A member of Colorado’s second-highest court took the extraordinary step on Thursday of calling for an investigation into the “serious ethical issues” raised by a criminal defense firm’s concealment of a potential murder weapon at its office without notifying the prosecution.

A three-judge Court of Appeals panel upheld the convictions of Daniel Jesus Lopez, who is serving a life sentence for the 2007 killing of Yong Soon Kirk in Aurora. The main issue on appeal was the potential conflict of interest that existed with Lopez’s attorneys at the Springer & Steinberg law firm. One of the firm’s investigators retrieved a knife from Lopez’s home and stored it at the law office for over three years before the prosecution demanded it as evidence.

Judge Daniel M. Taubman, writing separately, agreed with the majority that Lopez had been informed of the circumstances prior to trial and had chosen to remain with his lawyers. However, Taubman believed Springer & Steinberg had potentially committed multiple ethical violations — including by acting contrary to a 1982 ethical opinion advising defense lawyers they cannot conceal incriminating evidence. Moreover, he noted that certain pieces of the narrative were unclear.

“Lopez’s assertions of a conflict of interest by both his trial and appellate attorneys raise serious ethical issues that warrant further consideration,” wrote Taubman on July 31.

Colorado Politics emailed the still-living attorneys whose conduct Taubman described in his opinion, including two who remain at Springer & Steinberg. Colorado Politics also sought comment from the district attorney’s office and the public defender’s office, which represented Lopez in the later stages of his case. No one responded.

‘Jose’s knife’

In investigating Kirk’s murder, a detective found a knife in an unusual place in the victim’s pantry, initially suspecting it was the murder weapon.

After Lopez’s 2009 arrest, he made several calls from the jail to his girlfriend and mother saying he needed to hire defense attorney Harvey Steinberg because “if anyone can pull it off, it’s Harvey.” At some point, Lopez also asked his girlfriend to throw away anything from his home that “looks bad.” He specifically mentioned “Jose’s knife,” in reference to a former tenant.

In October 2009, Karl Scherck, an investigator working for Springer & Steinberg, went to Lopez’s home and retrieved Jose’s knife from Lopez’s stepfather. He put it in a locked safe at the law firm.

Roughly a year afterward, the chief deputy district attorney listened to the jailhouse phone call and asked Steinberg about Jose’s knife. A trial judge later determined Steinberg “was aware the knife was locked in a safe” at his office. But Steinberg did “not believe the knife to be relevant” because Lopez allegedly told him he had killed Kirk with a different knife.

In early 2013, Lopez’s girlfriend told law enforcement about Scherck’s visit to retrieve Jose’s knife. Prosecutors demanded the knife from Steinberg and he turned over the evidence. It had been wiped clean.

A possible conflict

After learning about what happened, then-Arapahoe County District Court Judge Christopher C. Cross appointed an independent attorney, Jesse Glassman, to advise Lopez about how to proceed. The question, Cross elaborated, was whether Springer & Steinberg was conflicted because their firm was “in the chain of custody” for a potential murder weapon.

Glassman never spoke with Scherck, but he contacted most of the attorneys involved, plus Lopez. He learned the prosecution was not seeking to charge the defense attorneys criminally. He also believed attorney Adam M. Tucker had possibly asked Scherck to retrieve the knife, even though Tucker had left the firm before Springer & Steinberg started representing Lopez.

Glassman also discussed with Lopez that if he had different defense attorneys, they could blame the disappearance of the knife on Scherck so that jurors would not think Lopez concealed evidence of the murder.

Ultimately, after receiving an explanation from the judge about the possibility his lawyers would “give you less than 100%” because of their own conduct with the knife, Lopez said he wanted to keep Springer & Steinberg.

To avoid having anyone from the law firm testify about what happened with Jose’s knife, Cross read the jury an instruction that the knife was “provided to the defense investigator” and was “subsequently provided to law enforcement.” The knife at trial was “in the same condition today” as it was in October 2009.

The Court of Appeals originally upheld Lopez’s convictions in 2015, with a Springer & Steinberg attorney representing him.

Then, Lopez filed a motion for postconviction relief. His appointed attorney argued he received constitutionally ineffective assistance of counsel because of his lawyers’ actions with Jose’s knife.

After holding a hearing, Chief Judge Ryan Stuart, now of the neighboring 23rd Judicial District, issued an order in December 2021. He concluded there was no “actual conflict” between Lopez’s trial attorneys and their obligation to represent their client because “no one” believed they would face “any ethical or legal problems as a result of their collection of the knife.”

Stuart did, however, believe Lopez’s lawyer on appeal, Michael P. Zwiebel, had an actual conflict of interest. Zwiebel could have argued that Springer & Steinberg’s handling of Jose’s knife was a substantial conflict that Lopez could not agree to overlook. Because Zwiebel did not pursue that argument, Stuart believed he was constitutionally ineffective and permitted Lopez to appeal a second time.

‘Warrants further scrutiny’

The Court of Appeals panel, in taking another look at Lopez’s case, noted an attorney has a conflict when their ability to represent their client is limited by their responsibilities to another person or to themselves. But a defendant can agree to proceed notwithstanding the potential conflict, and that is what Lopez had done.

“Lopez’s desire that the firm remain as his trial counsel was strong and clear,” wrote Judge Jerry N. Jones for himself and Judge David H. Yun. “Lopez was adequately advised of the nature of the conflict and then waived his right to conflict-free counsel; the prosecution didn’t intend to file charges or ethics complaints against Lopez’s attorneys or the firm’s investigator; and the stipulation prevented the jury from learning the extent of the firm’s handling of the knife.”

Taubman, a retired judge sitting on the panel at the chief justice’s assignment, agreed with the outcome, but indicated Springer & Steinberg may have violated three ethical rules.

“First, the retrieval of ‘Jose’s knife’ by the law firm’s investigator and storage of it for more than three years in the law firm’s safe raises serious concerns because the prosecution considered it to be a possible murder weapon,” he wrote. “Second, the obligation of attorneys to supervise their employees raises questions regarding the adequacy of the lawyers’ supervision of the investigator.”

Finally, Tabuman believed the instruction to the jury only exonerated Springer & Steinberg of wiping the knife, and possibly could have shifted the blame onto Lopez in the jury’s eyes — an actual conflict that was not in Lopez’s best interest.

Taubman also was puzzled by Stuart’s narrative of what happened. It remained unclear who had directed Scherck to retrieve Jose’s knife. If an attorney had done so, they would be responsible for his actions. Moreover, Taubman was uncertain who knew Jose’s knife was in the Springer & Steinberg safe for three years.

Springer & Steinberg’s “conduct at trial and in the direct appeal warrants further scrutiny regarding whether it was consistent with the Colorado Rules of Professional Conduct,” he wrote.

The case is People v. Lopez.