II. Conflicted Representation Required Over
Objection
A. Simultaneous Representation of Jointly
Tried Codefendants
1. U.S.
Supreme Court Cases
1978: 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.
2. U.S. Court of Appeals Cases
1996: Selsor v. Kaiser, 81 F.3d 1492 (10th Cir.
1996). Trial court erred in requiring joint representation in capital case
where counsel represented defendant and codefendant and counsel objected
to the conflicted representation. Defendants were charged with the murder
and robbery of a convenience store and jointly represented by the same
counsel from the public defender’s office. The single eyewitness, who had
also been shot numerous times, identified the codefendant as the shooter
and the sole assailant she saw at the scene. The codefendant, however,
implicated the defendant. According to police, the defendant then made
incriminating statements admitting his participation and that he shot the
fatal shots. The codefendant’s weapon was recovered. The defendant’s
alleged weapon was not. Prior to trial, counsel, on behalf of defendant,
moved for a severance because the codefendant could attempt to implicate
the defendant. Counsel informed the court that the codefendant was
pleading not guilty by reason of insanity and that his testimony could be
very damaging to the defendant. Counsel noted, however, that the motion
was in the defendant’s interest but contrary to the codefendant’s interest
and that counsel had a conflict. Counsel renewed the motion for severance
and requested that outside counsel be appointed for one of the defendants.
Counsel noted that the codefendant’s defense would admit guilt and being
present at scene and defendant was simply asserting not guilty defense.
Just prior to jury selection counsel renewed the motion for severance
again and stated counsel could not possibly represent the interests of
both defendants. Counsel noted that they only had one witness lined up and
that would be in support of the codefendant’s defense. During the joint
trial, counsel made no opening statement, called one witness to testify
concerning the codefendant’s mental statement, and then gave only a brief
closing asserting that the defendants should not get the death penalty.
(This trial occurred before bifurcated sentencing proceedings and death
was a mandatory punishment if convicted). Counsel renewed the motion for
severance three times during the trial though. All motions were denied and
the court never inquired into the conflict. The defendant was convicted
and sentenced to death. (His sentence was commuted to life by the
appellate court after finding the statute unconstitutional). Dodson was
convicted of related charges, but acquitted of murder. The Tenth Circuit
held that the trial court erred in conducting an inquiry under
Holloway. Although this case was tried before Holloway, the
state conceded that Holloway was not new law and simply applied
Glasser. The court held that the trial court can require counsel
who has raised the objection to joint representation to continue such
representation only if, after a searching inquiry, it is clear that
counsel's claim of conflict of interest is ‘groundless.’"
Id. at 1501. "[A]n adequate inquiry must be targeted at the
conflict issue and that the inquiry must be searching, without improperly
requiring defense counsel to disclose confidential communications."
Id. Here, there was no inquiry into how defendant’s representation
and defense might be adversely affected by the joint representation even
though the potential conflict of interest was patent.
Prejudice is presumed in this Holloway type situation where the
issue was raised and not adequately addressed by the trial court. The
defendant is not required to show an actual conflict. Even if more was
required, court finds that there was an actual conflict that adversely
affected representation. In attempting to defend the codefendant, counsel
implicated the defendant in cross-examining the police officers about the
codefendant’s statements. No unconflicted counsel would had conducted that
cross-examination.
1992: Hamilton v. Ford, 969 F.2d 1006 (11th
Cir. 1992). Trial court erred in requiring joint representation in
attempted robbery and felony murder case where counsel moved for a
severance or appointment of separate counsel for one of the defendants
before trial due to conflict. Defendant and codefendant (his cousin) were
represented by same appointed counsel in pretrial motions. Counsel moved
for severance. Motion was denied. On the first day of trial, counsel
renewed the motion for severance and requested appointment of separate
counsel to represent one of the defendants because counsel’s investigation
led him to believe that a conflict had developed. The prosecution objected
that the defendants had waived any conflicts at a pretrial hearing.
Counsel responded that the conflicts were not apparent three months before
when the defendants waived and that there would be conflicting defenses
putting the defendants in different places at the time of the crimes. The
motions were denied and the trial proceeded. During the state’s evidence,
an eyewitness identified both defendant and codefendant but did not
testify about who the shooter was. There were also witnesses that
testified that the codefendant had made statements that he and defendant
committed the crimes but the defendant was the actual shooter. Following
this testimony, counsel renewed the motions noting that he needed to
cross-examine the codefendant concerning his alleged statements but could
not do so because he represented the codefendant. The court denied the
motions, but required a public defender to sit in in case independent
cross-examination was necessary. Both defendants testified and asserted
alibis. The codefendant denied that he had made any statements concerning
the robbery. The Eleventh Circuit held that "when defendants make timely
objections to joint representation, they need not show an actual
conflict of interest when a trial court fails to inquire
adequately into the basis of the objection. In such circumstances the
trial court has failed to discharge its constitutional duty under
Holloway to determine whether the defendants are receiving adequate
assistance of counsel, a duty separate from the Cuyler framework.
Reversal, therefore is automatic." Id. at 1011. Here, although
counsel did not object until the day of trial, the objection was timely
because the delay was caused by the prosecution’s failure to provide the
information in a more timely manner. The trial court also did not conduct
an adequate inquiry. Instead, the court asked counsel a single question
about trial strategies in open court to which counsel did not respond.
"[B]y asking defense counsel to disclose trial strategy in open court, the
trial court improperly placed counsel in a situation where in order to
adequately respond he would have had to disclose client
confidences, thereby breaching attorney/client confidentiality."
Id. at 1012-13. Court also finds that even if the Cuyler
standard applied, counsel’s representation was adversely affected because
counsel did not object to the hearsay concerning the codefendant’s
statements, which were not admissible against the defendant, and did not
cross-examination the codefendant concerning these statements. The court
also noted that counsel did not seriously challenge the identification
testimony against the defendant although it was much weaker than the
identification of the codefendant.
1984: United States v. Caceres, 745 F.2d 935
(5th Cir. 1984). Trial court erred in denying motion to
withdraw in drug case where counsel represented defendant and codefendant
in joint trial and repeatedly requested appointment of separate counsel
for the codefendant due to conflicting interests and on the second day of
trial brought in another attorney to represent codefendant.
1983: United States v. Punch, 722 F.2d 146
(5th Cir. 1983). Trial court erred in denying motion to
withdraw in drug case where counsel represented defendant and codefendant
in joint trial and repeatedly requested appointment of separate counsel
for the defendant due to conflicting interests and on the second day of
trial brought in another attorney to represent defendant.
3. U.S. District Court Cases
1995: Harjo v. Reynolds, 894 F. Supp. 1496
(N.D. Okla. 1995). Trial court erred in failing to conduct adequate
inquiry to determine whether potential conflict of interest existed due to
counsel’s representation of codefendants in conspiracy and murder trial.
Two attorneys from the public defender office were appointed to represent
all four codefendants. At a motions hearing, counsel moved to withdraw
from representing Harjo, the petitioner here, due to potential conflicts.
Counsel stated that the three codefendants implicated Harjo, while Harjo’s
pretrial statement implicated the three codefendants. The court stated
that it had no jurisdiction until after the preliminary hearing. At the
preliminary hearing, Harjo, through counsel, objected to the conflicted
representation. Counsel then filed a motion for severance detailing some
of the ramifications of the conflict. On the first day of trial, counsel
renewed the motion for severance and pointed out the conflicts. The court
denied the motions. Because petitioner made timely objections to the
conflicts, Holloway is controlling. The inquiry at trial was
inadequate because the trial judge did not inquire whether the
codefendants intended to testify and portray defendant as the one in
command of the situation. Likewise, the court did not address the
defendants personally and inquire as to their reasons for desiring
separate counsel. Moreover, defense counsel did not have burden of proving
that conflict from multiple representation was more than potential
conflict warranting separate counsel. The burden was on the court to
conduct an adequate inquiry and to make a determination.
4. State Cases
1996: Eveland v. State, 929 S.W.2d 165 (Ark.
Ct. App. 1996). Trial court erred in denying counsel’s motion for
severance and to withdraw from representation in rape case due to
conflicts. Following arrest, each of the three codefendants made
statements incriminating themselves and their codefendants. All three
retained the same counsel. Just prior to trial that counsel was suspended
from the practice of law and new counsel was retained. Just prior to
trial, the prosecutor notified counsel that the prior statements would be
used for impeachment during cross-examination. Counsel moved for severance
and to be allowed to withdraw from representation of the two least
culpable codefendants due to the conflict. Counsel noted that there were
defenses available to them that would be adverse to the more culpable
defendant. The trial court denied the motion as untimely. The appellate
court noted that there were conflicting interests and antagonistic
defenses. Even according to the rape victim, one defendant was the actual
perpetrator and one codefendant actually assisted her following the rape.
Moreover, the court noted that under "Holloway, trial counsel was
in the best position to evaluate the possible conflicts and requested to
be relieved as counsel for two of the appellants." Id. at 169. The
trial court abused its discretion in denying the motion for severance and
for separate counsel for each codefendant.
1993: Hernandez v. State, 862 S.W.2d 193 (Tex.
Crim. App. 1993). Trial court abused its discretion in refusing to appoint
separate counsel for five prisoners, who were jointly tried, for
assaulting a correctional officer. The trial court granted the state’s
motion for a joint trial. Prior to trial, counsel moved for appointment of
separate counsel for each of the five defendants. The court denied the
motion. Automatic reversal required due to joint representation over
objection. Even if prejudice showing was necessary, "It is not speculation
. . . that the separate lawyers could, and we submit would, have argued
the differing degrees of assault and differing criminal backgrounds of
each of the defendants; attempting to put their own client in the best
possible light." Id. at 196.
1992: People v. DeBusk, 595 N.E.2d 1156 (Ill.
App. Ct. 1992). Trial court erred in armed robbery case in failing to
either appoint separate counsel or to take adequate steps to ascertain
whether risk of conflict was too remote to warrant separate counsel where
counsel represented defendant and codefendant and asserted conflicts a
number of times. Defendant and codefendant were charged with home invasion
and armed robbery. A single public defender was appointed to represent
them. Prior to trial, counsel informed the court a number of times that
there was a conflict between the defenses, that the defendant was
exercising undue influence over the codefendant, that the defendant had
made pre-trial statements implicating the codefendant, and that there was
evidence that was admissible against defendant but not against
codefendant. Because both defendants stated that they wanted the same
attorney and a joint trial, the trial judge refused to appoint separate
counsel. Counsel then moved to withdraw, but the court did not rule on the
motion. Ultimately, the defendant requested separate counsel, but the
court denied the motion. The defendant then proceeded pro se with a
different stand-by counsel. Following conviction, the defendant again
requested different counsel and the court denied. The defendant again
proceeded pro se. "The trial court’s failure to appoint separate
counsel or to take adequate steps to ascertain whether the risk was too
remote to warrant separate counsel was reversible error."
Id. at 1163.
1991: State v. Velarde, 806
P.2d 1190 (Utah Ct. App. 1991). The court erred in failing to conduct
adequate inquiry where counsel representing defendant and codefendant
requested appointment of separate counsel. Defendant was charged with
burglary and theft. He and his codefendant were appointed separate
counsel, but both were members of the same public defenders office.
Defendant’s counsel requested appointment of outside counsel because
defendant and codefendant were both prepared to accuse the other of the
crimes. The state objected to a possible delay and the court denied the
motion. The appellate court held that when a conflict is raised, the trial
court must take adequate steps to resolve the issue or prejudice is
presumed. Here, the trial court did not determine whether there was a
conflict, whether appointing new counsel would delay the case or the
defendant’s desires. The court asked several times but the defendant only
addressed other motions in response and never addressed the conflict
issue.
1990: Main v. State, 557 So.2d
946 (Fla. Dist. Ct. App. 1990). Trial court erred in requiring joint
representation in drug case where counsel represented defendant and
codefendant in joint trial in drug distribution case. Counsel repeatedly
objected to the joint representation. During trial, on direct examination,
the state’s primary witness implicated only the codefendant in one
transaction. On cross, counsel elicited testimony that it was actually
only the defendant, which was necessarily damaging to defendant but
counsel was obliged to conduct the cross in representing the codefendant
counsel has a actual conflict that adversely affected representation.
1988: State v. Knight, 770 S.W.2d 771 (Tenn.
Crim. App. 1988). Trial court erred in failing to conduct an adequate
inquiry in drug case where counsel represented both defendant and
codefendant and counsel informed the court that he had a conflict and
should not represent defendant. The judge failed to explore the conflict
and proceeeded on. Defendant then plead guilty despite having an arguable
defense of entrapment, which would have highlighted the codefendant’s
greater culpability.
1987: Wilson v. State, 359 S.E.2d 661 (Ga.
1987). Trial court erred in requiring counsel in robbery case to jointly
represent two defendant when counsel informed the court of a conflict of
interest and requested appointment of separate counsel.
1983: Reid v. Superior Court, 189 Cal. Rptr.
644 (Cal. Ct. App. 1983). Trial court erred in failing to adequately
inquire in forgery case where counsel represented defendant and
codefendant and codefendant raised a conflict objection at the preliminary
examination. Defendant’s failure to object was excused because, after the
magistrate brushed aside codefendant’s objection, defendant had no reason
to expect he would respond differently to any objection she raised.
Information dismissed.
1982: Commonwealth v. Nicolella, 452 A.2d 1055
(Pa. Super. Ct. 1982). Trial court erred in denying continuance in drug
case where counsel represented defendant and codefendant, who was the
principal witness against defendant, and also represented defendant’s
mother, a codefendant still pending trial. It was improper for defendant’s
counsel to continue to represent either defendant or his co-defendant (who
was the principal witness against the defendant), since counsel created at
least the appearance of impropriety by his continued involvement in the
case. Furthermore, the record shows that an actual conflict continued even
after counsel was removed from co-defendant’s case. In addition to
representing defendant, counsel also represented defendant’s mother. The
trial record clearly shows the judge chiding counsel for acting out of
concern for the mother’s upcoming case, not defendant’s on-going one. The
trial court abused its discretion in refusing appellant’s request for a
continuance to obtain new counsel.
Lerma v. State, 679 S.W.2d 488 (Tex. Crim. App. 1982). Trial court
erred in refusing to conduct an conduct an adequate inquiry in
involuntary manslaughter case where counsel represented defendant and
codefendant in joint trial and defendant objected to joint
representation due to conflicts.
1982: Shiver v. State, 417 So.2d 1140 (Fla.
Dist. Ct. App. 1982). Trial court failed to adequately inquire in drug
case when counsel represented defendant and codefendant in joint trial and
asserted conflict.
B. Simultaneous Representation of Codefendants
in Plea Negotiations
1. U.S. Court of Appeals Cases
2000: United States v. Henke, 222 F.3d 633
(9th Cir. 2000). Trial court erred in failing to grant motion
to withdraw due to conflict in prosecution for conspiracy to make false
statements to the Securities and Exchange Commission (SEC), making false
statements, securities fraud, and insider trading. Three defendants were
indicted. They participated with their lawyers in joint defense meetings
during which confidential information was discussed. Communications made
during these pre-trial meetings were protected by the lawyers' duty of
confidentiality imposed by a joint defense privilege agreement. [Court
held that such agreements are valid and implies an attorney-client
relationship with the co-defendants and all counsel involved.] Before
trial, one codefendant entered a plea agreement with the government in
exchange for his testimony against the remaining two codefendants.
Counsel for the remaining codefendants moved for a mistrial and to
withdraw because the duty of confidentiality to the witness under the
joint defense agreement prevented counsel from adequately
cross-examining the witness. The court granted the motion for a mistrial
to allow counsel to prepare, but denied the motion to withdraw. The
court reasoned that any privileged impeaching information counsel
learned about the witness would not be known to new counsel and the
defendants were therefore no worse off for being represented by their
original attorneys. During the new trial, the witness testified, in a
manner allegedly contrary to statements made in the pretrial meetings,
but neither counsel conducted any cross-examination for fear of
violating the privilege agreement. Counsel had even been threatened with
action by the witness’ new counsel if the agreement was violated. Given
this situation, counsel was in the best position to evaluate the
conflict and the motion to withdraw should have been granted.
1995: United States v. Cook, 45 F.3d 388 (10th Cir. 1995).
Trial court erred in drug prosecution by requiring defendant’s counsel
to advise his former client/codefendant to testify in accordance with
plea agreement thereby creating a conflict. Three codefendants in a drug
trial retained the same counsel. Before trial, the government entered
into a plea agreement with codefendant to testify against defendant and
remaining defendant. On motion of the government – conceded by counsel –
the court then appointed new counsel for the witness because of the
conflict of interest. During trial, the witness refused to testify and
the court ordered the defendant’s counsel to advise his former client of
the consequences of failure to comply with plea agreement that required
her to testify in government’s case-in-chief against defendant in
exchange for the government’s recommendation of leniency at sentencing.
Counsel noted that he had previously been disqualified due to a conflict
but attended the meeting with the prosecutor and the witness’ new
counsel where the witness was advised. Conflicted counsel did not speak
during the meeting though. The codefendant/witness then gave damaging
testimony against the defendant. Appellate court finds that counsel’s
statement to court of conflict was an objection and that counsel’s
conflict was patent in being required to advise witness to give damaging
testimony against defendant. Court finds that it does not matter that
counsel said nothing at the meeting because, "[u]nder Holloway,
it is the improper actions of the trial court, following a
defendant's timely objection, that define our conflict of
interest inquiry." Id. at 394 n.6. Habeas relief granted even
though this issue was not raised on direct appeal in state
court, because counsel, who also served as appellate counsel, was ineffective
in failing to raise this issue. Thus, cause
and prejudice for failing to raise the issue in
state court was established.
1983: United States v. Unger, 700 F.2d 445
(8th Cir. 1983). Trial court erred in failing to
adequately inquire in kidnapping case where counsel represented
defendant and codefendant in sentencing. While the court found that her
guilty plea was not affected by the conflict, the defendant should have
been specifically warned of the dangers of joint representation.
Accordingly, she did not knowingly waive her right to separate counsel,
since she could not be said to have waived an unperceived conflict that
was not brought to her attention. In particular, a single-syllable
answer to the clerk’s question, of whether she had been satisfied with
counsel’s representation, was inadequate to show an informed and
intelligent waiver of the right to conflict-free representation.
2. State
Cases
2001: State v. Ryan, 26 P.3d 707 (Kan. Ct. App. 2001).
Counsel represented brother and sister codefendants charged with
possession of cocaine. Counsel negotiated a plea for the defendant that
required her to testify against her brother. Defendant claimed she did
not know of the requirement to testify until just prior to the plea
hearing when she admitted both her guilt and her brother’s. Following
the plea, counsel moved to withdraw from representing the brother and he
retained separate counsel. Charges against him were dismissed. The
defendant retained new counsel prior to sentencing and moved to withdraw
her guilty plea due to counsel’s conflict. The trial court denied
without inquiry into what actions counsel may have taken if he had not
been laboring under a conflict of interest. The Court held, under these
circumstances, that Holloway required a presumption of prejudice.
"[A] showing defendant's attorney had an actual conflict of
interest when negotiating a plea agreement requires the district court
to grant defendant leave to withdraw the guilty plea prior to
sentencing." Id. at 710.
1992: Ross v. State, 829 P.2d 58 (Okla. Crim. App. 1992).
Trial court erred in failing to inquire or to appoint separate counsel
where counsel represented three codefendants and asserted a conflict.
Defendant and two others were arrested for armed robbery. Defendant
initially admitted that he was the driver for a planned robbery. He
later denied knowledge of any robbery but admitted that the three were
planning a burglary. A single public defender was appointed to represent
all three. Counsel informed the court that there was a conflict and
twice requested appointment of separate counsel. The court denied the
motion. The two codefendants plead guilty and the state notified counsel
that they would be witnesses. Just prior to trial counsel renewed his
motion for appointment of separate counsel because he could not
cross-examine his own clients. The appellate court held that, "given the
circumstances in this case, it was the duty of the trial judge to either
appoint separate counsel or to take adequate steps to ascertain whether
the risk was too remote to warrant separate counsel." Id. at
61. Prejudice presumed.
1983: Commonwealth v. Davis, 455 A.2d 168 (Pa.
Super. Ct. 1983). Trial court erred in denying motion to withdraw in
unlawful taking, receiving stolen property, criminal conspiracy, and
burglary case where the same public defender officer represented
defendant and codefendant and negotiated a plea in exchange for
testimony for codefendant and moved to withdraw from defendant’s case.
1982: State v. Rowe, 416 So.2d 87 (La. 1982). Trial court erred in denying
motion to withdraw in robbery case where counsel represented defendant
and codefendant who plead guilty and became a witness. During trial, the
codefendant testified counsel had advised him to testify against
defendant. Counsel moved to withdraw as defense counsel was obviously
unable to adequately cross-examine the codefendant.
Commonwealth v. Evans, 451 A.2d 1373 (Pa.
Super. Ct. 1982). Trial court erred in denying motion to withdraw in
theft by unlawful taking, receiving stolen property, and criminal
conspiracy case where public defender office represented defendant and
codefendant and codefendant plead guilty and testified for state.
C. Simultaneous Representation of Codefendants
in Severed Trials (State Cases Only)
1982: *State v. Marshall, 414 So.2d 684 (La. 1982).
Trial court erred in denying motion for appointment of separate counsel
in capital trial where counsel represented defendant and codefendant in
severed trials. Reversal required even though severance was granted and
made it highly unlikely that any prejudice would arise because of a
conflict. When a defendant raises a pretrial objection because of a
possible conflict, the trial court must, in accordance with
Holloway, appoint separate counsel or take
adequate steps to determine if claimed risk is too remote. If it fails
to take those measures, then reversal is automatic even in absence of
specific prejudice.
1982: Commonwealth v. Nicolella, 452 A.2d 1055 (Pa. Super. Ct. 1982). Trial court
erred in denying continuance in drug case where counsel represented
defendant and codefendant, who was the principal witness against
defendant, and also represented defendant’s mother, a codefendant still
pending trial. It was improper for defendant’s counsel to continue to
represent either defendant or his co-defendant (who was the principal
witness against the defendant), since counsel created at least the
appearance of impropriety by his continued involvement in the case.
Furthermore, the record shows that an actual conflict continued even
after counsel was removed from co-defendant’s case. In addition to
representing defendant, counsel also represented defendant’s mother. The
trial record clearly shows the judge chiding counsel for acting out of
concern for the mother’s upcoming case, not defendant’s on-going one.
The trial court abused its discretion in refusing appellant’s request
for a continuance to obtain new counsel.
D. Simultaneous Representation of Government
Witness on Related Charges (State Cases Only)
1983: Leversen v. Superior Court of Orange County,
668 P.2d 755 (Cal. 1983). Trial court erred in denying motion to
withdraw in robbery case where counsel simultaneously represented a
government witness, who was also a suspect in the same case. Counsel
informed the court that he had confidential information received in
course of his representation of the witness. The state supreme court
held that attorney’s good-faith representations to court, coupled with
evidence in the record and posture of trial, proved that to deny his
motion to be relieved would have deprived defendant of his
constitutional right to assistance of counsel free from any conflict
adversely affecting counsel’s performance.
E. Simultaneous Representation of Persons
Implicated (But Not Jointly Charged) in Crimes (State Cases Only)
2000: Lettley v. State, 746 A.2d 392 (Md. Ct. App. 2000). Trial court erred in
denying retained defense counsel’s motion to withdraw (which was
supported by the defendant after consultation with unconflicted counsel)
from representation in attempted murder case because defense counsel
faced actual conflict of interest, created by dual representation of
defendant and another client, who was not charged in crime at issue but
who had allegedly confessed to counsel that he had in fact committed
that crime. The court denied the motion and a continuance. The court of
appeals held:
the trial court's decision to require counsel's continued
representation was improper. The record is clear that there was indeed
an actual conflict of interest which endangered Appellant's right
to undivided loyalty and assistance. In order to properly defend
Appellant counsel had, by implication, to incriminate her other
client.
Id. at 401-02. The fact that no other lawyer would have had
access to the confidential information that someone else confessed does
not change the result. "The conflict is inherent in the divided
loyalties. It mattered little that new counsel would not be privy to the
confidential information known to Appellant's counsel; a conflict
nonetheless existed." Id. at 402. The court also notes that
defense counsel’s representations of a conflict should be given
deference. "Defense counsel is in the best position to make this
judgment, and will often be ethically barred from giving the court
sufficient information to make it independently." Id. at 404.
1984: State v. Gonsalves, 476 A.2d 108 (R.I.
1984). Trial court erred in summarily denying counsel’s motion to
withdraw in fraudulent use of credit card case where counsel informed
the court of a conflict of interest because he also represented the
individual who actually committed the crime for which defendant was
being tried.
F. Simultaneous Representation of Government
Witness or Confidential Informant on Unrelated Charges (State Cases
Only)
2001: State v. Santacruz-Hernandez, 40 P.3d 672
(Wash. Ct. App. 2001). Court erred in failing to grant counsel’s motion
to withdraw or to allow a 24-hour continuance in order for counsel to
prepare and present evidence that would have established an actual
conflict that would adversely affect the defendant. Defendant was
charged with drug distributions, based in part on two confidential
informants. The day before trial, counsel realized that she also
represented one of the confidential informants on unrelated charges.
Counsel moved to withdraw, but the court denied. On the morning of
trial, counsel, through her own lawyer, again moved to withdraw and
asked for a 24-hour continuance in order to prepare and present evidence
that would establish a conflict that would adversely affect the
defendant. The trial court denied the motions, based in part, on the
state’s argument that the informant would not be a witness. Court held
reversal was required under Holloway.
2000: Ramirez v. State, 13 S.W.3d 482 (Tex. Ct. App.
2000). Defendant was denied effective assistance of counsel in
prosecution for unlawful possession of a firearm by a felon because
defense counsel labored under an actual conflict of interest that
adversely effected her performance. During trial, the state called as a
witness a client of defense counsel in another pending criminal case.
Counsel moved for a mistrial because she had no notice of the witness
and because she had confidential information from him and could not
adequately represent the witness or the defendant in cross-examining her
own client. The court denied the motion for mistrial and pressed on. The
witness/client testified that the defendant made incriminating
statements to him in confinement. During cross, counsel attempted to
establish that she had confidential information that she could not use
in cross because the witness/client was not waiving his privilege. The
court would not allow this testimony. Counsel again moved for a mistrial
due to the prejudice to defendant. The court of appeals held, "Great
deference should be accorded the representations of an attorney who
feels a division of loyalty." Id. at 486. "It is well-established
that a defendant is denied the effective assistance of counsel in those
instances where an attorney is unable to cross- examine, or is chilled
in the cross-examination of, a government witness because of the
attorney/client privilege arising from counsel’s prior representation of
the witness or from his duty to advance the interests of the witness as
a current client." Id. at 487. Counsel in
this case had an actual conflict of interest that had an adverse effect
on appellant's trial. In addition, the trial court failed to conduct an
inquiry into the apparent conflict.
1997: Maricopa County Public Defender’s Office v. Superior
Court, 927 P.2d 822 (Ariz.
Ct. App. 1996). Trial court erred in two unrelated cases in denying
public defender’s motions to withdraw where the office either currently
or previously represented government witness. The trial court denied the
motions absent disclosure of confidential information concerning former
clients. Court held that the trial court cannot condition ruling on
conflict on disclosure of confidential information and counsel’s
assertion of conflict must be given great weight.
1991: Mitchell v. State, 405 S.E.2d 38 (Ga. 1991). Trial court erred in requiring
counsel to proceed with representation in murder case where counsel also
represented a government witness on pending unrelated charges. During
the trial, the government notified counsel for the first time that
witness would be called. Counsel objected and informed the court of the
conflict. The court attempted to resolve the conflict by relieving
counsel as the witness’ lawyer. Counsel objected and moved for a
mistrial. The witness then testified that defendant had confessed to him
in confinement. Counsel declined to cross-examine and moved for a
mistrial or, in the alternative, for a continuance until another
attorney could be appointed to represent defendant. The trial court
denied the motions. The court erred in requiring the conflicted
representation.
King v. State, 810 P.2d 119 (Wyo. 1991). Trial court
erred in failing to adequately inquire into conflict when defendant
requested different counsel because counsel had previously represented a
government witness. Witness was arrested on drug charges. She agreed to
participate in sting operation targeting defendant, her former
boyfriend. The witness’s initial attorney, who arranged to get her out
of jail and into the hospital for treatment, was appointed to represent
defendant following his arrest. The witness represented by other counsel
from the public defender’s office entered into a deferred plea, which
would ultimately result in dismissal of charges, and testified against
defendant. At trial, defendant asked for appointment of different
counsel due to allegations of ineffective assistance and due to
counsel’s prior representation of witness. The court denied the motion
without discussion. "The trial judge should have evaluated [defendant’s]
claim and put into the record the reasons for rejecting [defendant’s]
claim for ineffectiveness of counsel based upon conflict of interest.
The failure to do so constituted an abuse of discretion." Id. at
124 (citations omitted).
G. Prior Representation of Victim, Government
Witness, or Codefendant’s Witness on Unrelated Charges
1. U.S.
Court of Appeals Cases
1997: United States v.
Gallegos, 108 F.3d 1272 (10th Cir.
1997). Trial court erred in failing to conduct inquiry in drug
conspiracy and money laundering case where counsel had previously
represented a witness that would be called by codefendant in joint
trial. Prior to trial, counsel became aware that the codefendant
intended to call a witness that counsel had previously represented in a
drug case. Counsel informed the court that he was concerned about his
ability to cross-examine his former client because of the
attorney-client privilege. The court said the matter would be addressed
if the witness was called. During the trial, when the witness was
called, the court instructed counsel to consult with his prior client to
determine whether he would invoke his Fifth Amendment rights. After
talking with the witness, counsel informed the court that the witness
had information exculpatory to the defendant, but counsel advised him to
invoke his Fifth Amendment rights. Counsel stated that he felt that he
had a conflict in representing competing interests and moved to sever
defendant’s trial. The government requested appointment of independent
counsel for the witness, but the witness declined. The trial proceeded
and the witness did not testify. Following conviction, the defendant
moved for a new trial due to the conflict. Court denied finding that the
witness would have refused to testify regardless of who represented him.
Appellate court held, under Holloway, that "where timely
objection is made to joint representation of conflicting
interests, and where the trial court fails to adequately address the
conflicting interests, reversal is automatic." Id. at 1280.
Here, counsel raised the conflict issue in a timely fashion and moved
for severance in order to resolve the issue. Rather than inquire of
defendant or the witness concerning waiver of the conflict, as was
required, the trial court instructed counsel to consult with and advise
the witness. As counsel explained to the court, he was in a very
precarious situation. Because the witness possessed information that was
exculpatory to the defendant, counsel’s duty to the defendant was to
encourage the witness to testify and to attempt to elicit this
exculpatory information from him. On the other hand, counsel’s
obligation to his former client was to discourage him from testifying.
If the former client had testified, he would have subjected himself to
the risk of additional criminal charges. Thus, there was a real
conflict of interest present, and the trial court erred in failing
to either obtain a waiver from the defendant or take adequate steps to
protect her right to conflict-free representation.
2. State
Cases
2000: Valle v.
State, 763 So.2d 1175 (Fla. Dist. Ct. App.
2000). Interlocutory appeal. Trial court erred in denying public
defender’s motion to withdraw because of conflict of interest in
manslaughter case where two state witnesses, who received injuries as
passengers in defendant's vehicle, were previously represented by the
public defender's office. The public defender involved in this case had
not represented the witness/victims or obtained any confidential
information from their files. The trial court, thus, denied the motion
to withdraw. The appellate court held that the motion should have been
granted because the public defender office is like a law firm and if one
person is conflicted, all are conflicted.
1998: Reardon v. State, 715 So.2d 348 (Fla. Dist. Ct. App.
1998). Court erred in aggravated battery case in denying public
defender’s motion to withdraw due to conflict since public defender had
previously represented victim at his arraignment in DUI case. Court held
that although Holloway did not require that counsel be
relieved, Florida law does because the Florida Supreme Court
interpreting a state statute requires that the public defender be
relieved anytime the public defender certifies a conflict.
1996: Brooks v. State, 686 So.2d 1285 (Ala. Crim. App.
1996). Trial court erred in denying counsel’s motion to withdraw in drug
case, where counsel had previously represented the confidential
informant who was instrumental in defendant’s arrest and even
represented him in the case that led to the defendant’s arrest. The
appellate court held, "An actual conflict of interest existed
here, and the trial court erred to reversal in denying counsel's motion
to withdraw." Id. at 1287.
1986: State v. Serpas, 485 So. 2d 999 (La. Ct.
App. 1986). Trial court erred in denying counsel’s motion to withdraw in
stolen goods case where counsel previously represented a state witness
on unrelated charges and had negotiated a plea for him that required his
testimony against defendant.
H. Prior Prosecution of Defendant on Unrelated
Charges (State Cases Only)
1990: People v. Martin, 168 A.D.2d 794 (N.Y. App. Div. 1990). Trial court erred
in failing to appoint different counsel for defendant where defendant
repeatedly requested different counsel because counsel had previously
prosecuted defendant on unrelated charge and because defendant asserted
that counsel was ineffective. The conflict itself was sufficient to
require appointment of different counsel.
I. Counsel Retained by Codefendant or
Third-Party With Adverse Interest (State Cases Only)
1986: People v.
Palmer, 490 N.E.2d 154 (Ill. App. Ct.
1986). Trial court erred in denying counsel’s motion to withdraw in
arson and battery case where counsel was retained by the defendant’s
wife, who was the battery victim and a state’s witness. She sometimes
indicated that she wanted the defendant’s charges dropped and at other
times stated that she wanted the state to prosecute defendant. Counsel
thus labored under at least a possible conflict in his representation of
defendant and reversal was required even though there was no showing
that counsel did not represent defendant in competent fashion.
J. Counsel Was Necessary or Potential
Witness (State Cases Only)
1983: Koza v. Eighth Judicial District Court, 665
P.2d 244 (Nev. 1983). Trial court erred in failing to disqualify counsel
on motion of defendant in murder case where the public defender counsel
had represented the codefendant for six days prior to his retention of
private counsel and a deputy public defender was scheduled to be called
as witness at trial on whether defendant’s statement to police was
voluntary.
Brewer v. State, 649 S.W.2d 628 (Tex.
Crim. App. 1983). Trial court erred in denying motion to withdraw in
promotion of prostitution case where counsel was implicated as possible
suspect in same case and was a possible witness. Counsel’s conversation
with defendants was recorded by informant and were so damaging to
counsel’s character and that of defendants as to make reasonably
effective assistance impossible. Counsel made disparaging remarks
against the police and the criminal justice system and also made remarks
that could be construed as being involved in a coverup, which was argued
by the prosecutor. In view of counsel’s irreconcilable conflicts, it was
abuse of discretion to deny counsel’s motion to withdraw.
K. Defendant Had Filed Lawsuit or Ethics
Complaint Against Counsel
1. U.S.
Court of Appeals Cases
1991: Smith v.
Lockhart, 923 F.2d 1314 (8th
Cir. 1991). Trial court erred in terroristic threat and false
imprisonment case for failing to appoint unconflicted counsel in
pretrial stage where defendant had filed a federal lawsuit against
counsel and requested substitute counsel. At arraignment, defendant
objected to appointment of local public defender, in part, because he
served as a municipal judge. The court informed defendant that he could
proceed with counsel or proceed pro se. Defendant proceeded
pro se. Then, at a pre-trial omnibus hearing, defendant requested
appointment of different counsel again because there was a complete
breakdown in communications and he intended to file (and did four days
later) a federal lawsuit against counsel, the judge, and others alleging
a conspiracy to violate his rights. The court again refused. Defendant
represented himself in hearing, which included speedy trial motion and
motion to reduce bond. This hearing was also important because all
motions had to be raised then or would be considered untimely. Twelve
days before trial, the court did appoint separate counsel. The Eighth
Circuit held that the trial court erred in failing to inquire into the
potential conflicts. The federal lawsuit against the attorney suggested
divided loyalties and gave the attorney a personal interest. This
lawsuit and the breakdown in communications were sufficient to require
substitution on counsel. Because of the trial court’s failure, however,
defendant was completely denied counsel at the omnibus hearing, which
was a critical stage of trial.
2. State
Cases
2001: Connor v. State, 630 N.W.2d 846 (Iowa Ct. App.
2001). Court in post-conviction case erred in failing to inquire into
claimed conflict of interest on part of counsel. Defendant had been
convicted of sexual abuse, kidnapping, and gang participation. He filed
post-conviction application. His counsel filed motion to withdraw
because the petition was frivolous. The petitioner informed the court
that he had filed an ethics complaint against counsel and requested
appointment of new counsel due to the conflict. The court denied both
motions and ultimately denied relief. The court of appeals held that
state law entitled the petitioner to appointment of counsel and that
necessarily included the right to effective counsel. Thus, the claim of
a conflict of interest on part of counsel appointed for postconviction
proceedings should be addressed in the same manner as if defendant were
making a constitutional claim of ineffective assistance of counsel. The
trial court erred under Holloway in failing to
conduct an adequate inquiry and prejudice is presumed.
State v. McDonald, 22 P.3d 791 (Wash. 2001) (affirming 979
P.2d 857 (Wash Ct. App. 1999)). Trial court erred in failing to conduct
inquiry into conflict of stand-by counsel for pro se defendant in arson
case. Early in case, defendant was granted permission to proceed pro se
and the public defender was appointed as standby counsel. Prior to
trial, defendant informed the trial court that he had filed bar
complaints and civil rights suits against the local public defenders,
including standby counsel. The State filed a motion to discharge counsel
because of the pending federal civil action and the potential conflict
of interest. The court denied the motion based upon counsel’s belief
there was no conflict of interest at that time. The defendant then
reasserted his motion to dismiss counsel. The prosecutor made another
motion to dismiss counsel as standby counsel because the prosecutor's
office had been assigned to defend him against the defendant’s lawsuit
in federal court, thereby creating a conflict of interest. The trial
court denied the motion. Ultimately, standby counsel moved to withdraw
as standby counsel because he believed a real conflict was created when
the prosecutor's office was assigned to defend him against the
defendant’s lawsuit. The defendant also reiterated his earlier motion to
remove counsel as standby counsel. The trial court denied the motions,
believing the federal suit was frivolous and would proceed more slowly
than the criminal case before it. The court initially determined that
"[a] defendant possesses a right to have conflict-free standby counsel
because standby counsel must be (1) candid and forthcoming in providing
technical information/advice, (2) able to fully represent the accused on
a moment's notice, in the event termination of the defendant's self-
representation is necessary, and (3) able to maintain
attorney-client privilege." Id. at 795. Court also held that when
the trial court knows or should know of a conflict of interest between
the defendant and standby counsel, it must conduct an inquiry into the
nature and extent of the conflict. Failure to make an inquiry and take
appropriate action constitutes reversible error and prejudice will be
presumed. Id. Here, the
true conflict at issue here is the one created when the prosecutor's
office was assigned to represent counsel in the civil suit brought by
the defendant during the same time period the prosecution was pending.
While counsel only acted as standby counsel, the attorney-client
privilege still attached to that relationship. The representation of
counsel by the prosecutor's office undermines the duties counsel owed to
the defendant, including the attorney-client privilege. The lack of an
inquiry by the trial court in this situation requires reversal.
L. Defendant Alleged Ineffective
Assistance
1. U.S. Court
of Appeals Cases
1996: United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996). Trial court erred in case of
falsely claiming to be a U.S. citizen in requiring counsel’s continued
representation following the defendant’s claim of ineffective assistance
of counsel in motion for new trial. Following conviction, defendant
filed a motion for new trial asserting ineffective assistance of counsel
and requesting new counsel to represent him in the motion. The trial
court denied the motion for new counsel and required counsel to examine
the witnesses concerning the allegations of his own ineffectiveness.
There was an actual, irreconcilable conflict between [defendant] and
his trial counsel at the hearing on the motion for new trial. The
interests of counsel were diametrically opposed to those of [defendant].
The trial court's determination that an evidentiary hearing was
warranted heightened the conflict. When [defendant]'s allegedly
incompetent trial attorney was compelled to produce new evidence and
examine witnesses to prove his services to the defendant were
ineffective, he was burdened with a strong disincentive to engage in
vigorous argument and examination, or to communicate candidly with his
client. The conflict was not only actual, but likely to affect counsel's
performance.
Id. at 1080. Prejudice presumed. Remanded for
new hearing on motion for new trial with unconflicted counsel.
2. U.S. District
Court Cases
2000: Guzman v. Sabourin, 124 F. Supp. 2d 828 (S.D.N.Y.
2000). Counsel in robbery case had actual conflict of interest that
adversely affected the defendant in motion to withdraw guilty plea.
Prior to plea, the petitioner twice requested appointment of new counsel
based, in part, on counsel’s admission in a motion to suppress evidence
that the defendant possessed a box cutter when the evidence actually
showed that the box cutter was on the ground. These motions were denied.
Petitioner then accepted the government’s plea offer for nine years,
under the condition that he be immediately transferred to the hospital
because of significant pain for which he was being medicated due to
carpal tunnel syndrome. During the plea hearing, there was ambiguity and
significant delays in whether petitioner was ready to plead and whether
he was admitting guilt. He initially said no, then gave satisfactory
answers up to what weapon he used, where he said "Whatever they have. I
don't know. [Pause] A sharp object." The court went on to accept the
plea without inquiring into the medications taken by petitioner. Prior
to sentencing counsel notified the court of a pro se motion to withdraw
the plea, due, in part, to coercion by counsel. Counsel suggested that
new counsel should be appointed to represent petitioner in the motion.
The court allowed petitioner to argue in his own behalf but also asked
defense counsel for information. Counsel denied petitioner’s
allegations. "Throughout the hearing, [counsel] obviously attempted to
heed the tenuous line between advocacy for his client, the professional
obligations not to make false proffers to the court, and protecting his
own professional reputation. However, under repeated questioning from
the trial judge about [counsel’s] own conduct, [counsel] crossed the
line into defending himself at the expense of his client's motion."
Id. at 835. The trial court necessarily considered counsel’s
statements in denying the motion to withdraw the plea. The trial court
erred, however, in not appointing new counsel to argue the motion to
withdraw because "[r]epresentation by conflicted counsel is tantamount
to no representation at all." Id. at 836 (citing
Strickland, 466 U.S. at 686, 692). Remanded for
hearing with unconflicted counsel on motion to withdraw guilty plea.
3. State
Cases
1999: State v. Taylor, 975 P.2d 1196 (Kan. 1999). Trial
court erred in failing to allow a continuance for defendant to obtain
new counsel prior to sentencing due to complaints against appointed
counsel in coercing plea. Defendant initially charged with felony
murder. During the year leading up to trial, the possibility of a plea
bargain was never discussed with the defendant by appointed counsel. The
night before trial, counsel advised the defendant that she could win his
case and that he should reject a deal for 10-year sentences to run
concurrent. The next morning her advice changed. The defendant, with
only 20-90 minutes to consider it, accepted the offer and She told
Taylor a plea agreement had been offered and he should accept it. Martin
did not contradict Taylor's version of these events. Taylor had
somewhere between 20 minutes and 1 1/2 hours to make the decision.
Taylor decided to accept the offer and entered an Alford plea to second degree
burglary, aggravated battery, and theft. A week after the plea, the
defendant expressed his dissatisfaction to counsel, but counsel waited
until three weeks later on the day of sentencing to file a motion to
withdraw. The defendant requested a continuance to obtain new counsel
because he felt coerced into taking the plea agreement. The court denied
the motions and informed the defendant he could proceed with counsel or
represent himself at sentencing. Counsel did not participate in the
hearing and the court rejected the plea agreement due to the defendant’s
"lack of remorse" in maintaining his innocence and sentenced the
defendant to life and to consecutive terms. The trial court’s actions
denied the defendant an adequate hearing on his motion to withdraw his
guilty plea. The ourt never conducted an inquiry into the defendant’s
concerns about the adequacy of counsel. Remanded for a new sentencing
and opportunity to raise the motion to withdraw plea with unconflicted
counsel and a new judge.
1996: Kennebrew v. State, 480 S.E.2d 1 (Ga. 1996). Trial
court erred in murder case in refusing to appoint unconflicted counsel
to argue claims of ineffectiveness in motion for new trial. Defendant
was represented at trial by a public defender. Following trial,
defendant filed a motion for new trial assisted by retained counsel, who
later withdrew. The court then appointed another public defender from
the same office. Defendant requested different counsel because of the
ineffectiveness claims in the motion for new trial. The court instead
required the defendant to proceed pro se on those claims.
The trial court erred in failing to appoint different counsel because a
public defender cannot argue claims of ineffectiveness asserted against
a member of the same office.
1995: Carey v. State, 902 P.2d 1116 (Okla. Crim. App. 1995). Trial court erred
in denying counsel’s motion to withdraw in sex abuse of minor case
following defendant’s motion to withdraw his guilty plea on the basis
that trial counsel coerced plea. Trial counsel moved to withdraw, but
the court denied the motion and assigned co-counsel to assist. Counsel
did not participate in the hearing. Co-counsel’s examination of
defendant was geared more toward clearing counsel’s name than proving
the defendant’s allegations. The trial court committed error in denying
the motion to withdraw because counsel had an actual conflict at that
point due to the allegations against him. The trial court’s actions left
the defendant unrepresented on his motion to withdraw his guilty
plea.
M. Connection to Prosecutor or Law Enforcement
1. U.S.
Court of Appeals Cases
1999: Atley v. Ault, 191 F.3d 865 (8th Cir. 1999)
(affirming 29 F. Supp. 2d 949 (S.D. Iowa 1998)). Trial court erred in
denying counsel’s motion to withdraw (supported by the state and
defendant) due to conflict of interest where counsel, who represented
petitioner charged with numerous drug-related crimes, was pending
appointment to county attorney’s office where he would prosecute drug
cases in cooperation with the same officers that were witnesses in
petitioner’s case. Court did not even conduct an inquiry into the
potential conflict. The state court held that the proceedings conducted
by the trial court were adequate because the "hearing" demonstrated that
the trial court was "well aware of the possible conflicts of interest"
and further inquiry was unlikely to uncover additional facts from which
it could base its decision. Id. at 868. The state court’s
decision was an "unreasonable application of clearly established federal
law" under Holloway, because the trial court was constitutionally
obligated when counsel moved to withdraw to either substitute new
counsel or take adequate steps to ascertain the seriousness of the risk
presented by the conflict. The undisputed record makes clear, however,
that the trial court asked no questions of counsel or of the defendant.
Although the record reflects that the trial court was aware of the areas
in which a conflict of interest could have arisen, such knowledge alone
does not satisfy the requirement of Holloway that the court
conduct an inquiry to "ascertain whether the risk [is] too remote to
warrant [new] counsel." Id. at 871 (quoting Holloway, 435
U.S. at 484). Prejudice is presumed under Holloway where the trial court
failed to discharge its duty to inquire into a known potential
conflict.
2. State
Cases
1982: Kelly v. State, 640 S.W.2d 605 (Tex. Crim.
App. 1982). Trial court erred in denying motion to withdraw in robbery
case where counsel was a prosecutor for municipal court, and his law
firm partner served on city planning and zoning commission, and counsel
asserted a conflict.
White v. Reiter, 640 S.W.2d 586 (Tex.
Crim. App. 1982). Trial court erred in denying motion to withdraw in
burglary case where counsel was staff attorney for state department of
corrections and the burglaries were allegedly committed by inmate
following his escape from correctional facility and there was a question
of the validity of arrest by DOC employees.
N. Irreconcilable or Unspecified Conflict
1. U.S. Courts
of Appeals Cases
1998: United States v. Moore, 159 F.3d 1154 (9th Cir.
1998). Trial court erred in failing to conduct additional inquiry or to
substitute counsel where there was an irreconcilable conflict of
interest between defendant and counsel in drug distribution case due to
defendant’s threat to sue counsel and counsel’s fear of defendant
physically assaulting him. Defendant and counsel informed the court of
the conflicts four times prior to trial and the court conducted only
minimal inquiry and declined to allow substitution of counsel unless
counsel could be ready by the time of the scheduled trial date. While
the court did not find an actual conflict, the court held that "[a]
defendant need not show prejudice when the breakdown of a relationship
between attorney and client from irreconcilable differences results in
the complete denial of counsel." Id. at 1158.
The factors we consider are the same as those we apply to determine
if the district court erred in denying a motion to substitute counsel.
These factors are: (1) the extent of the conflict; (2) the adequacy of
the inquiry; and (3) the timeliness of the motion.
Id. at 1158-59 (footnote omitted). Here,
defendant timely raised the issue of the irreconcilable conflict and the
court conducted only minimal inquiry when the court had a duty to
conduct additional inquiry.
2. State
Cases
1996: Aceves v. Superior Court, 59 Cal. Rptr. 2d 280 (Cal.
Ct. App. 1996). Trial court erred in denying public defender’s motion to
withdraw in attempted murder case based on conflict of interest. The
public defender stated that due to statements by the defendant there was
a complete breakdown of the relationship but counsel declined to say
more for fear of violating the attorney-client privilege. Counsel did
state, however, that it had nothing to do with alleged threats to
witnesses as the government asserted. Counsel also stated that there was
no third party involved. While counsel stated that the conflict could
potentially arise with successor counsel, counsel believed there was an
irreparable conflict with all members of the public defender’s office.
While the court accepted counsel’s representations, it found that it
could not grant the motion to withdraw unless counsel supplied more
information. The appellate court found that the motion to withdraw
should have granted where counsel’s statements revealed "a classic
conflict where duty of loyalty to the client is compromised by the
attorney's own interests" and counsel stated, as an officer of the
court, that he could not reveal more without violating the
attorney-client privilege. Citing state law and Holloway, the
court held, "Where as here the duty not to reveal confidences prevented
counsel from further disclosure and the court accepted the good faith of
counsel's representations, the court should find the conflict
sufficiently established and permit withdrawal." Id. at
284.
1983: Avera v. State, 436 So.2d 1115 (Fla. Dist. Ct. App. 1983). Trial court
erred in denying motion to withdraw in escape case where counsel moved
to withdraw due to conflict.
Volk v. State, 436 So.2d 1064 (Fla. Dist.
Ct. App. 1983). Trial court in denying motion to withdraw where the same
public defender office represented codefendants and asserted a conflict
of interests.
Commonwealth v. Davis, 455 A.2d 168 (Pa.
Super. Ct. 1983). Trial court erred in denying motion to withdraw in
theft case where public defender represented defendant and codefendant
and asserted a
conflict.