A guilty plea may be rendered legally invalid if defense counsel suffered from a debilitating conflict of interest. Counsel who had previously rendered ineffective assistance may well have been aware of his error at the time of the entry of the plea. On the one hand, he was obligated to inform his client of his own error. In effect, he had a duty to inform the client of his own ineffective assistance. On the other hand, he had a personal interest in concealing his error from his client, to protect his professional reputation, to protect his license to practice law, and to protect himself against the possibility of liability in damages for professional negligence. A person suffering this acute conflict of interest is disabled from vigorously representing his client. See Annot., Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel " Federal Cases, 53 A.L.R. FED. 140; Developments in the Law " Conflicts of Interest in the Legal Profession, 94 HARVARD L. REV. 1244, 1381 (1981).

This conflict can have a real impact on counsels representation of his client at the plea hearing. Among other errors, counsel may fail to disclose his error to his client until after the plea and sentence had become final, thus relegating his client to the difficult road of seeking post-conviction relief. He should have told his client immediately and offered to withdraw from the representation, allowing the client to pursue his remedies at the time, before plea and sentence, when something might have been salvaged from the situation.

The Sixth Amendment guarantees criminal defendants effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Cuyler, 446 U.S. at 345, 100 S.Ct. at 1716; Duncan v. Alabama, 881 F.2d 1013, 1016 (11th Cir.1989). Part of effective assistance of counsel is the avoidance of conflicts of interest. The Supreme Court has emphasized that when counsel is burdened with a conflict of interest, she breaches the duty of loyalty, perhaps the most basic of counsel's duties and has therefore failed to provide effective assistance of counsel. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; see also Buenoano v. Singletary, 963 F.2d 1433, 1438 (11th Cir.1992).

A defendant may only waive the right to conflict-free counsel if that waiver is knowing and intelligent. For a waiver [t]o be knowing and intelligent the defendant must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel. Duncan v. Alabama, 881 F.2d 1013, 1017 (11th Cir. 1989).

The Supreme Court has held that attorney conflict of interest is per se prejudicial under the second prong of Strickland. That rule reflects the impossibility of proving prejudice in certain contexts, such as an attorney conflict of interest. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980) (attorney conflict of interest affecting representation). Here, defense counsels conflict of interest was per se prejudicial, because it disabled him from making many arguments in his clients favor during the plea hearing because if he did so, his client would learn of the ineffectiveness of his prior representation.

Under ABA standards, Rule 1.2, [a] lawyer shall abide by a clients decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. ABA Model Rules of Professional Conduct 1.2(a) (2000) (emphasis added). Moreover, as advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. Id. Preamble [2]. The lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Id. 1.4(b); see Rule 1.4 cmt. (The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.).

Courts have recognized actual conflicts of interest between an attorney and his client when pursuit of a clients interests would lead to evidence of an attorneys malpractice. 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)). In Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991), the court affirmed a district court finding that petitioners 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, 58 F.3d 38 (2d Cir. 1995), the court held that petitioners 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. Id., citing United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir. 1992).

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 lawyers personal interest. Mannhalt, 847 F.2d at 580 (citations omitted). United States v. Miskinis, 966 F.2d 1263, 1269 (9th Cir. 1992).