Legal Case Summary

Please, the court, I'm Richard Krauth-Armo. I represent the appellant, responded Thomas Blacklage in this case. This is a Adam Walsh Act case. The Adam Walsh Act involves the involuntary civil commitment of persons who are deemed sexually dangerous. Sexual dangerous means, well, there's three elements. Number one, that the person has previously engaged or attempted to engage in sexually violent conduct or child molestation. Number two, they have a serious mental disorder or illness. And number three, their serious mental disorder or illness is such that they would likely reoffend. They would likely commit further acts of sexual violence or child molestation if released from incarceration. Now, this case involves a situation, well, let me think further, it's gone up on that. The Adam Walsh Act requires representation by counsel of the respondent. And that's the way the statutes worded, 18 USC, 4247D says, the respondent shall be represented by counsel. So is the issue that counsel is required? And the correct answer. Correct. It doesn't say he shall be appointed attorney or shall have the right to attorney. It says, shall be represented by counsel. And it further says that if the respondent cannot afford counsel, counsel will be appointed to represent him pursuant to the Criminal Justice Act of 1964. So my first point is that there's a statutory requirement that the respondent in these Adam Walsh case acts, Adam Walsh Act cases, be represented by counsel as a requirement. Now, it's statutory, not necessarily constitutional. Now, the government has argued, and I even wrote in Blackleth's brief that there is no sixth amendment right to the effective assistance of counsel in these hearings. However, I would submit to the court that section that talks about representation of counsel, 18 USC, 4247D, is a due process statute. It basically talks about several things. It talks about the hearing. It says, shall be a formal hearing. The respondent shall be represented by counsel. Counsel shall be appointed to the... What was your client entitled to under the statute that you client didn't get? He was, I believe he was entitled to the effective assistance of counsel pursuant to the due process clause. The Constitution. So your argument is just, he was entitled to effective assistance and that was it. He was entitled to the effective assistance of counsel and he didn't get it is what I'm arguing on appeal. And that effective assistance of counsel would have netted him white in this case. That effective assistance of counsel would have gotten him another attempt to find an expert that could have offered him a defense to the accusation of the defendant. You see the manifestation of the violation of the right to counsel as being he didn't get at least a chance to get another expert. That's correct, Your Honor. But he got every expert he was entitled to under the statute already. He, I don't know, I don't know that he got every expert he was entitled to. The statute says it made... It made a... I don't know, I said entitled

. Yes, Your Honor. Yeah, he had one bite of the apple prior to that. But when you look at an ineffective assistance and now if you apply an ineffective assistance analysis, the necessary component is always prejudiced. And we have no idea what Dr. Ploughd would have said in this case. And so how do you establish that Mr. Blacklitch was prejudice within the meaning of ineffective assistance if we have no idea whether Dr. Ploughd would have supported his position? Your Honor, I analogized with the maple's case, which is a criminal case. In which... Right, but I'm talking about ineffective assistance. Right. And the components of the standard that counsel performs and the prejudice component, the second problem, and you cannot establish an effective assistance without establish that there is a reasonable probability of a different result. So if we agree with you that the ineffective assistance lens applies here, don't we have to find that there's a reasonable probability of a different result? And that in fact would hinge on whether Dr. Ploughd had a different opinion. And we don't see that in the record. So isn't that a problem in terms of the burden that you're bearing here today arguing an effective assistance account? Well, I don't see it as a problem in the classic sense because this is a case in which is predictive in nature. Where's the prejudice that you've demonstrated? Well, it's a reasonable probability of a different result. Well, again, what is... You have them. You have to concede that, don't you? I don't necessarily concede it because it involves probabilities and the question is, where's the cutoff? There was no guarantee that... Well, was there any probability as opposed to a possibility? Well, I would submit there's the non-zero probability that he could have found somebody to testify on his behalf and say he was not sexually dangerous. Do you think that there was what? A non-zero probability that he could have found somebody. How do we know that? Isn't that speculation? We will speculation to begin with. I would submit otherwise why have a hearing? If the government steps forward and says he's sexually dangerous, I mean, why... Because the statute allows you to have experts and you have experts. And they all line up that there's an issue. The question is, if you won't... You said you got everything you would entitled to on the statute as far as experts. You want to know the one... Well, what do we know that other one's going to say? How do we know? We know. We didn't know what the first one was going to say. Council, I'm surprised you don't have the answer to

... At least one answer might be to Judge Keenan and Judge Shes. Question is, we know because the judge told us that he would... He would testify in favor of your client. Didn't he? Yes, Your Honor. And exactly, he said it. He said, yes, I have not seen any case where he... I don't know someone needing to remain retained. So he's established himself. Now, what the opportunity is, now you could say... That customer of wage, he said, well, the judge may have been... Seat, not facetious, but saying, yeah, well, I know what he's going to say. And that might be forecasting how much credibility he gives it. But that doesn't mean that a lawyer might not be able to say... Once getting that favorable diagnosis, be able to say, yes, Your Honor, maybe others are similar, but this is different because... So why, here, you can't accept it or others, you didn't. But the judge said that he would have given one. That's what he said. Well, Dr. Cloud himself though said that he couldn't say upfront, isn't that true? The problem with... Because if Dr. Cloud wasn't willing to opine when asked to do so ahead of time, aren't we speculating nonetheless, no matter what Judge Weber said? Dr. Cloud has a couple of problems. Number one, three experts have already said Thomas Blackwood is sexually dangerous. He has a professional license. Dr. Cloud has professional license to protect. And I would also submit that these forensic psychologists and psychiatrists are probably a lot like lawyers in terms of how they get paid. Time is their stock and trade

. So for them to render an opinion about whether or not somebody's sexually dangerous, they got to plow through some information, probably reams and reams of paper and what have you. And he wants to know that he's going to get paid before he starts doing that. So he can't... That's why it's not really... That's why the problem is any purported problem is greatly diminished. This is not the first expert that you asked for under the statute. You already have that. You didn't like his... Your client didn't like his results. But the trial judge gave him an opportunity to find another one. He didn't say you're cut off, that's it. Until they got to the very end, he said, I'm going to keep the discovery period open until December 2011 for you to try to find something... And that no good deed going unpunished. Because he just tried to say, I'll try to accommodate you if I can. When you don't get accommodated, his statement that he will try to accommodate you is used to hurt the judge in the situation. I'm not trying to use the judge's decision. I'm not trying to use the judge's decision. It's a discretionary decision, but ultimately he said, I'll do my chance. If he not made that statement, would you have this same argument? I think... Because then you'd be faced with, there's nothing that we get in a statute that we haven't gotten. It would not be an attorney-in-effect of assistance argument so much as maybe a due process claim. You should have given me another opportunity to find somebody else. I'm saying, why don't you make an ineffective assistance claim? I am, because... And then that premise on the judge's statement that he would consider another request? Yes, Your Honor. And then my point is, that statement that he made and trying to be thoughtful and helpful and not... It appears to me, not just saying, no, I don't care what you say, he's trying to show that he's listening to your side of the argument and he wants to see what unfolds. But without that statement, you don't have an ineffective assistance of counsel argument, do you? Do you have one? Well, no, I don't think so. But the problem is, this is, like I said, predictive in nature. We're looking inside Thomas Blackwood's head to try to figure out whether he's sexually dangerous. And so the judge has to rely on experts to do that

. And, but the truth is, he has all the experts, including one for you, that the statute mandates, or authorizes, that mandate, authorizes. He's... hadn't he gone to the extent of what the statute anticipates or allows him to do right off? Had he done that for you? Well, what I would further court, too, is the case I cited, Jacob's V. United States, page 30 of my brief, which talks about how to address when a respondent or a defendant comes to the court and says, I want funds for an expert, how is the court supposed to address it? It's a discretionary decision, but the court looks at number one, whether expert testimony is required to develop the respondents' position, not any position or a position, but the respondents' position. And number two... But this statute anticipates, this statute isn't so much concerned with, being sure you have great arguments, this means sure that the court gets the information in front of it that it needs. And that's why there's the allowance for the expert, for the petitioner, or the defendant, whatever you call him, in this case. Isn't that right? And he had that. Well, the respondents do do process. He gets a hearing. He gets a formal hearing. Right. He gets... You know, an organ that he didn't get that. He got a formal hearing. He gets representation. You're arguing... I thought your argument was ineffective with a systems account? It is. He... Well, no, I have other arguments. I mean, there's the argument that... On ineffective assistance accounts? That the court used the amount on the ineffected assistance accounts, but the court used the wrong standard in determining whether or not to let him find another expert, or to extend the discovery period to try to find another expert. The other problem is, is attorney Allen is in a type position, because that's the trial attorney for the respondent. That's because supposed she goes and looks for another expert, and she can't find one. And maybe Dr. Potsett, you know, I've looked at it, and I think he's sexually dangerous, too. She can't come back and relay that to the court, or she's prejudicing her client's case. So, that's a tension that's created. When the judge says, okay, you need to prove to me that you... What did that had happened? What did she set up to expert, ploughed your honor? We would like another expert

. And he goes, well, I'll think about it. And then, she's not in the case as you suggest. Is that still make out? Ineffective assistance accounts, or claim? As long as she's trying to do her job, or trying to get him the defense... The ammunition he needs to develop his defense, she's not committing ineffective assistance accounts. But she didn't do that. No, no, no, no, no, I'm talking about it. What if she were in this... I'm changing the facts a little bit, and she got ploughed authorized. And she goes back to the court and goes, you know what I'm really... We couldn't work with him too well. I want you to appoint another expert, and the judge goes, well, you know, I've appointed... I already appointed four in this case. I'll think about it, though. I'll think about it. And then, she conducts herself in a way that you think is a bandaminer, whatever you call it. Does that failure for her to pursue the fourth of fifth expert? Is that ineffective assistance accounts? I don't think it's ineffective assistance. Why is it? On those facts, because the judge didn't say... He did. He just used whatever language he used. He said that again after she talked to ploughed and ploughed it and worked. And she goes, Your Honor, we've talked to him. Thank you for letting us do that. We've talked to him. Things aren't really working out because she didn't want to disclose. Because we have another expert, and whatever language the judge used, which is, I'll think about that at a time, I'll let you apply. He used that same language again. And then, she acts in a way that you sort of think is a... You would say a bandaminer, whatever you would call it. Does that make out an ineffective assistance? Because she didn't rigorously pursue the fifth expert? I would argue that personally. Okay. Because she's not.

.. I think that's consistent. She's not seeking the ammunition she needs to develop her client's case, basically. And that's the point of the ineffective assistance argument. The other aspects are the denial of the request. Once she got into the game, back in the game, so by the way, I need Dr. Plod, and the court said no. Too late, we're going forward. I argue that was there. And additionally, the conversation, the chief judge had, the district court judge had with the respond. And at the time, he's asking for a new attorney. Because as my brief, I argue that this case is analogous to MAPELs. MAPEL says, hey, this creates a conflict of interest. When you have this attorney abandonment, and a default is created, because a deadline is missed. And attorney Alan recognized that. She found the case, argued it to the trial court. And the trial court said, no, we don't... We don't see an abandonment as with the trial court said, but I argue there is an abandonment. But then the court had this conversation with the respondent and said, what did I give you a choice and say, you can proceed with attorney Alan, or you can proceed representing yourself. That's an error because the statute requires representation. And the reason it's errors is because... Can you waive it? No, I don't believe you can waive it. It's statutorily required that you be represented. Oh, wait, wait, wait. You can waive constitutional rights, and you can't rape a provision of a statute. The statute? That's your argument. You can waive your right to a trial. You can waive constitutional rights to a trial, but you can't waive a statutory provision. That's really your argument. Well, the allegation is that the person is mentally ill. So... No, no, if he's competent to do it, you can be competent. Let me ask you this much. You mentally ill a person who is sexually dangerous, pretent... Can't be mentally competent to be involved in legal proceedings. That's not the same measure, is it? No, it's not

. Right. Okay. Why would you... You backed down from your argument on that? Well, I thought it was a strong argument. There's a difference. Because the Constitution doesn't say that you shall have a lawyer. That's why it took us so long until we got to Gideon. It took constitutional interpretation by Supreme Court after 1963. But here, the statute says, for this proceeding is so important. They know you shall have a... Otherwise, it becomes a... As a French would say, a piece that resists down. I mean, you can't go forward without it. Because, as you say, we're dealing with somebody, at least the government is continuing to do so much under a mental condition that they're dangerous. We don't want to proceed without that person having a lawyer. So, even it does, I think, that shares question, it does raise a sort of an interesting irony that constitutional ought to be. But here, there's some things that's so important. It's almost like saying, it's... You have an operation. A physician shall be in the operating room. You know, because it's that important. What's going on is the procedure that draws it. But it's in that sense. But can you get to the question to the issue about the withdrawing, not denying the motion to withdraw? I think that's an important part of your argument, isn't it? Yes, Your Honor. The denial of... Attorney Allen's motion to withdraw, I think the judge primarily predicated on his belief that an abandonment did not occur, but he also predicated on his belief that there was no conflict. What he made no inquiry, though. I agree with that, Your Honor. It's clear, right? He said it was a breakdown of communication. The judge denied it without any inquiry. I would agree with that, assess. I'm surprised you didn't, at least sneak that in your beginning conversation. Well, you argued cases where you want, but.

.. It's in your briefs, you don't wave it, so I get... Right, Your Honor. Did the judge give her an opportunity, a them an opportunity to explain what the conflict was? The magistrate judge did, you know. And they said what to that? They said we'd rather... We've explained ourselves well, nothing court is what. Yeah, we've explained. You don't need to hear anything more. We've said enough. Correct. Can a judge make a determination on that, that there's not a reason to replace counsel? Well, she argued Mabel's, Mabel said, hey, there's a conflict when this happens. The attorney should seek to withdraw, and that's what she stuck by. So she didn't say... By the way, now to note, too, I didn't say the right to counsel. I said the right to trial by jury. Could be waved, constitutional right. It's hard to me, there's this theory that you can wave an explicit constitutional right, but you can't wave one that's implied from the constitution. That seems a little bit odd, don't you think? I think it goes back to the due process clause, and the whole question is, all we have to do is afford the sky due process. Are we doing that if we let him represent himself when he's accused of being mentally guilty? If you wave due process, right? It's just that. You don't think you can. Well, yeah, I haven't fully fleshed out that question, but my answer to that is, we want to rely on the decisions of the court, and in order to rely on those as being good decisions and correct decisions, there should be a form of due process in place. It's kind of like checking the blocks going down the line, making sure we're doing everything right, so that the ultimate decision can be relied upon as being a robust, you don't really think that means that certain provisions of due process could not be waved, knowingly waved by somebody. You don't think that, do you? I think if it's... What theory is that that you can't wave a constitutional right? If it's administrative, procedural, niche like notice, you haven't received proper notice to this case, do you wave that right? Can we go forward today? Sure. But when it's more substantive in nature, like representation of a person who's allegedly mentally ill. What about a right to a trial by jury? And as a constitution, you can wave that, can't you? Can't you wave that? People do it with guilt for these all the time. But these are bench trials, so there's no jury in these cases. And these Adam Walsh that case. I didn't suggest there was. I've told him about... You're saying the constitutional rights can't be waved? I think they can be waved. The judge says what you said is a right to representation can't be waved. I think that's your argument. Well, in a criminal case, you can wave your right to representation

. What your argument here is, he could not wave his right. I thought that's what you said. It is. The judge asked him if he wanted to go alone, you suggested that violated some right that could not be waved. It violates the notions of due process. You know, it... It will call into question the judge's decisions, allowing an allegedly mentally ill person to represent himself in a formal proceeding. But that's what I said to you in their different standard of mental competence to proceed in a legal proceeding or administrative proceeding, versus the level of mental evaluation that leads to predator or whatever. In their different standards? From what I remember of the criminal law, I think I did a case on that several years ago. Yes, there is a different standard for assessing whether or not somebody can represent themselves and whether a competent proceed say. But in general, I would submit that if it's a statutory requirement, it's a due process thing. And the Congress is trying to make sure we're giving these guys due process. And I mean, I'm sure the government will say, how can you trust a mentally ill person? So if they stand up and say, I want to represent myself, you know, should the judge say, okay, you can represent yourself. I think there needs to be an inquiry as Judge Gregory suggested. And furthermore, the whole thing boils down to what was Blacklist presented with an improper choice. Represent yourself or proceed with an attorney. You believe is not acting in your best interests or is under some sort of conflict of interest. That's an impermissible choice, I would submit. And there's a case. It's not impermissible if he doesn't own his counsel, but there's no reason on the record or no reason for the court to replace counsel. Can't somebody, I'm not saying that it hears in this case or attains in this case. But can a person go, that law is completely competent? I did don't like her. I'd rather go on my own. Then they can go on their own even if they have a right to a lawyer, but they can, the court, the court doesn't have to appoint another lawyer in a criminal proceeding. No, just because you don't like your lawyer. I'm not saying that's the case here. You can go it on your own. Yes, you're on an criminal case. Okay. I'm, I think I'm running a little of my time and yeah, you are, because the light is red. Okay, so thank you. All right, thank you. You have some time reserved. Thank you. All right. Ms. Walker. Members of the court, good morning. My name is Denise Walker, and I represent the government in the matter of the United States of America versus Thomas Blackledge. Your honours, the government would ask you to find in this case that there was no error performed at the district court level, either that the district court judge made a clearly erroneous decision by finding that respondents counsel had abandoned him nor abused his discretion in finding that there was no reason to extend the discovery period nor reason to allow counsel for the respondent to withdrawal. Also, there was no abuse of discretion by the trial court judge and not appointing a second examiner in this case. Well, I didn't the court on what basis of the court make a decision to not allow the withdrawal of Miss Allen

. The court actually reviewed the three mullen factors in determining whether or not to allow Miss Allen to withdraw from the case, both the magistrate court judge as well as the district court judge reviewed those factors. First, they looked at the timeliness of the filing of the motion and noted that it was well beyond the discovery period in this case. Secondly, they looked at the respondent's ability to fully flesh out his argument in the court. At the magistrate judge level, judge Gates inquired about both the respondent and Miss Allen regarding the presumed conflict that the two of them had with one another. Judge Gates also offered Mr. Blackledge the opportunity to go off record and have an ex-partake communication if there was something that he did not want to divulge to the government that would reveal trial strategy. Mr. Blackledge declined that opportunity. Again, at the district court level when Judge Gates' ruling was appealed, Judge Devar gave both the respondent and Miss Allen the opportunity to place additional items on the record as to what forged this presumed conflict. Both denied to place any additional facts on the record. Therefore, the second problem was met that the respondent had a full opportunity to flesh out. His complaint before the court, excuse me, with regard to the third factor as to whether or not there is a complete breakdown in the ability between the respondent and his counsel to communicate. The court looked into that. Judge Gates asked Mr. Blackledge point blank, do you feel that there is a complete breakdown? Do you feel that there is a problem? Mr. Blackledge responded and said, well, I felt she's been ignoring me. When Judge Gates asked Miss Allen if there was a way that she could continue with her representation of Mr. Blackledge, she responded that although it would be difficult, she could continue. Miss Allen at no point said there was no possible way that she could represent Mr. Blackledge. And Mr. Blackledge said there is no point that he say there is no possible way that I can continue with Miss Allen as my counsel. Therefore, the three Mullin factors were fully explored by both Judge Gates. Judge Deva reviewed the transcript as well as the tape of the hearing that Judge Gates conducted. Reviewed those factors on the record and made a finding that withdrawal was not necessary. And how do we review that determination? That determination is reviewed for an abusive discretion standard. And it's the government's position that the trial court did not abuse its discretion in that finding. So you see it as when Judge Deva said, do you want to proceed with Miss Allen or on your own? You just, you see that as? He was just saying, you're not entitled to another lawyer, but if you just don't want to, I'll let you let you go on without her. Actually, Your Honor, it's the government's position that in respondents' brief, there's actually a misconstruance of Judge Deva's dialogue there. If you read the full exchange of actually what happened, Judge Deva posits to Mr. Blackledge, do you want to proceed, proceed, and if not there, I won't quote it specifically, but Judge Deva puts on the record that should Mr. Blackledge not choose to proceed with Miss Allen, that there may be a time period for a continuance there, not requiring him to go forward that day. Judge Deva is exploring the options that may. I won't quote with the timing as much as the representation. Judge Deva, it could be read a couple of ways, Your Honor, and without thinking into the mind of Judge Deva knowing exactly what he's saying, there's room there to say because Judge Deva has already made a finding that withdrawal is not appropriate, that he is saying, if you choose to proceed without this attorney, there's been no finding that a replacement is prudent, you must proceed, Pro Say. Judge Deva also, because of the additional exchange about the timing allowing for continuance is saying, you don't have to do that at this particular moment. If that goes to continuance, rather than it goes to the choice of her or nobody, that choice was clearly put in front of him. That is correct, Your Honor. And the court posited to respondent's counsel with regard to whether or not that right could actually be waived, to do process rights are regularly waived, the most common example is Miranda. Criminal defendants are given the opportunity from the onset of being brought into the process to waive every due process right that they have. They tell us about this bar complaint, though. I find very little in the record about that. How could the lawyer have represented the client in the face of a bar complaint? Does the record show anything about the contents of this bar complaint? Your Honor, there's a handwritten letter, which is contained in the joint appendix. Oh, yes, there's a reference. And what is, well, perhaps we can shortcut. Tell me what the conduct alleged is. It's a two-line letter, Your Honor, which Mr. Blackwood says to the bar, he would like attention to his matter, and he would like the team of graves, Shay, and Alan replaced on his case immediately. Right, but is there any reference in the appendix to the content of the bar complaint? No, Your Honor. In fact, Judge Devar makes a comment on the record that he's inquired further into it, and it's a very general complaint to the bar with no specifics being made. Additionally, Your Honor, I would point out for the court that with regard to a conflict of interest existing here, Ms. Alan placed his own the record. In front of Judge Gates, as well as Judge Devar, the chief failed to timely file the second motion as the court would have allowed for a subsequent examiner. She puts on the record her May a culpa. She puts on the record. I'm talking about the ethical issue of having a lawyer continue to represent a client after a bar complaint has been filed. I guess that might be different from state to state, but in Virginia, a huge red flag goes up immediately. It concerns me that things seem to sail along here, and that really no attention or significant attention was paid to this bar complaint. Now, I agree with you that that client shouldn't be able to get rid of their lawyers by simply filing a bar complaint. And there are a lot of federal cases that say that this tactic will not be sanctioned. But did the court drop the ball by not considering this aspect of the case more? I don't believe so, Your Honor. As Judge Devar pointed out on the record, he equivocated this very generic bar complaint filed by Mr. Blackledge as one similar to a judicial complaint that a defendant would file in an effort to get out from in front of a particular judge. Because there were no particularities that Mr. Blackledge stated to the bar with regard to Miss Allen's representation of him, Judge Devar didn't feel that there would be a conflict. Additionally, the only information cited by respondent to the fact that a conflict existed is the equivocated statement that Miss Allen made with regard to Dr. Plaud's opining as to whether or not the respondent met the qualifications under the Adam Wallshack. The respondent compares the statement of Miss Allen, which is an equivocated statement to the court about Dr. Plaud's opinion versus that of Miss Graves, which gave a more assertive position regarding Dr. Plaud's opinion. It's the government's position that Miss Allen was actually being truthful and complete to the court when she stated that she was unaware as to what Dr. Plaud would opine. Dr. Plaud had not had an opportunity to interview the respondent. Miss Allen, I'm sure, was aware that she may find herself in the same position that she had earlier when she believed that Dr. Campbell would find in favor of the respondent. However, after Dr. Campbell reviewed all the materials in this case and had an opportunity to sit down with Mr. Blackledge, he found that the respondent in fact did meet the qualifications under the Adam Wallshack. Therefore, the fact that the statement has pointed out and labeling it as an equivocating statement as Miss Allen intending to protect her own rights, it's the government's position that she's actually being forthcoming to the court is to not misrepresent evidence that exists in the case. What about her before even the Barclay marriage? She had identified ethical conflict. She told the court that. Your Honor, she stated this internal conflict. Unethical, unethical. An internal ethical conflict in her first marriage to the court. However, there are no subsequent filings and she did not request an expartee communication with Judge Gates. She can't tell the judge. The judge is the trial fact

. And what is, well, perhaps we can shortcut. Tell me what the conduct alleged is. It's a two-line letter, Your Honor, which Mr. Blackwood says to the bar, he would like attention to his matter, and he would like the team of graves, Shay, and Alan replaced on his case immediately. Right, but is there any reference in the appendix to the content of the bar complaint? No, Your Honor. In fact, Judge Devar makes a comment on the record that he's inquired further into it, and it's a very general complaint to the bar with no specifics being made. Additionally, Your Honor, I would point out for the court that with regard to a conflict of interest existing here, Ms. Alan placed his own the record. In front of Judge Gates, as well as Judge Devar, the chief failed to timely file the second motion as the court would have allowed for a subsequent examiner. She puts on the record her May a culpa. She puts on the record. I'm talking about the ethical issue of having a lawyer continue to represent a client after a bar complaint has been filed. I guess that might be different from state to state, but in Virginia, a huge red flag goes up immediately. It concerns me that things seem to sail along here, and that really no attention or significant attention was paid to this bar complaint. Now, I agree with you that that client shouldn't be able to get rid of their lawyers by simply filing a bar complaint. And there are a lot of federal cases that say that this tactic will not be sanctioned. But did the court drop the ball by not considering this aspect of the case more? I don't believe so, Your Honor. As Judge Devar pointed out on the record, he equivocated this very generic bar complaint filed by Mr. Blackledge as one similar to a judicial complaint that a defendant would file in an effort to get out from in front of a particular judge. Because there were no particularities that Mr. Blackledge stated to the bar with regard to Miss Allen's representation of him, Judge Devar didn't feel that there would be a conflict. Additionally, the only information cited by respondent to the fact that a conflict existed is the equivocated statement that Miss Allen made with regard to Dr. Plaud's opining as to whether or not the respondent met the qualifications under the Adam Wallshack. The respondent compares the statement of Miss Allen, which is an equivocated statement to the court about Dr. Plaud's opinion versus that of Miss Graves, which gave a more assertive position regarding Dr. Plaud's opinion. It's the government's position that Miss Allen was actually being truthful and complete to the court when she stated that she was unaware as to what Dr. Plaud would opine. Dr. Plaud had not had an opportunity to interview the respondent. Miss Allen, I'm sure, was aware that she may find herself in the same position that she had earlier when she believed that Dr. Campbell would find in favor of the respondent. However, after Dr. Campbell reviewed all the materials in this case and had an opportunity to sit down with Mr. Blackledge, he found that the respondent in fact did meet the qualifications under the Adam Wallshack. Therefore, the fact that the statement has pointed out and labeling it as an equivocating statement as Miss Allen intending to protect her own rights, it's the government's position that she's actually being forthcoming to the court is to not misrepresent evidence that exists in the case. What about her before even the Barclay marriage? She had identified ethical conflict. She told the court that. Your Honor, she stated this internal conflict. Unethical, unethical. An internal ethical conflict in her first marriage to the court. However, there are no subsequent filings and she did not request an expartee communication with Judge Gates. She can't tell the judge. The judge is the trial fact. That's like saying, I have an ethical problem. Let me tell the jury what it is. He's the jury. You can't tell the judge because the judge is going to decide the case. Your Honor, that would be true if she had the first hearing in front of Judge Devar. Judge Gates being the magistrate judge in this matter would have formed a backstop to that information. He could have fleshed out the internal ethical conflict that Miss Allen claimed to have in this matter and then could have allowed her to be removed from the matter and then proceeded with new counsel. So it's her fault because she didn't flesh it out with the magistrate what her ethical conflict was? That's correct, Your Honor. I think it's the court's duty. Where defendant has a statutory right to counsel and the counsel who is carrying forward on the case has said they have an ethical problem. You don't think it's the judge's duty to say counsel. We have to figure out what this problem is in at least to the extent of whether it will preclude your representation. I can't hear it because I'm trying the case. Let's figure out a way without going into the specifics as to how I can address that. Isn't that a, we call it a suisponte obligation of the judge rather than the lawyers to make sure that the statutory right is being protected when this man can be incarcerated effectively for a long, long period of time? Without making that patent inquiry to Miss Allen, both Judge Gates and Judge Devar did inquire as to whether or not she would be able to continue in her representation. That's her opinion. I mean, without knowing the nature of the elephant in the corner, how can anybody reasonably say it's okay for Attorney Allen to proceed? Based on Miss Allen's presentation to the court that she could. If this internal opinion she could, that is her opinion. But what if, you know, something, what if there was a serious ethical conflict? And we don't have any idea whether there was one or not. Based on this record, doesn't there have to be somewhere in the record some sense of confidence that this lawyer did not have an ethical problem? Your honor. The judges gave Miss Allen an opportunity to proceed furthermore. If I'm talking about the court's duty, not Miss Allen. I'm talking about the court's duty to secure the statutory right to counsel and the integrity of the judicial proceedings. The lawyer stands up and says, I've got a serious conflict. The judge can sit there and just say, okay, if you think you're all right, if you're cool, I'm cool. I mean, doesn't the judge have to do more than that? The judge not, why not? Judge Devere did as much as he could on the record being the trial of fact. So is not to cloud the actual proceeding itself furthermore. Miss Allen, isn't the lawyer who said there's an ethical problem, the same lawyer that says she could proceed? That is correct. When you, when you, when you, is incorrect for the judge to think you've called that in my attention, can you proceed? It's not, can you proceed, put your ethical problem aside and light it. Use as an ethical problem, you're not telling me anymore about it. This is sort of implicit. You're not telling me anymore about it. Can you proceed in this case? You know, I made the assessment. I think I have an ethical, there's an ethical issue and I'm making the assessment. I can, under these circumstances, I can proceed. What's wrong with the judge thinking that the lawyer that says is an issue, says that it can be, can be dealt with. Isn't it the same lawyer making both assessments? Your honor, it is the attorney making both assessments. Miss Allen is an officer. The court is both judge gates and judge Deborah pointed out she's tried a number of these matters. If it were something of the nature that would arise for Vint Miss Allen's representation of Mr. Blacklage, she could have brought that to the court when the court said is there anything additional that would prohibit your representation. Not only that, but as an additional backstop to Miss Allen's representation, the federal public defender's office at one point had three attorneys in this case. Mr. Blacklage was never at any point when his conflict with Miss Allen arose, represented solely by her

. That's like saying, I have an ethical problem. Let me tell the jury what it is. He's the jury. You can't tell the judge because the judge is going to decide the case. Your Honor, that would be true if she had the first hearing in front of Judge Devar. Judge Gates being the magistrate judge in this matter would have formed a backstop to that information. He could have fleshed out the internal ethical conflict that Miss Allen claimed to have in this matter and then could have allowed her to be removed from the matter and then proceeded with new counsel. So it's her fault because she didn't flesh it out with the magistrate what her ethical conflict was? That's correct, Your Honor. I think it's the court's duty. Where defendant has a statutory right to counsel and the counsel who is carrying forward on the case has said they have an ethical problem. You don't think it's the judge's duty to say counsel. We have to figure out what this problem is in at least to the extent of whether it will preclude your representation. I can't hear it because I'm trying the case. Let's figure out a way without going into the specifics as to how I can address that. Isn't that a, we call it a suisponte obligation of the judge rather than the lawyers to make sure that the statutory right is being protected when this man can be incarcerated effectively for a long, long period of time? Without making that patent inquiry to Miss Allen, both Judge Gates and Judge Devar did inquire as to whether or not she would be able to continue in her representation. That's her opinion. I mean, without knowing the nature of the elephant in the corner, how can anybody reasonably say it's okay for Attorney Allen to proceed? Based on Miss Allen's presentation to the court that she could. If this internal opinion she could, that is her opinion. But what if, you know, something, what if there was a serious ethical conflict? And we don't have any idea whether there was one or not. Based on this record, doesn't there have to be somewhere in the record some sense of confidence that this lawyer did not have an ethical problem? Your honor. The judges gave Miss Allen an opportunity to proceed furthermore. If I'm talking about the court's duty, not Miss Allen. I'm talking about the court's duty to secure the statutory right to counsel and the integrity of the judicial proceedings. The lawyer stands up and says, I've got a serious conflict. The judge can sit there and just say, okay, if you think you're all right, if you're cool, I'm cool. I mean, doesn't the judge have to do more than that? The judge not, why not? Judge Devere did as much as he could on the record being the trial of fact. So is not to cloud the actual proceeding itself furthermore. Miss Allen, isn't the lawyer who said there's an ethical problem, the same lawyer that says she could proceed? That is correct. When you, when you, when you, is incorrect for the judge to think you've called that in my attention, can you proceed? It's not, can you proceed, put your ethical problem aside and light it. Use as an ethical problem, you're not telling me anymore about it. This is sort of implicit. You're not telling me anymore about it. Can you proceed in this case? You know, I made the assessment. I think I have an ethical, there's an ethical issue and I'm making the assessment. I can, under these circumstances, I can proceed. What's wrong with the judge thinking that the lawyer that says is an issue, says that it can be, can be dealt with. Isn't it the same lawyer making both assessments? Your honor, it is the attorney making both assessments. Miss Allen is an officer. The court is both judge gates and judge Deborah pointed out she's tried a number of these matters. If it were something of the nature that would arise for Vint Miss Allen's representation of Mr. Blacklage, she could have brought that to the court when the court said is there anything additional that would prohibit your representation. Not only that, but as an additional backstop to Miss Allen's representation, the federal public defender's office at one point had three attorneys in this case. Mr. Blacklage was never at any point when his conflict with Miss Allen arose, represented solely by her. Miss Graves and Miss Shea made notices of appearance in this case and followed through and were with Mr. Blacklage both through the hearing and through the motions to withdraw. Now, Miss Shea later filed a motion to withdraw for different matters to move on to other cases. However, Miss Graves remained in the case. Therefore, Miss Allen is not the only attorney who is representing Mr. Blacklage and any conflict that she has or any problem that she has in representation is cured by co-counsel's president. The problem of the counsel of these cases, this is not any reflection on you at all, you never find your own, both counsel off, but in these cases, they're very serious matters, obviously. But what you're talking about is people who have been convicted of a crime, sentence, fulfill that sentence, and now the government comes along often at the very end of like a few days before they would be released saying they need to be there. And basically, it's so important because these are almost life sentences, because many people on your side of the ledger and their experts to support it, some people say you're never cured of how to feel you. So in a sense, you'll be saying this is a potential life sentence, and not a criminal amount of what a life sentence. And when you have a lawyer saying I have an ethical conflict, you can't raise it and then resolve it, and the court is never even the wiser what it was. I'll best of saying, well, can you still proceed? Yes, it's not even can you proceed somehow with removing that effort? That wouldn't even inquire. Boys, well, yeah, I'll proceed. But it seems to me that it's such an important thing, it's statutory, right? That's why the issue, I just can't imagine you got a bar complaint against you. You know, when you have a situation, it's not a very friendly situation with your former client, or your existing client, when they're trying to take away your bar license, because that's your bread and butter. That's a serious conflict. Your honor, however, there was an another turning on the matter. And as your honor pointed out, it is a serious matter. It could be life commitment. However, I will compare this to the criminal context in criminal defendant's cases who are facing up to life imprisonment. They're only entitled under the CJA to one attorney. Only in death penalty cases. Does it trigger the right to have a second attorney representing that particular defendant? In this instance, Mr. Blackledge is not facing a death sentence, but he was represented by two counsel. Even if you remove or assume that Miss Allen somehow, in her ability to represent him, possess this conflict and couldn't do so adequately, you still have misgraves. You didn't know that. You didn't know that, but Miss Allen stayed in place. That's correct, Your Honor, but so did Miss Graves. And as the court pointed out, the problem here is, responding can point to no harm that he sustained by the presence of Miss Allen remaining in this case. He received the expert that he chose. He received an evaluation by that expert. It didn't come back the way that he wanted it. Didn't, didn't, didn't counsel say because I asked him that. Why did you miss because of your claim of abandonment? And he said we missed the opportunity that the judge might have considered giving us another expert. That's what he said, wasn't it? That is what he said. However, that's not true. If you'll look at the first order from the court denying the request for the second examiner, the court says you can file this again. We find it's not allowed without prejudice. There needs to be a showing of need. In the second motion that was filed, although out of time, there's still no need. There was no need in this case because there was no problem with Dr. Campbell's evaluation. The respondent at no point in time was able to show that there was a flaw in the science use. That Dr

. Miss Graves and Miss Shea made notices of appearance in this case and followed through and were with Mr. Blacklage both through the hearing and through the motions to withdraw. Now, Miss Shea later filed a motion to withdraw for different matters to move on to other cases. However, Miss Graves remained in the case. Therefore, Miss Allen is not the only attorney who is representing Mr. Blacklage and any conflict that she has or any problem that she has in representation is cured by co-counsel's president. The problem of the counsel of these cases, this is not any reflection on you at all, you never find your own, both counsel off, but in these cases, they're very serious matters, obviously. But what you're talking about is people who have been convicted of a crime, sentence, fulfill that sentence, and now the government comes along often at the very end of like a few days before they would be released saying they need to be there. And basically, it's so important because these are almost life sentences, because many people on your side of the ledger and their experts to support it, some people say you're never cured of how to feel you. So in a sense, you'll be saying this is a potential life sentence, and not a criminal amount of what a life sentence. And when you have a lawyer saying I have an ethical conflict, you can't raise it and then resolve it, and the court is never even the wiser what it was. I'll best of saying, well, can you still proceed? Yes, it's not even can you proceed somehow with removing that effort? That wouldn't even inquire. Boys, well, yeah, I'll proceed. But it seems to me that it's such an important thing, it's statutory, right? That's why the issue, I just can't imagine you got a bar complaint against you. You know, when you have a situation, it's not a very friendly situation with your former client, or your existing client, when they're trying to take away your bar license, because that's your bread and butter. That's a serious conflict. Your honor, however, there was an another turning on the matter. And as your honor pointed out, it is a serious matter. It could be life commitment. However, I will compare this to the criminal context in criminal defendant's cases who are facing up to life imprisonment. They're only entitled under the CJA to one attorney. Only in death penalty cases. Does it trigger the right to have a second attorney representing that particular defendant? In this instance, Mr. Blackledge is not facing a death sentence, but he was represented by two counsel. Even if you remove or assume that Miss Allen somehow, in her ability to represent him, possess this conflict and couldn't do so adequately, you still have misgraves. You didn't know that. You didn't know that, but Miss Allen stayed in place. That's correct, Your Honor, but so did Miss Graves. And as the court pointed out, the problem here is, responding can point to no harm that he sustained by the presence of Miss Allen remaining in this case. He received the expert that he chose. He received an evaluation by that expert. It didn't come back the way that he wanted it. Didn't, didn't, didn't counsel say because I asked him that. Why did you miss because of your claim of abandonment? And he said we missed the opportunity that the judge might have considered giving us another expert. That's what he said, wasn't it? That is what he said. However, that's not true. If you'll look at the first order from the court denying the request for the second examiner, the court says you can file this again. We find it's not allowed without prejudice. There needs to be a showing of need. In the second motion that was filed, although out of time, there's still no need. There was no need in this case because there was no problem with Dr. Campbell's evaluation. The respondent at no point in time was able to show that there was a flaw in the science use. That Dr. Campbell somehow failed to meet the obligation. Did the judge say I denied because there's no need, Chau? He said I'd deny this and give you an opportunity to refile showing that there's a need for a second examiner. Well, here you have it. Let's take this almost like a minkens question. Don't you have actual conflict in this case? No, Your Honor, there is no. A bar complaint against you. That's not an actual conflict. No, Your Honor, it's not. I mean, because to have an actual conflict in the case, it then goes to an evaluation of an ineffective claim. Was there a conflict such that Ms. Allen fell below the standard of an accident? We don't know. We don't know in this case because even though the judge said the bar complaint was content void essentially, she was saying she had another conflict. Isn't that correct? That he was representing. She had a separate ethical conflict. So how do we know that the integrity of the proceedings were safeguarded if the lawyer saying I've got an ethical conflict unrelated to the bar complaint? And the judge doesn't do anything other than say, are you fine with going ahead? And she says, yes, I'm fine, sir. And he said, let's do it. To me, that it's surprising, frankly. We know that there was such a careful judge. And he got obviously he's careful and very good. That you wouldn't try to resolve this to make sure that the lawyer was having a not getting the lawyer into trouble herself as opposed to the point. But we know this, Your Honor, because Ms. Allen, she missed no court proceedings. She was there. She participated in filing the pretrial order. She objected to evidence that it was her representative, confident. I'm talking about her ability to represent Mr. Blackwoods, notwithstanding the ethical conflict that she represented, she had to the court. But that's my point, Your Honor. The respondent can point to no issue or point or failed your by Ms. Allen in the proceeding. Doesn't it come down to then whether the court has a to respond to obligation to resolve the issue or where's the burden? Is this the court's burden to ensure the integrity of the proceeding or is this something that the defendant has to point to on the record that broke down as a result of any problem? Isn't that what we're pretty much having to decide here? We are, Your Honor. However, I think the court did meet its burden through two hearings. Judge Gates had the initial hearing where there was an exchange of information. Judge Dever then reviewed that hearing and had his own hearing. And at no point did Ms. Allen or Ms. Blackwoods without even having to go into the specifics of what this conflict was said, there is a conflict that exists such that I cannot represent Mr. Blackwoods. Nor did Mr. Blackwoods say there is a conflict that exists such that I have lost all confidence in Ms. Allen's representation of me. If we were to say that the court abused this discretion because the lawyer said she had an ethical obligation and he didn't remove her. Judge Gates may be a woman. Judge didn't remove her

. Campbell somehow failed to meet the obligation. Did the judge say I denied because there's no need, Chau? He said I'd deny this and give you an opportunity to refile showing that there's a need for a second examiner. Well, here you have it. Let's take this almost like a minkens question. Don't you have actual conflict in this case? No, Your Honor, there is no. A bar complaint against you. That's not an actual conflict. No, Your Honor, it's not. I mean, because to have an actual conflict in the case, it then goes to an evaluation of an ineffective claim. Was there a conflict such that Ms. Allen fell below the standard of an accident? We don't know. We don't know in this case because even though the judge said the bar complaint was content void essentially, she was saying she had another conflict. Isn't that correct? That he was representing. She had a separate ethical conflict. So how do we know that the integrity of the proceedings were safeguarded if the lawyer saying I've got an ethical conflict unrelated to the bar complaint? And the judge doesn't do anything other than say, are you fine with going ahead? And she says, yes, I'm fine, sir. And he said, let's do it. To me, that it's surprising, frankly. We know that there was such a careful judge. And he got obviously he's careful and very good. That you wouldn't try to resolve this to make sure that the lawyer was having a not getting the lawyer into trouble herself as opposed to the point. But we know this, Your Honor, because Ms. Allen, she missed no court proceedings. She was there. She participated in filing the pretrial order. She objected to evidence that it was her representative, confident. I'm talking about her ability to represent Mr. Blackwoods, notwithstanding the ethical conflict that she represented, she had to the court. But that's my point, Your Honor. The respondent can point to no issue or point or failed your by Ms. Allen in the proceeding. Doesn't it come down to then whether the court has a to respond to obligation to resolve the issue or where's the burden? Is this the court's burden to ensure the integrity of the proceeding or is this something that the defendant has to point to on the record that broke down as a result of any problem? Isn't that what we're pretty much having to decide here? We are, Your Honor. However, I think the court did meet its burden through two hearings. Judge Gates had the initial hearing where there was an exchange of information. Judge Dever then reviewed that hearing and had his own hearing. And at no point did Ms. Allen or Ms. Blackwoods without even having to go into the specifics of what this conflict was said, there is a conflict that exists such that I cannot represent Mr. Blackwoods. Nor did Mr. Blackwoods say there is a conflict that exists such that I have lost all confidence in Ms. Allen's representation of me. If we were to say that the court abused this discretion because the lawyer said she had an ethical obligation and he didn't remove her. Judge Gates may be a woman. Judge didn't remove her. Does the lawyer have an obligation to press the issue? If the lawyer thinks there's an ethical issue that provides a conflict of interest under which she cannot effectively act as a lawyer in this case, does she have an ethical obligation to press that with the court and all for information? Does she? Yes, Your Honor. Should we file if that's correct then, are you under an obligation as a bar member and are we under obligations as bar members to file an ethical complaint against her in this scenario? Your Honor, I don't believe it rises to the point of filing a bar complaint. However, I believe that the... Well, what are we to do? Don't you have an ethical obligation? If you see a lawyer who acts unethically, don't you have an obligation to file a complaint? I'm asking you. Your Honor, that's the point. Ms. Allen, as an officer of the court, had an obligation to present truthful information to the court. When posited by both Judge Gates and both Judge Devar, can you proceed? She opined, yes, beyond Ms. Allen's representation. What is this? The point is this. If we were to say that Judge abused his discretion because he didn't press further, didn't she abuse and not meet her obligations? Because she didn't press further. She may have an obligation and it may play out in what relief Black Lives gets, but at the basis is that there was an ethical question raised that wasn't disposed of in a way that we have confidence in what happened, didn't? Independent of what we say in this case about the Judge and our decision, don't we have an obligation to do something about her conduct? The Eunice would be on Ms. Allen, however, I said on us about her, Your Honor, you're my understanding that this is a member of the South Carolina Bar is, if you see a lawyer act unethically, you have an obligation to report that conduct. I could be wrong, but I have done it before I can tell you that. That would be... Providence, Confidentially Report what I consider to be an ethical conduct. Maybe all bars don't have that requirement. That would be true, Your Honor, however, this court would have to assume that the ethical conflict remained in place throughout the course of the hearing. Well, she could explain it. She could explain it to the bar. I'm just asking how the complaint gets resolved. I'm asking about the obligation on both the Council of Judge Deversport, of our part to file an ethical notice or complaint. I don't know if it's wrongly, but notify the bar that perhaps she acted in an ethical way. Wouldn't that adhere to in this case? Your Honor, it would be the government's assumption that whatever conflict that Ms. Allen had resolved itself or she found resolution in that she was able to proceed with this matter and did so effective. What did this court said that it wasn't resolved? The court did not get to a resolution of that ethical issue in so much so we had to reverse what he did. That would indicate that ethical problem had not been resolved to our satisfaction. In that instance, Your Honor, yes, you are correct. Then there would have to be a referral to the bar. I don't know. I'm in the other writing. It's his to me at my point. Because that would indicate that Ms. Allen participated in a matter in which she was ethically conflicted and that conflict... At least it raises that possibility and it raises the possibility that she may have had a further obligation to press the court with that ethical obligation. She could not. She.

. Does the lawyer have an obligation to press the issue? If the lawyer thinks there's an ethical issue that provides a conflict of interest under which she cannot effectively act as a lawyer in this case, does she have an ethical obligation to press that with the court and all for information? Does she? Yes, Your Honor. Should we file if that's correct then, are you under an obligation as a bar member and are we under obligations as bar members to file an ethical complaint against her in this scenario? Your Honor, I don't believe it rises to the point of filing a bar complaint. However, I believe that the... Well, what are we to do? Don't you have an ethical obligation? If you see a lawyer who acts unethically, don't you have an obligation to file a complaint? I'm asking you. Your Honor, that's the point. Ms. Allen, as an officer of the court, had an obligation to present truthful information to the court. When posited by both Judge Gates and both Judge Devar, can you proceed? She opined, yes, beyond Ms. Allen's representation. What is this? The point is this. If we were to say that Judge abused his discretion because he didn't press further, didn't she abuse and not meet her obligations? Because she didn't press further. She may have an obligation and it may play out in what relief Black Lives gets, but at the basis is that there was an ethical question raised that wasn't disposed of in a way that we have confidence in what happened, didn't? Independent of what we say in this case about the Judge and our decision, don't we have an obligation to do something about her conduct? The Eunice would be on Ms. Allen, however, I said on us about her, Your Honor, you're my understanding that this is a member of the South Carolina Bar is, if you see a lawyer act unethically, you have an obligation to report that conduct. I could be wrong, but I have done it before I can tell you that. That would be... Providence, Confidentially Report what I consider to be an ethical conduct. Maybe all bars don't have that requirement. That would be true, Your Honor, however, this court would have to assume that the ethical conflict remained in place throughout the course of the hearing. Well, she could explain it. She could explain it to the bar. I'm just asking how the complaint gets resolved. I'm asking about the obligation on both the Council of Judge Deversport, of our part to file an ethical notice or complaint. I don't know if it's wrongly, but notify the bar that perhaps she acted in an ethical way. Wouldn't that adhere to in this case? Your Honor, it would be the government's assumption that whatever conflict that Ms. Allen had resolved itself or she found resolution in that she was able to proceed with this matter and did so effective. What did this court said that it wasn't resolved? The court did not get to a resolution of that ethical issue in so much so we had to reverse what he did. That would indicate that ethical problem had not been resolved to our satisfaction. In that instance, Your Honor, yes, you are correct. Then there would have to be a referral to the bar. I don't know. I'm in the other writing. It's his to me at my point. Because that would indicate that Ms. Allen participated in a matter in which she was ethically conflicted and that conflict... At least it raises that possibility and it raises the possibility that she may have had a further obligation to press the court with that ethical obligation. She could not. She... Not worth anything about the court. Sometimes you have to disagree with the court and just say, Your Honor, I cannot do this. I cannot do it. Now, let's come up... And I think just Keen is right. If that's the case, let's come up with another procedure. I have a problem, but I don't want to divulge any confidential information with Your Honor. We have to resolve this. And Your Honor, that is the proceeding used generally in criminal proceedings under these matters. It's more prevalent there and it's more pressing there because trial strategy is more of a secret in the criminal context than it is in these civil matters. And in those instances, it's very common for attorneys to come in and simply represent to the court. I have an ethical conflict that prevents me from representing my client I need to withdraw. The court then returns the question, you cannot proceed in your representation. The attorney as an officer of the court presents the information and says, No, I cannot. That's all the information that's required upon the record. Here, a similar exchange happened. Miss Allen and Mr. Blackledge were allowed to present information about the conflict between the two as well as the presumed conflict. And then the question was positive to Miss Allen. Can you proceed in the representation? As an officer of the court, Miss Allen responded that she could, based on her representation to the court that she could proceed in this matter, neither judge gates nor judge Devar abused their discretion in keeping the case. You're saying in my experience as a district judge, it's just my experience. When a lawyer would say that, I would ask them questions, but if they would tell me, Your Honor, I cannot resolve it. It just cannot be resolved because, by the way, you get complaints about irreconcilable differences in very many criminal cases, often on the evil trial. And I often said, under these facts, it's not a reconcilable difference, but I'll remove counsel, maybe having standby, you can represent yourself. But I would say that if a lawyer ever said to me, Your Honor, I just, I can't share with you, but I just have a problem I can't overcome. You give them the chance to say it, they'd say it, I think you do have to accept their word as an officer of the court that they say it. I think that's where the inquiry stops. If they say they can't do it, then you have to move on. You have to say you removed, you have to accommodate this. I suppose that's not the case here. Miss Allen simply put that verbage in a filing with the court. However, at both of the hearings, she and Mr. Blackledge interacted with one another. She was able to continue to make filings on his behalf, even after the first motion to withdraw. She filed a supplemental joint pre-trial order working with the government, making objections to evidence. And then furthermore, she was given an opportunity to consult with Mr. Blackledge during the course of the trial, and she did require to provide some right to the trial. Is there any specific particular claim that the other side says arises out of this ethical conflict as far as potential ethical conflict as far as her conduct? No, Your Honor. And that was the original point. There's no harm that the respondent can show. There's no error that occurred in this trial

.. Not worth anything about the court. Sometimes you have to disagree with the court and just say, Your Honor, I cannot do this. I cannot do it. Now, let's come up... And I think just Keen is right. If that's the case, let's come up with another procedure. I have a problem, but I don't want to divulge any confidential information with Your Honor. We have to resolve this. And Your Honor, that is the proceeding used generally in criminal proceedings under these matters. It's more prevalent there and it's more pressing there because trial strategy is more of a secret in the criminal context than it is in these civil matters. And in those instances, it's very common for attorneys to come in and simply represent to the court. I have an ethical conflict that prevents me from representing my client I need to withdraw. The court then returns the question, you cannot proceed in your representation. The attorney as an officer of the court presents the information and says, No, I cannot. That's all the information that's required upon the record. Here, a similar exchange happened. Miss Allen and Mr. Blackledge were allowed to present information about the conflict between the two as well as the presumed conflict. And then the question was positive to Miss Allen. Can you proceed in the representation? As an officer of the court, Miss Allen responded that she could, based on her representation to the court that she could proceed in this matter, neither judge gates nor judge Devar abused their discretion in keeping the case. You're saying in my experience as a district judge, it's just my experience. When a lawyer would say that, I would ask them questions, but if they would tell me, Your Honor, I cannot resolve it. It just cannot be resolved because, by the way, you get complaints about irreconcilable differences in very many criminal cases, often on the evil trial. And I often said, under these facts, it's not a reconcilable difference, but I'll remove counsel, maybe having standby, you can represent yourself. But I would say that if a lawyer ever said to me, Your Honor, I just, I can't share with you, but I just have a problem I can't overcome. You give them the chance to say it, they'd say it, I think you do have to accept their word as an officer of the court that they say it. I think that's where the inquiry stops. If they say they can't do it, then you have to move on. You have to say you removed, you have to accommodate this. I suppose that's not the case here. Miss Allen simply put that verbage in a filing with the court. However, at both of the hearings, she and Mr. Blackledge interacted with one another. She was able to continue to make filings on his behalf, even after the first motion to withdraw. She filed a supplemental joint pre-trial order working with the government, making objections to evidence. And then furthermore, she was given an opportunity to consult with Mr. Blackledge during the course of the trial, and she did require to provide some right to the trial. Is there any specific particular claim that the other side says arises out of this ethical conflict as far as potential ethical conflict as far as her conduct? No, Your Honor. And that was the original point. There's no harm that the respondent can show. There's no error that occurred in this trial. There's nothing that the respondent can put forward saying that Miss Allen failed to do. All I can see is the claim is that by her conduct, she missed a deadline, which deadline had it been met, maybe could have gotten another expert. Isn't that the assertive damage? That's the crux of this, Your Honor. They wanted a second examiner, which would actually go to their position that Mr. Blackledge did not make the argument. I'm trying to understand the record. That is the record in this case. That's the most important thing he needed. But Your Honor. The fact is if that's a small matter, like what he all he wanted to do is, you know, have lunch. The fact of for him, the only thing that could possibly help him is to find an expert that would side with him, and to say that the only thing impact was that, how could that not be that's very important to him, isn't it? But the statute doesn't promise him an expert. But it promises him a counsel without an ethical conflict in pursuing it. And why is it not a structural error in the trial? You know the difference between a structural error and an error that is essentially subject to harmless error review. Yes. And if you have a structural error, it can't be harmless. And generally speaking, well why isn't this a structural error? Because it would so permeate the whole trial. If you were being represented by somebody who couldn't be there, who couldn't be your lawyer, if they were ethically proceeding. That's why it just so bothers me, this is hanging like a cloud over this whole thing, and it could have been resolved very easily. Your Honor, because if you go into the realm of had her motion been filed timely, there's still no guarantee that it would be granted by the court, because the second motion does not say my structural issue. If you have a structural issue, you're not arguing prejudice. You're saying that the so infested or infected the ability of this person to receive whatever right they had, in this case the statutory right counsel. And I'm a lawyer who had an ethical conflict, who represented she had an ethical conflict. Maybe she doesn't understand her ethical obligations, because if somebody stood up in front of me as a trial judge saying, I've got an ethical conflict, but yes, I can go ahead and represent the person. I'd say there's a non-sequitor here, something further needs to be done, because if you have a true ethical conflict, you can't represent the person. Your Honor, and I think that's what was fleshed out at the hearings. The court was trying to determine if this was in fact a true ethical conflict, or if this was simply verbiage that was put in a written motion. That was the purpose in the court having the two hearings on this matter. Additionally, there's no structural error here. Mr. Blackledge received everything that he was entitled to under the statute. He was represented by counsel, and he was allowed to have the appointment of an examiner of his choosing. The statute requires an examiner. It doesn't require an examiner until you get to one that finds that you don't need to follow the qualifications for out-of-one. There's everything you're saying about the examiner. There's everything. My problem is does the court allow proceedings to continue, and a lawyer says I've got an ethical complaint, and then just allows them to just go forward. But your Honor, I think Miss Allen backed off from that position in the course of the hearings when the judge posited to her point blank, can you continue in the representation of Mr. Blackledge, and her response being, it would be difficult, but I can. She backed off. But do we know in this record, how she resolved her ethical conflict? No, Your Honor. She wasn't required to put that information on the record. She wasn't required. Not by the court's questioning, no. Oh, about a question

. There's nothing that the respondent can put forward saying that Miss Allen failed to do. All I can see is the claim is that by her conduct, she missed a deadline, which deadline had it been met, maybe could have gotten another expert. Isn't that the assertive damage? That's the crux of this, Your Honor. They wanted a second examiner, which would actually go to their position that Mr. Blackledge did not make the argument. I'm trying to understand the record. That is the record in this case. That's the most important thing he needed. But Your Honor. The fact is if that's a small matter, like what he all he wanted to do is, you know, have lunch. The fact of for him, the only thing that could possibly help him is to find an expert that would side with him, and to say that the only thing impact was that, how could that not be that's very important to him, isn't it? But the statute doesn't promise him an expert. But it promises him a counsel without an ethical conflict in pursuing it. And why is it not a structural error in the trial? You know the difference between a structural error and an error that is essentially subject to harmless error review. Yes. And if you have a structural error, it can't be harmless. And generally speaking, well why isn't this a structural error? Because it would so permeate the whole trial. If you were being represented by somebody who couldn't be there, who couldn't be your lawyer, if they were ethically proceeding. That's why it just so bothers me, this is hanging like a cloud over this whole thing, and it could have been resolved very easily. Your Honor, because if you go into the realm of had her motion been filed timely, there's still no guarantee that it would be granted by the court, because the second motion does not say my structural issue. If you have a structural issue, you're not arguing prejudice. You're saying that the so infested or infected the ability of this person to receive whatever right they had, in this case the statutory right counsel. And I'm a lawyer who had an ethical conflict, who represented she had an ethical conflict. Maybe she doesn't understand her ethical obligations, because if somebody stood up in front of me as a trial judge saying, I've got an ethical conflict, but yes, I can go ahead and represent the person. I'd say there's a non-sequitor here, something further needs to be done, because if you have a true ethical conflict, you can't represent the person. Your Honor, and I think that's what was fleshed out at the hearings. The court was trying to determine if this was in fact a true ethical conflict, or if this was simply verbiage that was put in a written motion. That was the purpose in the court having the two hearings on this matter. Additionally, there's no structural error here. Mr. Blackledge received everything that he was entitled to under the statute. He was represented by counsel, and he was allowed to have the appointment of an examiner of his choosing. The statute requires an examiner. It doesn't require an examiner until you get to one that finds that you don't need to follow the qualifications for out-of-one. There's everything you're saying about the examiner. There's everything. My problem is does the court allow proceedings to continue, and a lawyer says I've got an ethical complaint, and then just allows them to just go forward. But your Honor, I think Miss Allen backed off from that position in the course of the hearings when the judge posited to her point blank, can you continue in the representation of Mr. Blackledge, and her response being, it would be difficult, but I can. She backed off. But do we know in this record, how she resolved her ethical conflict? No, Your Honor. She wasn't required to put that information on the record. She wasn't required. Not by the court's questioning, no. Oh, about a question. No, she wasn't required anything, because it didn't ask me any questions. Based on the problems, can you go forward? But at least something on the record ought to be there to what it was and how it was resolved. But I think Judge Gates was getting to that point when he asked the very open-ended questions of what is the nature of the conflict in this case. And neither Mr. Blackledge nor Miss Allen responded that there was an ethical issue on the record at the hearing. Miss Allen also did not ask for any exparte communication with the court. She did not ask for any sealed filings to the court where she could flesh this issue out any further. And when asked if there were any other issues, remaining other than those that she had already put on the record at the hearing, she responded with no. All right, is that the further questions? Thank you so much. Thank you, Your Honor. I just ask you to affirm the decision of the district court below. Thank you. Mr. Krauth, I'm all. Krauth, I'm all. First of all, the North Carolina rule is the same as the South Carolina rule. An attorney is required to report an ethical conflict that he or she sees to include his or her own. Secondly, could you restate that? I'm sorry, I have a little trouble hearing your final part of your sentence. To include his or her own unethical conflict. You have an obligation to report an ethical conduct. Correct. Secondly, it mattered how attorney Allen learned of the bar complaint. If, because people get bar, attorneys get bar complaints all the time. Right, this record is suggesting a separate ethical conflict other than the bar complaint, isn't it? Or is it? And there may have been. But my point about the bar complaint is that if you learn of the bar complaint from your clients, if your clients is not, I felt the bar complaint against you, you don't have to worry about it. You wait. If you get a call from the state bar that says we've received a bar complaint and we need to talk to you about it, now you have a serious problem. You need to be, you need to get to it or whatever. We don't know how attorney Allen learned of the bar complaint. That's the first, that's, that's another thing I wanted to point out. Is this other, is this ethical conflict that she was representing she had? Was that the bar complaint? Does this record clarify that or not? I don't know, Your Honor. I, I believe that one of the problems, one of the, the ethical complaints that she believes she had was based on the maple's case where the United States Supreme Court says, Hey, if you miss a, a deadline and you procedurally default your client, you, you have an ethical problem. You, you've committed an ethical problem. You have not acted as a zealous attorney or whatever. You don't know whether that's what she was referring to. But I, I, I think that's part of it. I don't know if it's the full part of her ethical problem. So, getting back to my bar complaint, one thing the court could have done is said, Hey, how did you learn of this bar complaint? Did, did the bar call you or did your client tell you? What did you mean? Well, if there, if there is an ethical complaint, no, no, no, not, if there is. If there is, the conflict, yeah, the conflict, well, ethical conflict. You mean the maple's conflict? No, she said, she said ethical conflict. Well, she said, well, she said, I, I, I would submit that the court needs to further flesh that out and determine the court. The court tried to, didn't it? What, what else should the court have done? Like I said, you could have asked, how did you learn of the bar complaint or? Oh, and even inside the bar complaint. And then if it's something else, if it's some other ethical conflict, why should the court have done? As the government suggested, they could have had another judge step in and said, I need you to do an ex-partei consultation with his attorney and vice-dates have done that. I don't know because gates has to make a recommended order to judge Devar about what to do

. No, she wasn't required anything, because it didn't ask me any questions. Based on the problems, can you go forward? But at least something on the record ought to be there to what it was and how it was resolved. But I think Judge Gates was getting to that point when he asked the very open-ended questions of what is the nature of the conflict in this case. And neither Mr. Blackledge nor Miss Allen responded that there was an ethical issue on the record at the hearing. Miss Allen also did not ask for any exparte communication with the court. She did not ask for any sealed filings to the court where she could flesh this issue out any further. And when asked if there were any other issues, remaining other than those that she had already put on the record at the hearing, she responded with no. All right, is that the further questions? Thank you so much. Thank you, Your Honor. I just ask you to affirm the decision of the district court below. Thank you. Mr. Krauth, I'm all. Krauth, I'm all. First of all, the North Carolina rule is the same as the South Carolina rule. An attorney is required to report an ethical conflict that he or she sees to include his or her own. Secondly, could you restate that? I'm sorry, I have a little trouble hearing your final part of your sentence. To include his or her own unethical conflict. You have an obligation to report an ethical conduct. Correct. Secondly, it mattered how attorney Allen learned of the bar complaint. If, because people get bar, attorneys get bar complaints all the time. Right, this record is suggesting a separate ethical conflict other than the bar complaint, isn't it? Or is it? And there may have been. But my point about the bar complaint is that if you learn of the bar complaint from your clients, if your clients is not, I felt the bar complaint against you, you don't have to worry about it. You wait. If you get a call from the state bar that says we've received a bar complaint and we need to talk to you about it, now you have a serious problem. You need to be, you need to get to it or whatever. We don't know how attorney Allen learned of the bar complaint. That's the first, that's, that's another thing I wanted to point out. Is this other, is this ethical conflict that she was representing she had? Was that the bar complaint? Does this record clarify that or not? I don't know, Your Honor. I, I believe that one of the problems, one of the, the ethical complaints that she believes she had was based on the maple's case where the United States Supreme Court says, Hey, if you miss a, a deadline and you procedurally default your client, you, you have an ethical problem. You, you've committed an ethical problem. You have not acted as a zealous attorney or whatever. You don't know whether that's what she was referring to. But I, I, I think that's part of it. I don't know if it's the full part of her ethical problem. So, getting back to my bar complaint, one thing the court could have done is said, Hey, how did you learn of this bar complaint? Did, did the bar call you or did your client tell you? What did you mean? Well, if there, if there is an ethical complaint, no, no, no, not, if there is. If there is, the conflict, yeah, the conflict, well, ethical conflict. You mean the maple's conflict? No, she said, she said ethical conflict. Well, she said, well, she said, I, I, I would submit that the court needs to further flesh that out and determine the court. The court tried to, didn't it? What, what else should the court have done? Like I said, you could have asked, how did you learn of the bar complaint or? Oh, and even inside the bar complaint. And then if it's something else, if it's some other ethical conflict, why should the court have done? As the government suggested, they could have had another judge step in and said, I need you to do an ex-partei consultation with his attorney and vice-dates have done that. I don't know because gates has to make a recommended order to judge Devar about what to do. And they're quitting as a trial fact. Correct, at least from the report. They make a report. Even if he doesn't include whatever he learned from attorney Allen off the record in the order, there may be some sort of improprieties suggested by whatever he recommends the judge Devar to do. That's what I said. He makes a recommendation. So he's in the chain of trial facts. Correct. So I don't think he's the man to rely on. So you, so you, so you, have you made the claim in your brief, I can't remember, that they should have had an independent judge talk to her about her ethical conflict? I don't, I didn't, I don't believe I made that. So, so now what would you say? He should, he should have not asked her any further questions about it, but I have appointed and asked another judge to talk to her about it. I would submit that would have been the correct procedure. Getting going to the question of can you proceed, I would submit to the court that there's two meanings to that. And we don't know how attorney Allen perceived it. In other words, can you proceed? May mean I'm going to deny your motion to withdraw. And I want to do this trial today. Can you go forward to the next? If she says I have an ethical conflict and she takes it in the second meaning, I got an ethical conflict, Your Honor. But I can actually write documents. Do you think you have an obligation to file an ethical complaint against her? I don't mean complaint, notify the bar of unethical kind of potential unethical kind of. I don't, I don't know that it rises to the level that I need to call the bar on her, Your Honor. I just don't know what her problem was. And so should you complain in light of that so they can resolve it? You have an obligation to ask an independent lawyer to look at that for you? I don't think so, Your Honor. I mean, I would have a hard time if I were in a situation where I suspected there were ethical misconduct, but I didn't know for certain that I called the bar. But if you ask the nurse to reverse the district court on that possibility, aren't you? Well, I'm not. There was an ethical conflict that wasn't resolved and she went ahead. And therefore, based on that belief, you think or that possibility, you think the district court should be reversed, don't you? Yes, Your Honor. So why then shouldn't something be said or done about her? You might be right about the court. But we give her a pass? Well, there's different standards with bar complaints and there is with court proceedings, Your Honor. I mean, I don't bring her to the full circuit, good to you. No, but you could share a right of a letter to the bar and ask a heck of a lot easier than bringing the case to the full circuit, didn't it? And do you hold your obligation under your ethical obligations on a North kind of bar? You don't hold them any lighter than any lighter than vigorous representative your client at the full circuit, do you? I do not, Your Honor. I didn't think you did because I don't either. And I wouldn't presume that you did. But it just seems to me, I'm just sort of walking through these questions. Now, I really, I'm not sort of presupposing the answer, but I'm concerned that if her conduct, which is proceeding when she ethically could not do so, if that rises to the level of a problem for the judicial system, why isn't that a problem for her as an officer of the court? It may be, Your Honor. But I've always been taught as an attorney that if you believe you're you've got a problem, an ethical problem, you first go to the court, you ask the court for guidance, and whatever the court orders you to do, you're protected. You're protected by an order of the court. But if you try to resolve the issue without taking it to the court and without getting a court order, you're subject to discipline. That's what I've been taught as a lawyer. And when given an opportunity by the court to explain what you think, what the problem is, you don't give any more information, you don't think that fulfills your opinion. Well, that raises another ethical problem, which is, do you cast your client in a bad shadow? I don't know what her information was, what she have casted blacklegs in a bad light if she disclosed something to the court. I don't know. So, all right. Thank you. Thank you so much

. We'll ask the clerk to adjourn the court, send a dime, they will come down to the Green Council. This honorable court stands adjourned, signed by God, God save the United States and this honorable court