§ 3.50 2. Conflict of Interest
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In general, a criminal defense attorney who handled a prior criminal case for a client should not represent the client during post-conviction proceedings during which his or her own competence during the prior proceeding may be brought into question.
It is sometimes advisable for original counsel to continue to represent the defendant during a later effort to withdraw a plea. First, where the motion to withdraw the plea happens before sentence or at a very early time when the plea and sentence are so fresh that everyone involved sees the original lawyer as the counsel for the defendant. Second, where the lawyer’s interests are truly not conflicting with those of the client, i.e., where the lawyer is in complete agreement with the goal of establishing his or her own ineffectiveness so as to vacate the client’s conviction. Third, sometimes the relationships between the original lawyer and the prosecutor and court are such that original counsel’s effort to vacate the plea is much more likely to succeed than the efforts of new counsel, who may be a stranger in that court and regarded with suspicion as an outsider.
This is not so much a legal question, since the law may provide that a client does not have a right to effective assistance of counsel during post-conviction proceedings. It is more of a fail-safe criterion in the best interest of the client, as the loyalties of the original lawyer may be divided between aiding the client by vacating the earlier conviction, even if it means establishing counsel’s ineffective assistance at that time, and the desire to protect counsel’s own reputation against a finding of ineffective assistance of counsel.
Cases have considered the question of conflict of interest when the attorney has a conflicting interest in avoiding a finding of ineffective counsel, whereas the client has an interest in establishing ineffective counsel so as to withdraw a plea.
“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.” In Mathis v. Hood, 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, 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.
In United States v. Sanchez-Barreto, 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).”
 Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), cert. denied, 517 U.S. 1115 (1996).
 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 (1987), and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)).
 Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991).
 Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995).
 Id., citing United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir. 1992).
 United States v. Sanchez-Barreto, 93 F.3d 17 (1st Cir. 1996).
 United States v. Miskinis, 966 F.2d 1263, 1269 (9th Cir. 1992).