Since Nancy Garrido, who along with her husband, Phillip, is charged with kidnapping Jaycee Lee Dugard in South Lake Tahoe 18 years ago had insufficient money to hire her own attorney the court appointed Gilbert Maines to represent her.

Last week El Dorado County Superior Court Judge Douglas Phimister removed Maines from the case after the judge received a claim that Maines made drunken statements at his country club in which he allegedly discussed plans to write a book after the case and to profit off his representation of Garrido. He appealed to the Third Circuit Court of Appeal. He provided the court with declarations from the bartender, and a fellow member that was present denying that Maines discussed the case or that he discussed any method to obtain money as a result of his representation of Garrido. He also provided a declaration from his client denying any knowledge of a conflict of interest and waiving any conflict if it does exist. The Third Circuit granted a stay of proceedings and reinstated Maines pending a further hearing before the appellate court.

Rule 3-300 of the California Rules of Professional Conduct states:

A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:

(A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and

(B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice; and

(C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.

Since the information before Judge Phimister has not been made public it is impossible to judge the nature of any conflict of interest. But even if we assume that Maines said that he planned to write a book about the Dugard case after the trial we must wonder if a conflict of interest exists. For a conflict to exist he must have a “pecuniary interest adverse to a client.” Since winning the case would increase the likelihood that the book will be a best seller it seems like his pecuniary interest would be to win the case and that is certainly in his client’s interest.