Special Edition - Bryan Kohberger Lawyer Conflict of Interest?

January 24, 2023
 
This special edition of the newsletter focuses on the University of Idaho murders.
 
While I try to keep this newsletter focused on the legal issues in the Vallow/ Daybell case, there have been many questions about a recent development in the Bryan Kohberger case. It seems that Kohberger’s attorney, Ann Taylor, was also representing Cara Kernodle, the mother of Kohberger’s alleged victim Xana Kernodle. Taylor recently withdrew from Kernodle’s case. Many have questioned how this could happen and whether this constitutes a conflict of interest. It doesn’t, and
 
To sort this out, we must carefully examine the Idaho Rules of Professional Conduct.
 
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, relationships.
 
There is commentary provided in addition to the rules to provide further guidance. The commentary to this section reads:
 
[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 15 IRPC Effective 7-1-14 paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).
 
Generally, a conflict arises when one client is directly adverse to another. This idea of being directly adverse has a specific definition in legal ethics. This is why, in the Vallow/Daybell case, attorney Mark Means was ultimately disqualified because of a conflict. According to his own representation to the judge, Means had previously represented Chad Daybell for a brief period in the same matter, the disappearance of Lori Vallow’s children. That means that two of his clients were directly adverse to each other.
 
In this case, Ms. Taylor never represented Cara Kernodle in any case that would make her directly adverse to Bryan Kohberger. In the Kohberger case, Kernodle is the mother of an alleged victim of the defendant. In Cara Kernodle’s case, she is accused of possession of a controlled substance – a case that in no way involves Bryan Kohberger. According to the court database, Cara Kernodle retained Ann Taylor to represent her. Neither knew at the time that the state office of public defense would appoint Taylor to represent the alleged murderer of Kernodle’s daughter, Xana. Cara Kernodle has a lengthy criminal history, most of it relating to drugs and alcohol. There is also evidence in the court record of family disruption and parental discord for Xana and her sister. None of that overlaps in any way that we know of with Bryan Kohberger.
 
If Ms. Taylor had previously represented the victim, Xana, the analysis would be different because, in that case, there would be a chance Ms. Taylor could have learned information about Xana that could later be used at trial to discredit her as a victim or call the circumstances of the crime into question.
 
It is not unusual in smaller jurisdictions for these kinds of situations to arise. To further complicate the situation, Ms. Taylor is one of only 29 lawyers on the state’s Capital Counsel Roster. Of those 29, only 14, including Ann Taylor, are qualified as lead counsel on capital cases, and Taylor is the only qualified lead attorney in her district.
 
If Ms. Taylor had a question about whether she had a conflict of interest, she would most certainly have consulted with the experts at the Idaho State Bar.
 
Here is the breakdown of my analysis.
 

• Taylor was retained to represent Cara Kernodle in a drug possession case. There was no way either could know that the state would later appoint Taylor to represent the alleged murderer of Kernodle’s daughter.

• Many other attorneys are qualified to represent a client in a simple drug possession case.

• Taylor is the only lead-counsel-qualified capital attorney in the district where the Kohberger case arose.

• Taylor’s acceptance of the Kohberger case is not a conflict because she has never represented anyone directly adverse to Kohberger, and her representation of Kernodle in an unrelated case would not materially limit her responsibilities to Kohberger.

• Taylor’s withdrawal from Kernodle’s case was advisable out of respect for her and to assure that there was no appearance of impropriety or conflict.

 
I know this FEELS like it might be a conflict of interest, but it’s not.