PRESUMED PREJUDICE: WHEN SHOULD REVIEWING STATE COURTS ASSUME A DEFENDANT'S CONFLICTED COUNSEL NEGATIVELY IMPACTED THE OUTCOME OF TRIAL?

• Author: Daniels, Tyler

Introduction 222 I. Types of Conflicts of Interest 223 A. Duties to Another Client 224 i. Multiple Representation of Codefendants 224 ii. Duties to Another Client Outside of Multiple Representation of Codefendants 226 B. Duties to a Former Client 227 C. Duties to a Third Party 228 D. The Lawyer's Own Interests 229 II. Supreme Court History on Conflict-of-interest Law 232 A. The General Rule for Evaluating Ineffective Assistance of Counsel Claims 232 B. Exceptions to Strickland's Prejudice Requirement 235 III. Examining How State Courts Have Applied Sullivan Post-Mickens 237 A. States That Never Apply Sullivan Beyond Instances of Multiple Representation 237 i. Colorado 238 ii. Idaho 239 iii. Pennsylvania 240 B. States That Sometimes Apply Sullivan Beyond Instances of Multiple Representation 240 i. Indiana 240 ii. Kansas 241 iii. Nebraska 242 C. States That Always Apply Sullivan to Actual Conflicts of Interest 243 i. Kentucky 243 ii. Maryland 243 iii. Texas 244 D. States That Have Adopted More Defendant-Friendly Standards Than the Sullivan Standard 245 i. Alaska 245 ii. Illinois 246 iii. Massachusetts 247 IV. How to Reconcile Various State Interpretations of Mickens's Open Question 248 A. Proposed Test to Determine Whether a Court Should Apply the Sullivan or Strickland Standard to a Conflict of Interest 250 B. Applying the Proposed Test to Various Types of Conflicts-of-Interest Claims 252 Conclusion 256 INTRODUCTION

The Sixth Amendment mandates that a criminal defendant shall have the right to "the Assistance of Counsel for his defence." (1) A defendant who claims that ineffective assistance of counsel denied their Sixth Amendment right "must generally demonstrate prejudice to the result of the trial." (2) This prejudice requirement, set forth by the Supreme Court's ruling in Strickland v. Washington, requires that defendants must generally show that the ineffective assistance had a "probable effect upon the outcome of trial." (3) However, in some instances, "[i]f the ineffective assistance of counsel claim stems from a conflict of interest that hampered the defendant's attorney, a defendant may face a burden somewhat less than a showing of prejudice." (4) This standard, set forth by the Supreme Court in Cuyler v. Sullivan, requires "a showing of defective performance" (5) by counsel, but unlike the Strickland standard, does not require the defendant to demonstrate prejudice. (6) In Sullivan, the Supreme Court determined that such a presumption of prejudice applies to instances where an attorney's conflict of interest arises from representing two or more clients concurrently. (7) Should such a presumption apply to other conflicts of interest as well?

In 2002, the Supreme Court examined the issue in dicta in Mickens v. Taylor but declined to rule on the matter, instead declaring it "an open question." (8) Since Mickens, lower state courts have adopted diverging approaches to the issue. (9) The answer to this question can determine whether a conviction, even a capital murder conviction, (10) is overturned or upheld."

Part I of this Note examines the types of conflicts of interest that arise in ineffective assistance of counsel claims. Part II examines the Supreme Court history behind conflict-of-interest law. Part III examines the way state courts have differentiated between conflict-of-interest claims that are eligible for the Sullivan exception or require Strickland since the Supreme Court declared the issue an open question in Mickens. Part IV provides a recommendation for how lower courts should differentiate between conflicts that require Strickland prejudice and conflicts that are eligible for the Sullivan exception.

1. TYPES OF CONFLICTS OF INTEREST

   A conflict of interest (conflict) inherently divides the loyalty of counsel. A conflict exists where "there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests." (12) The impact a conflict can have on a trial is "notoriously hard to predict" for "[i]t is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before the trial of what each of the Government's witnesses will say on the stand." (13) Under the Model Rules of Professional Conduct (Model Rules), (14) conflicts of interest can arise under four categories: counsel's duties to another client, to a former client, to a third person, or to counsel's own interests. (15) Courts have dealt with different conflicts in different ways.

   1. Duties to Another Client

      i. Multiple Representation of Codefendants

      Multiple representation occurs when defense counsel simultaneously represents codefendants who have been jointly charged with the same or similar crimes. (16) Multiple representation can be highly prejudicial to a defendant because, in such scenarios, counsel's loyalty is inherently divided. (17) The Model Rules note that when an attorney represents multiple clients for a single matter, the attorneys must obtain informed consent from both clients. (18) Counsel must inform their clients of the possible risks of the multiple representation, including effects from counsel's divided loyalty, strains on confidentiality, and limitations due to attorney-client privilege. (19) In addition, the Federal Rules of Criminal Procedure require a court to inquire about a conflict of interest in a prototypical multiple representation scenario. (20) Nearly every instance of multiple representation is a potential conflict of interest. (21) Nevertheless. multiple representation is permissible under the Sixth Amendment so long as it does not lead to an actual conflict of interest. (22) If a defendant objects to multiple representation at trial, they shall receive the chance to demonstrate that the conflict will "impermissibly imperil his right to a fair trial." (23)

      The Supreme Court in Holloway v. Arkansas (24) and Sullivan discussed the dangers of attorneys representing multiple defendants who have conflicting interests. (25) The impact of multiple representation can be difficult to detect by a reviewing court because multiple representation of codefendants can cause counsel at any point during representation to limit their advocacy for one client in deference to the interests of the other client. (26) In other words, multiple representation can cause counsel to "pull his punches." (27) For example, counsel representing two clients facing similar charges may forego plea and cooperation negotiations with the prosecution, with respect to one defendant, in hopes of getting a better sentence for the codefendant. (28) Multiple representation of codefendants can keep counsel from challenging the admission of evidence that is damaging to one client because it is beneficial to the other. (29) It can also keep counsel from arguing that one defendant is less culpable and therefore deserves a lesser sentence than the codefendant. (30) In addition, prejudice to a defendant from multiple representation can be hard to detect. (31) In Holloway, the Supreme Court noted that it would be "virtually impossible" to evaluate a conflict's impact on an attorney's decision-making process and tactics in plea negotiations. (32)

      Because multiple concurrent representations have both a high probability of prejudice arising and a difficulty of proving said prejudice," such conflicts are entitled to a presumption of prejudice on post-conviction review. (34) Multiple representation, however, does not always entail an actual conflict of interest, indeed in some cases codefendants may benefit from a common defense attorney." This is why under Supreme Court law, an actual conflict of interest must also adversely affect representation. (36)

      ii. Duties to Another Client Outside of Multiple Representation of Codefendants

      Sometimes counsel might face divided loyalty between helping one client who is on trial or helping another client who is not on trial. In Wood v. Georgia, three defendants who worked at an adult entertainment store were charged with distributing obscene materials. (37) The defendants were represented by the entertainment store's lawyer. (38) The defendants were under the impression that their employer would pay both their legal and court fees--and their employer did for the most part. (39) However, the defendants were convicted and received several-thousand-dollar fines from the court, and their employer failed to pay these fines with no explanation. (40) The Supreme Court speculated that the employer might have withheld the fine payments in order to create standing for a constitutional "test case"--where the employer was seeking to avoid paying their employees' court-imposed fines but did not want its employees jailed as a result. (41) Because defense counsel represented both the employer and the employees, it was unclear whether counsel "single-mindedly" pursued the defendants' liberty interests. (42) If, indeed, defense counsel tried to make a test case out of the defendants' situation, it would have highly prejudiced the defendants. In addition, the conflict created by defense counsel's divided loyalty between the employer and employees was potentially diffused throughout the proceeding and was therefore hard to detect. The Court "c[ould not] be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him." (43) If defense counsel was serving the interests of the employer to the disadvantage of the employee defendants during the employees' court proceedings, the employees' constitutional rights would have been violated. (44)

   2. Duties to a Former Client

      An attorney may have a conflict of interest between a current and former client if that former client is implicated in the current client's legal dispute--this is known as successive representation...