Kansas Supreme Court holds flat fee agreement in murder case is sufficient evidence of conflict to support a finding of ineffective assistance of counsel

In a very surprising move the Kansas Supreme Court recently ruled that an overworked and inexperienced defense lawyer's flat-fee arrangement in a capital murder case created a conflict of interest that deprived the client of his Sixth Amendment right to effective assistance of counsel.  The case is called State of Kansas v. Cheatham.

I have not read the opinion itself which is fairly long, but according to a report in the ABA/BNA Lawyers' Manual on Professional Responsibility, the court found that "the fee structure gave the lawyer, a solo practitioner with a high-volume practice, little incentive to put any significant effort into the case" and that "this conflict so fundamentally undermined the representation that the defendant did not need to prove how the lack of effort actually prejudiced his defense."  (See 29 Law. Man. Prof. Conduct 89)

I find this to be surprising for a few reasons.  First, courts are usually reluctant to grant motions based on allegations of ineffective assistance of counsel.  Second, all fee agreements, in one way or another, create some level of conflict of interest between attorneys and their clients.  Third, it seems to me that even if one concludes that the agreement itself was sufficient evidence of a conflict, the standard analysis for ineffective assistance of counsel requires that the defendant show the conflict resulted in deficient representation and prejudice.  Here the court assumed the first and excused the defendant from proving the second.

Given all this, I have to believe that what was important here was not the fee agreement but the conduct of the lawyer.  The emphasis on the fact that the lawyer charged a flat fee is misplaced.  The court should emphasize the inadequacy of the representation.  Otherwise, other lawyers who use flat fee agreements but who provide excellent representation may be discouraged from continuing to offer their services for a flat fee.  This, in turn, could make it more difficult for some defendants to afford quality legal services.