NO. 95-262

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,

Plaintiff

v.

TROY MICHAEL JONES,

Defendant

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender (argued),

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg Coughlin, Ass't Attorney General (argued),

Helena, Montana

Mike Weber, Richland County Attorney, Sidney,

Montana

For Amicus Curiae:

Keith A. Maristuen, Chair, and Michael G. Alterowitz

Attorneys at Law (for Ethics Committee, State Bar

of Montana), Helena, Montana

Michael Donahoe, Attorney at Law (for Criminal

Defense Section, State Bar of Montana), Helena,

Montana

Argued: April 19, 1996

Submitted: April 30, 1996

Decided:~,.'~:September 11, 1996

Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Troy Michael Jones (Jones) appeals from the judgment and

sentence entered by the Seventh Judicial District Court, Richland

County, on a jury verdict finding him guilty of the offense of

felony assault. We reverse and remand.

The dispositive issue on appeal is whether the District Court

abused its discretion in denying Jones' counsel's motion to

withdraw.

The State of Montana (State) charged Jones with felony

assault, in violation of § 45-5-202, MCA, alleging that Jones

purposely or knowingly caused bodily injury to Kirby Sowers

(Sowers) by striking Sowers "about the head and face with a beer

bottle. . .'I T. R. Halvorson (Halvorson) was appointed to

represent Jones and, thereafter, Jones pled not guilty to the

charged offense. Trial was set for November 3, 1994. Two days

prior to trial, Halvorson moved to withdraw as Jones' counsel. The

State opposed the motion and requested an evidentiary hearing on

the grounds for withdrawal.

The hearing on Halvorson's motion to withdraw as Jones'

counsel was not, strictly speaking, an evidentiary hearing; no

sworn testimony was presented. The District Court merely invited

Halvorson to establish a factual basis for his motion and Halvorson

did so through narrative statements and various arguments.

Halvorson based his motion, in part, on Rules 1.16(a) (1) and

(b) (I), Montana Rules of Professional Conduct (MRPC). In this

regard, Halvorson told the District Court that Jones had stated an

2
intent to testify falsely.

Halvorson also based his motion on Rule 1.16(b) (3), MRPC. The

bulk of Halvorson's statements, disclosures and arguments in

support of his motion to withdraw were based on his belief that

Jones' decision to reject the plea agreement Halvorson had

negotiated with the State and proceed to trial was repugnant or

imprudent. Halvorson detailed the offense and Jones' role in it,

and disclosed Jones' admission that he "punched [Sowers] with a

bottle of beer in [Jones'] right hand." Halvorson indicated that

a felony assault had occurred and that Jones admitted having

committed it. In addition, Halvorson stated that he did not have

a defense to present to a jury on Jones' behalf. He opined that it

was repugnant to deny criminal culpability to a jury where on an

"open and shut basis . there is guilt." Halvorson also

indicated that Jones' decision to go to trial rather than accept a

plea agreement "when [Jones] stands virtually no chance of an

acquittal" was repugnant to him and constituted good cause for his

withdrawal as counsel.

Jones denied that he had communicated an intent to testify

falsely to Halvorson and stated that, in fact, he did not intend to

testify at his trial. He asserted that Halvorson had "lied about

a few things" and that It [he] disagree[dl with everything

[Halvorson] said, and that's fine if [Halvorson] drops out of [the]

case." The District Court indicated that it was accepting Jones'

statements as "argument and testimony."

Based on Jones' statement that he did not intend to testify,

3
the District Court denied Halvorson's motion to withdraw. Several

months later, a jury convicted Jones of felony assault and the

District Court sentenced him and entered judgment. Jones appeals.

Did the District Court abuse its discretion in denying

Halvorson's motion to withdraw as Jones' counsel?

Jones argues on appeal that the District Court abused its

discretion in denying Haivorson's motion to withdraw. While

advancing alternative bases for his argument, Jones' primary

contention is that Halvorson had a conflict of interest which

resulted in a denial of Jones' constitutional rights to a fair

trial and to the effective assistance of counsel. The State

disagrees, arguing that no conflict of interest existed in this

case.

The grant or denial of a lawyer's motion to withdraw is within

the discretion of the district court. See United States v. Keys

(9th Cir. 19941, 67 F.3d 801, 807; Petition of Jones (1963), 143

Mont. 309, 309-10, 387 P.2d '712, 712. We review such discretionary

matters to determine whether the court abused its discretion. See

State v. Craig (1995), 274 Mont. 140, 149, 906 P.2d 683, 688

(citations omitted)

GENERAL DUTIES OF ATTORNEY TO CLIENT

The Sixth Amendment to the United States Constitution and

Article II, Section 24 of the Montana Constitution guarantee a

criminal defendant the right to the assistance of counsel. Mere

representation by counsel is not sufficient, however; the

assistance must be effective to give true meaning to that right and

to the right to a fair trial. State v. Enright (1988), 233 Mont.

4
225, 228, 758 P.2d 779, 781. MOreOVer, a criminal defendant's

constitutional right to the effective assistance of counsel is

comprised of two correlative rights: the right to counsel of

reasonable competence and the right to counsel's undivided loyalty.

State v. Christenson (1991), 250 Mont. 351, 355, 820 P.2d 1303,

1306 (citations omitted). In the latter regard, the Sixth

Amendment right to counsel contemplates the assistance of an

attorney devoted "solely to the interests of his client." Frazer

v. United States (9th Cir. 1994), 18 F.3d 778, 784 (quoting Von

Moltke v. Gillies (1948), 332 U.S. 708, 725-26, 68 S.Ct. 316, 324,

92 L.Ed. 309, 322). The duty of loyalty is "perhaps the most basic

of counsel's duties." Strickland v. Washington (1984), 466 U.S.

668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696.

An attorney owes a duty of confidentiality to his or her

clients. Rule 1.6, MRPC. The duty of confidentiality is

correlative to an attorney's duty of loyalty. &, e.q., Damron v.

Herzog (9th Cir. 1995), 67 F.3d 211, 215. Thus, a defense

attorney's disclosure of confidential information in violation of

Rule 1.6, MRPC, necessarily implicates the attorney's duty of

loyalty as well as the defendant's constitutional right to the

effective assistance of counsel.

DISCLOSURE OF PERJURY

Rule 1.16, MRPC, provides in pertinent part:

(a) . . a lawyer . . . shall withdraw from the

representation of a client if:

(1) the representation will result in violation of the

rules of professional conduct or other law;

. . .

(b) . . a lawyer may withdraw from representing a

5
client . . if:

(1) the client persists in a course of action involving

the lawyer's services that the lawyer reasonably believes

is criminal or fraudulent. . .

Halvorson contended that his continued representation of Jones

would result in a violation of a rule of professional conduct or

other law because Jones intended to commit perjury.

Rule 1.16(a) (l), MRPC, requires an attorney to withdraw where

continued representation will result in a violation of the rules of

professional conduct or other law. Halvorson stated that he had a

conversation with Jones in which Jones communicated an intent to

testify falsely and, in response, he informed Jones of the

consequences of perjury and that he could take no part in

presenting perjured testimony to the District Court. He further

stated that he gave Jones a weekend over which to further consider

Jones' intent to commit perjury and his advice in this regard. The

record does not reflect that Halvorson checked back with Jones

after the weekend passed, to ascertain whether Jones had

reconsidered based on his advice, before filing his motion to

withdraw.

Halvorson conceded at the hearing on his motion to withdraw

that Jones may have reconsidered and decided not to testify

falsely. Thus, the record before us contains only an alleged

possible intent to commit perjury. It does not support Halvorson's

contention that his continued representation of Jones would result

in a violation of the rules of professional conduct or other law

and, as a result, it also does not support his motion to withdraw

under Rule 1.16(a) (l), MRPC.

6
Rule 1.16(b) (l), MRPC, on which Halvorson also based his

motion, permits an attorney to withdraw if the client persists in

a course of conduct the lawyer reasonably believes is criminal or

fraudulent. Webster's Ninth New College Dictionary (1988) defines

"persist" as "to go on resolutely or stubbornly in spite of

opposition, importunity, or warning." Here, nothing of record

indicates that Jones was "persisting" in his alleged intent to

testify falsely after considering Halvorson's advice and warning.

The record before us does not support withdrawal based on Rule

1.16(b) (l), MRPC.

In this regard, Jones and the amici curiae urge our adoption

of a variety of standards of knowledge which an attorney should be

required to possess prior to moving to withdraw based on a criminal

defendant client's intent to commit perjury. Jones contends that

a "firm factual basis" must exist. The Criminal Defense Section of

the State Bar of Montana asserts that counsel must be "absolutely

convinced in his own mind, and in fact beyond a reasonable doubt"

that the client will commit perjury before moving to withdraw. The

State Bar of Montana Ethics Committee recommends that counsel must

"know" that the defendant intends to perjure himself or herself and

that a maintained and reiterated statement of intent to do so

should be sufficient.

We decline to adopt a particular knowledge standard in this

case where no findings of fact have been made by the trial court.

Moreover, it is unnecessary to do so in this case because it is

clear that Halvorson did not meet any standard of knowledge prior

7
to moving to withdraw. Because the record does not support any

persistence by Jones in the alleged intent to commit perjury it

follows that Halvorson could not, in the language of Rule

1.16 (b) (I), MRPC, reasonably believe that Jones was persisting in

a course of action involving Halvorson's services which was

criminal or fraudulent.

Halvorson also relied on Nix v. Whiteside (1986), 475 U.S.

157, 106 S.Ct. 988, 89 L.Ed.2d 123, in support of his motion to

withdraw as Jones' counsel because of Jones' alleged intent to

commit perjury. In Nix, the defendant was charged with murder, but

claimed that he had stabbed the victim in self-defense. Nix, 475

U.S. at 160. He told his attorney that the victim "'was pulling a

pistol from underneath the pillow on the bed[, 1 "' but admitted that

he had not actually seen a gun. Nix, 475 U.S. at 160. During

trial preparation, however, the defendant told his attorney for the

first time that he had seen something "metallic" in the victim's

hand; his explanation for the change was that "[ilf I don't say I

saw a gun, I'm dead." The attorney explained that it was not

necessary to prove the victim actually had a gun to succeed on a

claim of self-defense, but the defendant continued to insist on

testifying falsely. a, 475 U.S. at 161. The attorney advised

that he would not allow the defendant to testify falsely and that,

if the defendant did so, he would be required to advise the court

that the defendant was committing perjury and would move to

withdraw as counsel. a, 475 U.S. at 161.

The defendant testified at trial that he "knew" the victim had

8
a gun, but conceded on cross-examination that he did not actually

see a gun in the victim's hand. Nix, 475 U.S. at 161-62. He was

convicted of second-degree murder and subsequently moved for a new

trial, claiming that he had been deprived of a fair trial due to

his attorney's admonitions not to testify that he saw something

metallic in the victim's hand. Nix, 475 U.S. at 162. The trial

court denied the motion and the Iowa Supreme Court affirmed,

holding that neither the right to counsel nor the attorney's duty

to his client extended to assisting the client in committing

perjury. Nix, 475 U.S. at 162.

The defendant filed a federal habeas corpus petition alleging,

among other things, that he had been denied effective assistance of

counsel by his attorney's refusing to allow him to give perjured

testimony. &j& 475 U.S. at 162. The issue before the United

States Supreme Court was whether the Sixth Amendment right to

counsel is violated when an attorney refuses to cooperate with a

criminal defendant in presenting perjured testimony. __, Nix 475 U.S.

at 159.

The Supreme Court observed that the first part of the

Strickland test requires a defendant to establish "constitutionally

deficient" performance by counsel. Nix, 475 U.S. at 164-65.

Having recognized counsel's duty of loyalty in Strickland, the Nix

Court determined "that duty is limited to legitimate, lawful

conduct compatible with the very nature of a trial as a search for

truth." Nix, 475 U.S. at 166. While an attorney's duty of

confidentiality and loyalty extends to a client's admission of

9
guilt, it does not require the attorney to assist the client in

presenting false evidence. a, 475 U.S. at 166, 174. Thus,

whether the attorney's conduct in Nix was seen as a successful

attempt to persuade the defendant not to commit perjury, or as a

threat to withdraw and disclose the defendant's perjury if and when

it occurred, the Supreme Court held that the attorney's

representation of the defendant fell "well within accepted

standards of professional conduct and the range of reasonable

professional conduct acceptable under Strickland." -INix 475 U.S.

at 171.

In reaching its conclusion in Nix, the Supreme Court surveyed

and set forth various rules of professional conduct and

interpretations of such rules. For example, the Supreme Court

stated that it is "universally agreed" that an attorney's first

duty when confronted with a client's stated intention to testify

falsely is to attempt to dissuade the client from the unlawful

course of conduct. Nix, 475 U.S. at 169. Moreover, where the

client actually gives perjured testimony, an attorney may reveal

the perjury to the trial court. Nix, 475 U.S. at 170. In

addition, withdrawal may be appropriate where a client states an

intent to testify falsely. Nix, 475 U.S. at 170. The Supreme

Court was careful to note, however, that it was not intruding into

the proper authority of the states to define and apply standards of

professional conduct applicable to those admitted to practice in

state courts. &, 475 U.S. at 165. Indeed, as pointed out by

Justice Brennan in his concurring opinion, "the Court's essay

10
regarding what constitutes the correct response to a criminal

client's suggestion that he will perjure himself is pure discourse

without force of law." Nix, 475 U.S. at 177 (Brennan, J.,

concurring).

Neither the facts nor the holding in Nix support Halvorson's

motion to withdraw based on Jones' alleged intent to testify

falsely in this case. The only pertinent facts in Nix were the

attorney's advice, in response to the client's stated intent to

commit perjury, that he would not allow the client to testify

falsely and, if the client did so, he would disclose the perjury to

the trial court and move to withdraw; the client did not commit

perjury. Here, in response to Jones' alleged intent to testify

falsely, Halvorson advised of the potential consequences. To this

extent, Halvorson's actions mirrored those of counsel in Nix.

Halvorson, however, followed his advice by moving to withdraw and

making disclosures to the District Court of client confidences.

These significant facts were not present in Nix.

Moreover, the holding in Nix on the Sixth Amendment issue

presented by the facts referenced above is that counsel's advice to

his client about the potential consequences of the client's intent

to commit perjury did not fall outside the range of reasonable

professional conduct required by Strickland. See Nix, 475 U.S. at

171. The case now before us does not involve the propriety or

constitutionality of Halvorson's advice to Jones; rather, it

involves, initially, the propriety of Halvorson's actions

thereafter in moving to withdraw from further representation of

11
Jones, In this regard and based on the record before us in this

case, we concluded above that neither subsection (a) (1) nor

subsection (b) (1) of Rule 1.16, MRPC, authorized Halvorson's motion

to withdraw.

Furthermore, while we agree with the Supreme Court that an

attorney's "universally accepted" initial duty when faced with a

client stating an intent to commit perjury is to attempt to

dissuade the client from doing so (see Nix, 475 U.S. at 169), we

also agree with Justice Brennan that the Supreme Court's extensive

survey and discussion regarding standards of professional conduct

under various rules and commentaries is, for the most part, dicta

and without force of law. -See Nix -I 475 U.S. at 177 (Brennan, J.,

concurring). In the Nix context, that survey and discussion is

background material which bears little relationship to the facts

and actual issue in that case. It is neither binding, nor

necessarily persuasive, authority to this Court regarding the

Montana Rules of Professional Conduct and our interpretation of

those Rules vis-a-vis regulating the conduct of attorneys in the

courts of Montana.

As a final argument relating to Halvorson's motion to withdraw

based on Jones' alleged intent to commit perjury, the State

contends that the disclosures Halvorson made to the District Court

in this regard were required by Rule 3.3(a) (2), MRPC. Rule 3.3,

MRPC, provides, in pertinent part:

(a) A lawyer shall not knowingly:

i2j fail to disclose a material fact to a tribunal when

disclosure is necessary to avoid assisting a criminal or

12
fraudulent act by the client. . .

The State asserts that Halvorson knew Jones intended to commit

perjury and, as a result, that Rule 3.3(a) (2) imposed an obligation

to disclose Jones' intent to testify falsely to the District Court

in order to avoid assisting Jones in the criminal or fraudulent act

of perjury. However, as discussed above, Halvorson did not know

Jones' intent in this regard. Therefore, Rule 3.3 does not support

Halvorson's disclosure of Jones' alleged possible intent to commit

perjury.

We conclude, on the record before us, that Halvorson's motion

to withdraw was improper under Rules 1.16(a) (1) and (b) (l), MRPC,

and was not supported by Nix.

CONFLICT OF INTEREST

An attorney who abandons his or her duty of loyalty may create

a conflict of interest. Frazer, 18 F.3d at 782. A defense

attorney who essentially joins the prosecution's efforts in

obtaining a conviction and acts on a belief that the defendant

should be convicted "suffers from an obvious conflict of interest."

Fraser, 18 F.3d at 782 (citation omitted). Such an attorney

"'fail[sl to function in any meaningful sense as the Government's

adversary."' Frazer, 18 F.3d at 782 (quoting United States v.

Swanson (9th Cir. 1991), 943 F.2d 1070, 1074)

While defense counsel in a criminal case assumes a dual

role as a "zealous advocate" and as an "officer of the

court," neither role would countenance disclosure to the

Court of counsel's private conjectures about the guilt or

innocence of his client. It is the role of the judge or

jury to determine the facts, not that of the attorney.

13
United States ex rel. Wilcox v. Johnson (3rd Cir. 1977), 555 F.2d

115, 122. Where an attorney wilfully discloses confidential

information communicated by his client, he inhibits mutual trust

necessary for effective representation. Wilcox, 555 F.2d at 122.

Here, the record clearly establishes that Halvorson put his

personal interest in not wanting to take Jones' case to trial ahead

of Jones' constitutional right to an attorney devoted solely to

Jones' interest in exercising his right to a trial by jury.

Halvorson informed the District Court that he had negotiated a

favorable plea agreement for Jones and indicated that he considered

Jones' decision to decline the agreement and exercise his right to

trial repugnant. In the course of further explaining Jones'

"repugnant" decision, Halvorson reminded the court of the pending

felony assault charge, premised on the State's allegation that

Jones committed the assault by striking Sowers "with either a beer

bottle, or a glass, or some glass object[,l" and disclosed a

confidential admission Jones made to him that Jones "punched

[Sowers] with a bottle of beer in [Jones'] right hand."

This disclosure was improper. As discussed above, Rule 1.6,

MRPC, expressly prohibits the disclosure of information relating to

the representation without the client's consent except in specified

circumstances where the duty to disclose necessarily overrides the

duty of confidentiability and loyalty. Rule 3.3(a) (2), MRPC,

provides an additional duty to disclose under carefully limited

circumstances, even when compliance would reveal information

otherwise protected by Rule 1.6, MRPC. The circumstances contained

14
in Rule 3.3(a) (2), MRPC, relate to disclosure necessary to avoid

assisting in a client's criminal or fraudulent act, however, and

bear no relationship to Halvorson's extensive disclosure in this

case regarding his "repugnance" to taking Jones' case to trial.

Moreover, Halvorson's contention that Jones' "repugnant"

decision to exercise his right to a jury trial, rather than accept

a plea agreement, constitutes good cause for withdrawal runs

directly afoul of Rule 1.2(a), MRPC, which provides in relevant

part:

In a criminal case, the lawyer shall abide by the

client's decision, after consultation with the lawyer, as

to a plea to be entered, whether to waive jury trial and

whether the client will testify.

The obligations imposed by this Rule are paramount, and

unqualified. Thus, while Halvorson may not have agreed with Jones'

decision to decline a plea agreement and exercise his right to a

jury trial, that decision did not--and cannot--constitute cause for

withdrawal.

Halvorson also indicated that, in his opinion, on an "open and

shut basis . . there is guilt and is the plea [sic1 that probably

should be entered." To illustrate his point, Halvorson detailed

for the District Court and the prosecution why he believed Jones

was so clearly guilty. He laid out the facts leading up to the

alleged assault, which involved Sowers physically removing Jones

from a bar and, immediately thereafter, walking into the bar

covered with blood. He then stated:

Now, on probabilities, who else would have done it?

[Jones] just had this physical disagreement with

[Sowers] .

15
. . .

There is no other person that the State has ever

suspected, and there's no other person that [Jones] has

indicated should be a suspect, and there's no other

person that any witness I know of has indicated should be

a suspect. so, you know, the range of possible

explanations . . is narrow. It would be like threading

a needle to come up with any other explanation.

.

In my mind, under the study of Montana law, there's no

doubt but what that [sic] beer bottle is a weapon, and,

even if it weren't, there's no doubt in my mind that the

degree of injury . is serious bodily injury.

It's a felony assault, and my client has admitted to me,

essentially, that he did it.

Halvorson's narrative detailed for the District Court and the

prosecution why he believed Jones was guilty of felony assault and

should not go to trial. The State cites to no authority, and we

have found none, supporting disclosure by a defense attorney of a

client's confidential admission of guilt and detailing for the

court and the prosecution the reasons his client is guilty in

support of a motion to withdraw from further representation.

The record before us establishes that, at the hearing on

Halvorson's motion to withdraw, Halvorson totally abandoned his

adversarial role on Jones' behalf against the State, essentially

joining the prosecution's efforts in obtaining a conviction. In

acting on his own belief that Jones should be convicted and in

essentially joining the State's efforts in obtaining a conviction,

w e conclude that Halvorson created I1 an obvious conflict of

interest" and abandoned his duty of loyalty to Jones. & Fraser,

16
18 F.3d at 782.

Ordinarily, a criminal defendant's constitutional right to the

effective assistance of counsel is violated only when counsel's

performance was deficient and the deficient performance prejudiced

the defendant's right to a fair trial, and the defendant must

establish both elements. Strickland, 466 U.S. at 687. The

Strickland Court noted the availability of "presumed prejudice,"

however, in situations where counsel is "burdened by an actual

conflict of interest. In those circumstances, counsel breaches the

duty of loyalty, perhaps the most basic of counsel's duties."

Strickland, 466 U.S. at 692. Similarly, the Ninth Circuit Court of

Appeals has recognized an exceptional situation regarding the

prejudice requirement where an egregious actual conflict of

interest exists of record between the client's interests and the

attorney's sympathies. & Frazer, 18 F.3d at 782-83.

In Frazer, the Ninth Circuit addressed a defendant's

allegations that his appointed counsel had called him a "stupid

nigger son of a bitch and said he hopes I get life[;]" the

conversation allegedly was overheard by others and the defendant

attempted without success to have a different lawyer appointed.

Fraser, 18 F.3d at 780. He subsequently filed a pro se motion for

relief from the sentence imposed, alleging that the treatment he

received from counsel was so fatally defective as to constitute an

abandonment of the attorney's duty of loyalty. Without holding an

evidentiary hearing, the magistrate judge dismissed Frazer's

assertions as mere conclusory allegations and, in any event,

17
to his interest in exercising his right to trial. The conflict

between Halvorson's sympathies and Jones' rights and interests is

unmistakable and egregious and, under such circumstances, Halvorson

can be said to have represented Jones only "'through a tenuous and

unacceptable legal fiction."' See Frazer, 18 F.3d at 782-83

(citation omitted). We conclude that this case constitutes the

very rare instance in which a presumption of prejudice is

warranted.

We will continue to require strict compliance with the

prejudice prong of Strickland in ordinary ineffective assistance

cases involving allegations of deficient performance by counsel.

In that regard, our deference to counsel's tactical and strategic

decisions will continue unabated. Given this record, however, we

refuse to indulge in nice calculations regarding the amount of

prejudice attributable to the clear and unequivocal conflict of

interest Halvorson created.

We hold that, faced with Halvorson's clear conflict of

interest and abandonment of his duty of loyalty to Jones, the

District Court abused its discretion in denying Halvorson's motion

to withdraw as Jones' counsel. We vacate Jones' conviction and

sentence and remand this case to the District Court for a new

trial.
determined that Frazer was not prejudiced because counsel's actual

performance was not demonstrably erroneous. Frazer, 18 F.3d at

780.

The issue on appeal in Frazer was whether the trial court

abused its discretion in failing to hold an evidentiary hearing on

whether the defendant's Sixth Amendment right to counsel was

violated. The Ninth Circuit held that

the facts as alleged in this case, if proved, would

render so defective the relationship inherent in the

right to trial counsel guaranteed by the Sixth Amendment

that Mr. Frazer would be entitled to a new trial with a

different attorney.

Frazer, 18 F.3d at 784. According to the Ninth Circuit, the

defect, if proved, would be so egregious that a presumption of

prejudice would be appropriate without review of the attorney's

actual conduct at the trial. Frazer, 18 F.3d at 785 (citing United

States v. Cronic (1984), 466 U.S. 648, 660, 104 S.Ct. 2039, 2047,

80 L.Ed.2d 657, 668).

Notwithstanding the differences in procedural context and

bases for abandonment of the duty of loyalty between Frazer and the

case before us, we adopt and apply the Frazer rationale here. Our

duty as judges is "to ensure that the right to counsel, as a

jurisdictional prerequisite to depriving a person of his or her

liberty, is fully honored." Frazer, 18 F.3d at 784. The record

before us in this case is clear. Halvorson totally abandoned his

duties of loyalty and confidentiality to Jones by putting his

personal interest in not wanting to take Jones' case to trial ahead

of Jones' interest in representation by an attorney devoted solely

18
we concur:
September 11, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

William F. Hooks, Esq.

Appellate Defender

Box 200145

Helena, MT 59620-0145

Hon. Joseph P. Mazurek, Attorney General

Cregg Coughlin, Assistant Attorney General

215 N. Sanders

Helena MT 59620

Mike Weber, County Attorney

201 West Main

Sidney MT 59270

Gary Ryder

Attorney at Law

P.O. Box 72

Hysham, MT 59038

Keith A. Maristuen, Chair

State Bar of Montana Ethics Committee

P.O. Box 7152

Havre, MT 59501

David F. Ness, Chairperson

Criminal Defense Section of the State Bar

P.O. Box 8358

Missoula, MT 59807-8358

Michael Donahoe

Attorney At Law

Box 258

Helena MT 59624-0258