News
Criminal
Jul. 31, 2002
Conflicts of Interest
Forum Column - By Phillip Feldman - Lawyers' conflicts of interest generally involve either "serving two masters" ( Flatt v. Superior Court , 9 Cal.4th 275 (1994)) or "self-dealing" ( Day v. Rosenthal , 170 Cal.App.3d 1125 (1985)).
Forum Column
By Phillip Feldman
Lawyers' conflicts of interest generally involve either "serving two masters" (Flatt v. Superior Court, 9 Cal.4th 275 (1994)) or "self-dealing" (Day v. Rosenthal, 170 Cal.App.3d 1125 (1985)).
Serving two masters usually arises in two types of civil matters: suits against lawyers in which the client asserts the lawyer's disloyalty for concurrent representation of adversaries (American Airlines v. Sheppard, Mullin, Richter & Hampton, 2002 DJDAR 2753 (Cal. App. March 8, 2002)); and prior representation by a lawyer subsequently representing an adversary. The latter isn't limited to legal malpractice but includes disqualification matters in which a party seeks to unseat his or her adversary's lawyer based on prior representation. City National Bank v. Adams, 2002 DJDAR 1979 (Cal. App. Feb. 20, 2002).
Successive representation conflicts are based on the assertion of shared confidences, whereas concurrent conflicts turn on lawyer disloyalty. Flatt.
A third type of "serving two masters" conflict is relevant to some criminal matters. It arises when a convicted defendant seeks habeas corpus on the ground of "ineffective assistance of counsel" in violation of the Sixth Amendment to the U.S. Constitution.
Mickens v. Taylor, 2002 DJDAR 3311 (U.S. March 27, 2002), is such a case. The facts are simple. The petitioner murdered his 17-year-old sodomy victim. His lead counsel was representing the victim on an assault and concealed weapons charge at the time of the murder.
A split court, led by Justice Antonin Scalia, with Justices William Rehnquist and Clarence Thomas concurring, held that, "[a]s a general matter, a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Because Mickens did not meet this burden of proof, the court rejected his habeas claim.
The exception to this general rule occurs "where assistance of counsel has been denied entirely or during a critical stage of the proceeding." Gideon v. Wainwright, 372 U.S. 335 (1963).
"When that has occurred," the court wrote, "the likelihood that the verdict is unreliable is so high that a case by case inquiry is unnecessary." Gideon.
The court qualified and limited its holding to "the only question presented ... the effect of a trial court's failure to inquire into a potential conflict."
This will require "a showing of defective performance, but not ... a showing of probable effect on the outcome of trial," the court wrote.
Counsel must have "actively represented conflicting interests," it wrote.
"An actual conflict of interest meant precisely a conflict that affected counsel's performance as opposed to mere theoretical division of loyalties," the court wrote.
It is shorthand for the statement that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief," the court wrote. Wood v. Georgia, 450 U.S. 262 (1981).
Justices Anthony Kennedy and Sandra Day O'Connor concurred, emphasizing that a case-by-case inquiry into the adequacy of the representation and not an automatic rule of reversal is required. In a case-by-case inquiry, the court would be required to speculate on the lawyer's belief of a continuing sense of duty to the victim and speculate that, as a result, he failed to pursue alternative defense strategies. Counsel failed, for example, to attack the victim's character at trial.
"The constitutional question must turn on whether trial counsel had a conflict of interest that hampered the representation," the justices wrote, "not on whether the trial judge should have been more assiduous."
Justice John Paul Stevens dissented. Stevens identified three fundamental components of the criminal justice system that were relevant: the duty of a capital defense lawyer to disclose a conflict of interest, the right of a capital defendant to refuse an appointed conflicted attorney and the duty of a trial judge who is aware of the conflict to obtain the defendant's consent before appointing the conflicted lawyer.
Where, as here, all three were violated, Stevens thought that the circumstances likely would prejudice the accused.
The petitioner's "constitutional right to the services of an attorney devoted to his interests ... was violated," he wrote.
Where, as here, the petitioner ended up with a death penalty, Stevens argued that the majority's "assumption that a lawyer's divided loyalties are acceptable unless it can be proved they actually affected counsel's performance is demeaning to the profession."
"Finally," he wrote, "justice must satisfy the appearance of justice."
Justice David Souter's separate dissent concluded, "Since the majority will not leave the law as it is ... the question is whether there is any merit in the rule it now adopts, of treating breaches of a judge's duty to enquire into prospective conflicts differently depending on whether defense counsel explicitly objected.
"The distinction is irrational on its face, it creates a scheme of incentives to judicial vigilance that is weakest in those cases presenting the greatest risk of conflict and unfair trial, and it reduces the judicial duty to enquire into so many empty words. The irrationality of taxing defendants with a heavier burden for silent lawyers naturally produces an equally irrational scheme of incentives operating on the judges."
Justices Stephen Breyer and Ruth Bader Ginsburg separately dissented as well, indicating that the "representational incompatibility [was] egregious on its face."
The state created the conflict in the first place by its appointment of the conflicted lawyer, and the very judge who dismissed the case against the victim appointed the victim's lawyer to represent his alleged murderer the next court day. This diminishes public confidence in the system of criminal justice.
The court did not complete its analysis of successive versus concurrent conflicts based on "serving two masters." Had it done so, the distinction between breach of confidentiality and disloyalty might have come to mind. Here, it is difficult to imagine a defense lawyer so case-hardened that he could erase his former client's young face from his mind when he switched his allegiance to his former client's killer. Perhaps that explains why only a third of the court condoned Scalia's logic and the smallest majority confirmed the result.
It is undisputed on the facts of Mickens that, even if represented by "dream team" criminal defense counsel, he would still be facing death for raping and stabbing a youth to death. The outcome would be identical to him with or without counsel, with conflicted counsel or loyal counsel.
We are in an era where sleeping, lazy, stupid or careless lawyers defending such cases and erring judges adjudicating them yield another "bite at the apple" for the "innocent until proven guilty" suspect.
Treating egregiously conflicted lawyers differently in Mickens is inconsistent. Likewise, judicial error prejudicing the criminal defendant requires that society go to the time, trouble and expense of a second trial.
As the states struggle with applications of Mickens, won't the cost to society in revisiting application of its law to different facts be a great deal more than permitting competent lawyers and jurists to simply "do it right" in a new trial for one person?
How likely is it that Mickens himself will not revisit the system of criminal justice as he bides his time on death row? What is the probability that, if Mickens were put to death, he would end up being a martyr to half the population whose belief structure does not accommodate the death penalty? How much more torture for the victim's family, to continually see Mickens as the subject of things having nothing to do with his stabbing his young victim to death?
Avoiding the appearance of impropriety may be the only way to maintain public respect for, and confidence in, the rule of law. But observers need not await new Supreme Court appointments to see the effect of this decision downstream: Convicts, with nothing to lose, will continue to file writs of habeas corpus; and appellate courts throughout the United States will finds ways to distinguish, harmonize or otherwise reconcile case-by-case results suggested by Kennedy and O'Connor with the scant, plurality opinion of Scalia.
Phillip Feldman chairs the American board of professional liability attorneys subcommittee, which certifies U.S. lawyers as board certified specialists in legal malpractice for the American Bar Association. His practice includes defending attorneys and testifying as an expert.
By Phillip Feldman
Lawyers' conflicts of interest generally involve either "serving two masters" (Flatt v. Superior Court, 9 Cal.4th 275 (1994)) or "self-dealing" (Day v. Rosenthal, 170 Cal.App.3d 1125 (1985)).
Serving two masters usually arises in two types of civil matters: suits against lawyers in which the client asserts the lawyer's disloyalty for concurrent representation of adversaries (American Airlines v. Sheppard, Mullin, Richter & Hampton, 2002 DJDAR 2753 (Cal. App. March 8, 2002)); and prior representation by a lawyer subsequently representing an adversary. The latter isn't limited to legal malpractice but includes disqualification matters in which a party seeks to unseat his or her adversary's lawyer based on prior representation. City National Bank v. Adams, 2002 DJDAR 1979 (Cal. App. Feb. 20, 2002).
Successive representation conflicts are based on the assertion of shared confidences, whereas concurrent conflicts turn on lawyer disloyalty. Flatt.
A third type of "serving two masters" conflict is relevant to some criminal matters. It arises when a convicted defendant seeks habeas corpus on the ground of "ineffective assistance of counsel" in violation of the Sixth Amendment to the U.S. Constitution.
Mickens v. Taylor, 2002 DJDAR 3311 (U.S. March 27, 2002), is such a case. The facts are simple. The petitioner murdered his 17-year-old sodomy victim. His lead counsel was representing the victim on an assault and concealed weapons charge at the time of the murder.
A split court, led by Justice Antonin Scalia, with Justices William Rehnquist and Clarence Thomas concurring, held that, "[a]s a general matter, a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Because Mickens did not meet this burden of proof, the court rejected his habeas claim.
The exception to this general rule occurs "where assistance of counsel has been denied entirely or during a critical stage of the proceeding." Gideon v. Wainwright, 372 U.S. 335 (1963).
"When that has occurred," the court wrote, "the likelihood that the verdict is unreliable is so high that a case by case inquiry is unnecessary." Gideon.
The court qualified and limited its holding to "the only question presented ... the effect of a trial court's failure to inquire into a potential conflict."
This will require "a showing of defective performance, but not ... a showing of probable effect on the outcome of trial," the court wrote.
Counsel must have "actively represented conflicting interests," it wrote.
"An actual conflict of interest meant precisely a conflict that affected counsel's performance as opposed to mere theoretical division of loyalties," the court wrote.
It is shorthand for the statement that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief," the court wrote. Wood v. Georgia, 450 U.S. 262 (1981).
Justices Anthony Kennedy and Sandra Day O'Connor concurred, emphasizing that a case-by-case inquiry into the adequacy of the representation and not an automatic rule of reversal is required. In a case-by-case inquiry, the court would be required to speculate on the lawyer's belief of a continuing sense of duty to the victim and speculate that, as a result, he failed to pursue alternative defense strategies. Counsel failed, for example, to attack the victim's character at trial.
"The constitutional question must turn on whether trial counsel had a conflict of interest that hampered the representation," the justices wrote, "not on whether the trial judge should have been more assiduous."
Justice John Paul Stevens dissented. Stevens identified three fundamental components of the criminal justice system that were relevant: the duty of a capital defense lawyer to disclose a conflict of interest, the right of a capital defendant to refuse an appointed conflicted attorney and the duty of a trial judge who is aware of the conflict to obtain the defendant's consent before appointing the conflicted lawyer.
Where, as here, all three were violated, Stevens thought that the circumstances likely would prejudice the accused.
The petitioner's "constitutional right to the services of an attorney devoted to his interests ... was violated," he wrote.
Where, as here, the petitioner ended up with a death penalty, Stevens argued that the majority's "assumption that a lawyer's divided loyalties are acceptable unless it can be proved they actually affected counsel's performance is demeaning to the profession."
"Finally," he wrote, "justice must satisfy the appearance of justice."
Justice David Souter's separate dissent concluded, "Since the majority will not leave the law as it is ... the question is whether there is any merit in the rule it now adopts, of treating breaches of a judge's duty to enquire into prospective conflicts differently depending on whether defense counsel explicitly objected.
"The distinction is irrational on its face, it creates a scheme of incentives to judicial vigilance that is weakest in those cases presenting the greatest risk of conflict and unfair trial, and it reduces the judicial duty to enquire into so many empty words. The irrationality of taxing defendants with a heavier burden for silent lawyers naturally produces an equally irrational scheme of incentives operating on the judges."
Justices Stephen Breyer and Ruth Bader Ginsburg separately dissented as well, indicating that the "representational incompatibility [was] egregious on its face."
The state created the conflict in the first place by its appointment of the conflicted lawyer, and the very judge who dismissed the case against the victim appointed the victim's lawyer to represent his alleged murderer the next court day. This diminishes public confidence in the system of criminal justice.
The court did not complete its analysis of successive versus concurrent conflicts based on "serving two masters." Had it done so, the distinction between breach of confidentiality and disloyalty might have come to mind. Here, it is difficult to imagine a defense lawyer so case-hardened that he could erase his former client's young face from his mind when he switched his allegiance to his former client's killer. Perhaps that explains why only a third of the court condoned Scalia's logic and the smallest majority confirmed the result.
It is undisputed on the facts of Mickens that, even if represented by "dream team" criminal defense counsel, he would still be facing death for raping and stabbing a youth to death. The outcome would be identical to him with or without counsel, with conflicted counsel or loyal counsel.
We are in an era where sleeping, lazy, stupid or careless lawyers defending such cases and erring judges adjudicating them yield another "bite at the apple" for the "innocent until proven guilty" suspect.
Treating egregiously conflicted lawyers differently in Mickens is inconsistent. Likewise, judicial error prejudicing the criminal defendant requires that society go to the time, trouble and expense of a second trial.
As the states struggle with applications of Mickens, won't the cost to society in revisiting application of its law to different facts be a great deal more than permitting competent lawyers and jurists to simply "do it right" in a new trial for one person?
How likely is it that Mickens himself will not revisit the system of criminal justice as he bides his time on death row? What is the probability that, if Mickens were put to death, he would end up being a martyr to half the population whose belief structure does not accommodate the death penalty? How much more torture for the victim's family, to continually see Mickens as the subject of things having nothing to do with his stabbing his young victim to death?
Avoiding the appearance of impropriety may be the only way to maintain public respect for, and confidence in, the rule of law. But observers need not await new Supreme Court appointments to see the effect of this decision downstream: Convicts, with nothing to lose, will continue to file writs of habeas corpus; and appellate courts throughout the United States will finds ways to distinguish, harmonize or otherwise reconcile case-by-case results suggested by Kennedy and O'Connor with the scant, plurality opinion of Scalia.
Phillip Feldman chairs the American board of professional liability attorneys subcommittee, which certifies U.S. lawyers as board certified specialists in legal malpractice for the American Bar Association. His practice includes defending attorneys and testifying as an expert.
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