Multiple Representation And Other Conflicts Of Interest

Front 1

Does multiple representation necessarily create 6A violation?

Back 1

No. D has to show that multiple representation resulted in conflict of interest, and that conflict of interest adversely affected lawyer's performance. Per STRICKLAND, D only need show performance was bad, no need to affirmatively show prejudice.

Front 2

Possible problems with representing multiple clients in same case?

Back 2

--Might link defendants in minds of jury, so if one co-D is convicted, other necessarily convicted as well
--Possibility of accidental disclosure of information that should be confidential per A-C privilege between co-Ds
--"Struggle to serve 2 masters"

Front 3

What do we mean by "struggle to serve two masters"?

Back 3

--May be conflict in terms of "best interests"--what's best for one client D may not be best for the other client D
--May create necessity for decisions that leave one D in a weaker position
--Difficult position if different client Ds have conflicting testimony
--May not be able to adequately advise plea bargaining since pleading for one may harm the other

Front 4

What are possible advantages of multiple representation?

Back 4

--Allows multiple Ds to benefit from access to good attorney
--Helps avoid prisoners dilemma used by gov't to get Ds to testify against each other
--Better able to generate common defense, which may make them more credible to the jury

Front 5

What duties to courts, counsel, and defendants have in relation to multiple representation?

Back 5

1. Court have duty to inquire
2. Counsel have duty to avoid conflicts of interest
3. Defendants have right to waive conflict of interest.

Front 6

What is court's duty to inquire in relation to multiple representation?

Back 6

Courts have duty to investigate timely objections to multiple representation. D's must initiate via objections and show that multiple representation made it more likely that counsel's performance was significantly affected.

Front 7

What does FRCrimP say?

Back 7

Rule 44 says that when D's have been joined and are represented by same atty, court must inquire. Unclear whether there is a duty if multiple representation occurs but is spread across different cases; also unclear what postconviction relief might look like.

Front 8

Alternative approaches to duty to inquire?

Back 8

Souter argues that judge's duty to inquire triggered as soon as he knows or has reason to know of potential conflict of interest, and then must decide whether to eliminate risk or accept D's waiver.

Prof. Tague says that FRCrimP should be amended to require unique attys for all indigents, and require that all non-indigents at least discuss their matter with different counsel.

Front 9

What is atty's duty to avoid conflicts of interest?

Back 9

Defense counsel have ethical obligation to avoid conflict representations and to tell court promptly when conflict arises.

Front 10

What is defendant's right to waive conflict of interest?

Back 10

D can waive right to conflict-free representation in order to be represented by same atty as another co-D. Judges don't have to accept these waivers. Curcio hearings determine whether D should be allowed to waive their right.

Front 11

US v FULTON

Back 11

Case of clear conflict of interest, D's waiver of conflict-free representation rejected by court because "no rational defendant would knowingly and intelligently be represented by a lawyer whose conduct was guided largely by a desire for self-promotion."

Front 12

What consequences to D of waiving conflict-free representation?

Back 12

If waiver accepted via CURCIO hearing, D cannot claim ineffective counsel on conflict grounds, unless able to show:
1. conflict was so severe as to be unwaiveable
2. waiver not knowing or intelligently made

Front 13

What are some possible scenarios in which D may be able to claim ineffective counsel in spite of conflict waiver?

Back 13

1. Prospective risk of conflict that judge knew (or should have known) about
2. Retrospective claim that completed proceeding tainted by conflict.