Conflicts of interest in criminal cases: should the prosecution have a duty to disclose?

• Author: Poulin, Anne Bowen

1. INTRODUCTION

   Suppose that you face charges for driving under the influence. Knowing that a conviction will expose you to incarceration, fines, and loss of your driver's license, you hire an attorney in whom you have confidence. Guided by counsel, you go through trial and are convicted. After sentencing, you ask counsel about filing an appeal. When counsel informs you that she cannot represent you on appeal, you learn for the first time that a few days before your trial your lawyer accepted a position as Chief Assistant District Attorney with the office prosecuting you in the case. (1) Are you confident that counsel gave you the zealous representation you expected, or do you fear that counsel may have pulled her punches or, even worse, shared information with her new employer? Should someone have told you that your attorney had agreed to switch sides? Was the trial fair? Are you entitled to any relief?

   Put yourself in the shoes of a different criminal defendant. You are charged with a sexual offense and facing a possible life sentence. You hire a criminal defense attorney with a strong reputation. On the eve of trial, the attorney moves to withdraw, but the court denies the motion. Rejecting the prosecution's offer of a plea to reduced charges, you go through trial and are convicted of the most serious charges. Only after conviction do you learn that your attorney had personally been battling the criminal justice system while representing you. The attorney was indicted on felony drug charges shortly after being hired for your case and pleaded your conviction. (2) At sentencing you guilty to reduced charges about a month after

   are represented by a new, court-appointed attorney, since your attorney's license has been suspended. You receive a long sentence of incarceration. As you sit in prison, do you question the quality of the representation you received? Would you have chosen to continue with your retained attorney had you known that the attorney was charged with a felony? Did your attorney, the prosecutor, or the trial judge have a duty to inform you of your attorney's legal problem? Was the trial fair? Are you entitled to any relief?

   For our criminal justice system to function properly both the prosecution and defense must be free to provide robust representation uninhibited by conflicts of interest. (3) Currently, concerns raised by widespread ineffective assistance of counsel undermine confidence in our criminal justice system. (4) Deficient assistance of counsel can result from counsel's incompetency or from a conflict of interest. Claims based on a conflict of interest are of special importance because a conflict--the claim that the attorney served two masters--creates an even greater appearance of unfairness both to the defendant and to the general public than a mere claim that the attorney was incompetent. (5) As lawyers, we should be concerned with the appearance of unfairness as well as provable unfairness and should seek actively to eliminate deficient defense representation. (6)

   This article explores two types of conflicts of interest which threaten to inhibit zealous defense representation: (1) when defense counsel has, had, or seeks employment as a prosecutor; and (2) when defense counsel is faced with criminal charges while simultaneously representing a criminal defendant. Both these situations pose a conflict for counsel and also create an appearance of unfairness. The common thread in cases involving these types of conflict is that the prosecution has ready access to information pertinent to the conflict, while neither the court nor the defendant, and sometimes not even counsel, will be aware of the problem.

   When such a conflict threatens to impair the defendant's representation, it is critical to raise it as early as possible. If the conflict is raised before trial, the trial court can determine whether there is a serious problem, let the defendant decide whether to waive conflict-free representation for that case, or disqualify counsel. (7) If the conflict comes to light only after conviction, the defendant must either show that the conflict adversely affected counsel's representation of the defendant in some specific way or must meet the more demanding standard of showing that counsel was incompetent and that the incompetence prejudiced the defendant. The mere appearance of unfairness is not a basis for post-conviction relief.

   The article examines conflict situations in which the prosecution has special access to information regarding the conflicts. Section II provides an overview of the constitutional analysis of and relief for defense counsel conflicts of interest. Section III discusses the importance and benefit of early intervention. Section IV considers the possible conflict when counsel has, had, or is seeking employment as a prosecutor. Section V examines cases in which counsel is charged with a crime or is under investigation for criminal activity. Section VI argues that, given the difficulty of obtaining post-conviction relief and the benefit of early intervention, the prosecution should have the burden of discovering and disclosing the relevant facts before trial and raising the question of counsel's possible conflict.

2. THE CONSTITUTION AND POST-CONVICTION RELIEF FOR CONFLICTS OF INTEREST

   When a defendant is represented by an attorney who arguably labored under a conflict of interest, the defendant may be entitled to post-conviction relief if the defendant's constitutional rights have been violated. (8) Once the defendant has been convicted, the courts ask whether counsel had a conflict of interest that interfered with the representation of the defendant to a degree that violated the defendant's Sixth Amendment right to counsel. (9) The court will be concerned only with the reliability of the trial's outcome, requiting the defendant to demonstrate why the court should not trust the outcome--a high hurdle for the defendant to overcome. (10) Even if the defendant was represented by a conflicted attorney, the conviction is likely to stand. (11) The Supreme Court limits reversals on constitutional grounds to cases in which the defendant's trial was demonstrably unfair or the circumstances raise a serious question about the fairness of the trial. (12)

   The Court's approach to challenges based on violations of the defendant's tight to counsel does not effectively protect defendants from the deficiencies of defense counsel. In most cases where the defendant complains of counsel's poor representation, the standard defined in Strickland v. Washington (13) controls. Under Strickland, the defendant must establish some specific incompetent act or omission by counsel. Additionally, the defendant must prove that counsel's incompetence prejudiced the defendant by showing a reasonable probability that, but for the incompetence, the result would have been different. (14) The Strickland standard is difficult to satisfy, making it hard for defendants to get relief for ineffective assistance of counsel based on incompetence. (15) This approach ensures that some convictions will be affirmed simply because the defendant cannot identify the specific failure of the counsel or prove the prejudice even though the defendant in fact suffered prejudice due to counsel's shortcomings. (16)

   The Court has taken a more protective stance in cases in which counsel suffered from a conflict of interest. In Holloway v. Arkansas, (17) the Court presumed prejudice and granted the defendants' reversal based on the trial court's failure to fulfill its obligations. In Holloway, defense counsel was assigned to represent three codefendants. Counsel objected and asked for substitute counsel, informing the court that the multiple representation created a conflict of interest. (18) The trial court took no action, forcing counsel to proceed through trial representing all three defendants. In that situation, the Court held the defendants were entitled to relief without any specific showing of prejudice or even impact on counsel's performance.

   The Court also recognized the obligation of the trial court in Wood v. Georgia. (19) In Wood, the Court realized when it was reviewing the defendants' equal protection claim that the three indigent defendants had been represented by a single lawyer who worked for their employer and that their employer had paid the attorney's fees. (20) The record also suggested a divergence between the defendants' interests and those of the employer. As a result, the Court concluded that the trial court had a duty to inquire about the possible conflict and remanded the case, directing the trial court to determine whether there was an actual conflict. (21)

   In Cuyler v. Sullivan, (22) the Court established a somewhat more lenient test in cases where the defendant proved that counsel had labored under an actual conflict of interest, even if the trial court was not on notice of the conflict. (23) Sullivan established that if the defendant shows that counsel actively represented conflicting interests and that the conflict had an adverse effect on counsel's performance, the court will presume prejudice. (24) The Sullivan presumption thus serves as a prophylactic protection in cases where prejudice is likely.

   More recently, in Mickens v. Taylor, (25) the Court limited Sullivan. The Mickens Court advanced two critical limitations on the constitutional rules governing post-conviction relief for conflicts of interest. (26) First, the Court questioned whether the full range of conflicts that the lower courts have evaluated under the Sullivan test warranted such treatment, suggesting that the Sullivan presumption may apply only in cases of concurrent representation of codefendants. (27) Second, the Court restricted the cases in which the trial court's failure to identify and address a conflict would result in reversal, emphasizing that in most conflict cases the defendant must establish that a conflict...