13.05. Multiple Client Representation: Criminal Defendants

When issues of conflict of interest in the criminal context arise, you must take into account constitutional considerations as well as ethical obligations.  Defense counsel is subject to the same ethical rules regarding conflict of interest as all other lawyers (e.g. 1.7; 1.8; and 1.9).  However, criminal defendants who are convicted and believe that their lawyer was operating under a conflict of interest will claim that their constitutional rights were violated and the conviction should be reversed instead of (or in addition to) filing a disciplinary complaint with the bar.

The Sixth Amendment provides the basis for a claim of ineffective assistance of counsel:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ., and to have the Assistance of Counsel for his defence.”[1]  Recall that Strickland v. Washington set out the general standard for establishing a violation of the right to assistance of counsel:  the defendant must demonstrate ineffective performance and that, as a result of the deficient performance, the defense was prejudiced to such an extent that the trial outcome cannot be trusted.[2]

Conflicts of interest in this context usually arise in several circumstances.  First, when defense counsel (or defense counsel’s firm) is concurrently representing multiple defendants in the same case.  Second, when defense counsel is representing defendant in one case and also representing an adverse witness in another case.  Third, when defense counsel is representing a criminal defendant and had previously represented a witness.  The issue is when these conflicts (even if they are unethical under ethics rules), rise to the level of a constitutional violation.  

The U.S. Supreme Court has adopted unique standards for evaluating a constitutional claim based on defense counsel’s conflict of interest.  The test that applies depends on the nature of the conflict and whether the conflict was brought to the court’s attention.

Where defense lawyer objects to proceeding with joint representation of multiple defendants, but the court requires continued representation.  In a situation where defense counsel objects to representing multiple defendants, the court must require separate counsel.[3]  The failure to grant separate counsel violates the defendant’s Sixth Amendment right to counsel.  The defendant does not have to show that the conflict actually impacted the representation.  As the Court recognized in Holloway, the problem with a lawyer representing a defendant under a conflict of interest is what the lawyer is prohibited from doing because of the conflict.  For example, in Holloway, the lawyer was prohibited from cross-examining one client which could have benefited the other client. 

Where there is a conflict but there is no objection by the attorney.  Where there is no objection made by the defendant to the joint representation, the defendant must demonstrate:  “that an actual conflict of interest adversely affected his lawyer’s performance.”[4]  The standard is more than the possibility of a conflict of interest – which is present in almost all joint representation situations – instead the defendant must show that the conflict actually impacted the lawyer’s performance:  perhaps the lawyer refused to cross-examine a witness because it would harm one client (even though it would benefit the other).  The defendant does not have to establish prejudice (that the outcome of the trial would have likely been different), but there must be a showing of an actual conflict. 

Where there is a conflict, the judge knew or should have known about the conflict but fails to inquire.  Because all parties to a criminal prosecution (judge, prosecutor, and deense counsel) are all tasked with ensuring that the defendant receives a constitutionally sound trial, What does a defendant have to show where a judge knew or should have known about the existence of an actual conflict of interest, but fails to inquire, and there is no objection by the lawyer?  This is how the United States Supreme Court put it in Mickens v. Taylor:  “prejudice will be presumed only if the conflict has significantly affected counsel’s performance – thereby rendering the verdict unreliable.”  So, the Mickens Court limited automatic reversal to the situation where a lawyer makes an objection and the trial court fails to grant the motion.  After Mickens, the defendant must provide evidence of an actual conflict that adversely impacted counsel’s performance. An actual conflict is one that impairs the lawyer’s independent judgment.  Adverse impact is even more difficult – the defendant must identify the actual conflict and then demonstrate how that actual conflict impacted the lawyer’s actions.  Because the conflict could be based on confidential information obtained or based on actions not taken, placing a burden on the defendant to come forward with such proof could make an ineffective assistance claim in this context almost impossible to prove.[5]

Can the defendant waive the conflict and can the court reject the waiver.  There is a constitutional right to be represented by counsel in criminal cases under the Sixth Amendment.  However, there is no absolute right to counsel of the defendant’s choice.[6]  There are times when the “institutional interest in the rendition of just verdicts in criminal cases may be jeopardized” by conflicted representation.[7]  For that reason, a trial court has the authority to reject a conflict waiver by a criminal defendant when the court finds that the attorney is operating under an actual conflict of interest.

[1] U.S. Const., Amedment VI.

[2] Strickland v. Washington, 466 U.S. 668 (1984).  Strickland was covered in Topic 9.

[3] Holloway v. Arkansas, 435 U.S. 475 (1978).

[4] Cuyler v. Sullivan, 446 U.S. 333, 347 (1980).

[5] Peter A. Joy and Kevin C. McMunigal, Do No Wrong: Ethics for Prosecutors and Defenders 94 (ABA 2009) (describing how the adverse impact rule “imposes an almost insurmountable burden of proof on a defendant.”).

[6] Wheat v. U.S., 486 U.S. 153 (1988) (“[W]hile the right to select and to be represented by one’s preferred attorney is comprehended by the Sixth Amdnemtn the essential aim of the Amendment is to guarantee an effective advoctate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”)

[7] Wheat v. U.S., 486 U.S. 153, 160 (1988).