Conflicts of Interest - Brandon Pigg

Conflicts of Interest : Conflicts of Interest

Slide 2 : “The right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client…Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision. And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be a member of an unpopular or hated group, or may be charged with an offense which is peculiarly abhorrent.” Von Moltke v. Gillies, 332 U.S. 708, 725-726 (1948).

SCR 3.130 (1.7) : SCR 3.130 (1.7) Conflict of interest: general rule a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and Each client consents after consultation. b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: The lawyer reasonably believes the representation will not be adversely affected; and The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

COMMENT 6 : COMMENT 6 “The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.”

SCR 3.130 (1.8) : SCR 3.130 (1.8) Conflict of Interest: prohibited transactions (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregate agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

SCR 3.130 (1.9) : SCR 3.130 (1.9) Conflict of interest: former client. A lawyer who has formerly represented a client in a matter shall not thereafter: Represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interests of the former client unless the former client consents after consultation; Represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated and previously represented a client Whose interests are materially adverse to that person; and About whom the lawyer had acquired information protected by Rules1.6 and 1.9 (c) that is material to the matter; unless the former client consents after consultation. A lawyer who has formerly represented a client in a matter of whose present or former firm has formerly represented a client in a matter shall not there after Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known; or Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

Federal Cases : Federal Cases

Holloway v. Arkansas, 435 U.S. 475 (1978) : Holloway v. Arkansas, 435 U.S. 475 (1978) Facts: Petitioners were three co-defendants each charged with one count of robbery and two counts of rape who, prior to trial, made timely motions for appointment of separate counsel. Specifically, defense counsel made a motion for appointment of separate counsel because if the defendants testified he had received confidential information from each and stated he could not adequately cross-examine them. Trial court denied. At trial, all three defendants testified and defense counsel again stated that he was going to be unable to cross-examine them because he had obtained confidential information from each of them. The three were found guilty. Arkansas supreme court affirmed concluding that the record showed no actual conflict of interest or prejudice.

Holloway v. Arkansas, 435 U.S. 475 (1978) : Holloway v. Arkansas, 435 U.S. 475 (1978) U.S. Supreme Court reversed Holding: Court found that when a timely objection has been made to joint representation on the grounds of conflict of interest, a defendant must only show the possibility of conflict and does not have to show that the conflict manifested itself and cause the defendant harm.

Holloway v. Arkansas, 435 U.S. 475 (1978) : Holloway v. Arkansas, 435 U.S. 475 (1978) “[a] rule requiring a defendant to show that a conflict of interest-which he and his counsel tried to avoid by timely objections to the joint representation-prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. But in a case of joint representation of conflicting interests the evil-it bears repeating-is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of the client. And to assess the impact of a conflict of interest on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.”

Cuyler v. Sullivan, 446 U.S. 335 (1980) : Cuyler v. Sullivan, 446 U.S. 335 (1980) Facts: Sullivan and two other men were indicted for two counts of murder. Two private attorneys were retained to represent the three men. At no time did any of the three men object to the representation. Sullivan was tried first and was found guilty. The other two were tried later and acquited. Sullivan sought habeas corpus relief in federal court arguing that his defense counsel had represented conflicting interests. Unsuccessful at District Court, but the Court of Appeals for the 3rd Circuit reversed and the U.S. Supreme Court granted cert.

Cuyler v. Sullivan, 446 U.S. 335 (1980) : Cuyler v. Sullivan, 446 U.S. 335 (1980) Holding: Unless the trial court knows or reasonably should know that a particular conflict exists, the court itself need not initiate an inquiry into the propriety of multiple representation. With no objection, the possibility of a conflict of interest is insufficient to impugn a criminal conviction. A defendant must demonstrate that an actual conflict of interest adversely affected the adequacy of his representation.

Wood v. Georgia, 450 U.S. 261 (1981) : Wood v. Georgia, 450 U.S. 261 (1981) Facts Three defendants who worked in an adult theatre/bookstore were arrested and charged with distributing obscene materials. They were convicted and given probation on the grounds that they pay $500.00 a month to satisfy their fines. They did not pay and a hearing was held to determine if their probation should be revoked. The men argued that they believed their employer would pay the fines. The three were represented by a single attorney throughout the proceeding who was paid by their employer.

Wood v. Georgia, 450 U.S. 261 (1981) : Wood v. Georgia, 450 U.S. 261 (1981) Holding The Court found that the possibility that counsel was actively representing the conflicting interests of employer and defendants was sufficiently apparent to impose upon the court a duty to inquire further. The case was remanded for the court to hold a hearing and determine whether the “conflict of interest that this record strongly suggests actually existed.”

Mickens v. Taylor, 535 U.S. 163 (2002) : Mickens v. Taylor, 535 U.S. 163 (2002) Facts: Mickens was convicted of the premeditated murder of another man (Hall) during or following the commission of an attempted sodomy and was sentenced to death. Mickens filed a federal habeas petition alleging that he was denied effective assistance of counsel because one of his court-appointed attorneys had a conflict of interest at trial. Specifically, his lead attorney had represented Hall on assault and concealed-weapons charges at the time of the murder. Counsel did not disclose this to the court, co-counsel or Mickens

Mickens v. Taylor, 535 U.S. 163 (2002) : Mickens v. Taylor, 535 U.S. 163 (2002) Holding: In order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely affected his counsel’s performance.

Kentucky Rules : Kentucky Rules

RCr 8.30 : RCr 8.30 If the crime of which the defendant is charged is punishable by a fine of more than $500, or by confinement, no attorney shall be permitted at any stage of the proceedings to act as counsel for the defendant while at the same time engaged as counsel for another person or persons accused of the same offense or of offenses arising out of the same incident or series of related incidents unless (a) the judge of the court in which the proceeding is being held explains to the defendant or defendants the possibility of a conflict of interests on the part of the attorney in that what may be or seem to be in the interests of one client may not be in the best interests of another, and (b) each defendant in the proceeding executes and causes to be entered in the record a statement that the possibility of conflict of interests on the part of the attorney has been explained to the defendant by the court and that the defendant nevertheless desires to be represented by the same attorney.

RCr 8.30 : RCr 8.30 2. The procedure set forth in paragraph (1) of this Rule 8.30 shall be followed in each court in which the defendant requires the assistance of counsel, excepting the Court of Appeals and Supreme Court.

RCr 8.30 : RCr 8.30 Upon receipt of any information reasonably suggesting that what is best for one client may not be best for another, counsel shall explain its significance to the defendants and disclose it to the court, and shall withdraw as counsel for one client or the other unless (a) each such client who is a defendant in the proceeding executes a written waiver setting forth the circumstances and reiterating the client’s desire for continued representation by the same counsel and (b) such waiver is entered in the record of the proceeding.

Kentucky Cases : Kentucky Cases

Trulock v. Commonwealth, 620 S.W.2d 329 (Ky.App. 1981) : Trulock v. Commonwealth, 620 S.W.2d 329 (Ky.App. 1981) Trulock was represented, along with a co-defendant, by a single attorney at trial and the record showed that the trial court failed to comply with RCr 8.30. The Court reversed finding that RCr 8.30 was intended to impose an absolute duty on the trial court not to permit one attorney to represent two defendants charged with the same offense, unless the possibility of a conflict of interests has been explained to them and they have executed a written waiver of their right to separate trials.

Smith v. Commonwealth, 669 S.W.2d 527 (Ky. 1984) : Smith v. Commonwealth, 669 S.W.2d 527 (Ky. 1984) Co-Defendants represented by one attorney and nothing in record showing compliance with RCr 8.30. Court overruled Trulock and found that compliance with RCr 8.30 was subject to harmless error. The case was 4-2 (one justice not sitting). Dissent argued that majority based their decision on cases that had been decided prior to the enactment of RCr 8.30.

Holder v. Commonwealth, 705 S.W.2d 907 (Ky. 1986) : Holder v. Commonwealth, 705 S.W.2d 907 (Ky. 1986) Three co-defendants. Prior to trial, Holder had given out of court statements admitting guilt while other two claimed innocence. All were represented by same attorney and all were convicted. The trial court did not comply with RCr 8.30. Court applied harmless error as directed in Smith and found prejudice in the fact that separate counsel would have gotten Holder a deal. By contrast, counsel in a joint representation of all three respondents could not ethically seek advantage for one at the expense of the other two.

Peyton v. Commonwealth, 931 S.W.2d 451 (Ky. 1996) : Peyton v. Commonwealth, 931 S.W.2d 451 (Ky. 1996) Co-defendants and trial court did not comply with RCr 8.30. Court overruled Smith and Holder and held that noncompliance with the provisions of RCr 8.30 is presumptively prejudicial and warrants reversal. “While we had previously found the reasoning of the Court of Appeals in Trulock and, in particular, that court’s interpretation of the language of RCr 8.30 to be unsound, and the error in that case to be harmless, we now conclude that the Trulock court was correct to hold that ‘failure to comply with RCr 8.30 may never be harmless error.’” (internal cites ommitted).

Peyton v. Commonwealth, 931 S.W.2d 451 (Ky. 1996) : Peyton v. Commonwealth, 931 S.W.2d 451 (Ky. 1996) “Mere conjecture as to what counsel would have done, or as to what the co-defendant, or other witnesses, would have testified, but for the dual representation, does not afford this Court with the level of proof-namely, that above mere speculation-necessary in order to conduct a meaningful evaluation of the possibility, or existence, of prejudice in such a matter. Moreover, there may be, on some occasions, records so lacking as to make any just and accurate determination of this issue is virtually impossible. Justice cannot be administered with crystal balls and tea leaves.”

Murphy v. Commonwealth, 50 S.W.3d 173 (Ky. 2001) : Murphy v. Commonwealth, 50 S.W.3d 173 (Ky. 2001) Three juveniles, including Murphy, (all 14) burglarized the home of an eighty-four year old woman while Murphy’s cousin (who was 13) waited outside. The three fourteen year olds were tried in adult court and the thirteen year old cousin was tried in juvenile court. The same counsel represented both Murphy and his cousin. The cousin was called to testify, but disavowed what he had said in a previous statement to the police. Murphy contended that this representation violated RCr 8.30.

Murphy v. Commonwealth, 50 S.W.3d 173 (Ky. 2001) : Murphy v. Commonwealth, 50 S.W.3d 173 (Ky. 2001) The Court overruled Peyton and held that a violation which does not result in any prejudice to the defendant should not mandate automatic reversal. The Court found that, since the cousin disavowed his former statement, Murphy was not prejudiced.

Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001) : Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001) Co-defendants convicted of murder and robbery were represented by individual attorneys, but both were public defenders. The argument was that it was reversible error to not instruct the defendants, under RCr 8.30, that both of the public defenders were employed by Fayette County Legal Aid.

Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001) : Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001) The Court again overruled Peyton. However this time, the Court cited to Cuyler v. Sullivan and found that a defendant must show a real conflict of interest in order to obtain reversal. The Court did not however, as was done in Sullivan, make a distinction based on whether there was an objection to the multiple representation.

Beard v. Commonwealth, 2010 WL 246057 : Beard v. Commonwealth, 2010 WL 246057 Controlled buy case where Beard’s appointed counsel had previously represented the confidential informant and had been appointed to represent him again in the future at a probation revocation. Beard filed a pro se motion to dismiss counsel and to have new counsel appointed due to a conflict of interest.

Beard v. Commonwealth, 2010 WL 246057 : Beard v. Commonwealth, 2010 WL 246057 The Kentucky Court of Appeals simply applied Kirkland without a distinction that Beard had objected to the representation. The Kentucky Supreme Court held that, under Holloway, a defendant who objects to the representation and alleges a conflict of interest must only show there was a conflict of interest, not that he was prejudiced.

Beard v. Commonwealth, 2010 WL 246057 : Beard v. Commonwealth, 2010 WL 246057 “It may be that (Counsel) chose to actively pursue and confront (CI), sacrificing his interests in favor of Appellant (in which case, only CI could complain). The Court of Appeals disposed of the case in this way, finding that (Counsel) had vigorously defended Appellant. But as noted in Holloway, making such a determination is effectively impossible, because any rule requiring Appellant to show specific prejudice ‘would not be susceptible of intelligent, evenhanded application.” And while we know what (Counsel) did do what trial, we cannot know what he may have refrained from doing because of his concurrent representation of (CI).’”

Contradictions : Contradictions

THE END : THE END