Does Mark Means Have an Ethics Problem?
Should Lori's Vallow's Attorney
Continue to Represent Her?
July 10, 2020
Lori Vallow’s attorney, Mark Means, raised some eyebrows during Lori’s arraignment on new charges when he reported to the judge that he had not represented any other parties. The judge asked, “Mr. Means, the court is inclined to ask one question here today, number one because the charge has been listed here in the information does pertain to conspiracy, Mr. Means, have you ever represented any of the alleged co-conspirators that are set forth in the complaint?” To which Means answered, “No, your honor, other than Mrs. Daybell.” Prosecutor Wood pointed out that Means said he represented Chad Daybell before any criminal charges were filed against him. The judge questioned whether a conflict exists and directed both sides to submit their request regarding that issue.
Professional responsibility rules vary slightly from state to state, but in general, follow the ABA Model Rules of Professional Responsibility. The rules that surround conflicts of interest are central and are taught to lawyers from the very start. Attorneys are required to study and pass a portion of the bar examination covering attorney ethics. Most state bar associations also require that attorneys take a course on professional responsibility as soon as they are admitted to practice in that state. All states require that attorneys complete continuing legal education every year and that some portion of those continuing legal education hours is devoted to professional responsibility. Some people interested in the case suggest that this conflict may be because Mr. Means is not an experienced criminal attorney. Even if that is true, he is still well aware of his responsibility under the rules about conflicts of interest.
A look at the Idaho rules points up some areas of concern. Please note that I did not reproduce the entire text of the Idaho Rules of Professional Conduct here. You may access a copy at isb.idaho.gov or by Googling Idaho Rules of Professional Conduct. Most states add commentary to their rules, and the commentary is helpful in this case. I’ve highlighted some relevant information.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by the personal interests of the lawyer, including family and domestic relationships. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
Commentary General Principles [1] Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of “informed consent” and “confirmed in writing,” see Rule 1.0(e) and (b). [2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in 16 IRPC Effective 7-1-14 paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2). [3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope. [4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 1.9. See also Comments [5] and [29]. [5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c). Identifying Conflicts of Interest: Directly Adverse [6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients. [7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.
RULE 1.9: DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; (3) unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
It’s clear that Lori Vallow and Chad Daybell’s interests are adverse to each other now. A lawyer is ethically bound to zealously represent his client by acting in that client’s best interest. The lawyer can’t adequately represent the interests of two clients in the same case who have conflicting goals about the outcome. If Mr. Means represented Chad at any time, even if it was before any criminal charges were filed, there is a chance that Means was privy to information from Chad that he can now use to benefit Lori. Conversely, he may be privy to information from Lori that will hurt Chad, whose interests he must protect. Clients can waive some conflicts in writing, but most lawyers will tell you doing so is dangerous. Keeping a case when there is a conflict is inviting trouble; your client could later sue you for malpractice, and it could subject the case to a challenge in the appeals court.
Next Week: Part One of Are Chad and Lori Really Mormons?
Have questions? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2021.
