Your right to conflict free counsel & some ideas of what that looks like
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People v. Edebohls, 944 P.2d 552 (Colo.App. 11/29/1996)
 Colorado Court of Appeals
 No. 94CA0911
 944 P.2d 552, 1996.CO.40158 <http://www.versuslaw.com>
 Decided: November 29, 1996.
 THE PEOPLE OF THE STATE OF COLORADO, PLAINTIFF-APPELLEE,
ROBERT EDEBOHLS, DEFENDANT-APPELLANT.
 Appeal from the District Court of Summit County. Honorable Terry
W. Ruckriegle, Judge. No. 92CR142.
 Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief
Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, M.
Catherine Duba, Assistant Attorney General, Denver, Colorado, for
 David F. Vela, Colorado State Public Defender, Elizabeth Griffin,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
 Opinion by Judge Metzger. Hume and Roy, JJ., concur
 Defendant, Robert Edebohls, appeals the judgment of conviction
entered on a jury verdict finding him guilty of violating the Colorado
Organized Crime Control Act (the Act), § 18-17-101, et seq., C.R.S. (1986
Repl. Vol. 8B). We reverse and remand with directions.
 On December 18, 1992, defendant was charged in a multi-count
indictment alleging that he violated the Act by participating in a large
cocaine distribution network in Summit County. According to the
indictment, defendant had been a leader in a criminal enterprise involving
racketeering and the sale of controlled substances in Summit County.
 Defendant retained private counsel (not the attorney representing
him on appeal) to represent him at trial. In October 1993, defense counsel
was charged with two counts of tampering with a witness and one count of
bribery in a matter unrelated to defendant's case. Defense counsel told
defendant of the charges pending against him.
 On January 12, 1994, at defendant's request, defense counsel
withdrew from representation. He then reentered his appearance as counsel
on January 14, 1994. Attached to his notice of reentry was a letter which
read: "Dear [attorney]; This letter is to have you represent me on Feb.
1st in Breckenridge. Sincerely, Bob Edebohls."
 On February 1, 1994, the morning of trial, the trial court, having
learned of the pending charges against defense counsel from a newspaper
article, questioned him about the situation. The trial court verified that
counsel had been charged, the nature of the charges, and the fact that
they were pending in the same district. Thereafter, the trial court held
an on the record Discussion with defendant in chambers to determine if he
wished to proceed with defense counsel or to have new counsel appointed.
Neither defense counsel nor the prosecutor was allowed to attend. After
this inquiry, the trial court determined that defendant had expressed his
desire to proceed with defense counsel's representation.
 Trial resulted in the conviction here at issue.
The court refused to reverse on other issues but, when it came to the conflict of counsel issues, it said this:
 Defendant contends that the trial court erred by interviewing him,
in chambers, without the benefit of counsel, to determine whether he
wished to retain his attorney or have a new attorney appointed to
represent him. Defendant further contends that the interview resulted in
an invalid waiver of conflict-free counsel, thus requiring the reversal of
his conviction. Under the unique circumstances here, we agree.
 The Sixth Amendment and Colo. Const. art. II, § 16, guarantee a
defendant the right to effective assistance of counsel. People v. Castro,
657 P.2d 932 (Colo. 1983). A defendant's right to effective assistance of
counsel includes the right to conflict-free representation. Holloway v.
Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); People v.
Martinez, 869 P.2d 519 (Colo. 1994).
 Defendant first argues that, because criminal charges were pending
against defense counsel, an actual conflict of interest existed. We agree.
 In general, a conflict of interest exists when: (1) an attorney's
representation of one client is directly adverse to another client, (2)
when the attorney's ability to represent a client is materially limited by
the attorney's responsibility to another client or to a third person, or
by the attorney's own interests. See Rules of Professional Conduct 1.7(a)
 A conflict of interest exists when defense counsel has been
charged with a crime and is susceptible to prosecution, during the
pendency of the representation of his or her client, by those responsible
for the client's prosecution. See United States v. DeFalco, 644 F.2d 132
(3d Cir. 1979)(finding conflict of interest as a matter of law when
appellate defense counsel was indicted during pendency of appeal in the
same district in which his client was being prosecuted); United States v.
McLain, 823 F.2d 1457 (11th Cir. 1987)(finding actual conflict when
defense counsel was under investigation before and during defendant's
trial and defense counsel had personal interest in extending duration of
defendant's trial); see also Vance v. Lehman, 64 F.3d 119 (3d. Cir.
1995)(fn. 2); Sanchez v. Arkansas, 296 Ark. 295, 756 S.W.2d 452 (1988).
 Once a potential conflict of interest becomes reasonably apparent,
defense counsel has a duty to advise the defendant of the nature of the
conflict and, in plain terms, to describe the specific ways in which the
conflict may affect his or her ability to represent the defendant
effectively at various stages of the case. Defense counsel should then
place on the record the potential conflict of interest and should further
advise the court that as complete a disclosure as possible has been made
to the defendant. People v. Castro, supra (fn. 10); see also Rodriguez v.
District Court, 719 P.2d 699 (Colo. 1986).
 Unless the trial court knows or reasonably should know of a
particular conflict, the court need not inquire into the propriety of
continued representation. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct.
1708, 64 L. Ed. 2d 333 (1980). But, once the trial court is on notice of a
conflict, it has a duty to make such an inquiry. Holloway v. Arkansas,
 After a defendant has consulted with either defense counsel or
independent conflict advisement counsel, the trial court should then seek
from the defendant a narrative response, on the record, indicating his or
her understanding of the right to conflict-free representation and a
description of the conflict at issue. Throughout this inquiry, the trial
court should actively seek to clarify any confusion the defendant may have
about the advisement. See United States v. Garcia, 517 F.2d 272 (5th Cir.
 Because the same district attorney's office was responsible for
the prosecutions of both defendant and defense counsel, defense counsel
may well have been "subject to the encumbrance that the prosecutor might
take umbrage at a vigorous defense" of defendant and become more ardent in
the prosecution of defense counsel. See People v. Castro, supra, 657 P.2d
at 945. Under these circumstances, we conclude that an actual conflict of
interest existed. See People v. Castro, supra; see also United States v.
 The procedure to be followed when, as here, a trial court is given
notice that defense counsel in a criminal case has a conflict of interest
is as follows. The court should first inquire whether defense counsel has
advised the defendant about the right to conflict-free representation and
has explained the nature of the particular conflict at issue, including
the risks associated with continued representation. If defense counsel
indicates this has not occurred, counsel should be required to do so. See
People v. Castro, supra (fn. 10). To protect the client-attorney
relationship, such consultations need not be presented on the record or in
 In the trial court's discretion, it may appoint temporary
advisement counsel to counsel the defendant concerning the right to
effective assistance of counsel and the risks associated with proceeding
in spite of defense counsel's conflict of interest. See generally United
States v. Garcia, supra; see Tyson v. District Court, 891 P.2d 984 (Colo.
1995); People v. Martinez, supra; see also Commonwealth v. Jones, 403
Mass. 279, 526 N.E.2d 1288 (1988); State v. Kezer, 918 S.W.2d 874 (Mo.
 Defendant next argues that he was inadequately advised of the
nature of the conflict and of the risks associated with waiving
conflict-free representation and, therefore, there was no valid waiver of
that right. Again, in these unique circumstances, we agree.
 Because a defendant has a right to retain counsel of his or her
own choice, Anaya v. People, 764 P.2d 779 (Colo. 1988), a defendant may
choose to waive conflict-free representation. Tyson v. District Court,
 A waiver of the right to conflict-free counsel must be made
voluntarily, knowingly, and intelligently. "The record must affirmatively
show that the trial court fully explained the nature of the conflict and
the difficulties defense counsel faced in his effective advocacy for the
defendant." People v. Martinez, supra, 869 P.2d at 525.
 The prosecution bears the burden of showing that the defendant was
aware of the conflict and of its likely effect on defense counsel's
ability to offer effective representation, and that the defendant
thereafter voluntarily, knowingly, and intelligently waived his or her
right to conflict-free representation. People v. Martinez, supra.
 If the defendant reveals that he is aware of and understands the
various risks and pitfalls, and that he has the rational capacity to make
a decision on the basis of this information, and if he states clearly and
unequivocally . . . that he nevertheless chooses to hazard those dangers,
we would regard his waiver as knowing and intelligent and allow his choice
to be 'honored out of 'that respect for the individual which is the life
blood of the law.' United States v. Curcio, 680 F.2d 881, 888-89 (2d Cir.
 Other general factors that courts have considered in determining
whether a waiver is knowing and intelligent include: "whether the exchange
between the defendant and the Judge consisted of pro forma answers to pro
forma questions, and whether the defendant was attempting to delay or
manipulate the proceedings." People v. Arguello, 772 P.2d 87, 95 (Colo.
 Here, after verifying that defense counsel had been charged by the
same prosecutor's office that charged defendant, the trial court
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