Freivogel on Conflicts

Criminal Practice

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Note: this will not be a comprehensive site, and we do not intend to add all cases dealing with conflicts of interest in the criminal practice.  Courts are publishing such cases on an average of two per working day, and the vast majority of them, while of great consequence to the defendants, are not consequential additions to the law.  The purpose of this article is to provide the briefest overview of the law and a listing of research resources.  Where a criminal case of significance involving a conflict of interest comes down, we will post it at the "What's New" page of this site.

         Key United States Supreme Court Cases.  The foundation for the reversal of convictions because of defense counsel's conflict of interest is the right to effective assistance of counsel under the Sixth Amendment.  For this reason, courts are more likely to identify conflicts at the instance of a defendant who objects to appointed counsel.  Prosecutors will raise conflicts among defense counsel, to remove a potential ground for reversal of convictions.  Thus, a district court has discretion to disqualify defense counsel where defendant expressed a willingness to waive the conflict, Wheat v. United States, 486 U.S. 153 (1988).

        Courts may not force a defendant to accept the appointment of counsel who is representing another defendant in the same proceeding, Glasser v. United States, 315 U.S. 60 (1942) (as to federal court proceedings); Holloway v. Arkansas, 435 U.S. 475 (1978) (as to state court proceedings).

        Cuyler v. Sullivan, 446 U.S. 335 (1980) addressed the situation where no one raised the conflict before trial.  The Court held that a multiple representation could be grounds for reversal if the conflict affected the adequacy of the lawyer's performance.

        In Strickland v. Washington, 466 U.S. 668 (1984), the court held that where defense counsel's conflict was "actual" as opposed to "potential," a "fairly rigid" presumption of prejudice applies.

        In Burger v. Kemp, 483 U.S. 776 (1987) a lawyer represented a defendant, and his partner represented a codefendant.  But, they were tried separately.  The court held that to overturn a conviction, a defendant would have to show that the supposed conflict adversely affected the lawyer's performance.

        Mickens v. Taylor, 535 U.S. 162 (2002):  Quoting the Court's syllabus:

Held: In order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely affected his counsel's performance.

        Christeson v. Roper, 2015 WL 232187 (U.S. Jan. 20, 2015). Defendant was convicted of murder. His lawyers missed the 1-year deadline for filing habeas proceedings. He sought substitution of counsel, which the district court denied. The Eighth Circuit affirmed. In this opinion the Supreme Court reversed. Relief from the final judgment is theoretically a available via a FRCP 60(b) motion, but the lawyers would have to argue that their own malfeasance caused the late filing. The Court ruled that such an argument created a conflict of interest for the lawyers requiring substitution.

        United States v. Kilpatrick, 2015 WL 4774914 (6th Cir. Aug. 14, 2015). While we rarely cover criminal cases, this one, involving the former mayor of Detroit (“Mayor”) as defendant, has several aspects of possible interest to this audience. Mayor was represented in the criminal case by Lawyers A & B. At the same time, Mayor was being sued in a civil case related to the criminal charges in this case. Law Firm represented Plaintiff in the civil case. Prior to the criminal trial, Lawyers A & B became “of counsel” to Law Firm. However, A & B remained geographically remote from Law Firm, their respective files and computer systems remained separate, and A & B were not sharing fees from the civil case. Mayor was convicted. Mayor sought a new trial, in part because he was deprived of conflicts-free counsel in Violation of the Sixth Amendment. The trial court denied the motion. In this opinion the Sixth Circuit affirmed, finding that the trial court’s ruling was not clearly erroneous.       

        Reported lower-court decisions on these concepts number in the thousands.  We have not learned of a service that tracks all these cases as they come down.  The more significant decisions appear in the BNA Crim. L. Rep..  Some then find their way into the ABA/BNA Law. Man. Prof. Conduct.

        Timely Resources.  One useful and very recent survey of conflicts in the criminal practice is the Reporter's Note to § 129 of the Restatement.  Two other timely discussions are at Rotunda & Dzienkowski § 1.7-6(d), and at pages 105-106 of the American Bar Association, Ann. Model Rules of Prof. Conduct (4th ed. 1999).

        Treatises.  Hazard, Hodes, & Jarvis § 11.4, Illus. 11-3 & § 11.13; Rotunda § 8-6.4.

        Law Reviews.  Keith Swisher, Disqualifying Defense Counsel: The Curse of the Sixth Amendment, 4 St. Mary’s J. Legal Malpractice & Ethics 374 (2014); Jeffrey Scott Glassman, Mickens v. Taylor: the Court’s New Don’t-Ask, Don’t-Tell Policy for Attorneys Faced with a Conflict of Interest, 18 St. John’s J. of Legal Commentary 919 (2004) ; Mark W. Shiner, Conflicts of Interest Challenges post Mickens v. Taylor: Redefining the Defendant’s Burden in Concurrent, Successive, and Personal Interest Conflicts, 60 Wash. & Lee L. Rev. 965 (2003) ; Forsgren, The Outer Edge of the Envelope: Disqualification of White-Collar Criminal Defense Attorneys under the Joint Defense Doctrine, 78 Minn. L. Rev. 1219 (1994); Current Developments, Conflicts of Interest: Criminal Representation, 5 Geo. J. Legal Ethics 119 (1991); Ryan, The Sixth Amendment Right to Counsel: A Criminal Defendant's Right to Counsel of Choice v. the Court's Interest in Conflict-Free Representation, 14 S. Ill. U.L.J. 657 (1990); Covey, The Right to Counsel of One's Choice: Joint Representation of Criminal, 58 Notre Dame L. Rev. 793 (1983); Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients, 61 Tex. L. Rev. 211 (1982); Bleiweiss, Conflicts of Interest in Multiple Representation of Codefendants, 71 J. Crim. L. & Criminology 529 (1980); Tague, Multiple Representation and Conflicts of Interest in Criminal Cases, 67 Geo. L.J. 1075 (1979); Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119 (1978); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939 (1978).

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