Appeals Court rules against Judge Ray

FARMINGTON — The Missouri Court of Appeals’ Eastern District ruled that an attorney should not be allowed to represent both a defendant and the alleged victim in a St. Francois County domestic assault case. 

Last week, the higher court ordered Associate Circuit Court Judge Thomas L. Ray to grant St. Francois County Prosecuting Attorney Wendy Wexler Horn’s motion to disqualify attorney, Carl Kinsky, as counsel and ordered Kinsky not to represent either the defendant or alleged victim in connection with the present case. 

Kinsky has already filed for a rehearing or a transfer to the Missouri Supreme Court. 

In the case, the defendant is charged with second-degree domestic assault but the victim, who is also his wife, has refused to cooperate in the case.

The ruling states counsel’s dual representation of both the defendant and alleged victim violates the Missouri Supreme Court Rules of Professional Conduct and “could compromise the defendant’s Sixth Amendment rights (to effective assistance of counsel).”

“Finally, such dual representation undermines the court’s institutional interest in maintaining the integrity of the judicial system and public confidence in the system,” the ruling further reads. “Therefore, we conclude that the respondent (Judge Ray) abused his discretion when he denied the state’s motion to disqualify counsel.”

The higher court considered whether the clients could validly consent to the conflict of interest. 

“The trial court found that the victim’s engagement of counsel was ‘voluntary,’ but the critical question is whether the clients can consent to the conflict…” the ruling states. “Some conflicts, however, are nonconsentable, meaning that counsel can not properly ask clients to consent to the conflict, nor can the lawyer provide representation based on client consent…”

The higher court said counsel suggested that because the victim has chosen not to testify, the clients’ interests are the same.

 “We are not persuaded,” the ruling stated. “We fail to see how either client would even be free to tell counsel his or her version of the events leading to the charges against the defendant. In doing so, each client would almost certainly reveal information advantageous to one and detrimental to the other that counsel would ethically be prohibited from using …”

The higher court said it is “patently unreasonable” to believe Kinsky can provide competent and diligent representation to both clients simultaneously. 

It states clients cannot consent to a concurrent conflict of interest unless a lawyer reasonably believes that he can provide competent and diligent representation to each affected client “and that the representation does not involve the assertion of claim by one client against another client represented by the lawyer in the same litigation or other proceeding …”

Appellate Judge Glenn Norton dissented against the majority ruling, finding no conflict of interest “presently exists and any previous conflict of interest was validly waived.”

According to court records, Farmington police responded to a report of a woman shouting and striking a parked car. A woman told police that her husband had pushed her against a wall and then down to the floor several times. Police observed redness and bruising on the woman. 

The prosecuting attorney’s office charged the man as a prior domestic violence offender since he had been convicted of misdemeanor third-degree domestic assault in 2009. A condition of his bond was not to have contact with the victim. 

Three months later when the case came up for preliminary hearing, Kinsky told the prosecutor’s office that he was representing both the defendant and the alleged victim in the case and the victim did not wish to testify against her husband or speak to the prosecutor. 

The prosecutor’s office asked the judge to disqualify Kinsky from dual representation but the judge overruled the motion, finding that the victim was not a party to the litigation and the “victim’s engagement of counsel was voluntary.” Both parties were made aware of a potential conflict of interest with the wife being a “material witness.”