                                                                                          February 20 2014


                                          DA 13-0224

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 46



DONALD RUDOLPH STOCK,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. BDV 2012-848
                       Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad M. Wright, Wright Legal, P.C., Attorney at Law, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General, Helena, Montana

                       Leo Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy
                       County Attorney, Helena, Montana



                                                   Submitted on Briefs: December 18, 2013
                                                              Decided: February 20, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     A jury convicted Donald Stock (Stock) of felony incest involving his

fourteen-year-old son, E.S., and six-year-old daughter, K.S., in violation of

§§ 45-5-507(1), (4) and 45-2-101(8), MCA.        Stock was also convicted of evidence

tampering in violation of § 45-7-207, MCA. Stock received concurrent sentences of fifty

years at the Montana State Prison, with twenty-five years suspended, on each count of

felony incest. He also was sentenced to a concurrent term of ten years for evidence

tampering. He appealed his conviction, which this Court affirmed. State v. Stock, 2011

MT 131, 361 Mont. 1, 256 P.3d 899. Stock also appealed to the U.S. Supreme Court,

which denied certiorari. Stock v. Montana, ___ U.S. ___, 132 S. Ct. 850 (Dec. 12, 2011).

Stock then petitioned for postconviction relief in the First Judicial District Court, Lewis

and Clark County, alleging ineffective assistance of counsel.         The District Court

dismissed Stock’s petition, and he now appeals. A restatement of the dispositive issue on

appeal is whether the District Court erred in concluding that Stock’s attorney did not

provide ineffective assistance. We affirm.

                                    BACKGROUND

¶2     In May 2009, fourteen-year-old E.S. disclosed to a school counselor that his

father, Stock, was sexually abusing him. Stock was subsequently charged with felony

incest against E.S. In August 2009, the State amended the Information to include a

second count of felony incest involving Stock’s six-year-old daughter, K.S., and one

count of evidence tampering.




                                             2
¶3     The State obtained a warrant to search Stock’s computer for evidence that Stock

was grooming his victims by showing them sexually inappropriate images. Agent Wayde

Cooperider of the Department of Justice’s Computer Crime Unit conducted the search

and discovered graphic images depicting young men engaged in homosexual activity,

some of whom appeared to be underage. He also discovered search terms including

“7 year old having sex” and “Teenboyslove,” along with sites that were visited including

“gaysnboys_com,”                “don_stock@gallery.teenboyslove[1]txt,”                   and

“don_stock@www.boysmagic[1]txt.” Cooperider later testified that he retrieved these

images from a password-protected computer with an assigned user name of “Donald

Stock.” Cooperider summarized his findings in written reports.

¶4     The State filed a notice of intent to introduce the pornographic computer images

based on M. R. Evid. 404(b) and § 26-1-103, MCA (the transaction rule).              Stock,

represented by defense attorney Chad Wright (Wright), filed a motion in limine objecting

to the admission of the pornographic computer images, arguing that the prejudice it

would cause outweighed its probative value, and that the State could not prove that Stock

was responsible for accessing the images and websites.         The District Court denied

Stock’s motion, concluding that the pornographic images were admissible pursuant to the

transaction rule because it was directly related to elements of the incest charges with

respect to both children, and that its relevance far outweighed any prejudice to Stock.

¶5     Stock’s jury trial was held in March 2010, and lasted for seven days. Agent

Cooperider testified to Exhibits 74-79, which were his written summaries of the

electronic evidence found on Stock’s computer. Thus, the State ultimately did not seek to


                                             3
admit the pornographic computer images themselves. When the State offered Exhibits

74-79, Stock only renewed his objection to Exhibit 74 because it did not include the dates

and times the files were created, modified, and accessed. The State added the appropriate

information to Exhibit 74, and the District Court admitted all of the exhibits. Thus, the

admitted electronic evidence about which Stock complains consisted of testimony and

written descriptions of electronic images and computer search terms, and not lurid,

graphic images of pornography.

¶6     The State presented complicated expert testimony regarding the DNA evidence

that was collected from E.S.’s bed. The evidence was not conclusive, but the expert

testimony indicated that Stock could not be excluded as a DNA contributor to DNA

mixtures found in five areas of the bed, meaning that Stock’s genetic information was

present in the mixtures. During the State’s closing argument, the prosecutor referenced

this DNA evidence by saying, “Ask yourself how is it that Don Stock’s DNA is all over

that bed?” Stock did not object to this statement.

¶7     On direct appeal, Stock argued that K.S. should not have been allowed to testify

via two-way electronic audio-video communication, that Stock should have been allowed

to conduct a forensic interview of and call as a witness four-year-old Z.S, and that the

electronic evidence was improperly admitted under the transaction rule. This Court

affirmed the District Court on all issues. We did not reach the merits of the electronic

evidence issue, finding that Stock failed to preserve for appeal any possible error arising

out of the admission of the electronic evidence.




                                             4
¶8     In October 2012, Stock, represented by attorney Wright, filed a petition for

postconviction relief, setting forth three grounds upon which he claimed his trial attorney

(Wright) provided ineffective assistance of counsel. While Wright was assisted at trial by

Gregory Jackson, Stock claims that only Wright provided ineffective assistance by failing

to: 1) consult with a forensic computer examiner to evaluate the electronic evidence

introduced at trial; 2) object to the introduction of the electronic evidence at trial; and 3)

object to the prosecutor’s allegedly improper statement during closing argument that

Stock’s DNA was found “all over” E.S.’s bed.            The District Court denied Stock’s

petition, stating “Wright did an excellent job in presenting pretrial motions . . . which

were addressed by both the district court and the Montana Supreme Court.” It also found

that even if Wright’s representation was deficient, it would not have “created a

reasonable probability that the outcome of the trial, or the sentence imposed on Stock,

would have been any different.” Stock now appeals the District Court’s denial of his

petition for postconviction relief.

                                STANDARD OF REVIEW

¶9     We review a district court’s denial of a petition for postconviction relief to

determine whether the court’s findings of fact are clearly erroneous, and whether its

conclusions of law are correct. Camarillo v. State, 2005 MT 29, ¶ 8, 326 Mont. 35, 107

P.3d 1265. Ineffective assistance of counsel claims present mixed questions of law and

fact that are reviewed de novo. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280

P.3d 272.




                                              5
                                       DISCUSSION

¶10     In his petition for postconviction relief, Stock asserted that Wright provided

ineffective assistance of counsel at the trial level by failing to object to the introduction of

the electronic evidence at trial, hire a forensic computer expert, and object to the

prosecutor’s reference to the DNA evidence during his closing argument. Stock also

argues these issues on appeal, and additionally claims that the District Court did not

correctly apply the test for evaluating his ineffective assistance of counsel claim.

¶11      Whether the District Court erred in finding that Stock’s attorney did not
         provide ineffective assistance.

¶12     The right to effective assistance of counsel is guaranteed by both the United States

and the Montana Constitutions. U.S. Const. amend. VI; Mont. Const. art. II, § 24. The

two-pronged Strickland test determines when this constitutional right has been violated.

Strickland v. Wash., 466 U.S. 668, 104 S. Ct. 2052 (1984). To satisfy this test, a

defendant must show 1) that counsel’s performance was deficient and 2) that counsel’s

deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064.    A defendant must satisfy both prongs of this test in order to prevail on an

ineffective assistance of counsel claim. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont.

90, 183 P.3d 861 (citing Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601).

“[T]here is no reason for a court deciding an ineffective assistance claim to approach the

inquiry in the same order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S at 697, 104 S. Ct.

at 2069. As noted, the District Court rejected Stock’s claims on this basis, concluding



                                               6
that even if Wright’s conduct was constitutionally deficient, Stock failed to show that he

was prejudiced.

¶13    For the reasons discussed below, we agree with the District Court that Stock made

an insufficient showing on the prejudice prong. As an initial matter, however, we address

two important points relating to the issue of deficiency. First, Stock is represented in this

postconviction case by the same counsel (Wright) who Stock alleges provided deficient

representation at his trial. Essentially, Wright is challenging his own performance at trial,

arguing that it was inadequate and that his errors were so serious as to deprive Stock of a

fair trial. As our cases recognize, ineffective assistance of counsel claims usually require

a defendant to develop a record as to “why” counsel did or did not perform as alleged,

thus allowing the court to determine whether counsel’s performance was ineffective or

objectively reasonable. See State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d

1095; Whitlow, ¶¶ 19-20. As a result, Wright’s role in this case is one of both advocate

and witness. This scenario implicates ethical considerations.

¶14    Rule 3.7(a) of the Montana Rules of Professional Conduct states:

               (a) A lawyer shall not act as advocate at a trial in which the lawyer is
       likely to be a necessary witness unless:
               (1) the testimony relates to an uncontested issue;
               (2) the testimony relates to the nature and value of legal services
       rendered in the case; or
               (3) disqualification of the lawyer would work substantial hardship on
       the client.




                                              7
The identical rule is contained in Rule 3.7(a) of the American Bar Association (ABA)

Model Rules of Professional Conduct.1          Comment [1] to ABA Rule 3.7 notes that

“[c]ombining the roles of advocate and witness can prejudice the tribunal and the

opposing party and can also involve a conflict of interest between the lawyer and client.”

Comment [2] further explains that “[a] witness is required to testify on the basis of

personal knowledge, while an advocate is expected to explain and comment on evidence

given by others. It may not be clear whether a statement by an advocate-witness should

be taken as proof or as an analysis of the proof.”            The reasoning underlying the

exceptions listed in paragraphs (1), (2), and (3) of Rule 3.7(a) is articulated as follows:

       Paragraph (a)(1) recognizes that if the testimony will be uncontested, the
       ambiguities in the dual role are purely theoretical. Paragraph (a)(2)
       recognizes that where the testimony concerns the extent and value of legal
       services rendered in the action in which the testimony is offered, permitting
       the lawyers to testify avoids the need for a second trial with new counsel to
       resolve that issue. Moreover, in such a situation the judge has firsthand
       knowledge of the matter in issue; hence, there is less dependence on the
       adversary process to test the credibility of the testimony. Apart from these
       two exceptions, paragraph (a)(3) recognizes that a balancing is required
       between the interests of the client and those of the tribunal and the
       opposing party.

ABA Model R. Prof. Conduct 3.7, Comments [3], [4] (emphasis added, paragraph break

omitted). Comment [6] to ABA Rule 3.7 emphasizes that “[i]n determining if it is

permissible to act as advocate in a trial in which the lawyer will be a necessary witness,

       1
          Although we have not adopted the ABA standards outright, we have previously cited
them as persuasive authority. See e.g. State v. Couture, 2010 MT 201, ¶ 76 n. 4, 357 Mont. 398,
240 P.3d 987; State v. Norquay, 2011 MT 34, ¶¶ 39-42, 359 Mont. 257, 248 P.3d 817; State v.
Criswell, 2013 MT 177, ¶ 55, 370 Mont. 511, 305 P.3d 760 (McGrath, C.J., concurring). The
comments to the ABA standards are particularly useful where the language of the ABA standard
is identical, or nearly identical, to our own rule. See e.g. In re Marriage of Perry, 2013 MT 6,
¶ 21, 368 Mont. 211, 293 P.3d 170.


                                               8
the lawyer must also consider that the dual role may give rise to a conflict of interest that

will require compliance with” ABA Rule 1.7 (Conflict of Interest: Current Clients) or

ABA Rule 1.9 (Duties to Former Clients).

¶15    It does not appear that the first two exceptions listed in Montana Rule of

Professional Conduct 3.7(a) apply to the present case. As to Rule 3.7(a)(1), despite

assumptions that Stock (through Wright) makes in his brief on appeal, the question of

Wright’s deficiency is not “uncontested.” To the contrary, the State responds in its

answer brief that it has not conceded the first prong of the Strickland test. As to Rule

3.7(a)(2), Wright’s testimony does not concern legal services rendered “in the action in

which the testimony is offered.” Rather, it concerns legal services rendered in a prior

action. In this regard, Comment [3] to ABA Rule 3.7 indicates that the purpose of the

exception in paragraph (a)(2) is to “avoid[ ] the need for a second trial with new counsel”

to resolve questions about legal services in the first trial. Finally, as to the third exception

in Rule 3.7(a), nothing in the record establishes whether disqualification of Wright would

work “substantial hardship” on Stock and whether Wright addressed potential conflicts of

interest with his client.

¶16    The parties have not briefed the foregoing issues implicated by Rule 3.7(a), and

the District Court did not enter any findings of fact bearing on this matter. Nevertheless,

the notion of defense counsel in a criminal trial subsequently serving as the defendant’s

counsel in a postconviction proceeding which challenges the effectiveness of counsel’s

trial conduct raises important ethical considerations. While we cannot decide the matter

on the record in the present case, we caution counsel and the district courts that this Court


                                               9
considers this a matter of importance which should be addressed, and a proper record

made, at the outset of any postconviction proceeding where the petitioner’s counsel

contends that his or her trial performance was ineffective.

¶17    The second preliminary point we address concerning the issue of deficiency is the

fact that Stock makes no effort in his brief on appeal to establish the first prong of the

Strickland test—i.e., that his counsel’s conduct “fell below an objective standard of

reasonableness.” Whitlow, ¶ 20. Apparently because the District Court rejected his claim

under the second prong of the test, Stock’s argument on appeal focuses entirely on that

prong (i.e., prejudice).2 Yet, even if we agreed with Stock’s arguments on prejudice, we

could not grant the relief he seeks—reversal of his convictions—absent a persuasive

argument and showing that the prejudice resulted from objectively unreasonable acts or

omissions of his counsel. Strickland says that there is no reason for a court deciding an

ineffective assistance claim to address both components of the inquiry if the defendant

makes an insufficient showing on one. 466 U.S at 697, 104 S. Ct. at 2069; accord

Whitlow, ¶ 11. However, Strickland does not entitle a defendant to prevail based on only

one prong of the analysis. As noted, our review of an ineffective assistance of counsel

claim is de novo, Miller, ¶ 9, and the fact that the District Court rested its decision on the

prejudice prong does not relieve Stock of his burden to demonstrate the validity of his

claims under both prongs of the test in his arguments to this Court on appeal. It thus was


       2
          We note that the State, in responding to Stock’s petition, chose to focus its arguments
on the issue of prejudice. However, the State did not concede the question of deficiency. The
State maintained that “even if” Wright was ineffective, the deficiency did not prejudice Stock’s
right to a fair trial.


                                               10
incumbent on Stock to explain—with reference to “prevailing professional norms,”

Whitlow, ¶ 20—why his counsel’s performance was deficient and that he suffered

prejudice from that deficient performance.3

¶18    Nevertheless, although Stock’s claims arguably could be rejected based on his

omission of any analysis relating to deficiency, we agree with the District Court that he

has made an insufficient showing under the prejudice prong. Accordingly, we shall

proceed to the merits of Stock’s claims with an analysis of prejudice and without

considering whether counsel’s performance was objectively unreasonable.

¶19    To establish prejudice, “the defendant must show that, but for counsel’s errors, a

reasonable probability exists that the result of the proceeding would have been different.”

St. Germain v. State, 2012 MT 86, ¶ 11, 364 Mont. 494, 276 P.3d 886 (citing State v.

Miner, 2012 MT 20, ¶ 12, 364 Mont. 1, 271 P.3d 56.) A reasonable probability is a

probability sufficient to undermine confidence in the outcome of the proceeding. Riggs

v. State, 2011 MT 239, ¶ 12, 362 Mont. 140, 264 P.3d 693 (citing Robinson v. State, 2010

MT 108, ¶ 12, 356 Mont. 282, 232 P.3d 403). The prejudice inquiry focuses on whether

counsel’s deficient performance renders the result unreliable or the proceedings

fundamentally unfair. Riggs, ¶ 12.




       3
         Although Stock addressed the question of deficiency in his District Court filings, we
have explained that the Rules of Appellate Procedure “preclude[ ] parties from incorporating trial
briefs or any other kind of argument into appellate briefs by mere reference. Simply put,
appellate arguments must be contained within the appellate brief, not within some other
document.” State v. Ferguson, 2005 MT 343, ¶ 41, 330 Mont. 103, 126 P.3d 463. Additionally,
we have noted that allowing parties to incorporate trial arguments into appellate briefs by
reference would undermine the word and page limitations on appellate briefs. Ferguson, ¶ 42.


                                               11
¶20    Initially, Stock argues that the District Court’s finding that he was not prejudiced

by Wright’s representation was not based on the totality of the evidence presented at trial.

Stock implies that the District Court had only a passing knowledge of the underlying trial

record, and therefore its finding that Stock suffered no prejudice was incorrect.        In

applying the prejudice prong of the Strickland test, the court must consider the totality of

the evidence before the judge or jury. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

Stock’s assertion that the District Court’s ruling was not based on the totality of the

evidence presented is simply unsupported. The District Court’s Order cites to the record

extensively, evidencing that it did indeed consider the totality of the evidence presented

at trial. Therefore, the District Court did not misapply the Strickland test.

¶21    Stock argues that Wright’s failure to properly object to the summaries of the

electronic evidence constitutes ineffective assistance of counsel, and that it is generally

improper to admit evidence that stands for the proposition that homosexuality establishes

a propensity to engage in sexual activities with children.        However, “[a]n error by

counsel, even if professionally unreasonable, does not warrant setting aside the judgment

of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S.

at 691, 104 S. Ct. at 2067 (citing U.S. v. Morrison, 449 U.S. 361, 364-65, 101 S. Ct. 665,

667 (1981)); see also Heddings v. State, 2011 MT 228, ¶ 33, 362 Mont. 90, 265 P.3d 600

(“A claim of constitutionally ineffective assistance of counsel will not succeed when

predicated upon counsel’s failure to make motions or objections which . . . would likely

not have changed the outcome of the proceeding.”). Even if Wright’s failure to properly

object fell below an objective standard of reasonableness, such an error does not warrant


                                             12
setting aside Stock’s judgment unless the error would have had an effect on the judgment.

As the State correctly points out, even if Wright had properly renewed an objection at

trial to the admission of Agent Cooperider’s testimony and the summary exhibits, it

appears probable that the District Court would have overruled the objection, based on the

fact that the District Court denied Wright’s motion in limine made prior to trial regarding

the pornographic computer images. The only prejudice to Stock may have been that

failing to renew his objection prevented a challenge on appeal to the admissibility of the

evidence. See Stock, ¶¶ 45-48. Stock, however, has offered no analysis to support a

claim that there would have been a different outcome on appeal had this Court considered

admission of the evidence. Therefore, Stock has not met his burden of showing “[a]

reasonable probability . . . that the outcome of [his] direct appeal would have been

different” had Wright objected to the admission of the electronic evidence. Rogers v.

State, 2011 MT 105, ¶ 40, 360 Mont. 334, 253 P.3d 889.

¶22    Stock also argues that Wright was ineffective for failing to hire a computer expert.

In support of this argument in the District Court, Stock attached to his petition the report

of forensic computer expert James Holmes, whose opinion was based only on an

examination of Agent Cooperider’s report, and not on an examination of the computer

itself. However, on appeal Stock makes no reference to Holmes’ report, and he fails to

adequately develop this issue. Assuming Wright’s actions in not hiring a computer

expert were deficient, Stock fails to prove this decision prejudiced him. Holmes’ report

asserts that the computer from which the electronic evidence was extracted was not

password protected as stated by Agent Cooperider, thereby supporting Stock’s claim that


                                            13
he was not responsible for accessing the electronic evidence. The State responds with an

affidavit from Agent Cooperider, who explains that Holmes’ conclusion was based on a

typographical error that Agent Cooperider made in his original report, and that Stock’s

computer was indeed password protected. The State also notes that Wright called a

witness at trial who testified to seeing E.S. using Stock’s computer on more than one

occasion, thereby allowing the jury to infer through circumstantial evidence that E.S.

accessed the electronic evidence, or alternatively, that Stock accessed it. This testimony

accomplished the same purpose that Holmes’ report would have, had it been introduced

at trial, in that it would have caused the jury to question who was responsible for

accessing the evidence. Therefore, because the question had already been raised, Stock

cannot prove that but for Wright’s failure to hire a computer expert, a reasonable

probability exists that the result of the proceeding would have been different.        St.

Germain, ¶ 11.

¶23   Stock argues that Wright was ineffective for failing to object to the prosecutor’s

“misleading” statement made during his closing argument that the State had found

Stock’s DNA “all over” E.S.’s bed. To support his petition, Stock included a report by

forensic scientist Elizabeth Johnson, who reviewed the reports of the DNA evidence and

concluded that the prosecutor had mischaracterized that evidence because the DNA

examination “did not include every inch of the surface of the mattress.”         Johnson,

however, agreed that Stock could not be ruled out as a contributor to five different DNA

mixtures on E.S.’s bed. The State contends that the prosecutor’s statement was not




                                           14
misleading, and even if it was, Stock failed to prove the prejudice prong of the ineffective

assistance of counsel claim.

¶24    As previously stated, a defendant is prejudiced when he or she shows that “but for

counsel’s errors, a reasonable probability exists that the result of the proceeding would

have been different.” St. Germain, ¶ 11. Even if Wright’s failure to object was deficient,

Stock does not prove that he suffered any prejudice. Johnson’s report does little to

support Stock’s argument. Even if the prosecutor intended the phrase “all over” to be

understood literally, both the State’s expert and Johnson agree that Stock’s genetic

information was present in five different mixed samples taken from E.S.’s bed. Stock has

failed to show that any confusion about the DNA evidence was a result of the

prosecutor’s reference to DNA in his closing argument, compared to the extensive and

complicated expert testimony regarding the DNA evidence. Additionally, the jury was

informed that statements made during closing remarks could not be considered as

evidence. Thus, Stock’s claim that he was prejudiced by Wright’s failure to object to the

closing argument is essentially unsupported, and necessarily fails.

                                     CONCLUSION

¶25    For the foregoing reasons, we affirm the District Court’s denial of Stock’s petition

for postconviction relief.

                                                 /S/ LAURIE McKINNON
We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE


                                            15
Justice Michael E Wheat, concurring.

¶26    I generally agree with the result and reasoning of the Court. I write separately to

address the problems created where, as here, counsel alleges his own ineffective

assistance on appeal after representing a client at trial.

¶27    It is both honorable and ethical for a lawyer to put his client’s interests before his

own and admit to error. However, evaluating claims of ineffective assistance of counsel

requires an objective analysis of the lawyer’s professional conduct or lack thereof.

Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65. An inherent conflict of interest

arises when counsel alleges his own ineffectiveness, and this conflict could easily cloud a

lawyer’s objective examination of his own professional conduct. See People v. Bailey, 9

Cal. App. 4th 1252, 1254-55 (Cal. App. 1992); In re Fountain, 74 Cal. App. 3d 715, 719

(Cal. App. 1977).

¶28    Montana Rule of Professional Conduct 1.7 provides that a conflict of interest

exists when “there is a significant risk that the representation of one or more clients will

be materially limited . . . by a personal interest of the lawyer.” It is hard to imagine a

more personal interest than the competency and success of one’s own work. In an effort

to obtain a new trial, counsel may be encouraged to raise questionable allegations of their

own ineffectiveness. Alternatively, a lawyer who wants to avoid consequences for his

error may subtly underemphasize or fail to identify his own deficient professional

conduct. Finally, counsel may simply fail to recognize certain claims on appeal due to

his own ineffectiveness on a certain issue. In any of these scenarios, the attorney’s

objective examination of his own error is cast into doubt. Additionally, an attorney who


                                               16
is ineffective at trial may later be accused of being ineffective on appeal, leaving IAC

open to further attack without a final resolution. Bailey, 9 Cal. App. 4th at 1255.

¶29    This conflict of interest is especially concerning since the client makes “decisions

concerning the objectives of representation” but relies on the conflicted lawyer to decide

whether a claim has merit. Mont. R. Prof. Conduct 1.2(a) (2009). The client often lacks

the technical legal expertise to decide whether an IAC claim has any merit, and so relies

on the attorney to recognize his own deficiency and remedy it.       That is likely the case

here, where counsel’s alleged deficiency was technical and unobvious, involving

objections to summaries of electronic evidence, expert witnesses in computer technology,

and objections to improper statements during closing. With no expertise of his own and

likely without consulting outside counsel, a client in this situation is bound to rely on

advice from a lawyer who has an interest in the client’s decision. At bare minimum,

counsel must obtain the client’s informed written consent to representation burdened by

such a conflict of interest. Mont. R. Prof. Conduct 1.7(b)(4). Comment [18] of ABA

Rule 1.7 notes that “[i]nformed consent requires that each affected client be aware of the

relevant circumstances and of the material and reasonably foreseeable ways that the

conflict could have adverse effects on the interests of that client.”        Yet even this

protection is insufficient where a client lacks the technical knowledge to decide the

merits of an IAC claim and must rely on his conflicted attorney to decide whether or not

an error has occurred.

¶30    We should require an attorney in this situation to withdraw representation as soon

as he is aware of his own ineffectiveness. First, if counsel became aware of his error


                                             17
before the resolution of trial, this would prompt a district court to conduct a Gallagher

inquiry to immediately determine whether IAC has occurred and whether new counsel or

a new trial is needed. See State v. Gallagher, 1998 MT 70, ¶¶ 24-26, 288 Mont. 180, 955

P.2d 1371. If ineffectiveness does not become apparent until after trial, this requirement

would effectively mandate new counsel to objectively examine the professional conduct

in question and advise the client on the validity of an IAC claim. That fresh look at the

trial record creates an appropriate check on the trial attorney, as new counsel would have

no incentive to minimize the errors of trial counsel, and would not be prone to file

frivolous IAC claims in pursuit of success at trial. By requiring a fresh look at counsel’s

conduct, a client would receive objective advice as to whether his counsel was actually

deficient, and could better decide whether an appeal on those grounds has merit.



                                                 /S/ MICHAEL E WHEAT




                                            18
