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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2001-17



IN RE: NANCY A. HURLEY

Order (public reprimand) entered by the Board October 12, 2001.

SUMMARY1


In October 1993 the respondent undertook representation of Terry Patterson as a suspect in the robbery and murder of a police officer. On October 3, 1993, Patterson and the respondent went to the police station where two police detectives interviewed Patterson. The respondent was present during the interview.

In late October 1993, shortly after Patterson’s arraignment, the respondent received a copy of an affidavit executed by one of the detectives that had been submitted in support of a search warrant application. The affidavit recounted a version of the October 3, 1993 interview. According to the detective’s affidavit, Patterson at the interview had identified another individual, Sean Ellis, as the “triggerman”. The respondent did not believe that any such identification had been made.

Upon receipt of the affidavit, the respondent recognized the importance of the discrepancy between the police version of the interview and her own recollection. The detective’s version of the interview was more damaging to Patterson than the respondent’s recollection of the interview. The respondent immediately informed the assistant district attorney both orally and in writing that she had been present throughout the interview and that Patterson had not been asked if Ellis shot the police officer.

In January 1995 Patterson was tried on first degree murder and other charges. Ellis was tried separately. The respondent represented Patterson at the trial. The prosecution proceeded on a theory of joint venture, arguing that Patterson and Ellis had shot the police officer during the course of a robbery.

During the trial, the prosecution called the detective as a witness. The detective testified as to his recollection of the interview and that Patterson identified Ellis as the triggerman. Neither Patterson nor the respondent testified at trial and therefore no one refuted the detective’s version of the interview.

The prosecutor’s closing argument made use of the detective’s testimony. The prosecutor suggested at closing that Patterson’s attempt to blame Ellis for the murder did not diminish his own responsibility as a joint venturer.

The respondent was the only witness other than Patterson to Patterson’s interview with the detectives and the only credible witness who could refute the detective’s expected testimony. At or prior to the time of trial, the respondent knew or should have known that the detective would testify to her client’s identification of Ellis as the triggerman. and the respondent knew or should have known that it was obvious that she ought to be called as a witness on behalf of her client at trial.

On appeal, the Supreme Judicial Court on December 7, 2000, found that the respondent’s actual conflict of interest deprived Patterson of effective assistance of counsel and that she was ethically obligated to have withdrawn as counsel because of the likelihood that her testimony would be necessary.

The respondent’s conduct in continuing to represent a client at trial after she learned or it became obvious that she ought to be called as a witness on behalf of her client, was in violation of Canon Five, DR 5-102(A).

In aggravation, the respondent has an unrelated prior admonition for inadequate client communication. In mitigation, the respondent acknowledged her error to appellate counsel and cooperated in the appeal. She will cooperate fully in any subsequent retrial of Patterson. The respondent had also discussed the potential conflict with her client and obtained his consent to her continued representation. The respondent did not appreciate that this type of conflict is not waivable.

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. On September 10, 2001, the Board of Bar Overseers voted to adopt the parties’ stipulation and proposed sanction. On October 12, 2001, the respondent received a public reprimand.

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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