure, is the appropriate option. This is especially true in light
of petitioner’s alleged relationship with the PCD and the extensive services already rendered on his
behalf. To the extent that there may be a limited appearance of impropriety, we believe that
continued representation after a proper waiver would not create an appearance of unfairness in future
proceedings and would not undermine confidence in the judicial system.

G. Procedure To Be Followed Upon Remand

         The petitioner was not given an opportunity to waive any conflict or appearance of
impropriety. The affidavit filed by petitioner is insufficient to constitute a proper waiver. We, like
the trial court, are concerned with potential future issues arising in this capital case. Accordingly,
we find it prudent in this capital case for the trial court upon remand to appoint independent counsel
to advise the petitioner concerning his proposed waiver. Thereafter, petitioner should (1) be brought
into open court, (2) be given a full explanation on the record how this matter would affect him; (3)
be advised of his right to appointment of other counsel; (4) be questioned under oath by the parties
and the post-conviction court to determine his understanding of this matter and waiver; and (5) state
under oath whether he desires to waive any appearance of impropriety.2 If petitioner understandingly
waives any appearance of impropriety, the post-conviction court shall allow the PCD to continue to
represent petitioner absent a compelling reason to the contrary. Absent a proper waiver, the post-
conviction court shall appoint other counsel.


                                                CONCLUSION

       Based on our examination of the record, we conclude that the trial court erroneously
disqualified petitioner’s counsel without petitioner having the opportunity to waive any appearance


        2
          This procedure was utilized in Shannon L. Smith, et al v. State , C.C.A. N o. 02C01-9508-CR -00241, 1997 WL
65899 3, at *5 (T enn. Crim . App. filed Octobe r 23, 199 7, at Jackso n).

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of impropriety. We reverse the judgment of the trial court and remand this matter for appointment
of independent counsel to advise petitioner on the issue of waiver and for further proceedings
consistent with this opinion.

                                                     ___________________________________
                                                     JOE G. RILEY, JUDGE




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