HappyNewYear!
Aaaannnnddd he's outtathere!
Judge Orders Mark Means Disqualified.
December 31, 2021
Hello Friends.
It’s the last newsletter of 2021! Can you believe it? If someone had told me in 2019 when I began following this case that we’d be entering 2022 still pre-trial, I would have laughed, but here we are.
The big news: THE JUDGE HAS DISQUALIFIED MARK MEANS FROM ANY INVOLVEMENT IN THE VALLOW/DAYBELL CASE.
Yes, that deserved all caps. Late on December 28, Judge Steven Boyce issued findings and an order regarding Mark Means. The judge found that an actual conflict of interest exists because Means at one time represented both Chad Daybell and Lori Vallow. The judge also found that Means’ questionable practice of filing sworn declarations on behalf of his client likely made him a witness in the Vallow case and that Means’ including statements made by his client in those declarations, likely violated Vallow’s right to attorney-client privilege.
Just when people were questioning Judge Boyce’s resolve in this case, he hits one out of the park. This action may assure those concerned about Judge Boyce that he does have a backbone. It’s true that Judge Boyce was appointed to the District Court bench only months before this case became national news, and the COVID-19 pandemic virtually shut down the courts. It’s also true that this is Judge Boyce’s first capital case. What a case to cut your judicial baby-teeth on, right? So, it’s understandable that Judge Boyce has been cautious (some might say overly so) in the conduct of the case. No one wants this case overturned because of an improper or prejudicial process.
Let’s break down the issues in Judge Boyce’s order a little more. I am quoting the Idaho Rules of Professional Conduct and the associated commentary. If you don’t want to dive into these weeds, please feel free to skip this section.
Idaho Rule of Professional Conduct 1.6 (a) reads, “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation.”
Idaho Rule of Professional Conduct 1.7 covers conflicts of interest involving current clients. 1.7 (a) and (b) read, “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.”
The commentary discussed informed consent: “Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality). Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected 18 IRPC Effective 7-1-14 client in determining whether common representation is in the client’s interests. Consent Confirmed in Writing [20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.”
The commentary further discusses when a conflict cannot be waived. “Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client. [15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence). [16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. [17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer’s multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a “tribunal” under Rule 1.0(m)), such representation may be precluded by paragraph (b)(1).”
Idaho Rule of Professional Conduct 1.8 further covers conflicts of interest involving current clients. 1.8(b) reads “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.” Lori Vallow is Means’ current client.
Rule 1.9 involves obligations to former clients. The court found that Chad Daybell is Means’ former client. 1.9(a) reads, “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.” The commentary makes the rule clear: “After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent.”
Judge Boyce found that even though Judge Eddins ruled in the earlier case that the conflict was waivable and was waived in writing, Vallow and Daybell could not waive the conflict in the current case because of the seriousness of the current charges. As Judge Boyce pointed out, “death is different.”
As her sole legal counsel, Judge Boyce’s disqualification of Means leaves Lori Vallow with Jim Archibald, a death-penalty qualified public defender. While we may think this outcome is in Lori’s best interest, she may think otherwise. No one is sure why she is so attached to Mark Means or why Means is so attached to her. Is it possible for Means to remain involved somehow?
Archibald will surely forbid Means to have any contact with his client if he has not already. Prudence would suggest that Means should follow that direction, but he hasn’t proven himself to be someone who takes the prudent path. Perhaps Means should take the story of Roger Weidner, a disgraced lawyer from my home state of Oregon, as a cautionary tale.
It’s a strange story that begins with Don Kettleberg and Milton Brown. As business partners, the two amassed $35 million in property in the late 1980s. Then, when Kettleberg was 45, he met 22-year-old Jeanette Kent. Kettleberg and Kent were together for more than ten years. The couple had broken up about a year and a half before Kettleberg died of complications of cirrhosis of the liver. Believing Kettleberg had no will and no family, Kettleberg’s partner, Milton Brown, stepped in and took control of Kettleberg’s estate. Although Kettleberg had confided in at least one friend that he had written a will after his terminal diagnosis, Brown began a probate action, claiming Kettleberg had died intestate (without a will). There followed a lengthy contested probate action. Even though a judge found in favor of Janette Kent and ordered Brown to turn the estate over to her, they were all still fighting over the money years later.
Oregon Attorney, Roger Weider, represented Janette Kent. His representation of Kent led Weider into a spiral that ultimately led to his disbarment, several arrests and convictions, and his commitment to a mental hospital. Weider was a true believer, and his deep involvement in Janette Kent’s case convinced him that the entire legal system in Oregon, every judge, lawyer, and public servant, were all corrupt and being bought off. He claimed there was an elite “money cartel” ruling the state of Oregon and suggested that it had roots in the Jewish community. Weidner began inviting “followers” to pack courtrooms whenever he appeared for a hearing. It was a strange time to practice in three counties that make up the Portland, Oregon metropolitan area. I found myself more than once caught in a Weidner-related security lockdown in one of those courthouses. Weidner attracted the attention of a lot of fringe groups. His anti-Semitic diatribes attracted support from The U.S. Observer Newspaper and other fringe right-wing political groups. Long after Weider had been disbarred, he was still “befriending” people he saw as victims of the corrupt system; among other things, he was prosecuted for the unauthorized practice of law. Ultimately, Weidner sacrificed everything while tilting at nonexistent windmills.
I see the seeds of similarity in Mark Means. Means’ deep suspicion of the Church of Jesus Christ of Latter-Day Saints (LDS) and his seemingly impossible belief in Lori’s innocence and victimhood could very well lead him down a similar path. It’s unclear whether Mark Means believes in Lori and Chad’s brand of Mormonism or whether his and Lori’s inexplicable attachment to one another is rooted in some other motivation. What is clear is that the unhealthy relationship is quickly spiraling into what could be Means’ destruction. Over and over, his attachment led Means to make questionable professional decisions that risked his license to practice law.
Lawyers don’t invest an average of $75,000 in tuition and three years of their life to throw away their legal education on any single case. Most attorneys understand that their professional reputations and careers should not rest on any single client. We know that we will practice law long after any one client’s case is finished, and the client has forgotten our name.
Roger Weidner was not motivated by money, and I don’t think Mark Means is either. Many lawyers enter the profession hoping to change the world or at least make it a better place. Most quickly learn that change rarely occurs in the courtroom, and when it does, it happens in tiny increments. Real change comes through the legislative branch of government, not the judicial. Means, like Weidner, seems motivated by principle. We saw that repeatedly as Means persisted in filing documents with no basis in law, arguing that the law should be as he described.
That isn’t to say that he hasn’t enjoyed the public attention and the Court TV appearances, he has; but I think he sees them more as a vehicle to express his ideas than as a way to achieve fame and fortune. There is no question that Lori Vallow Daybell will be better served by Jim Archibald, who, from all reports, is a smart, experienced death-penalty qualified lawyer with a good reputation in the state of Idaho. The question is, will Mark Means slink away to lick his wounds, or will he rise up, Roger Weider-style, and in doing so, destroy himself? Only time will tell.
