Members of the Colorado Supreme Court agreed on Monday it was highly problematic that an El Paso County defense lawyer seemingly failed to tell his client he was simultaneously being prosecuted by the same district attorney’s office, but a majority stopped short of finding the conflict merited an automatic reversal of the defendant’s convictions.

Matthew Rodolfo Vansant Lopez’s appeal revolved around the question of whether he needed to prove the criminal proceedings of his now-disbarred attorney, Dennis Hartley, negatively affected his own case in order to receive a new trial. 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.

By 5-2, the Supreme Court concluded there did, in fact, need to be a demonstration that Hartley did not pursue a reasonable strategy or tactic in Lopez’s case because of his own pending criminal matters. But Justice Richard L. Gabriel cautioned in the June 24 opinion that the court was disturbed at how Hartley and Lopez’s trial judge never explicitly confirmed Lopez knew his attorney might have an incentive not to upset the prosecution.

“Indeed, as far as the record reveals, it appears that everyone in the courtroom, except perhaps Lopez, was fully informed of the possible conflict,” Gabriel wrote. 

Justice Monica M. Márquez, writing for herself and Justice Melissa Hart, disagreed that the conflict of interest needed further investigation. She believed Hartley’s personal circumstances necessarily rendered him ineffective, for which the remedy was a new trial.

“Consider the facts of this case, where defense counsel faced not one, but four separate criminal charges — brought by the same office prosecuting Lopez,” Márquez wrote. Hartley “would have been acutely aware that irritating the prosecution might lead to further restraint on his own freedom.”

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 lawyer 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, Lopez’s new lawyer, Elizabeth A. McClintock, maintained an attorney in Hartley’s position cannot operate effectively “from the get-go,” and it was unnecessary to analyze precisely how the conflict actually affected his decision-making.

“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,” McClintock said.

Gabriel, in the majority opinion, disagreed with McClintock and the Court of Appeals. He explained the U.S. Supreme Court has only recognized a handful of situations in which it is not necessary to prove the negative effects from ineffective counsel. Hartley’s conflict did not fall into those categories.

“Absent those scenarios, a defendant must show both a conflict of interest and an adverse effect resulting from that conflict,” he wrote. 

The justices returned the case to the trial court to analyze how Hartley’s conflict affected Lopez. Specifically, the defense will need to identify a “plausible alternative defense strategy or tactic” Hartley could have pursued, but did not pursue because of his own pending criminal cases.

Márquez, in dissent, stressed the “unique risk” of a defense lawyer putting his personal interests above his client’s weighed in favor of ordering a new trial for Lopez outright. She wrote that she struggled to understand how a defendant in Lopez’s position would ever be unaffected by his lawyer’s ongoing prosecution.

Such a conflict of interest “permeates the entire representation,” Márquez argued. “Counsel is forced to balance his obligation to zealously advocate for his client with preserving his own interests by avoiding antagonizing the prosecutor’s office in any way.”

The case is People v. Lopez.