A defense lawyer had an actual conflict of interest when he represented an El Paso County defendant at the same time the lawyer’s own drunk driving cases were pending before the same prosecutor’s office, Colorado’s second-highest court determined on Thursday.

Because the U.S. Constitution guarantees the right to conflict-free legal representation and District Court Judge David A. Gilbert failed to ensure the defendant knowingly gave up that right, a three-judge panel for the Court of Appeals reversed the convictions of Matthew Rodolfo Vansant Lopez.

“Here, the court only asked if Lopez was aware of ‘current circumstances,’ and made no mention of the fact that defense counsel had been criminally charged,” wrote former Supreme Court Justice Alex J. Martinez, who sat on the panel at the chief justice’s assignment. “Thus, the court’s inquiry was procedurally deficient.”

A jury convicted Lopez in October 2018 on multiple counts of sexual assault and possession of an explosive. He received a sentence of 20 years to life in prison.

Unusually, at the same time he was representing Lopez, prominent defense attorney Dennis Hartley had cases pending against himself in El Paso County. Court records show a lengthy series of charges for driving under the influence, driving without a license and other traffic infractions. Most recently, Hartley pleaded not guilty in March of this year to five other driving-related charges.

The Court of Appeals previously recognized that when a defendant and his lawyer are both being prosecuted by the same district attorney’s office, there is a danger prosecutors “might take umbrage at a vigorous defense” from the attorney and treat them more harshly in their own criminal case. Therefore, a conflict of interest is not hypothetical, but real.

Shortly before Lopez’s trial began, Hartley had resolved all of his current cases at the time, with a sentence of probation, in-home detention and fines.

More than a year beforehand, however, Lopez and Hartley appeared before Gilbert for a hearing, and the judge asked if Hartley had talked with his client about the “conflict waiver” regarding Lopez’s right to a conflict-of-interest-free counsel.

“What conflict waiver? Oh, yes,” Hartley replied.

“OK, and Mr. Lopez, you’re aware of current circumstances and you’re perfectly fine again continuing with representation?” Gilbert asked. Lopez answered in the affirmative.

“Excellent,” Gilbert responded.

The judge never again spoke to Lopez about waiving his constitutional right. But after trial began, the prosecutor asked to speak with Gilbert and Hartley privately. Then-District Attorney Dan May wanted to raise the issue of Hartley’s DUI cases.

“I have orders from Mr. May to ask the court to advise the defendant that Mr. Hartley’s criminal case was concluded, and that he is serving a sentence right now, and that we would be the authority prosecuting any violation of the in-home detention sentence,” the prosecutor explained.

“He’s been advised. He knows that I’m on probation,” Hartley responded of his client.

Gilbert asked if Lopez knew his lawyer could potentially end up in front of the district attorney’s office again for any probation violations.

“Yeah,” Hartley said.

Less than a year after Lopez’s trial, Hartley would be disbarred for a string of conduct violations, including criminal acts, deceit and failing to fully inform his clients about legal matters.

“Mr. Hartley has been disbarred for the very reason that he shouldn’t have been representing people like Mr. Lopez at the time that he did,” Lopez’s attorney, Elizabeth A. McClintock, told the Court of Appeals. “Mr. Lopez was the only one who was in the dark about this conflict and no one saw fit to raise it to him and to seek a valid waiver from him before going forward with his jury trial.”

She also said given Hartley’s lack of credibility, as reflected in his attorney discipline, Hartley’s representation to the judge that he made Lopez aware of his own prosecutions was not reliable.

The government responded that Lopez had to show Hartley’s conflict of interest was linked to a decision not to pursue a particular tactic or strategy at his trial. On those grounds, nothing suggested Hartley’s representation was subpar, the Colorado Attorney General’s Office argued.

The Court of Appeals panel disagreed Lopez needed to satisfy any additional criteria to be entitled to relief. The trial judge had a duty to ensure Lopez knew about the specific nature of the conflict and about his right to a conflict-free attorney. In reality, Gilbert’s engagement with the conflict, the panel concluded, was minimal.

“Accordingly, we cannot find that the court’s inquiry was sufficient for Lopez’s waiver to be knowing and intelligent,” Martinez wrote in the Sept. 1 opinion.

The panel ordered a new trial for Lopez. The lawyer representing Hartley in his El Paso County traffic cases did not immediately respond to a phone call seeking comment.

The case is People v. Lopez.