SUMMARIES OF ALL PUBLISHED SUCCESSFUL
CONFLICT OF INTEREST CLAIMS
SINCE 1982
updated as of
October 14,
2004
TERESA L. NORRIS
CENTER FOR CAPITAL
LITIGATION
PO BOX 11311
COLUMBIA, SC 29211
(803)
765-0650
norristl@bellsouth.net
I. U.S. Supreme Court Cases
( * denotes a
Capital Case)
*Mickens v. Taylor
, 122 S. Ct. 1237 (2002).
Petitioner was convicted of murder
and sentenced to death. His lead counsel during the trial had also
represented the victim and was representing him in juvenile proceedings
at the time of the murder. Counsel had only met with the victim one time
for 15-30 minutes. Following the murder, he was appointed to represent
petitioner by the same judge that had appointed him to represent the
victim previously. Counsel did not disclose the conflict to the court,
his co-counsel, or petitioner. Although the trial court knew or should
have known about the potential conflict, the court conducted no inquiry.
In these circumstances, the Court rejected an automatic reversal rule
and held that in order to obtain relief, petitioner must establish an
actual conflict and that the conflict adversely affected the
representation. The Court also noted that both Cuyler v. Sullivan and
Holloway v. Arkansas were cases involving simultaneous representation of
codefendants and the question whether these holdings apply to successive
representation and other potential conflicts remains open.
Wheat v. United
States, 486 U.S. 153 (1988).
There is a presumption in favor of
allowing a defendant to have counsel of choice, but a trial court may
disqualify counsel of choice, over objection, when there is an actual
conflict or a showing of a serious potential for conflict. Id. at 164.
Counsel in a widespread drug distribution case had previously
represented one of the alleged kingpins and gotten an acquittal.
Subsequently, the alleged kingpin agreed to plead guilty to tax evasion
charges, but had not yet gone to trial. Counsel had also represented a
smaller player in his guilty plea. Just before the defendant's trial,
counsel proposed to also represent the defendant who was an intermediate
player. The government objected because the minor player would be called
as a witness in the defendant's trial and, if the kingpin's deal fell
through, the defendant would likely be called as a witness in his trial.
All three defendants waived the potential conflict and said that it was
merely speculative. The district court denied the motion to substitute
counsel and allow counsel to represent the defendant. On review, the
Court reasoned that it is difficult for an attorney to evaluate the
risks of conflict because unforeseen testimony or evidence can
significantly shift the relationship between multiple defendants. "These
imponderables are difficult enough for a lawyer to assess, and even more
difficult to convey by way of explanation to a criminal defendant
untutored in the niceties of legal ethics." Id. at 163. The Court also
noted that "the willingness of an attorney to obtain . . . waivers [of
conflicts] from his clients may bear an inverse relation to the care
with which he conveys all the necessary information to them." Id. Thus,
the Court held that trial courts "must be allowed substantial latitude
in refusing waivers of conflicts of interests not only in those rare
cases where an actual conflict may be demonstrated before trial, but in
the more common cases where a potential for conflict exists which may or
may not burgeon into an actual conflict as the trial progresses." Id.
*Burger v. Kemp,
483 U.S. 776 (1987).
Counsel in murder case did not
have an actual conflict that adversely affected representation due to
his partner's representation of codefendant in severed trial. Petitioner
was charged along with codefendant in murder. Both defendants confessed.
They were tried separately. During defendant's trial, his codefendant's
statement was not offered and the codefendant did not testify. Following
defendant's trial, while still representing defendant on appeal, counsel
assisted his partner in representing the codefendant at his trial and on
appeal. The court found no "active representation of competing
interests" and that the joint efforts may have actually benefitted the
defendant. Id. at 784. "Moreover, we generally presume that the lawyer
is fully conscious of the overarching duty of complete loyalty to his or
her client." Id. While counsel did not assert defendant's lesser
culpability on appeal when he was also representing the codefendant,
this was a proper strategic decision. As we reaffirmed in Smith v.
Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986),
the "process of ‘winnowing out weaker claims on appeal and focusing on'
those more likely to prevail, far from being evidence of incompetence,
is the hallmark of effective appellate advocacy. Jones v. Barnes, 463
U.S. 745, 751-752, 103 S.Ct. 3308, 3312-3313, 77 L.Ed.2d 987 (1983).
Id.
In addition, in order to show an actual conflict, petitioner must show
that counsel's motive for not raising the issue was his partner's
representation of the codefendant or his involvement in that case. The
court also found that even if counsel had an actual conflict, it did not
affect counsel's advocacy. Counsel attempted to plea bargain but was
rebuffed by state. Counsel also was not prohibited from arguing
petitioner's lesser culpability because he was tried separately from the
codefendant.
*Strickland v.
Washington, 466 U.S. 668 (1984).
In conflict of interest cases,
prejudice is presumed "if the defendant demonstrates that counsel
‘actively represented conflicting interests' and that ‘an actual
conflict of interest adversely affected his lawyer's performance." Id.
at 692 (quoting Cuyler v. Sullivan, 466 U.S. at 350, 348)). In cases not
involving a conflict of interests, in order to establish ineffective
assistance of counsel, the defendant must show that counsel's
performance was deficient and that counsel's performance prejudiced the
defense.
Flanagan v. United
States, 465 U.S. 259 (1984).
A district court's decision to
disqualify counsel due to potential conflicts is not immediately
appealable.
Wood v. Georgia,
450 U.S. 261 (1981).
The trial court erred in failing
to inquire into the possibility of a conflict of interest created by the
representation of the defendants by their employer who allegedly
operated the criminal enterprise for which they were prosecuted. The
defendants were charged with distributing obscene materials and
convicted. They were sentenced to probation with substantial fines, but
failed to pay the fines. After three months, the court held a revocation
hearing in which the defendants presented evidence that they were unable
to pay the fines. The trial court ordered payment of the fines within
three days or confinement. The Court granted cert. to determine whether
the Equal Protection Clause was violated by imprisonment of a
probationer solely because of his inability to make installment payments
on fines. Rather than deciding this issue, however, the Court noted that
the record reflected that the three defendants had been represented
throughout by one lawyer, who was paid by their employer. In addition,
the employer had paid all fines and posted all bonds with the sole
exception of the fines under review. The attorney never argued in the
initial sentencing that the fines were excessive and the court imposed
stiff fines because the court was aware that the employer had been
paying all fines and expenses of the defendants. The defendants never
paid even small amounts of the fine to indicate good faith because of
their assumption that the employer would pay the fines. Even at the
revocation hearing where the defendants presented evidence of their
indigence, counsel did not argue for a reduction of the fines. Thus, the
Court held that the risk of conflict was evident, because the record
suggested that the employer desired to create a test case to present the
current claim to the Court, which meant that the defendants had to be
jailed for non-payment of the fines. The Court recognized an inherent
danger in a criminal defendant being represented by a lawyer hired and
paid for by a third party, particularly when the third party is the
operator of the alleged criminal enterprise. One risk is that the lawyer
will not seek leniency for the defendant by offering testimony against
the employer who retained counsel. A second risk, present in this case,
is that the employer's long-range interest in establishing legal
precedent could subject the defendants to harsher treatment. Id. at 269.
Under these facts, the Court held that "the possibility of a conflict of
interest was sufficiently apparent at the time of the revocation hearing
to impose upon the court a duty to inquire further." Id. at 272.
Moreover, even the state raised the conflict issue and requested that
the court inquire further. Id. at 273. The Court remanded and ordered
that if the court found an actual conflict of interest and that there
was no valid waiver, then a new revocation hearing should be held with
counsel free of conflicts.
Cuyler v.
Sullivan, 446 U.S. 335 (1980).
Court held that in multiple
representation cases where there is no objection at trial, the defendant
must demonstrate that an actual conflict of interest adversely affected
counsel's performance in order to get relief under the Sixth Amendment.
Two retained counsel represented three co-defendants in murder case. The
defendants were tried separately. Sullivan was tried first and
convicted. The state's case was entirely circumstantial and the defense
presented no evidence. None of the defendants objected to multiple
representation. The Court held that nothing in the Sixth Amendment
requires state courts to initiate inquiries into multiple representation
"[a]bsent special circumstances." Id. at 346. "Unless the trial court
knows or reasonably should know that a particular conflict exists, the
court need not initiate an inquiry." Id. at 347. In this case, there was
no objection to the multiple representation and the risk of conflict was
reduced by the provision of separate trials. Likewise, the court of
appeals found that the decision to rest with no defense evidence was on
its face a reasonable tactical response to the weakness of the state's
circumstantial evidence. Id. at 347. Thus, the trial court did not have
an affirmative duty to inquire into the propriety of multiple
representation. Id. at 348. Likewise, the Court held, "In order to
establish a violation of the Sixth Amendment, a defendant who raised no
objection at trial must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance." Id. at 348. Once the
defendant shows that the conflict "actually affected the adequacy" of
representation, there is no requirement that the defendant "demonstrate
prejudice." Id. at 349. The Court remanded this case to the court of
appeals to apply these standards in Sullivan's case.
Holloway v.
Arkansas, 435 U.S. 475 (1978).
The trial court erred in requiring
joint representation of three co-defendants by a single lawyer over
their objections. The defendants were charged with armed robbery and two
counts of rape. One defendant confessed to police officers and said that
he was the lookout while others raped women. Weeks before trial, the
public defender moved to have separate attorneys appointed because,
based on his discussions with the defendants, there was a potential
conflict. The court denied the motion for counsel and motions to sever
the trials. Just before trial, counsel renewed the motion for separate
counsel, because several of the defendants had indicated a desire to
testify and he could not cross-examine them because of confidential
information that he had received. Judge denied again. After the state's
case, in which various eyewitnesses testified but were not consistent,
counsel announced that all three defendants wanted to testify and that
he could not cross-examine or even examine the defendants due to the
conflicts. The court required counsel to just put them on the stand and
let them tell their story. All three defendants denied involvement, but
were convicted. The Court held that joint representation is not
unconstitutional per se, id. at 482, but in this case the trial court
"failed to either appoint separate counsel or to take adequate steps to
ascertain whether the risk of conflict was too remote to warrant
separate counsel," id. at 484. The Court recognized that most courts
recognize that an attorney's request for separate counsel should be
granted because attorneys are in the best position professionally and
ethically to determine whether there is a conflict, have a duty to
report a conflict to the court, and are officers of the court when
making statements to the court. Id. at 485-86. In response to state
arguments that such a rule would allow abuses by defense counsel, the
court stated that trial courts would still have power to deal with
counsel who made an untimely motion for dilatory purposes. Id. at 486.
Likewise, the Court held that its "holding [does not] preclude a trial
court from exploring the adequacy of the basis of defense counsel's
representations regarding a conflict of interests without improperly
requiring disclosure of the confidential communications of the client."
Id. at 487. In addressing the standard to be applied to trial court
errors in these circumstances, the Court recognized that "[j]oint
representation of conflicting interests is suspect because of what it
tends to prevent the attorney from doing." Id. at 489-90. Examples
listed by the Court included: 1) plea bargaining for one defendant to
testify against another; 2) challenging admission of evidence
prejudicial to one client but favorable to another; and 3) arguing
differing culpabilities of clients in sentencing in order to minimize
the culpability of one by emphasizing that of another. Id. at 490. Given
these factors, the Court recognized that "it would be difficult to judge
intelligently the impact of a conflict on the attorney's representation
of a client." Id. at 490-91. Thus, the Court held that "whenever a trial
court improperly requires joint representation over timely objection
reversal is automatic." Id. at 488.