§ 28.09 EFFECTIVE ASSISTANCE OF COUNSEL: CONFLICTS OF INTEREST

• Jurisdiction: United States

§ 28.09. Effective Assistance of Counsel: Conflicts of Interest²⁴¹

[A] Nature of the Issue

A defendant is entitled to the undivided loyalty of his attorney. However, when one attorney or law firm (including a public defender's office)²⁴² represents multiple clients, particularly co-defendants, there is the possibility that the interests of the clients will clash, and that the attorney (or firm) will be unable to represent all of the clients effectively. For this reason, joint representation is generally considered unethical if representation of one client will materially limit a counsel's ability to represent another client.²⁴³

A breach of ethical standards, however, does not constitute a per se violation of the Sixth Amendment. The subsections that follow relate to the constitutional right to conflict- free legal representat ion and its relation to the standards of Strickland v. Washington.²⁴⁴

[B] Pretrial Procedures to Avoid Conflicts

The Supreme Court ruled in Holloway v. Arkansas²⁴⁵ that when an attorney representing co-defendants makes a timely pretrial motion for appointment of separate counsel, based on his assertion of a potential conflict of interest, a trial judge is required either to grant the motion or "to take adequate steps to ascertain whether the risk [is] too remote to warrant separate counsel." If defense counsel is forced to represent co-defendants over his timely objection, reversal of any subsequent conviction is automatic, unless the trial court has determined that there is no conflict.²⁴⁶

According to Holloway, joint representation is constitutionally suspect. Because a defense lawyer is in a better position than a court to know prior to trial whether a conflict exists or may develop—he is more familiar with the facts of the case, and he may become aware of a conflict as the result of confidential communications with a client—the Supreme Court generally favors the granting of motions for separate counsel. However, to protect the authority of the trial court and to avoid the possibility of abuse by unscrupulous attorneys, the Court stated in Holloway that it does not "preclude a trial court from exploring the adequacy of the basis of defense counsel's representations," as long as it can do so without requiring counsel to disclose confidential communications.

The Sixth Amendment does not require a trial court on its own motion to inquire into joint-representation arrangements. The Court "may assume [absent a motion] either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist."²⁴⁷

[C] Post-Trial Proof of a Conflict

The Holloway rule of automatic reversal does not apply if the allegation of a conflict of interest is not raised until after trial.²⁴⁸ Nonetheless, a post-trial allegation of conflict of interest can sometimes lead to a reversal without a showing of "a reasonable probability that the outcome would have been different," which is the prejudice standard applied in ordinary ineffective-assistance-of-counsel cases.²⁴⁹

In Cuyler v. Sullivan,²⁵⁰ the Court established that a defendant who raised no objection at trial could establish a violation of the Sixth Amendment by...