The classic case of conflict of interest is when one attorney represents more than one defendant, whose interests potentially conflict.[242]  An actual conflict exists when a defendant is placed “at odds with co-defendants who were in fact more culpable.”[243]  Other conflicts occur when the attorney has a conflicting pecuniary interest (book rights, for example, which would be worth more if the client were convicted), or where the attorney has an interest in avoiding a finding of ineffective counsel, whereas the client has an interest in establishing ineffective counsel so as to withdraw a plea.[244]  The court has also held there was a constructive denial of counsel when an attorney, who was elected as prosecutor after representing the defendant on appeal, did nothing to represent him or find substitute counsel during a state-requested discretionary appeal.[245] 

 

Where the attorney herself was under criminal investigation by the same prosecutor’s office that is prosecuting her client, an actual conflict of interest has been found.[246]  The Ninth Circuit held that petitioner was deprived of due process (but not effective assistance of counsel), because counsel suffered from a conflict of interest because she herself faced criminal prosecution by the same district attorney’ s office.  The trial court neglected its duty to appoint separate counsel or inquire into the nature of the conflict, by not asking defense counsel any questions concerning her ability to represent petitioner effectively.  The trial court only asked whether counsel “wish[ed] to make any statement at this time,” and terminated the inquiry when counsel declined to make a statement.

 

The Ninth Circuit found that the violation constituted a structural defect that was prejudicial per se and required reversal, stating that “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.”[247]  The California Court of Appeal decision was “contrary to” federal law since the decision failed to cite any federal law, “much less the Supreme Court precedents applicable to this case,” and also failed to consider whether error was structural or trial error as required by Arizona v. Fulminante.[248]  “[T]he in-chambers hearing held to determine whether Campbell’ s right to conflict-free counsel had been violated must have been a critical stage of the criminal proceedings.”[249]

 

            “Courts have recognized actual conflicts of interest between an attorney and his client when pursuit of a client’s interests would lead to evidence of an attorney’s malpractice.”[250]  In Mathis v. Hood,[251] the court affirmed a district court finding that petitioner’s state appellate counsel, faced with disciplinary proceedings and possible liability for causing a six-year delay in the appeal, suffered from a conflict of interest that created a per se Sixth Amendment violation and required the state to afford petitioner a new state appeal.

 

            Similarly, in Lopez v. Scully,[252] the court held that petitioner’s right to effective assistance of counsel at his sentencing had been violated, and ordered him resentenced with new counsel representing him.  Where petitioner had filed a pro se motion to withdraw his plea, on the ground his attorney had coerced him into entering it, a conflict of interest arose resulting in denial of effective assistance of counsel.[253]

 

            In United States v. Sanchez-Barreto,[254] the court reversed and remanded.  Defendant made a pro se motion to withdraw his guilty plea, arguing that his court-appointed counsel had coerced the defendant’s guilty plea in order to conceal his unpreparedness for trial, and the court held he was entitled to new unconflicted counsel to litigate this claim.

 

            A conflict of interest existed where appellant was unable to raise an issue (that he committed the act on advice of counsel) because his specific lawyer was representing him, that he would have been able to raise with other counsel.  The court stated: “The conflict would have been particularly acute if the advice Mitchell supposedly gave would have constituted a violation of the rules of professional ethics. ‘The presumption of prejudice extends to a conflict between a client and his lawyer’s personal interest.’  Mannhalt, 847 F.2d at 580 (citations omitted).”[255]

 

            In order to establish this violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.[256]

 

[A] rule requiring a defendant to show that a conflict of interests . . . 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 [involving a conflict of interest] 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.[257]

 

Another court held:

 

To establish that a conflict of interest adversely affected counsel’s performance, the defendant need only show that some effect on counsel’s handling of particular aspects of the trial was “likely.” Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 249, 109 S. Ct. 260 (1988).  As in Mannhalt, there are a number of areas in which an actual conflict of interest between Miskinis and Mitchell likely would have affected Mitchell’s advocacy.  These include: (1) Mitchell’s failure to put on an advice of counsel defense using Zecher’s testimony; (2) Mitchell’s refusal to testify regarding the conversation reported by Zecher; and (3) Mitchell’s failure to put Miskinis on the stand to testify regarding the alleged conversation. Assuming that an actual conflict of interest existed, Miskinis has satisfied the Cuyler test.[258]

 

            Petitioner need not show this claim would have prevailed.  He need not show prejudice.  The necessary showing has been made if it is clear that competent counsel would have raised the potentially meritorious issues.[259]  All that need be shown is that the conflict adversely affected counsel’s performance.  “[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.”[260]

 

            Once an actual conflict has been demonstrated, prejudice is presumed since the harm may consist not solely of what counsel does, but of “what the advocate finds himself compelled to refrain from doing, not only at trial but also” during pretrial proceedings and preparation.[261]  A requirement of a showing of prejudice “would not be susceptible of intelligent, even-handed application,”[262] as “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”[263]

 

            Harmless error analysis is inappropriate in this context.  Once a petitioner has shown that an actual conflict of interest adversely affected defense counsel’s performance, prejudice to the petitioner is presumed, and no further showing is necessary for reversal.[264]  “[T]he defendant need only show that some effect on counsel’s handling of particular aspects of the [appeal] was ‘likely.’” . . .  The strength of the prosecution’s case is not relevant to whether counsel’s performance was adversely affected.”[265]

 

[242] Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996) (court failed to inquire adequately into need for separate counsel for codefendants both of whom were represented by the same public defender’s office).

[243] Lockhart v. Terhune, 243 F.3d 1130 (9th Cir. 2001) (finding actual conflict where appointed counsel earlier represented another individual responsible for a prior crime).

[244] Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), cert. denied, 517 U.S. 1115 (1996).

[245] Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997).

[246] Campbell v. Rice, 302 F.3d 892 (9th Cir. September 4, 2002) (petitioner deprived of due process, but not effective assistance of counsel, where petitioner’s counsel was herself facing prosecution by the same district attorney’s office).

[247] Campbell v. Rice, 302 F.3d at 898, quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987).

[248] Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991); Campbell v. Rice, 302 F.3d at 898.

[249] Id., at 899.

[250] United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994) (citing United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir. 1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987), and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)).

[251] Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991).

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

[253] Id., citing United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir. 1992).

[254] United States v. Sanchez-Barreto, 93 F.3d 17 (1st Cir. 1996).

[255] United States v. Miskinis, 966 F.2d 1263, 1269 (9th Cir. 1992).

[256] Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718 (1980).

[257] Holloway v. Arkansas, 435 U.S. 475, 490, 55 L.Ed.2d 426, 98 S. Ct. 1173 (1978); see also United States v. Tatum, 943 F.2d 370, 375‑76 (4th Cir. 1991).

[258] United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992).

[259] Robinson v. Wyrick, 635 F.2d 757 (9th Cir. 1980); Johns v. Coughlin, 750 F.Supp. 76 (E.D.N.Y. 1990) (failure to brief arguably meritorious issues was denial of right to counsel on appeal requiring fresh appeal).

[260] United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981), citing Cuyler v. Sullivan, supra.

[261] Holloway v. Arkansas, 435 U.S. 475, 490 (1978) [emphasis supplied]; see also, e.g., Strickland  v. Washington, 466 U.S. 668, 692 (1984); United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992); Fitzpatrick v. McCormick, 869 F.2d 1247, 1251-52 (9th Cir. 1989), cert. denied, 493 U.S. 872 (1990).

[262] Holloway, 435 U.S. at 490.

[263] Strickland, 466 U.S. at 692; Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994).

[264] Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-1719; United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990), cert. denied, 498 U.S. 846, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990); Ellison, 798 F.2d at 1107.  See Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991) (requiring automatic reversal if “counsel actively represented conflicting interests and . . . an actual conflict of interest adversely affected his lawyer’s performance” (internal quotations and citation omitted)); see also Stoia v. United States, 22 F.3d 766, 771 (7th Cir. 1994) (stating that “[l]egal representation which is adversely affected by actual conflicts of interest is never considered harmless error” (quoting United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991)); McConico v. Alabama, 919 F.2d 1543, 1548 (11th Cir. 1990); cf. Penson v. Ohio, 488 U.S. 75, 88-89, 109 S.Ct. 346, 354-55, 102 L.Ed.2d 300 (1988) (holding that a total denial of counsel is legally presumed to result in prejudice and can never be considered harmless error).

[265] United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

Ninth Circuit

POST CON RELIEF - GROUNDS - COUNSEL - CONFLICT OF INTEREST - COUNSEL PAID BY CODEFENDANT NOT SUBJECT TO ACTUAL, MERELY THEORETICAL, CONFLICT OF INTEREST
United States v. Wells, 394 F.3d 725 (9th Cir. Jan. 11, 2005) (fact that co-defendant paid defendant's attorney's fees did not by itself create an actual conflict of interest: the defendant knew who paid the fee, counsel competently represented him, and there was some question whether the defendant paid some of the fee; payment by third party does create a "theoretical division of loyalties," (quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002).) See also Wood v. Georgia, 450 U.S. 261, 268-269 (1981).))

POST CON RELIEF - GROUNDS - RIGHT TO COUNSEL - CONFLICT OF INTEREST
Lewis v. Mayle, ___ F.3d ___, 2004 U.S. APP. LEXIS 24595 (9th Cir. Nov. 29, 2004) (conviction vacated due to conflict of interest in retained counsels representation of defendant and recent representation of his nephew, who was a prosecution witness, despite signed express waivers of any conflicts, defendant never consulted with independent counsel concerning the wisdom of the waiver or specifics of the potential conflict, and there was no evidence that defendant was ever advised of his counsels continuing obligations to his former client; counsel did not impeach the witness with the available criminal history information stemming from his recent representation of the witness (recent felony conviction for driving under the influence and pending felony probation status at the time of trial)).