Members of the Colorado Supreme Court appeared hesitant last week to endorse automatic reversal of an El Paso County defendant’s convictions because he was seemingly unaware his lawyer was simultaneously being prosecuted by the same district attorney’s office.

However, some justices agreed the system failed to adequately protect the rights of Matthew Rodolfo Vansant Lopez from his lawyer’s conflict of interest.

“The facts of this case are, I’m gonna say, pretty shocking,” said Justice Melissa Hart at the May 8 oral arguments. “This man feels like he was treated poorly by his lawyer and by the court.”

Lopez’s appeal revolved around the question of whether he needed to prove the criminal cases of his now-disbarred attorney, Dennis Hartley, negatively affected him. Previously, the state’s Court of Appeals rejected that idea, believing it would be too high a burden for defendants asserting their right to conflict-free representation.

Hartley was facing multiple drunk driving and vehicular charges even before he began representing Lopez. Days before Lopez’s trial, Hartley resolved four pending sets of charges with the Fourth Judicial District Attorney’s Office, resulting in a sentence of home detention and probation.

At one point in Lopez’s case, District Court Judge David A. Gilbert asked if Lopez was aware of “current circumstances,” without elaborating what those were, and if Lopez was fine with Hartley representing him. Yes, Lopez replied.

On the second day of trial, the prosecutor approached Gilbert to say then-District Attorney Dan May wanted to be sure Lopez knew Hartley was serving a probationary sentence in the same jurisdiction where Lopez was on trial, and the same DA’s office would be involved in prosecuting Hartley for any violation. Without speaking to Lopez directly, Gilbert asked Hartley if Lopez had any concerns

“No, none whatsoever,” Hartley responded.

A jury convicted Lopez for multiple sexual assault-related offenses. Soon after, Colorado’s presiding disciplinary judge disbarred Hartley for, among other things, failing to “diligently pursue clients’ interests,” disobeying a prior suspension order and misleading a client about his suspension. 

A three-judge panel for the state’s Court of Appeals subsequently reversed Lopez’s convictions. It reasoned Hartley had an actual conflict of interest while representing Lopez and a laywer in that position would have the incentive to curry favor with the DA’s office to help his own criminal case. 

Moreover, Gilbert had a duty to ensure Lopez knew he was giving up his right to conflict-free counsel. But “nothing in the record indicates that Lopez was informed of the nature and potential consequences of the conflict beforehand,” wrote retired Supreme Court Justice Alex J. Martinez, who sat on the appellate panel at the chief justice’s assignment.

On appeal to the Supreme Court, the government maintained Hartley only had a “potential” conflict, and Lopez needed to prove Hartley’s choices in Lopez’s case negatively affected him.

“For me, I don’t know that the dispute is whether there’s an actual conflict. I think there’s an acutal conflict here,” said Justice Richard L. Gabriel.

From Lopez’s point of view, “everybody in the room knew what was going on except him. And what was going on was not OK,” Hart said. 

Elizabeth A. McClintock, representing Lopez, argued there was a “cloak of protection” around Hartley’s criminal cases such that Lopez did not know what was happening with his lawyer. She cited statistics showing that only 0.22% of Colorado attorneys were the targets of criminal complaints in 2022, meaning conflicts similar to Hartley’s are rare.

“The problem is that you have defense counsel basically putting their own interests above their client’s interest,” she said.

“Or you just can’t tell. You don’t know,” added Justice Maria E. Berkenkotter.

McClintock agreed with the Court of Appeals’ reasoning that a lawyer’s conflict from his own prosecution is difficult to measure and, therefore, it would be unreasonable to require defendants to show how the conflict disadvantaged their case.

“Your point is that it’s so pervasive that it becomes hard throughout the course of the representation to know exactly when the attorney might be pulling his punches,” observed Justice William W. Hood III.

Chief Justice Brian D. Boatright noted there are other situations in which defendants must show they were harmed by specific decisions or pieces of evidence before a court will reverse their convictions.

“Why is this situation so remarkably different?” he wondered.

Because, said McClintock, a conflicted lawyer cannot operate effectively “from the get-go” when his own charges are hanging over his head.

“The defendant is put in such a situation that he’ll never know what could be different if his attorney was not in a situation where he’s beholden potentially to two masters,” she said.

The case is People v. Lopez.