Attorney-Client Issues (Conflicts)

Mickens v. Taylor, 535 U.S. 162 (2002)

Absent a showing of actual prejudice, a defendant is not entitled to relief even if he can show that his attorney suffered from a conflict of interest. In this case, the judge knew (but the defendant did not), that the appointed counsel who was representing the defendant in this murder case had previously represented the murder victim in a juvenile case. The defendant claimed in his habeas corpus petition that he was entitled to a presumption of prejudice, as in Holloway v. Arkansas, 435 U.S. 475 (1978). The Supreme Court held that there would be no presumption of prejudice. In addition, the Court held that proving an actual adverse impact might not be enough. Though that was the standard set forth in Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court suggested that the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984) might be the appropriate standard: a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

Wheat v. United States, 486 U.S. 153 (1988)

In this 5-4 decision, the Supreme Court holds that the trial court acted within its discretion in denying a defendant the right to choose as his attorney the attorney for a co-conspirator who had entered a plea of guilty. The Court held, “The District Court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before the trial, but in the more common cases where a potential conflict exists which may or may not burgeon into an actual conflict as the trial progresses.” The Court recognized that there is a presumption in favor of the petitioner’s counsel of choice, but the presumption may be overcome by a showing of a serious potential for conflict. The Court concludes, finally, that the District Court was notrequired to make this finding, but that it was within the Court’s discretion to do so. Dissenting, Justices Marshall, Brennan, Stevens and Blackmun sharply criticized the majority’s opinion.

United States v. Blackledge, 751 F.3d 188 (4th Cir. 2014)

The trial court erred in failing to permit defense counsel to withdraw because of an internal conflict with the client. The client had filed a bar complaint against the attorney and the evidence was clear that there had been a total breakdown in communication. The attorney had also missed a critical deadline that prompted the defendant to lose faith in the attorney.

Taylor v. Grounds, 721 F.3d 809 (7th Cir. 2013)

The defense attorney represented two brothers in a murder trial. Certain witnesses would have been favorable to one defendant, but not the other. The attorney did not call these witnesses. This was a clear conflict.

United States v. McKeighan, 685 F.3d 956 (10th Cir. 2012)

Defense counsel was subpoenaed to produce fee information to the grand jury. Later, at a hearing, the attorney agreed to pay the fee into the registry of the court. Ultimately, the lawyer withdrew from the case. The Tenth Circuit held that this did not violate the defendant’s right to counsel.

Salts v. Epps, 676 F.3d 468 (5th Cir. 2012)

A conflict of interest was apparent in one attorney’s representation of a husband and wife in this embezzlement case. The attorney brought the conflict to the attention of the trial judge on the eve of trial. The judge’s decision to proceed to trial was error and the conviction was vacated in this habeas decision. In Holloway v. Arkansas, 435 U.S. 475 (1978), the Supreme Court held that automatic reversal was required where a potential conflict of interest is brought to the trial court’s attention, but is not investigated, in the situation where one attorney is representing two defendants.

Morris v. Beard, 633 F.3d 185 (3rd Cir. 2011)

The defendant, who was charged with murder, was represented at his state murder trial by a lawyer who was also representing the defendant’s brother in a civil contingency-fee case. At trial, there was considerable evidence that the brother, not the defendant, was the person who shot the victim. At no time was there an on-the-record conflict waiver, or even any indication that the trial judge was aware of the conflict. At the habeas hearing, the lawyer said that the defendant was aware that the lawyer was also representing the brother. The Third Circuit holds that a more detailed evidentiary hearing was necessary to determine whether the conflict actually impacted the lawyer’s performance, and whether the defendant would have allowed the attorney to place the blame on his brother.

United States v. Turner, 594 F.3d 946 (7th Cir. 2010)

The attorney who was prepared to represent the defendant at trial also was representing a co-conspirator who had already been tried and convicted, but who was awaiting sentencing. Both clients waived any potential conflict and neither defendant was cooperating. Nevertheless, the district court disqualified the attorney from defendant’s trial on the basis that one or the other defendant might decide to cooperate in the future. Disqualifying counsel was erroneous prejudicial, because the improper disqualification of counsel amounts to structural error. This case contains a thorough discussion of the relationship between Wheat and Gonzalez-Lopez: the relationship between the court’s obligation to assure that there is no conflict and the defendant’s right to counsel of choice.

Boykin v. Webb, 541 F.3d 638 (6th Cir. 2008)

Counsel suffered from an actual conflict of interest in this murder case. One defendant had a viable alibi, the other did not. The other was identified by an eye-witness. An unconflicted attorney for the defendant with the alibi would have pointed the finger at the other defendant. A co-defendant’s subsequent habeas petition was also successful on the grounds that the attorney suffered from an actual conflict of interest in McElrath v. Simpson, 595 F.3d 624 (6th Cir. 2010).

Ventry v. United States, 539 F.3d 102 (2d Cir. 2008)

Prior to being arrested, the defendant learned that his former girlfriend made a statement to the FBI implicating the defendant. The defendant went to see a lawyer and later wrote a letter to the girlfriend, telling her that his lawyer told him that the girlfriend should claim that she made the statement under duress, and that she should plead the Fifth. The defendant also threatened the girlfriend that he would reveal embarrassing things about her if she did not recant. The defendant was immediately arrested for the initial crime and for obstruction of justice. The defendant hired another lawyer who may (the record was unclear) have been a partner of the lawyer who supposedly gave the “advice” that the defendant passed on to the girlfriend. The government moved to disqualify the attorney because of the conflict. The motion was denied in part, because of potentially false statements made by the attorney with regard to his relationship to the lawyer who provided the advice. The Second Circuit remanded the case to district court for further findings of fact. Interesting discussion of conflicts between law partners and conflicts by providing advice that the defendant may need to rely upon at trial in defense of his behavior.

Houston v. Schomig, 533 F.3d 1076 (9th Cir. 2008)

A remand was required to determine if a conflict existed in light of the representation of the victim and a witness in this case by another member of the same public defender’s office that employed the defendant’s attorney.

United States v. Culverhouse, 507 F.3d 888 (5th Cir. 2007)

Because of defense counsel’s representation of the defendant and a co-conspirator, he may have suffered from a conflict of interest that tainted the defendant’s guilty plea. A remand was necessary to make further findings about when defense counsel became aware of his actual conflict.

United States v. Nicholson, 475 F.3d 241 (4th Cir. 2007)

The defendant was charged with possession of a firearm by a convicted felon. He told his lawyer that he carried the gun because a very dangerous man (Butts) had taken a contract out on his life; had shot his brother, and shot and killed his step-father. The attorney then became Butts’ lawyer in his drug and conspiracy case (the sentencing for which included allegations that he shot and killed Nicholson’s step-father). Nicholson did not know that the attorney also represented Butts. This posed a clear actual conflict of interest. At Nicholson’s sentencing, the attorney failed to argue that a downward departure was appropriate based on defendant’s need to defend himself (a self-defense departure). Given the lawyer’s conflict, he could not raise this defense. A remand was necessary for a hearing on the actual prejudice that the defendant suffered by virtue of the conflict. Following remand and appeal, the Fourth Circuit held that an actual conflict of interest that prejudiced the defendant was shown to exist. This opinion contains a lengthy analysis of the law governing actual conflicts, including a discussion of the standards for establishing prejudice. United States v. Nicholson, 611 F.3d 191 (4th Cir. 2010).

United States v. Segarra-Rivera, 473 F.3d 381 (1st Cir. 2007)

Based on the defendant’s pro se statements regarding the inappropriate pressure that counsel placed on him before he relented and signed his guilty plea, there was at least a colorable basis for inquiring into a possible conflict of interest before actually conducting a hearing on the issue of the defendant’s Motion to Withdraw his Guilty Plea.

Hammon v. Ward, 466 F.3d 919 (10th Cir. 2006)

Two brothers were arrested in a car with crack cocaine and guns. One lawyer represented them. Their theory was going to be that brother #1 possessed the gun, and neither possessed the drugs (they had borrowed the car). Brother #1, however, entered a guilty plea to probation with the understanding that he would testify against brother #2. The lawyer continued to represent brother #2 (and did not tell #2 that #1 had entered a guilty plea). Everything about this situation represented a conflict. Not only does this pose an actual conflict of interest, but appellate counsel was ineffective in failing to raise this issue in the state appeal. Because of some uncertainty in the record, however, a remand to the federal habeas court was necessary to more fully develop the record.

United States v. Stitt, 441 F.3d 297 (4th Cir. 2006)

The attorney was laboring under an actual conflict of interest during the penalty phase of this death penalty trial. The federal court granted a writ, setting aside the penalty phase judgment. The defense attorney was paid considerable money to represent the defendant in this federal death penalty trial, though exactly how much was not clear, because the attorney claimed to have kept no records and had no recall. The trial court concluded that the attorney lacked credibility at the habeas hearing. Prior to trial, the attorney did not ask for funds to assist him in the penalty phase, because, according to the court, he did not want to expose his fee to court review. Instead, he hired less qualified experts. This amounted to a conflict of interest. The court invoked Cuyler v. Sullivan, 446 U.S. 335 (1980), as the controlling standard (as opposed to the Strickland standard that requires proof of actual prejudice), because the attorney suffered an actual conflict of interest, even though he was not representing two separate conflicting clients. The Sullivan standard requires that the defendant show that the attorney suffered from an actual (as opposed to a potential) conflict of interest and that the conflict significantly affected counsel’s performance. If these two prongs are met, actual prejudice need not be shown. THE FOURTH CIRCUIT SUBSEQUENTLY VACATED THIS OPINION ON JURISDICTIONAL GROUNDS. 459 F.3d 483.

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005)

The public defender’s office suffered from a conflict of interest that should have led the trial court to appoint replacement counsel in this death penalty case. The defendant, who had been convicted of a previous crime, had filed a habeas corpus petition against the public defender’s office in connection with the earlier case. Finally, shortly before trial, the court appointed two lawyers to replace the public defenders. For both the new attorneys, this was their first capital case. There was almost complete distrust between the defendant and his newly appointed attorneys (one of whom had recently left the DA’s office). By the time of trial, the attorneys and the defendant were not on speaking terms. Virtually no investigation into possible mitigating evidence was undertaken by the attorneys. The Ninth Circuit concluded that there was a presumption of prejudice caused by the conflict and the writ was granted.

United States v. Infante, 404 F.3d 376 (5th Cir. 2005)

The defendant’s attorney previously represented two witnesses who testified for the government. An entirely insufficient Garcia hearing was held, at which the defendant was never asked if he understood the nature of a conflict. The witnesses’ testimony did not implicate the defendant. Nevertheless, the record was not sufficient to demonstrate that the conflict did not adversely prejudice the defendant. A remand for further hearings was required to determine if the attorney could have developed additional testimony from the witnesses that would have exculpated his current client.

United States v. Gonzalez-Lopez, 399 F.3d 924 (8th Cir. 2005)

This case does not involve a pretrial determination that a conflict existed, but its holding presumably would apply in such situations. In this case, the trial court improperly denied the defense counsel’s application to appear pro hac vice. As a result, the defendant was denied his right to counsel of his choice. The Eighth Circuit holds that this is grounds for reversal without a showing of prejudice. The court specifically rejected the availability of harmless error review: “Attorneys are not fungible.” The United States Supreme Court affirmed: See annotation at ATTORNEYS (Right To Counsel).

United States v. Osborne, 402 F.3d 626 (6th Cir. 2005)

The trial court’s evaluation, pretrial, of the potential conflict posed by the attorney’s representation of both the defendant and her husband was inadequate. The court failed to comply with various components of Rule 44(c), including posing certain illustrative types of conflicts that might arise and the risks that these conflicts might entail.

Locascio v. United States, 395 F.3d 51 (2d Cir. 2005)

The defendant, Locascio, made a sufficient showing to mandate a full evidentiary hearing on his claim that his attorney suffered from a conflict of interest at trial. The defendant offered evidence that the defendant’s attorney had been threatened by the lead defendant (John Gotti) that he should not pursue a defense that had any potential for “individualizing Locascio at Gotti’s expense.”

Lewis v. Mayle, 391 F.3d 989 (9th Cir. 2004) The defendant’s attorney at trial represented the only other possible perpetrator of the murder in a matter (DUI charges) immediately prior to undertaking the defendant’s defense. The prior client was a witness for the prosecution. This represented an actual conflict of interest and the Ninth Circuit held that a habeas writ would be granted. The fact that there were “on-the-record” waivers by both the defendant and the witness was not sufficient to waive the conflict, because the defendant did not seek the advice of outside counsel to fully explore the nature of the conflict and had only a cursory conversation with the judge about the possible conflict ramifications.

Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004)

One of the murder defendant’s trial lawyers also represented a lead detective in a real estate deal. The prosecutor moved to disqualify the attorney on the basis of this supposed conflict. The trial court agreed. The attorney was removed. The detective never testified at trial. The Seventh Circuit held that removing the lawyer was error. One alternative would have been to have co-counsel cross-examine the witness (if he had testified). However, the court also held that there was no prejudice. In short, the removal of a trial lawyer is not grounds for reversal per se. The defense must prove prejudice.

United States v. Williams, 372 F.3d 96 (2d Cir. 2004)

Prior to entering his guilty plea, the defendant was represented by an attorney who participated in criminal conduct with the defendant. At sentencing (with new conflict-free counsel), the defendant was prejudiced, because his failure to cooperate earlier resulted in a sentence not as favorable as otherwise might have been imposed. The Second Circuit holds that a new sentencing should be held that endeavors to put the defendant in the position he would have been had there been no conflict.

Hall v. United States, 371 F.3d 969 (7th Cir. 2004)

The defendant, who eventually entered a guilty plea, was represented by an attorney who previously represented another defendant who was a potential witness against the defendant. The Seventh Circuit holds that the petitioner was entitled to a hearing on this actual conflict of interest. Distinguishing Mickens v. Taylor, the Seventh Circuit held that the successive representation in this case was quite dramatic (the witness was represented ten days prior to the attorney’s representation of the defendant – both defendants were inmates in a prison at the time of the closely interrelated offenses). Also Mickens does not prevent a petitioner from having an evidentiary hearing to probe the impact of the conflict.

McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004)

Trial counsel represented two defendants at trial. Just prior to the beginning of trial, the attorney told the trial judge that things had become a bit “sticky” and that perhaps some inquiry would be appropriate. The trial judge declined. However, the judge did grant a severance and the defendants proceeded to trial with one lawyer, but in separate trials. The trials were conducted as bench trials, back-to-back, over the course of three days. In fact, the trials actually overlapped. Pursuant to Holloway, the trial court erred in failing to fully inquire into the conflict that was presented to the court prior to trial. See also Harris v. Carter, 337 F.3d 758 (6th Cir. 2003). Though Holloway requires automatic reversal where a complaint is raised pre-trial to joint representation at the same trial, the same rule applies here, where the problem was raised prior to the scheduled joint trial and the only remedy was severance.

United States v. Salado, 339 F.3d 285 (5th Cir. 2003)

Two defendants were represented by one attorney for the entry of a guilty plea. One defendant adequately demonstrated a conflict of interest to the extent that a remand to conduct a post-trial Rule 44(c) hearing was necessary. Even though the magistrate advised the defendants of some of the dangers of proceeding with one attorney, the district court judge did not renew the inquiry prior to the entry of the guilty plea.

Harris v. Carter, 337 F.3d 758 (6th Cir. 2003)

Defense counsel represented two men charged with a drive-by shooting. Shortly before trial, the trial court severed the cases. The first defendant was tried and convicted. As the second trial began, the first defendant was immunized and ordered to testify against the second defendant. The trial attorney expressed concern about his ability to proceed in light of the conflict. The trial court’s failure to further inquire into the conflict and appoint separate counsel was error requiring granting a writ of habeas corpus. See Holloway v. Arkansas, 435 U.S. 475 (1978)

United States v. Newell, 315 F.3d 510 (5th Cir. 2002)

Though the court engaged in a pretrial Garcia hearing pursuant to Rule 44(c), the development of a conflict during trial was not thereby waived. Antagonistic defenses at trial should have prompted a further inquiry to ensure that the defendants both understood their right to separate un-conflicted counsel. The court reversed one defendant’s conviction.

Rubin v. Gee, 292 F.3d 396 (4th Cir. 2002)

After the defendant killed her husband, she called two lawyers who had her brought to a hospital and then took possession of certain evidence. Part of their motive was to delay her arrest until she could pay them a substantial retainer. The lawyers then employed another lawyer to try her case, but remained in the case as “shadow” lawyers. Their involvement in the delay in turning her in was never revealed to the jury, though some of her conduct (as directed by the lawyers) was relied upon by the prosecution to show her consciousness of guilt. The fact that the lawyers could not testify at trial to explain the defendant’s conduct after the shooting, and because they had an interest in protecting their fee, as well as shielding themselves from possible criminal prosecution, the defendant suffered a denial of the effective assistance of counsel.

Smith v. Hofbauer, 312 F.3d 809 (6th Cir. 2002)

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held if a defendant asserts that he was denied effective assistance of counsel, he must show that his counsel’s performance was deficient, and that this deficient performance was prejudicial, i.e., that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” In the context of conflicts of interest, however, the Court in Holloway v. Arkansas, 435 U.S. 475 (1978), held that where the defense counsel simultaneously represents multiple defendants with divergent interests, prejudice is presumed. Later, in Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court held that absent an objection by the defendant, the Holloway presumption does not apply. However, even when there is no objection, the Cuyler v. Sullivan Court held that the defendant is only required to show that the conflict adversely affected counsel’s representation – a showing less demanding than Strickland. In Mickens v. Taylor, 535 U.S. 162 (2002), this line of cases was extended to a case in which the trial judge knew of the defense attorney’s conflict (he previously represented the victim in a juvenile case, and then represented the defendant charged with the murder). The Court held that the Holloway presumption of prejudice standard did not apply, even in that situation. The Court held that where there is no objection, the defendant must still demonstrate that the conflict adversely affected counsel’s representation. In this case, the Sixth Circuit considered whether the reduced Cuyler standard of “adverse effect” applied in conflict situations other than simultaneous representation cases. This case involved an attorney being prosecuted for a drug offense by the same prosecutor’s office that was prosecuting the defendant. In the state habeas court, the defendant claimed that there should be a presumption of prejudice. The state habeas court disagreed. Without deciding what the test should be, the Sixth Circuit held that the rule was not “clearly established” and thus the state habeas court’s decision would not be upset.

United States v. Moore, 159 F.3d 1154 (9th Cir. 1998)

A complete breakdown in communication between the defendant and his attorney represented a conflict that amounted to a denial of the defendant’s Sixth Amendment right to counsel. The attorney failed to alert the defendant to a plea deadline; the defendant had threatened to sue the attorney; the attorney felt physically threatened by the defendant; the attorney did not interview witnesses or file motions that the defendant requested. The trial court, aware of some of these problems prior to trial, simply told the defendant that the trial would not be delayed and he could change counsel if new counsel was ready by the scheduled trial date. The defendant could not find replacement counsel in time. Forcing the defendant to proceed with the attorney with whom there was a conflict was erroneous and required reversing the conviction.

United States v. Jiang, 140 F.3d 124 (2d Cir. 1998)

Trial counsel's partner represented an alleged co-conspirator in a related forfeiture proceeding. Though there was no demonstrated actual conflict of interest, the trial court erred in failing to fully inquire into this matter more fully and determine whether there was an actual conflict and what effect this conflict had on the representation of the defendant.

United States v. Taylor, 139 F.3d 924 (D.C.Cir. 1998)

The defendant was charged with criminal contempt for violating a freeze order. The defendant sought new counsel after he entered a guilty plea, claiming that his counsel was suffering from a conflict of interest in that his attorney had given him certain advice regarding the freeze orders that he complied with – and which were later the subject of the alleged contempt. The alleged conflict was sufficient to warrant an evidentiary hearing on the defendant's motion to withdraw the guilty plea.

United States v. Kliti, 156 F.3d 150 (2d Cir. 1998)

The defendant’s attorney was a witness to statements made by a key government witness (who the attorney previously represented) that exculpated the defendant. The trial court erred in failing to conduct a hearing to determine whether this “conflict” (i.e., the fact that the attorney was needed as a witness for the defendant) necessitated his removal from the case. When the witness denied making the exculpatory statement, the attorney was barred from offering impeachment evidence, thus depriving the defendant of important evidence in his defense. A remand was required to determine whether the defendant waived his right to conflict-free counsel.

United States v. Luciano, 158 F.3d 655 (2d Cir. 1998)

A letter that the defense attorney wrote to the judge prior to sentencing that berated the defendant and sought to be relieved of further representation demonstrated a clear conflict. This was more than a simple fee dispute.

In re Grand Jury Proceedings (Doe), 859 F.2d 1021 (1st Cir. 1988)

The Supreme Court’s holding in Wheat v. United States does not apply where it is only a “tenuous inferential relationship” between the attorney’s clients. In order to conflict the attorney out of the case, there must be a direct link between the clients of the attorney or at least some concrete evidence that one client has information about another which would require the removal of the attorney.

United States v. Diozzi, 807 F.2d 10 (1st Cir. 1986)

The trial court disqualified two defendants’ attorneys on the grounds that pre-indictment memoranda submitted to the government by the attorneys was admitted into evidence. Prior to their indictment, the defendants, with the aid of their attorneys, had submitted memoranda to the Justice Department and the I.R.S. explaining their basis for submitting their tax returns. After indictment, the government intended to introduce these attorney-authored documents into evidence. The trial court disqualified the attorneys because they would be witnesses in the case. Because the defendants were willing to stipulate to the statements in those documents, the First Circuit reversed.

United States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995)

Defendant was charged with obstruction of justice, among other offenses, because he altered documents before having them produced to the grand jury in response to a subpoena. The documents were brought to the grand jury by a records custodian who was represented by the same lawyer who represented the defendant at trial. At the grand jury, the records custodian lied about the alteration of the documents and the method of collecting the records. Prior to trial, however, the witness was granted immunity and testified at trial. The attorney suffered from an actual conflict of interest, because his prior representation of the witness limited the degree to which he could cross-examine this very important and damaging witness for the government.

Ciak v. United States, 59 F.3d 296 (2d Cir. 1995)

Defendant’s attorney in this firearm case had previously represented one of the government’s witnesses in a related forfeiture proceeding. The relationship with the witness (former client) had deteriorated and during cross-examination, the attorney became an “unsworn witness” in his effort to impeach the witness with his prior statements. This resulted in the credibility of the attorney becoming an issue in the case. The conflict was aggravated by the fact that his cross-examination of the witness was at least in theory hampered by the inability to use statements, which were within the attorney-client privilege. Furthermore, the attorney was conflicted because his theory of the defense was that it was the former client who put the gun in the car which the defendant was now charged with possessing. Finally, because the attorney’s fee was to be obtained from the forfeited property, he had a financial stake in ensuring that the former client secured the return of the car (therefore it was at least arguably in his interest to have the defendant’s guilt established, so that the former client could prevail as an innocent owner). Because the trial court failed to make any inquiry into these possible conflicts, the habeas writ would be granted. Note that Mickens v. Taylor holds that automatic reversal is not required simply by virtue of a failure to inquire into the conflict.

Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995)

After entering a guilty plea, but before sentencing, the defendant accused his attorney of coercing him to enter the plea and failing to properly prepare the case. The attorney announced on the record that he denied every allegation. The trial judge then proceeded to sentence the defendant. There was an actual conflict of interest which should have resulted in the appointment of new counsel. The attorney could not support the defendant’s position at his own peril, or contest the defendant’s position at the defendant’s peril.

United States v. Levy, 25 F.3d 146 (2d Cir. 1994)

There were numerous circumstances which suggested that a conflict of interest impaired the attorney’s representation of the defendant: (1) the attorney had represented a relative of the defendant previously, who was allegedly a member of the conspiracy involving the defendant (the relative was now a fugitive); (2) the attorney was awaiting sentencing on his own case; (3) the attorney was under investigation for helping the relative of the defendant escape the country and remain a fugitive; (4) the attorney was a witness to statements made by the relative during plea negotiations which inculpated the defendant. At no time did the trial court adequately confront these issues by addressing the defendant and ascertaining whether he was aware of, and waived, these possible conflicts. In some cases, the failure to make inquiry requires automatic reversal of the conviction. See, e.g., Hamilton v. Ford, 969 F.2d 1006 (11th Cir. 1992). Here, however, there was at least some inquiry by the district court into the possible conflict issues. Nevertheless, the record reveals that the attorney labored under an actual conflict of interest and therefore reversal of the conviction was necessary. First, the defendant’s most plausible defense would have been to point the finger at his relative, who was the attorney’s other client; second, the desire to avoid having the attorney testify against the defendant required shifting certain defense strategies; third, the attorney’s possible desire to curry favor with the government in light of his own pending case created an actual conflict (even though the attorney was sentenced prior to the beginning of trial); finally, the attorney’s possible role in assisting the relative to escape created a strong interest in the attorney to avoid investigating the relative’s conduct.

United States v. Fulton, 5 F.3d 605 (2d Cir. 1993)

During the course of trial, during a sidebar conference, a witness claimed that the defendant’s attorney was involved in a heroin smuggling operation. The attorney should have been disqualified at this time. If the accusation were true, the attorney labored under an obvious actual conflict; if the accusation were false, the attorney was crippled by his inability to effectively impeach the witness. In either case, the defendant was deprived of effective assistance of counsel. In the former instance, prejudice is per se; in the latter instance, the Cuyler standard applies, but there is no means, during the course of trial, to ascertain the truthfulness of the allegation. Therefore, disqualification is necessary in all such cases.

United States v. Camisa, 969 F.2d 1428 (2d Cir. 1992)

A trial court’s decision refusing to disqualify an attorney because of a possible conflict of interest is not immediately appealable by the government. This is true even if allowing the attorney to appear may necessitate excluding certain evidence.

Strouse v. Leonardo, 928 F.2d 548 (2d Cir. 1991)

An attorney represented a defendant who had murdered his mother. The defendant had been listed as the executor of his mother’s estate. The attorney was listed as a contingent executor. The Second Circuit remanded this habeas case to the district court to determine if this amounted to a conflict of interest.

United States v. Voigt, 89 F.3d 1050 (3rd Cir. 1996)

In a lengthy opinion that thoroughly reviews the law governing claims by defendants that his chosen counsel was improperly disqualified, the court ultimately holds that disqualification in this case was proper. Though the government’s argument that the attorney was a potential witness was weak, the argument that the attorney had previously represented co-defendants, as well as the corporate employer of the individual defendants, supported the lower court’s decision disqualifying the attorney (who, incidentally, was the defendant’s third retained counsel).

United States v. Moscony, 927 F.2d 742 (3rd Cir. 1991)

The attorney represented several of the defendant’s employees when they appeared at the grand jury. Those witnesses were now witnesses against the defendant. The attorney labored under a conflict and was properly removed, despite the defendant’s willingness to waive the conflict.

United States v. Gilliam, 975 F.2d 1050 (4th Cir. 1992)

The trial court’s failure to conduct a Rule 44(c) hearing in light of the actual conflict of interest which arose by virtue of counsel’s representation of both defendants (father and son) required a remand to inquire into the nature of the conflict. The conflict arose during the course of trial when the prosecutor offered a “package deal” plea bargain.

United States v. Swartz, 975 F.2d 1042 (4th Cir. 1992)

Counsel represented both the defendant and her co-defendant. They both entered guilty pleas, having waived any potential conflict. At sentencing, however, an actual conflict arose when the trial court indicated that the guideline sentence of the two defendants was inappropriately disparate. Counsel’s advocacy on behalf of the defendant suffered because of his effort to advocate on behalf of the co-defendant. The earlier waiver did not vitiate defendant’s right to conflict-free counsel at sentencing.

United States v. Tatum, 943 F.2d 370 (4th Cir. 1991)

The defendant was charged with bankruptcy fraud for having failed to list certain automobiles on his assets schedule. He was represented initially by an attorney who worked for the firm which advised him not to list the cars (another of whose lawyers owned one of the cars). That attorney was eventually disqualified, but he remained in the case and sat at counsel table and advised the new defense attorney. That attorney’s participation, even as second chair, represented ineffective assistance of counsel because of the severe conflict.

Hoffman v. Leeke, 903 F.2d 280 (4th Cir. 1990)

An attorney represented a murder defendant as well as a former co-defendant who had entered a plea agreement, given a statement to the police and then testified against the defendant. This constitutes a conflict of interest which resulted in vacating the conviction. The fact that the defendant consented to the multiple representation was inconsequential because he did not realize when he made this waiver that his former co-defendant would be testifying against him.

Perillo v. Johnson, 79 F.3d 441 (5th Cir. 1996)

Defense counsel represented both the defendant and a key state’s witness who had been given transactional immunity in exchange for her testimony at defendant’s trial. An adverse effect was demonstrated by the obvious conflict that the attorney faced: it was in the witness’s interest to testify (and receive immunity) and not to be shown to be lying. It was in the defendant’s interest not to have the witness testify and to show that the witness was lying.

United States v. Greig, 967 F.2d 1018 (5th Cir. 1992)

One defendant’s attorney suffered an actual conflict of interest and the trial court’s failure to make an inquiry into the situation necessitated reversing the conviction. On two occasions, the attorney had contacted a co-defendant who was contemplating pleading guilty and encouraged him not to do so. This contact was made without the knowledge of the co-defendant’s counsel. Just prior to trial, the court was made aware of these improper contacts and advised the attorney that at the end of trial, a disciplinary hearing would be held. The court should have conducted a hearing with the defendant at that point and advised the defendant of the impending disciplinary hearing. During the course of trial, the attorney was in the position of having to defend himself, as well as the defendant. In fact, during the trial, the attorney questioned the co-conspirator in a way which minimized his contact with the co-conspirator, indicating that it was the defendant, not the attorney, who initiated the meetings. This posed an actual conflict of interest which required a Rule 44(c) hearing.

United States v. Varca, 896 F.2d 900 (5th Cir. 1990)

Attorneys who share office space are not part of the same “firm” for purposes of determining whether there is a conflict by virtue of the fact that one attorney represents a government witness and another “space sharer” represents the defendant.

United States v. Boling, 869 F.2d 965 (6th Cir. 1989)

An attorney represented the defendant’s co-defendant previously. The co-defendant was the president and sole owner of the defendant’s employer. Throughout the trial, it was apparent that the attorney allowed the interest of the co-defendant to override the interest of the attorney’s own client.

Thomas v. Foltz, 818 F.2d 476 (6th Cir. 1987)

Three defendants were represented by one attorney. The prosecutor offered a “package deal” which had to be accepted by all or none. The Court of Appeals held that the attorney rendered ineffective assistance of counsel to the less culpable member of the trio. But the court does not hold that it is per se ineffective assistance of counsel to represent three defendants when a package deal is offered. In this case, the least culpable defendant had constantly maintained his innocence.

Griffin v. McVicar, 84 F.3d 880 (7th Cir. 1996)

Though the two defendants’ lawyer did not reveal any conflict prior to trial in representing both defendants in this murder trial, the existence of an actual conflict of interest arose and the petitioner’s conviction, therefore, was tainted by ineffective assistance of counsel. The defense of one defendant was hopeless and the attorney pursued a substantially flawed alibi defense. The petitioner, on the other hand, had a possible “bystander” defense, but, because of the attorney’s strategy, went with the alibi for him, as well.

United States v. Shorter, 54 F.3d 1248 (7th Cir. 1995)

At defendant’s sentencing, it became apparent that the defendant was contending that the attorney had forced him to plead guilty against his wishes. The attorney denied this and accused the defendant of interfering with the integrity of the court. This reflected a conflict of interest and a new attorney should have been appointed.

Castillo v. United States, 34 F.3d 443 (7th Cir. 1994)

The defendant and his alleged accomplice were represented by one attorney. A cursory Rule 44(c) hearing was held. It was debatable whether the defendant understood English well enough to answer the Rule 44(c) questions. Though he answered “yes” to each of the waiver questions, this is not sufficient to establish a knowing and voluntary waiver of conflict-free counsel. The defendant’s allegations of an actual conflict were satisfied by his affidavit that the attorney told him not to testify, because it could hurt the co-defendant.

Stoia v. United States, 22 F.3d 766 (7th Cir. 1994)

The defendant was represented at trial by certain attorneys, but claimed in this §2255 petition that another attorney, who did not file an appearance, was actually directing trial strategy. An ineffective assistance of counsel claim may be valid, even with respect to an attorney who has not filed an appearance. In this case, the non-appearing attorney was burdened with a conflict of interest. The non-appearing attorney made numerous tactical decisions which the defendant followed, including requesting a continuance, not interviewing certain witnesses and recommending that the defendant not testify in his own behalf. He also failed to file any pretrial motions, which was his delegated responsibility in the case. The non-appearing attorney’s conflict resulted from an agreement he had with the government, as part of his own plea agreement, that provided that he would not represent any person charged with crimes. The attorney was also involved in undercover work with law enforcement.

United States ex rel Duncan v. O’Leary, 806 F.2d 1307 (7th Cir. 1986)

The defendant’s attorney was the prosecutor’s campaign manager for the office of district attorney. There was explicit evidence of collusion between the defense attorney and the prosecuting attorney. The state conviction was thrown out by the Seventh Circuit in this habeas proceeding.

Dawan v. Lockhart, 31 F.3d 718 (8th Cir. 1994)

The public defender represented two individuals charged with burglary. The first defendant agreed to plead guilty and gave a statement implicating the second defendant. Prior to trial, however, the defense attorney and the prosecutor agreed that there was no conflict because neither side planned to call the first defendant. At trial, however, the defendant ended up calling the guilty-pleading co-defendant and elicited testimony that completely exculpated the defendant. He asked no questions, however, about the prior inconsistent statement. The prosecutor cross-examined the witness about his prior inconsistent statement. Because the attorney should have been the first to raise the issue regarding the prior statement (in order to soften the blow), but failed to do so, arguably in order to protect his former client from a perjury charge, this actual conflict rendered him ineffective. In order to establish that the conflict prejudiced him, it is not necessary to meet the Strickland standard of prejudice. When there is an actual conflict, the defendant need only establish that the conflict of interest actually affected the adequacy of the representation.

United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996)

A defendant has a constitutional right to counsel in pursuit of a new trial motion. Here, the defendant, pro se, claimed that trial counsel was ineffective. The district court required trial counsel to represent the defendant in connection with this motion during the new trial motion. This was an improper procedure. Trial counsel had a clear conflict in pursuing the claim that he was ineffective. The trial court should have appointed substitute counsel to prosecute the new trial motion.

Quintero v. United States, 33 F.3d 1133 (9th Cir. 1994)

The defendant’s fee was paid by a third person. The attorney urged the defendant to reject a proposed plea agreement. Whenever a defendant’s fee is paid by a third person, a potential conflict of interest exists. Wood v. Georgia, 450 U.S. 261 (1981). One risk is that the lawyer will prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer’s interests. A full evidentiary hearing was necessary to fully explore the petitioner’s allegations.

Fitzpatrick v. McCormick, 869 F.2d 1247 (9th Cir. 1989)

The attorney who represented the defendant at his murder trial had previously represented his co-defendant at a previous trial. At this trial, the defense was that the former client was the guilty party. This actual conflict of interest required reversal of the defendant’s conviction.

United States v. Allen, 831 F.2d 1487 (9th Cir. 1987)

One law firm, Oteri & Weinberg, sought to represent seventeen defendants in this drug conspiracy prosecution. The attorneys offered to rate the culpability of the defendants during the initial joint plea negotiations. Nevertheless, certain defendants ultimately obtained separate counsel and their convictions were affirmed despite the court’s disapproval of the law firm’s initial joint representation.

United States v. Gallegos, 108 F.3d 1272 (10th Cir. 1997)

The defendant was entitled to a new trial because of her counsel’s conflict of interest. The attorney also represented a witness called by a co-defendant and this posed a conflict, because his advice to the witness was that he should plead the Fifth, whereas his duty to his client was to urge the witness to provide exculpatory evidence in support of the defendant.

Edens v. Hannigan, 87 F.3d 1109 (10th Cir. 1996)

Trial counsel represented two defendants in this armed robbery / murder trial. One of the defendants was not at the scene, but allegedly participated in the planning and otherwise aided and abetted the offense. The other was a participant. An actual conflict of interest existed. The participant defended on the basis of compulsion (from a third participant) and the petitioner claimed that he had no role in the offenses.

Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996)

Two public defenders from the same firm were appointed to represent two defendants charged with robbery and murder. Pursuant to Holloway v. Arkansas, 435 U.S. 475 (1978), the state trial court should have appointed lawyers from separate firms after counsel indicated that there was a conflict.

Burden v. Zant, 24 F.3d 1298 (11th Cir. 1994)

The public defender represented two defendants who had been arrested for murder. He informally obtained immunity for one of the defendants, in exchange for his cooperation against the other. This was an actual conflict of interest requiring the reversal of the conviction of the other defendant. See Ruffin v. Kemp, 767 F.2d 748 (11th Cir. 1985).

Hamilton v. Ford, 969 F.2d 1006 (11th Cir. 1992)

State trial counsel’s objection to representing both defendants in a murder trial should have been sustained by the trial court. The trial court failed to explore the basis of the asserted conflict. Where there is no objection pre-trial, in order to prevail on appeal or on habeas, the defendant must show an actual conflict prejudiced him. Cuyler v. Sullivan, 446 U.S. 335 (1980). But where, as here, an objection is raised prior to trial, the defendants need not show an actual conflict of interest when a trial court fails to inquire adequately into the basis of the objection. Reversal is automatic if the trial court fails to make a reasonable inquiry into the asserted conflict.

Buenoano v. Singletary, 963 F.2d 1433 (11th Cir. 1992)

A defendant’s attorney also represented the defendant in connection with movie and book rights relating to the offense. This posed a possible conflict of interest and a full evidentiary hearing should have been conducted by the federal habeas court. The defendant had poisoned two of her husbands to collect life insurance proceeds and had tried to poison a third husband.

McConico v. Alabama, 919 F.2d 1543 (11th Cir. 1990)

The murder defendant’s lawyer also represented the victim’s life insurance beneficiaries, one of whom was a witness for the state at trial. If the defendant won at trial, there was a possibility that the beneficiaries would lose their benefits (the policy excluded benefits if the decedent was engaged in an assault or a felony – the defendant’s defense was self-defense). This is an actual conflict of interest necessitating a new trial. This is a situation of inherently divided loyalty because the success of one client depends on discrediting another. A showing of “adverse effect” is necessary and the defendant made an adequate showing in this case.

United States v. Stuckey, 917 F.2d 1537 (11th Cir. 1990)

When the trial court learned that the defendant’s attorney had been paid from another source, and that the lead counsel for that defendant had also received money from another source, the trial judge questioned both lawyers about the source of their fees and questioned the defendant, outside the presence of the attorney, about the willingness to proceed in light of the potential conflict of interest. After conducting this inquiry, the trial judge removed the lead counsel despite the defendant’s willingness to waive that potential conflict. The Eleventh Circuit affirms, concluding that there was an inescapable inference that a drug syndicate for which the defendant worked had paid for her attorney in order to assure her silence.

United States v. Sims, 845 F.2d 1564 (11th Cir. 1988)

It was proper for the trial judge to require all attorneys to divulge the source of their fees in this multi-defendant drug prosecution. The record indicated that attorneys representing certain defendants had represented co-defendants in previous cases and that some defendants were paying for other defendants’ lawyers.

United States v. McLain, 823 F.2d 1457 (11th Cir. 1987)

Defendant’s attorney was under investigation for a Hobbs Act violation but did not inform the defendant of his conflict. The Court holds that this creates an actual conflict of interest which requires a reversal of the defendant’s conviction.

Porter v. Wainwright, 805 F.2d 930 (11th Cir. 1986)

In this habeas case, the court held that the petitioner was entitled to a hearing to inquire into his attorney’s conflict of interest in light of the attorney’s prior representation of a key prosecution witness. The state court refused to give the defendant an evidentiary hearing on his claim of ineffective assistance of counsel based on his attorney’s failure to cross-examine this witness.

In re Paradyne Corp., 803 F.2d 604 (11th Cir. 1986)

The district court attempted to hold ex parte, in camera hearings to inquire into potential conflicts of interest among the lawyers. The court intended to question counsel about their possession or use of information disclosed by other attorneys who represented co-defendants. In addition, the court intended to question the defendants outside the presence of their attorneys. The Eleventh Circuit holds that this inquisitorial proceeding was unnecessary and a violation of the defendant’s Fifth and Sixth Amendment rights