three different attorneys miss foster mr herself mr brown but despite being represented by three different attorney ryan never received the undivided loyalty on foster was originally retained by ryan in july of two thousand and thirteen and she continuously represented him until the summer of two thousand when he terminated her representation on the  december two thousand and thirteen when she began representing mr johnson in november of two thousand and thirteen and she was representing him on three separate felony drug distribution offensive you know according to christopher johnson  now attempting to essentially use that as leverage for favorable we agree that she makes no attempt to seek a waiver and in fact she does not even attempt to bring this to the trial court's attention and said what will we be adding another category to be perfectly honest with you your honor i have grappled with this concept myself in some sense i would say perhaps because of you know this  new person a conflict but at the same time i mean this is this really the quintessential conflict of interest what is her here in this case i mean this basic rule that you can't represent on a client against another it is you know it's a basic rule of our of our legal procedure it is the foundation of our conflict adventurous jurisprudence it's memorialized and only rule of professional conduct one point nine hey in it it's it's principly intended  to be it's princely intended to maintain the integrity of our judicial system and to protect against even the appearance of impropriety or even the appearance of a conflict  he had to be clear here we're obviously we're not accusing miss foster of having actually disclosed any confidential information but that of course can never be known but that is exactly why application of the per se conflict rule is appropriate under the circumstances it is not it is what is not in the record of what is incapable of being reflected by the record that warrants application of the first a prophet but there is no allegation even her i am friends that she somehow disclose something i mean this is allegedly a statement your client made to another inmate so there is no suggestion that this information came about as a result of miss foster's relationship with your client correct and again i were in no way suggesting that but again it is that very reason my application of the per se conflict rule is appropriate here because if those things that are incapable of being reflected in the record but that war undivided loyalty of on conflicted counsel now the stay here insists that all this is is perfectly acceptable representing one client against another client because  as you noted your honor the miss foster was no longer representing bryant at the moment in time when this plea agreement was executed this however ignores the fact that we do have simultaneous representation occurring for i believe it's a little accurate i mean sure the agreement involved him testifying against mr shoots in his case that there is no connection between the cases i mean other than the fact that christopher is attempting to use this alleged conversation of leverage to negotiate a favorable plea agreement i mean it sure seems that that christopher's case is indeed substantially related to this case because again represented mister mr johnson before he began representing mr shoots and he also did so at a bond hearing but again in a similar way he's  conflict of interest and in fact i believe there was to have her say we'll be he did not represent him at the time of the negotiation right he was not representing mr johnson obviously since miss foster was but nonetheless as contemporaneous and and in the sense that it is in a matter that is concerning this case and were this it were this is reasonably a legitimate concern is that there's a significant danger here as what ultimately happened here with respect to the actual conflict that mr herzog prior representation of christopher would impede his ability to adequately cross examine christopher and this case and indeed that's exactly what happened here so i'll know the state the pretrial disclose a number of most of christoffersen prior convictions ever relevant to impeachment and yet at trial the mr herzog made absolutely no attempt to and peach christopher with any according to the state this is because christopher's lengthy criminal history had already been elicited on direct exam when you post was there prior history of this it did on direct executed involves not one but three separate felony drug distribution offenses and most importantly the state did not elicit testimony from christopher regarding a two thousand and twelve which was one year prior roughly  impeach christopher with any of this priors again including the specific one wherein he had previously represented christopher let me back up a little bit with respect to mr herzog so is it your position that unless the attorney listened to every allowable attorneys trial strategy and tactics have been affected but do you agree that the state was pretty explicit about i'm his prior record i mean they went into it in a pretty detail fashion although i agree you're correct they finally i think it's just it's important to note that none of the attorneys that were involved in this case made any attempt to simply seek a waiver of any of these various conflicts nor did they make any attempt to bring these matters to the trial court's attention so just to briefly this case we have mr wrongly who is representing ryan in this case who previously represented christopher in the two thousand and twelve phony the case that he was not impeach with and i should also note that the state's attorney here is we have a situation where we have four attorneys who either were aware or certainly should have been aware of these various conflicts of interest and yet none of them simply saw a waiver nor did any of them even try to bring these matters to the trial court tension and to that in exactly sure could you state for me with the existing law the first and there are three categories other than that kind of a side with the guardianship case so tell me what category each attorney fall se one we have where defense counsel has a prior or contemporaneous association with the victim the prosecution or an entity assisting the prosecution are you alleging that in you do fall under that  them faster and herzog you said they represent a prosecution witness i guess not ok so the morale is haste talks about this issue of a person being a witness in indicate that a person is not a witness until they testify in so high the time mr johnson testified he was not a client of miss foster or mr herzog correct that's correct but both of those i mean i'm following your own so is it automatic if it's an ethical violation that it's a per se complex well an ethical violation certainly would not be an automatic or pers any further question i don't see  that this johnson was any sort of prosecution witness till february of two thousand and we tried this look band doesn't it raise the appearance of impropriety well i don't think i think she was fired by defendant ok indian takes on another pliant who happens to well she had read represented him since november rice you're right you're right and so she has a server client who all of the senate now has a jailhouse confession regarding a client that fired her it's a deal to testify against the former client i mean if you're the witness didn't agree to plea into an open agreement in exchange for his honest testimony in this case february of two thousand fourteen hernandez lays out the three the three per se conflict principles as you mentioned the only one this could possibly all others the contemporaneous representation of a prosecution witness i would i would submit that this wasn't contemporaneous first of all she shouldn't miss foster to represent defendant trial she had nothing to prosecution table cerium on anything so there was no contemporaneous representation and he was not a prosecution witness to february of two thousand fourteen these are these are two completely separate ac people versus daily wishes what if in the term marilee relies on the main distinction which might have been i was looking at the forest instead of looking at the trees of the forest the main distinction is that the the subject attorney and bailey was defendant's trial counsel miss foster was not defend his trial counsel in this case and in fact hernandez applies to any application of hernandez as far as contemporaneous representation on besides daily whatsoever to anything in this trial let alone mr johnson's testimony it and it's hard to imagine how whoever mr johnson's counsel was how that would be relevant at all in cross examination or anything i mean it that would be a serious allegation to come up with however nothing in the record suggests any kind of foul play and if we're going to assume that this is a person a conflict that opens the floodgates to public defenders office in this in this state having to do a ton more work checking rechecking cross checking not only to finish our representations but every single state witnesses fire station that's a pretty hefty burden to waste on every public defender's office in the state that's just from a policy perspective people versus protests which i cited distinguished daily if another opinion in this court interests were not furthered by a favorable outcome to defendant first of all no promises were made course i'm sure he was hoping to get good faith from the court that he entered into this open plea to testify in this case however no no our promises that sentences are dismissal charges or anything were made to johnson in this case to maybe more importantly defend his guilt if whether he's found guilty or innocent didn't matter as far as the  as far as johnson's testimony an unfavorable outcome would not have benefited johnson in any way in this case that also plays into mr ramsey wrongly and mr herzog defendant's actual trial counsel herzog represented mr johnson in june of two thousand and thirteen at a single bond hearing that's the only time you represented this guy and this was before defendant was even charged with this crime so of course it was before defendant was in jail for this crime in a conversation oh i would also mention the timeline as for when johnson supposedly heard this from defendant in the jail he testified that it was approximately three months after the defendant got into the county jail which would have been sometime in september which would mean this was this sometime in december at the earliest at that point  no longer represented by his foster as far as the timeline prescription i mean if we're going to we're going to hypothesize that that somehow is foster made all of this happen the timeline just doesn't add they place no credibility on this guy they even said so in their specific findings presumably that witness the victim's testimony was what convicted defending here not not this jailhouse snitch which is exactly what they call them i don't see how they're going to i'll defend it's going argue now that that defense counsel all their punches on when they they attacked him pretty hard in their closing arguments and pointed out to major in consistency in his testimony which was that he testified finished went out there even though it was a one story apartment not only was since council process ventilation trial strategy was effective trial strategy i mean they took the court disregarded this guy's testimony and while where he had a lengthy criminal record this wasn't a jury trial it didn't need to really be crammed down the judge's throat that this guy was a career criminal i think it was pretty pretty everyone in the courtroom was pretty aware of that fact presumably that's why the trial court didn't place any persists or credibility on this testimony never mind that the fact that they didn't pop about is specific i mean presumably they didn't mean that nobody ever mentioned these sit i mean had this guy might not even remember it represented in a single bond hearing in two thousand and thirteen was almost a year before that and this other guy represented him in the other guy did the whole trial that this was in two thousand and twel in fact i think only one of the two cross examined johnson i think it was her dog with i think mr brumley cross examine it could be wrong but  it would be hard to talk about for one of the one of the didn't impeach him it would be hard for him to teach him at all if you didn't have the opportunity to process them in any way at any rate in closing argument they call him a jailhouse snitch they say his testimony is laughable it was clear to the trial court that this guy was a career criminal and they made an effective argument that this guy was just testifying saying whatever it could to benefit himself in the situation and it was effective the trial court believe them so again since there were no per se there's clearly no contemporaneous representation here defendant needs to show actual prejudice and in this case there clearly there clearly was no actual prejudice as far as any of three counsels and there minimal there minimal involvement with this defense witness years ago as far as mr or miss foster her minimal government prior to defendant's case would again that would that could be then claimed in any any case with with any kind of connection as far as witnesses and defendants representation about why it would be a very difficult burden i think the burden should be at least to have some suggestion in the record that this occurred for there to be a conflict especially again we can't just we can't fathom we can't create out of thin air that this conflict started when she was simultaneously representing for these clients this guy was not a witness until february two thousand fourteen shoe she had been in the house one months and unless there's something in the but this is this is precisely why the per se conflict rule is appropriate here this is a situation that is ripe for conflict we do not we cannot know how ms foster's dual representation of these individuals may have a thing and exactly why application of the per se conflict rule is appropriate here now the state knows that that that this conversation may have occurred in december two thousand and thirteen based on mr johnson's subsequent statement that  occurred three months after his incarceration however i should note that he he also previously testified he originally testified that is that it occurred two months after his incarceration which according to see if calculation want to place it in november and again this is when potentially being influenced by her confidential information it is just not something that are walking from it and just as our supreme court explained over one hundred years ago but rule has long been established you cannot do and as your hon