Sealed Document? Say What?

Why Did a Judge Seal The Documents About Mark Means' Conflict of Interest?

July 13, 2020

Before I jump into this, I want to thank all of you for your interest and your positive feedback about these newsletter posts. Subscriptions grow every day.  For those of you who would like to see the past postings, there is now a link on the website that will take you to the Mailchimp archive. I know the link-hopping is clumsy, and I apologize. My web expert and I are working on a better interface, but in the meantime, you can get to those past posts at thelorivallowstory.com if you like. Some of the available posts:

Let’s Talk Law, discusses the law in Idaho and under what circumstances Lori and Chad can be charged with Murder.
 
Let’s Talk About Insanity, discusses insanity and capacity defenses in Idaho.

Lori’s New Charges, discusses why the original charges were dismissed
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Let’s Talk about Evidence, examines the difference between types of evidence. 
 
Now, to answer some questions about the issue of the sealed document. Judge Faren Eddins – yes, that Judge Eddins, the one who Lori disqualified in Madison County, but who is presiding in Jefferson County – (more about that later in this post) issued an order sealing some court filings. The filings having to do with the conflict of interest Mark Means may have because he previously, and briefly, representing Chad Daybell. As you may recall, Judge Eddins asked Means about it at Chad’s arraignment.

The documents are sealed, and I don’t know what’s in them any more than you do. But I do know why this might have happened.  Let’s dive down the speculation rabbit-hole together. 

For those who think Mark Means is out of his depth, he did a smart thing here.  You heard me; he did a smart thing. I did a deep dive into the ethics issue in last week’s post, “Does Mark Means Have an Ethics Problem?” I’m going to take a quick pass over ethics rules here, for those who missed it.  The avoidance of conflicts of interest is at the heart of ethics rules. The rule is that you can’t represent someone if you have previously represented someone else whose interests are opposed to your new potential client.  Under some circumstances, the conflict can be waived. The specific situations where the conflict can be waived vary slightly from state to state. If the conflict is waived, it must be in writing and signed by both the former client and the potential client.

It’s clear that Lori wants to keep Mark Means. There are many reasons people don’t want to change attorneys. People form relationships with their lawyers. Rebuilding that trusting relationship with someone new may not be desirable or possible. Some clients just don’t have the emotional bandwidth to do it. Replacing your lawyer is also expensive. You have to pay someone to become as familiar with your case as the first lawyer, who had been there from the start, was. It requires a lot of duplication. I expect in Lori’s case, it’s a combination of both things. Lori and Mark Means already have a lot invested in each other.

Means’ representation of Chad was brief, and probably not very substantive.  Means likely didn’t have much contact with Chad before he was arrested. Means may have given Chad some basic advice about how to handle the ongoing investigation and his contact with law enforcement, such as, “don’t’ talk to the police,” and “yes, you have to honor a legal search warrant.” Means may have had a discussion with both Chad and Lori about the scope of his representation.  He may very well have told them he could give Chad general advice, but if charges were filed, he would need a separate lawyer.  Means’ brief representation of Chad was before any charges were filed against Chad, and before the DA had any obligation to send Means discovery materials related to Chad. Means ended his representation before he got any information specific to Chad; all he had was the discovery he received from the DA on Lori’s case.  In other words, Means didn’t know anything specific to Chad, and probably didn’t receive any confidential information directly from Chad. Means asked for the filings related to the conflict to be sealed because he owes a duty to both Chad and Lori, not to disclose any confidential information or private conversations they may have had. When Judge Eddins asked for Means to file something about the potential conflict, he had to do it under seal, because putting the specifics his conversations with Chad and Lori in writing would be a violation of that obligation to keep client communication confidential. In our system, we favor open and public court proceedings because, as Supreme Court Justice Brandeis said, “sunlight is the best disinfectant.” The statute that Means cited in the motion and order is specific about when things can be sealed.

When lawyers file motions, they cite to the law that gives the judge the authority to do what they are asking. In this case, there are two instances where a document can be sealed; the first is to “prevent harm.” The analysis for this one may be a little squishy.  The harm has to outweigh the benefit of the disclosure, so the judge has to balance the benefit and the harm.  The second reason is so that the person can get a fair trial.  This one is a little more persuasive. At every step in a criminal case, the decision a judge makes, even as in this very preliminary matter, can set the stage for a later appeal.  Judges don’t like to be overruled, especially in high-profile murder cases.
 
It’s likely that once the case is finished, any sealed documents will be unsealed.
 
While I think it’s foolish for a lawyer to continue to represent a client when there is even a perceived conflict of interest, I understand why it happens. Lawyers want to protect their clients; sometimes, that puts us in a rock-and-hard-place situation.  I’ve been there myself, but choosing to continue with a client under these circumstances could put your career at risk.  If I could talk to Mark Means, I would tell him to remember that when it comes to these situations, no good deed goes unpunished.
On the subject of Judge Eddins, it’s not at all unusual for a rural judge to serve in more than one county. Often, the only way neighboring counties can afford enough judges to avoid conflicts is by sharing them. Lori disqualified Judge Eddins in Madison County.  The Madison County charges of abandonment and contempt, have been dismissed. The new charges were filed in Fremont County because Chad’s property is just over the county line. Judge Eddins has not been disqualified from those charges in Fremont County. Lori may move to disqualify him again in those charges. Then again, she might not.  The calculus of when and why to disqualify a judge is a topic for another post; I will explore the subject if and when she tries to disqualify Judge Eddins again. 

This Week: A three-part series on Chad and Lori's beliefs.

Coming soon: posts on why cult leaders are so successful and why mothers kill their children. 

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 2022.