2/3/2004 5:30 PM I. INTRODUCTION

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1 The Degree of Separation: Should a Non-Participating Lawyer s Conflict Taint the Representation of Other Unconflicted Lawyers Rendering their Representation Constitutionally Ineffective? [T]here is little meaningful distinction between a lawyer who inadvertently fails to act and one who for selfish reasons decides not to act. The conflict between the lawyer s self-interest and that of his client is not a real conflict in the eyes of the law. Rather than being immobilized by conflicting ethical duties among clients, a lawyer who represents only one client is obliged to advance the client s best interest despite his own interest or desires. Even though his disloyalty does not leave the client bereft of counsel, it may well impinge on the effectiveness of his representation. 1 I. INTRODUCTION The Sixth Amendment to the United States Constitution states that in all criminal cases the defendant shall enjoy... the Assistance of Counsel. 2 The United States Supreme Court has extended this guarantee to include the right to the effective assistance of counsel. 3 Further, it is clearly established that this right includes representation that is free from conflicts of interest Beets v. Scott, 65 F.3d 1258, 1271 (5th Cir. 1995) (stating lawyers self-interests considered when evaluating effectiveness of counsel), cert. denied, 517 U.S (1996). 2. U.S. CONST. amend. VI. The Sixth Amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Id. 3. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)) (articulating Sixth Amendment right to counsel requirement). The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel s playing a role that is critical to the ability of the adversarial system to produce just results. Id. at 685; see Steven H. Goldblatt, Ineffective Assistance of Counsel: Attempts to Establish Minimum Standards, in THE DEFENSE COUNSEL, at 227 (Sage Criminal Justice Sys. Annuals Vol. 18 William F. McDonald, ed., 1983) (discussing constitutional right to counsel). There must be effective representation.... To allow a prisoner to try the issue of the effectiveness of his counsel under a liberal definition of that phrase is to give every convict the privilege of opening a Pandora s box of accusations which trial courts near large penal institutions would be compelled to hear. Goldblatt, supra, at 227 (quoting Diggs v. Welch, 148 F.2d 667, (D.C. Cir. 1945)). 4. See Wood v. Georgia, 450 U.S. 261, 271 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)) (reviewing history of right to counsel). Wood involved a multiple representation conflict in which an attorney,

2 98 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 Lawyers owe their clients a duty of loyalty, including the duty to avoid conflicts of interest. 5 The United States Supreme Court has emphasized that a lawyer who is burdened by an actual conflict of interest... breaches the duty of loyalty, perhaps the most basic of counsel s duties. 6 The United States Supreme Court, however, has not been clear about the consequences when the right to conflict-free counsel is violated. 7 The Court s landmark decision in Cuyler v. Sullivan 8 addressed the constitutional ramifications surrounding an individual s right to conflict-free counsel. 9 In Cuyler, the Court created a conflict of interest standard whereby a defendant must show that defense counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer s performance. 10 The United States Supreme Court commented that the adverse effect standard was a lower threshold of proof than a showing of prejudice, but neglected to define the meaning of adverse effect. 11 Four years after Cuyler, the United States Supreme Court decided Strickland v. Washington, 12 addressing a defendant s constitutional right to effective assistance of counsel. 13 The Court created a stringent standard, requiring a defendant to show the attorney s performance fell below an objective standard of reasonableness. 14 Furthermore, under Strickland, defendants must show that the inadequate representation prejudiced their case. 15 Under this test, a hired by a third party, represented three defendants for distributing obscene materials in violation of a Georgia Statute. Id. at The Court remanded the case, believing that a conflict of interest was apparent because the attorney was paid by a third party, the defendants employer. Id. at See Strickland, 466 U.S. at 692 (describing obligation of counsel to avoid conflicts of interest); see also NORMAN DORSEN & LEON FRIEDMAN, DISORDER IN THE COURT, (1973) (highlighting responsibilities of lawyers to clients). The lawyer s primary role is that of champion of his client. DORSEN & FRIEDMAN, supra, at 133. The American Bar Association s Standards Relating to the Prosecution Function and the Defense Function states [t]he basic duty the lawyer for the accused owes to the administration of justice is to serve as the accused s counselor and advocate, with courage, devotion and to the utmost of his learning and ability, and according to law. Id. 6. Strickland, 466 U.S. at See Brent Coverdale, Comment, Cuyler versus Strickland: The Proper Standard for Self-Interested Conflicts of Interest, 47 U. KAN. L. REV. 209, (1998) (reviewing United States Supreme Court conflict of interest standards); see also Recent Case, Mountjoy v. Warden, 115 HARV. L. REV. 938, (2002) (suggesting United States Supreme Court stance regarding right to conflict-free counsel unclear) U.S. 335 (1980). 9. Id. at 345 (indicating constitutional premise of right to counsel). The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance. Id. 10. Id. at 350 (setting forth standard governing conflict of interest claims). 11. Id. at (stating defendant must show conflict of interest actually affected representation rather than showing prejudice) U.S. 668 (1984). 13. Id. at (considering appropriate standard for judging ineffective assistance of counsel claim). 14. Id. at 687, 690 (detailing first component of ineffective assistance of counsel standard). Under the first component, deference is given to counsel s actions; a presumption exists that counsel rendered adequate assistance to the defendant. Id. at Id. at 687 (detailing second component of ineffective assistance of counsel standard).

3 2004] THE DEGREE OF SEPARATION 99 defendant must overcome a heavy burden to show that defense counsel was indeed ineffective. 16 In Strickland the Court distinguished Cuyler, suggesting that while conflict of interest claims fall within the purview of the Sixth s Amendment right to counsel requirement, they may be judged by different standards. 17 Attorneys acting under an actual conflict of interest breach their duty of loyalty, thereby entitling criminal defendants to a not quite... per se rule of prejudice. 18 This allows courts to subject claims of conflicts of interest to a lesser standard than ordinary claims of ineffective assistance of counsel. 19 As a result, this limited presumption of prejudice standard enticed many defendants to turn ordinary ineffective assistance claims into conflict of interest claims. 20 Moreover, if Cuyler is construed broadly, then defendants claims will easily fit under its less burdensome test. 21 If Cuyler is limited, however, the higher burden of Strickland will apply to ineffective assistance of counsel claims. 22 The relationship between Cuyler and Strickland continues to be a hotbed of controversy among the federal circuits. 23 The United States Court of Appeals for the Fifth Circuit limited the scope of Cuyler in Beets v. Scott. 24 The court reasoned that Cuyler only applied to conflicts of interest involving multiple representation; therefore, courts must evaluate all self-interested conflicts under the Strickland ineffective assistance standard. 25 The latest issue-inciting debate, particularly within the Second and Fourth Circuits, concerns whether a non-participating lawyer s conflict could render an otherwise unconflicted lawyer s representation constitutionally ineffective. 26 In 16. See Coverdale, supra note 7, at 209 (describing Strickland standard for ineffective assistance of counsel claims). 17. Strickland v. Washington, 466 U.S. 668, 692 (1984) (distinguishing Cuyler); see also United States v. Cronic, 466 U.S. 648, 662 n.31 (1984) (describing circumstances in which prejudice presumed). 18. See Strickland, 466 U.S. at 692 (observing lawyers obligated to avoid conflicts of interest); see also Cronic, 466 U.S. at 658 (limiting presumption of prejudice). The Court commented that a presumption of ineffective assistance, without investigating the facts of a particular case, is only appropriate where circumstances... are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Cronic, 466 U.S. at See Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (indicating Cuyler requires lesser standard of prejudice for reversal), cert. denied, 517 U.S (1996). 20. Id. at 1266, 1272 (suggesting Cuyler standard influences re-characterization of ineffective assistance claim into conflict of interest claims). 21. See Coverdale, supra note 7, at 210 (discussing ramifications of properly construing Cuyler standard). 22. See Coverdale, supra note 7, at 210 (noting Strickland governs ineffective counsel claims falling outside Cuyler). 23. See infra note 109 and accompanying text (contrasting federal circuits interpretations of Cuyler and Strickland standards) F.3d 1258, 1265 (5th Cir. 1995) (limiting Cuyler to cases of multiple client representation), cert. denied, 517 U.S (1996). 25. Id. (articulating reasons for utilizing Strickland standard for conflicts arising outside multiple or serial client context). 26. Compare Triana v. United States, 205 F.3d 36, 42 (2d Cir. 2000) (affirming decision when conflicted lawyer participated, but lacked input into trial strategy), cert. denied, 531 U.S. 956 (2000), with United States v.

4 100 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 a recent decision, the United States Court of Appeals for the Fourth Circuit, applying its own precedent, extended Cuyler s reach to a conflict of interest by non-participating counsel. 27 The Fourth Circuit suggested the attorney s participation adversely affected the representation of the other defense attorneys, thus rendering their representation constitutionally ineffective. 28 The United States Court of Appeals for the Second Circuit, however, has followed Beets in a limited fashion, holding that Strickland applied in cases of selfinterested conflicts, but only when the attorney violates an ethical duty. 29 This Note argues that the Beets approach is appropriate for determining whether a non-participating lawyer s conflict affects the representation of other unconflicted lawyers. 30 This Note suggests changes are necessary to curtail the number of conflict of interest claims among criminal defendants. 31 Part II outlines the sources and standards of a criminal defendant s right to effective assistance of counsel. 32 Part III reviews the United States Supreme Court s conflict of interest standards and examines the methods employed by the federal courts of appeals in reviewing different conflicts of interest claims. 33 Part IV reviews the current split between the Second and Fourth Circuits regarding the effects of conflicts by non-participating counsel on defense cocounsel actively involved in preparing the defendant s trial strategy. 34 Finally, Part V examines the need for a uniform standard and considers the proper standard to be applied. 35 II. THE RIGHT TO COUNSEL A. Evolution of the Right to Effective Assistance of Counsel The Sixth Amendment provides, [i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence. 36 This right to assistance of counsel has evolved throughout the twentieth century Tatum, 943 F.2d 370, 378 (4th Cir. 1991) (holding presence of conflicted lawyer throughout trial required reversal even though lawyer s contributions varied). 27. Rubin v. Gee, 292 F.3d 396, 406 (4th Cir. 2002) (applying Tatum, 943 F.2d 370 (4th Cir. 1991)) (determining non-participating counsel s conflict infected trial counsel s representation of defendant). 28. Rubin, 292 F.3d at 406 (holding non-participating counsel participation tainted representation by other unconflicted lawyers). 29. United States v. O Neil, 118 F.3d 65, 72 (2d Cir. 1997); see also Coverdale, supra note 7, at 229 (reviewing federal courts decisions favorable to Beets). 30. See infra notes and accompanying text (advocating advantages of Beets). 31. See infra notes and accompanying text (suggesting Supreme Court clarify applicability of Cuyler and Strickland standards). 32. Infra Part II. 33. Infra Part III. 34. Infra Part IV. 35. Infra Part V. 36. U.S. CONST. amend. VI.

5 2004] THE DEGREE OF SEPARATION 101 to guarantee an accused the right to effective assistance of counsel. 37 In Powell v. Alabama, 38 the Court, while not relying on the Sixth Amendment, overturned the rape convictions of three African-American men because the State failed to appoint counsel until the day of their trial. 39 The defendants contended that the State violated their Fourteenth Amendment right to due process by denying their right to counsel. 40 The Court held that the right to counsel embodied in the Sixth Amendment cannot be denied without violating fundamental principles of liberty and justice. 41 The Court went on to conclude that a defendant is guaranteed effective aid of counsel. 42 The Court added the modifier effective because the trial court appointed counsel to the defendants. 43 The word effective serves two related purposes[:]... that the guarantee of counsel was not just a formal guarantee; [and],... by implication, incorporates minimum standards for an adequate defense. 44 The guarantees articulated by the Powell Court were derived, in part, by the Court s reliance on the Fourteenth Amendment s due process clause. 45 The Sixth Amendment s right to counsel was later applied to the states in Gideon v. Wainwright See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 377 (1986) (highlighting fundamental nature of right to counsel); McMann v. Richardson, 397 U.S. 759, 771 (1970) (concluding criminal defendants entitled to effective assistance of competent counsel); Powell v. Alabama, 287 U.S. 45, 71 (1932) (declaring criminal defendant guaranteed right to effective aid of counsel); see also Richard Klein, The Eleventh Commandment: Thou Shalt Not Be Compelled to Render the Ineffective Assistance of Counsel, 68 IND. L.J. 363, 366 (1993) (indicating many indigent capital defendants receiving inadequate assistance of counsel); Richard P. Rhodes, Jr., Note, Strickland v. Washington: Safeguard of the Capital Defendant s Right to Effective Assistance of Counsel?, 12 B.C. THIRD WORLD L.J. 121, (1992) (discussing evolution of Sixth Amendment s right to counsel) U.S. 45 (1932). 39. Id. at 50 (reviewing prior procedural history). The necessity of having effective counsel in criminal prosecutions is vital in protecting a defendant s Fourteenth Amendment right to due process. Id. at 71; see Jeffrey Levinson, Note, Don t Let Sleeping Lawyers Lie: Raising the Standard for Effective Assistance of Counsel, 38 AM. CRIM. L. REV. 147, 158 (2001) (indicating constitutional source of Powell decision s protections based on Fourteenth Amendment). 40. Powell, 287 U.S. at 50 (noting violation of defendants Fourteenth Amendment right to due process). 41. Id. at 67 (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)) (advocating protection of right to counsel through Fourteenth Amendment). 42. Id. at 71 (stating right to counsel not satisfied when circumstances render assistance ineffective). 43. See id. at (Butler, J., dissenting) (highlighting rationale for inclusion of effective into Sixth Amendment right to assistance of counsel ). Two attorneys represented the defendants, although one was not a member of the State bar and the other had been appointed only the morning of the trial. Levinson, supra note 39, at Levinson, supra note 39, at 152 (discussing purposes of word effective ). 45. See Levinson, supra note 39, at 158, and accompanying text (highlighting constitutional sources of Powell holding) U.S. 335, (1963). In Gideon, the state court denied the defendant counsel under then existing state law. Id. at 337 (reviewing procedural history). The Court held that the right to counsel requirement, embodied in the Sixth Amendment, extends to state court criminal proceedings via the Fourteenth Amendment. Id. at (holding right to counsel in felony proceedings applies to state judiciaries). Furthermore, the right to counsel was extended to apply to each stage of the criminal proceeding, including sentencing and direct appeal. Id. at

6 102 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 B. Standards for Determining Ineffective Assistance of Counsel 1. Pre-Strickland. Before its landmark decision in Strickland, the Court, in McMann v. Richardson, 47 deferred the burden of maintaining proper attorney performance standards to the lower trial courts. 48 The Court created a standard that left control to the good sense and discretion of the trial courts. 49 The trial courts struggled to define the meaning of ineffective assistance of counsel. 50 For lower courts, there was little incentive to create high standards for attorney performance absent guidance from higher courts, because they feared an influx of appeals. 51 By 1970, all eleven federal circuits adopted the mockery of justice test, which warranted relief only when counsel s performance shocked the conscience of the court, or when counsel was grossly incompetent About Time Guidance from the High Court. In Strickland, the Supreme Court addressed the lack of uniform standards for analyzing claims of ineffective assistance of counsel. 53 In September 1976, David Leroy Washington went on a ten-day crime spree, including kidnapping, torture, and assault, which ended with three murders. 54 Against the advice of his counsel, who was an experienced criminal lawyer, Washington pled guilty at trial. 55 Washington also waived his right to an advisory jury at his capital U.S. 759 (1970). 48. Id. at 771 (creating standard for future ineffective assistance claims by resting control with trial judges). In McMann, three defendants alleged their court-appointed counsel provided improper assistance and advice regarding the admissibility of their confessions. Id. at (detailing role of defense counsel regarding admissibility of allegedly coerced confessions). 49. Id. at 771 (requiring lower courts to set attorney performance standards). 50. See Alan W. Clarke, Procedural Labyrinths and the Injustice of Death: A Critique of Death Penalty Habeas Corpus (Part One), 29 U. RICH. L. REV. 1327, 1342 (1995) (discussing lower courts struggle to define standards of review); Anne M. Voigts, Note, Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel, 99 COLUM. L. REV. 1103, 1123 (1999) (discussing lower courts pre-strickland struggle with attorney performance standard). 51. Clarke, supra note 50, at 1342 (discussing lower courts reluctance to set high bar for attorney performance; see Levinson, supra note 39, at 154 (commenting on lack of uniformity among trial courts on standard for ineffective assistance of counsel). 52. Diggs v. Welch, 148 F.2d 667, 670 (D.C. Cir. 1945) (establishing farce and mockery test); see Jeffrey L. Kirchmeier, Drinks, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 NEB. L. REV. 425, 431 (1996) (discussing adoption of standard by all federal circuits). 53. See Strickland v. Washington, 466 U.S. 668, 671 (1984) (noting lack of standard for reviewing ineffective assistance of counsel claims); see also Levinson, supra note 39, at 154 (outlining new standard for ineffective assistance of counsel); Timothy J. Lucey, Comment, Bellamy v. Cogdell: The Ethical Implications of Claims of Ineffective Assistance of Counsel, 6 GEO. J. LEGAL ETHICS 549, 549 (1993) (commenting judiciary struggled to formulate cohesive framework for determining adequate levels of attorney performance). 54. Strickland, 466 U.S. at (reviewing Washington s crime spree). 55. Id. (noting Washington pled guilty against advice of counsel).

7 2004] THE DEGREE OF SEPARATION 103 sentencing hearing, choosing instead a sentence imposed by the trial judge without receiving a jury recommendation. 56 During the sentencing hearing, Washington s defense counsel moved to exclude Washington s prior convictions, but failed to present any character witnesses or offer any medical or psychiatric evidence as mitigating factors. 57 Finding no mitigating circumstances, the trial judge sentenced Washington to death on all murder counts. 58 In reviewing the Sixth Amendment s right to counsel requirements, the United States Supreme Court established a two-prong test to evaluate ineffective assistance claims. 59 A defendant must first prove deficiency of counsel. 60 Deficiency of counsel is evaluated by an objective standard of reasonableness, considering the facts and circumstances of a particular case. 61 The courts should give deferential treatment to an attorney s performance, favoring a presumption of adequate representation. 62 Second, a defendant must establish that the deficiency led to a deprivation of their constitutional entitlement to a fair trial. 63 A defendant must prove actual prejudice by demonstrating reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different Id. (waiving jury recommendation regarding sentencing). 57. Id. at (examining defense counsel s decision not to introduce character witnesses for defendant during sentencing). 58. Strickland, 466 U.S. at After exhausting his state appeals, alleging ineffective assistance of counsel, Washington filed a petition for habeas corpus in the federal district court. Id. at The United States Court of Appeals for the Eleventh Circuit reversed the district court s judgment, accepting Washington s claims of ineffective assistance of counsel and the United States Supreme Court granted certiorari. Id. at See id. at 687 (setting forth new standard for ineffective assistance of counsel); see also James G. Fannon, VII. Criminal Procedure-Defendant s Rights, 26 RUTGERS L.J. 1130, (1995) (reviewing Strickland standard for determining effectiveness of trial counsel). 60. Strickland, 466 U.S. at 687 (defining first element of Strickland s ineffective assistance of counsel standard). 61. See id. at (declining to define standard with specificity); Levinson, supra note 39, at 155 (commenting on elements of first prong of Strickland standard). 62. Strickland, 466 U.S. at 689 (addressing need to avoid second guessing counsel s assistance after conviction or adverse sentence). Since Strickland, federal and state courts have reversed few capital sentences for ineffectiveness of counsel. See Rhodes, supra note 37, at 151 (reviewing Strickland in light of death penalty and ineffective assistance of counsel claims). The Supreme Court has not overturned a death sentence based on claims of ineffectiveness of counsel since See, e.g., Bonin v. California, 494 U.S. 1039, 1040 (1990) (Marshall, J., dissenting) (disagreeing with Court s decision not to review capital case raising conflict of interest issue); Laws v. Armontrout, 490 U.S. 1040, 1041 (1989) (Marshall, J., dissenting) (rejecting majority s decision amid claims counsel failed to present mitigating evidence); Thomas v. Kemp, 479 U.S. 996, (1986) (Marshall, J., dissenting) (questioning denial of defendant s ineffectiveness claim when defendant denied counsel at preliminary hearing). But see Associated Press, Do Bad Lawyers Warrant 2nd Chance for Death Row Inmates? (indicating Supreme Court will review standard for evaluating ineffective counsel claims), at (Nov. 18, 2002). 63. Strickland, 466 U.S. at 687 (defining second requirement of ineffective assistance of counsel standard). 64. Id. at 694 (detailing requirements for proving prejudice).

8 104 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 The Strickland standard applies equally to both capital and non-capital trials. 65 The United States Supreme Court, however, cautioned that Strickland does not set forth mechanical rules for adjudicating claims of ineffectiveness of counsel. 66 The Court suggested that it will afford the lower courts some deference in application of the Strickland standard A Presumption of Prejudice for Conflict of Interests. The Strickland Court noted a presumption of prejudice with certain Sixth Amendment violations. 68 In particular, the Court highlighted instances of actual conflicts of interest. 69 The Court held that it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. 70 The Court, however, limited this application, stating the rule is not quite [a] per se rule of prejudice. 71 Rather, a court will presume prejudice only if the defendant can show that defense counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer s performance. 72 The Court, however, declined to define which types of conflicts of interest would warrant the limited presumption of prejudice standard. 73 III. CONFLICTED INTERESTS A. Multiple Representation Cases 1. Glasser v. United States The Court first confronted an attorney s conflict of interest issue in Glasser v. United States. 74 In Glasser, the Court considered whether appointed 65. Id. at (announcing standard applies to both capital trials and guilt/innocence phase of noncapital trials); see also Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir. 1994) (relying on Strickland test in penalty phase); Mak v. Blodgett, 970 F.2d 614, (9th Cir. 1992) (applying Strickland deficiency of performance test to penalty phase). 66. Strickland, 466 U.S. at 696 (cautioning lower courts on use of Strickland standard). 67. Id. (recognizing lower courts use of principles underlying Strickland). 68. Id. at 692 (commenting on presumption of prejudice with Sixth Amendment violations). 69. Id. (highlighting conflicts of interest). The Court stated that actual conflicts of interest are breaches of counsel s duty of loyalty. Id. 70. Strickland, 466 U.S. at Id. (cautioning conflicts of interest warrant limited presumption of prejudice). 72. Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, (1980)) (articulating elements of presumption of prejudice in conflict of interest cases). 73. Id. at (failing to elaborate on appropriate standard for conflicts of interest) U.S. 60 (1942); see also Gregory G. Sarno, Annotation, Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel Federal Cases, 53 A.L.R. FED. 140, 3 (1981) (suggesting Glasser decision created division within federal courts concerning conflict of interest claims).

9 2004] THE DEGREE OF SEPARATION 105 counsel s conflict of interest rendered the representation constitutionally ineffective. 75 Glasser and Kretske were co-defendants; Glasser was represented by counsel, but Kretske remained without counsel after firing his counsel on the second day of the trial. 76 The trial court appointed Glasser s attorney to represent Kretske; both Glasser s attorney and Kretske agreed to the appointment, though Glasser remained silent. 77 On appeal, Glasser argued deprivation of the undivided assistance of his counsel. 78 Glasser contended that his counsel s conflict arising from multiple representation prevented him from taking full advantage of evidentiary rules. 79 The Court found that an attorney s struggle to serve two masters... may conceivably impair counsel s effectiveness. 80 Stating that an individual s right to assistance of counsel is a fundamental right deserving protection, the Court refused to determine the precise degree of prejudice. 81 The Court reversed Glasser s conviction, characterizing such a determination as difficult and unnecessary Holloway v. Arkansas In Holloway v. Arkansas, 83 the Court further examined a conflict of interest regarding an attorney s representation of multiple criminal defendants. 84 Three defendants were charged and subsequently convicted of robbery and rape. 85 The trial court appointed a public defender to represent all three defendants. 86 The public defender moved the court to appoint separate counsel for each defendant because of the possibility of conflict of interests in their cases. 87 After conducting a hearing on the motion, the trial court refused to appoint separate counsel. 88 Defense counsel renewed his motion for separate counsel when each defendant decided to testify. The trial court denied any conflict, however, allowing each defendant to testify with little questioning by defense 75. WILLIAM M. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS (Greenwood Press 1972) (1955) (commenting Glasser leading case regarding conflicts of interest). 76. Glasser, 315 U.S. at (reviewing background of case). The charges materialized during defendants tenure as Assistant United States Attorneys in charge of liquor cases. Id. The defendants were charged for conspiring to defraud the United States. Id. at Id. at (noting Glasser failed to object to multiple representation). 78. Id. at (considering Glasser s claims). 79. Id. at 72 (articulating Glasser s basis for claim of ineffective assistance of counsel). 80. Glasser, 315 U.S. at Id. at (holding right to assistance of counsel fundamental constitutional right). 82. Id. (holding evaluation of degree of prejudice sustained by Glasser unnecessary). The Court asserted that courts need not indulge in nice calculations as to the amount of prejudice [sustained]. Id. at U.S. 475 (1978). 84. See infra notes and accompanying text. 85. Holloway, 435 U.S. at (noting all defendants convicted by jury). 86. Id. at 477 (inferring criminal defendants indigent and unable to afford private counsel). 87. Id. (explaining public defender s apprehension representing all three defendants). 88. Id. (noting transcript of motion hearing not included in record).

10 106 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 counsel. 89 This case marked the Supreme Court s first review of a conflict of interest claim since its prior decision in Glasser. 90 The Court concluded the state court failed to provide a fair trial protecting the defendants right to counsel. 91 The Court interpreted Glasser as requiring automatic reversal whenever a trial court improperly requires joint representation over a timely objection. 92 Moreover, the Court reaffirmed Glasser, noting the right to assistance of counsel is among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error Cuyler v. Sullivan In Cuyler the Court addressed the controversy regarding the appropriate standard of review for conflict of interests arising from counsels representation of co-defendants. 94 John Sullivan and two co-defendants were charged with first-degree murder. 95 Two attorneys represented all three defendants throughout the criminal proceedings. 96 Neither Sullivan nor his attorneys raised objections to the multiple representation at any time during trial. 97 The court found Sullivan, the first defendant to come to trial, guilty of firstdegree murder and sentenced him to life imprisonment. 98 While the evidence against Sullivan was entirely circumstantial, after the state completed its case, Sullivan s defense counsel rested without presenting any evidence. 99 Sullivan s two co-defendants were individually tried and acquitted. 100 The United States 89. Holloway, 435 U.S. at 479 (revealing defense counsel s apprehension to examine each witness). Defense counsel stated that [i]f one defendant takes the stand, somebody needs to protect the other [codefendants ] interest while that one is testifying, and I can t do that since I have talked to each one individually. Id. (expressing concern about proceeding with direct examination). 90. See supra notes and accompanying text (summarizing significance of Glasser decision). 91. Holloway, 435 U.S. at (concluding trial court failed to take adequate steps to determine risk of conflict of interest). 92. Id. at 488 (relying on Glasser to conclude presumption of prejudice necessary). 93. Id. at 489 (quoting Chapman v. California, 386 U.S. 18, 23 (1967)) (asserting right to counsel promotes fairness). [A] rule requiring a defendant to show that a conflict of interests which he and his counsel tried to avoid by timely objections to the joint representation 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. Id. at Cuyler v. Sullivan, 446 U.S. 335, 345 (1980) (examining whether mere possibility of conflict of interest warrants conclusion of deprivation of defendant s right to counsel). 95. Id. at 337 (reviewing prior procedural history). 96. Id. (noting Sullivan could not afford his own lawyer). 97. Id. at Cuyler, 446 U.S at 338 (reviewing outcome of Sullivan trial). 99. Id. (revealing defense counsel failed to present any evidence during trial) Id. After exhausting his appeals in the state court, Sullivan filed a federal writ of habeas corpus

11 2004] THE DEGREE OF SEPARATION 107 Supreme Court granted certiorari to consider the unresolved issue of Glasser and Holloway: whether the mere possibility of a conflict of interest deprives a defendant of his right to counsel. 101 The Court, in reviewing its previous decisions in Glasser and Holloway, concluded that to establish a 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. 102 The mere possibility of a conflict is insufficient to impugn a criminal conviction. 103 The Court stated the adverse effect standard was a lower threshold of proof than a showing of prejudice. 104 The Court, however, failed to provide any guidance on the meaning of adverse effect or the substantive difference of its previous presumption of prejudice standard. 105 Instead of dispelling confusion, the Court s decision spurred controversy and created federal circuit splits over the proper reach of the Cuyler conflict of interest standard. 106 B. Non-participating Counsel Conflicts Prior to Cuyler, a majority of federal circuits required defendants to identify an actual conflict of interest when contending that multiple representation violated their Sixth Amendment rights. 107 Since Cuyler, most circuits apply the Court s relaxed standard to conflict of interest claims arising from multiple representation. 108 Federal circuits differ in their opinion as to whether Cuyler applies to all conflicts of interest, including when a lawyer s own self-interest alleging denial of effective assistance of counsel due to conflicting interests of defense lawyers. Id. at The United States Court of Appeals for the Third Circuit reversed, and granted Sullivan a new trial. Id. at Cuyler, 446 U.S. at (highlighting unresolved issue of Glasser and Holloway) Id. at 348 (announcing new conflict of interest standard) Id. at 350 (holding defendant must prove actual conflict of interest adversely affected lawyer s performance) Id. at 349 (holding defendant still not required to demonstrate prejudice under new standard). The Court commented that 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. Id.; see also Alexandra N. DeNeve, Recent Development, Beets v. Scott, 70 TUL. L. REV. 1689, 1694 (1996) (noting Cuyler standard requires lesser showing of proof than showing of prejudice) See DeNeve, supra note 104, at 1694 (commenting on failure of Court to adequately define conflict of interest standard) See Coverdale, supra note 7, at (discussing federal circuits application of Cuyler); see also supra note 26 and accompanying text (reviewing circuit split concerning scope of Cuyler standard) Cuyler, 446 U.S. at 349 n.14 (noting prior case law within federal judiciary); see, e.g., Thacker v. Bordenkircher, 590 F.2d 640, 642 (6th Cir. 1979) (holding defendant must demonstrate real conflict of interest in multiple representation cases); United States v. Cox, 580 F.2d 317, (8th Cir. 1978) (same); United States v. Atkinson, 565 F.2d 1283, (4th Cir. 1977) (same); United States v. Kutas, 542 F.2d 527, 529 (9th Cir. 1976) (same); Foxworth v. Wainwright, 516 F.2d 1072, 1077 (5th Cir. 1975) (same); United States v. Mandell, 525 F.2d 671, (7th Cir. 1975) (same); United States v. Lovano, 420 F.2d 769, 773 (2d Cir. 1970) (same) See DeNeve, supra note 104, at 1697 (indicating uniformity among federal circuits regarding application of Cuyler to conflicts arising from multiple representation).

12 108 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 conflicts with the client s interests The Beets Test The United States Court of Appeals for the Fifth Circuit is at the forefront in limiting the reach of Cuyler to conflicts arising from multiple representation. 110 In Beets v. Scott, 111 the Fifth Circuit adopted the Strickland standard for ineffective assistance of counsel as the proper test for self-interested conflicts, conflicts arising outside the multiple representation context, between criminal defendants and their attorneys. 112 Betty Lou Beets husband disappeared in August, More than a year later, her husband s house was destroyed by fire. 114 Betty Lou Beets sought insurance benefits; the insurer, however, refused the claim because of suspected arson. 115 Betty Lou Beets sought the counsel of attorney E. Ray Andrews, who agreed to represent Beets and pursue any insurance benefits on her behalf. 116 Shortly after Beets began receiving benefits, she was charged with murder of her husband. 117 Beets again sought representation from Andrews, but was unable to pay for his services. 118 As a result, she assigned literary and media rights in her case to Andrews son. 119 The jury found Beets guilty of murder, primarily based on the prosecution s theory that she killed her husband in order to obtain his insurance and pension benefits. 120 Andrews argued that Beets son actually committed the murder, and, in closing arguments, Andrews indicated that he had instructed Beets to pursue her husband s insurance benefits. 121 The jury convicted Betty Lou Beets of capital murder See DeNeve, supra note 104, at (suggesting confusion persists among federal circuits on circumstances which merit application of Cuyler standard) See DeNeve, supra note 104, at 1708 (observing Fifth Circuit challenged Supreme Court to define scope of Cuyler) F.3d 1258 (5th Cir. 1995), cert. denied, 517 U.S (1996) Id. at 1265 (stressing Strickland standard preferred for addressing attorney conflicts outside multiple client realms) Id. at 1261 (reviewing factual scenario) Id. (same) Beets, 65 F.3d at Id. (explaining circumstances of Beets initial representation by attorney) Id. at Beets shot and killed her husband, disposing of his body, wrapped in a sleeping bag, under a planter in her front yard. Id Id. (noting Beets and her family were unable to pay lawyer s fees) Beets, 65 F.3d at (describing media rights contract between Beets and lawyer s son) Id. at 1262 (highlighting prosecution s murder theory) Id. (reviewing defense strategy). Beets testified in her own defense that her attorney suggested she should pursue her husband s life insurance and pension benefits. Id. at Beets attorney presented a forensic scientist, who testified that Beets husband suffered a fractured cheekbone, which could have been inflicted in a fight with another man. Id. at Id. at After exhausting her appeals in the state courts, Beets filed a federal habeas corpus petition. Id. Beets alleged a conflict of interest with her counsel because of his failure to withdraw and offer

13 2004] THE DEGREE OF SEPARATION 109 The Fifth Circuit framed the issue as whether a lawyer who allegedly placed his own self-interest above his client s interest warrants application of the Cuyler limited presumption of prejudice, or in the alternative, the Strickland attorney performance standard. 123 In determining the proper scope of Cuyler, the Fifth Circuit focused on precedent solely limited to instances of multiple representation. 124 According to the Fifth Circuit, [o]ne cannot read Cuyler to analyze conflicts of interest in a context broader than that of multiple representation. 125 The Fifth Circuit also reviewed post-cuyler cases and interpreted them as placing further limits on the scope of Cuyler. 126 The Fifth Circuit rationale for limiting Cuyler was based upon the premise of an attorney s underlying duty of loyalty to the client. 127 The court reasoned [n]ot all conflicts of interest that affect the attorney s duty of loyalty have the same consequence, and they are not all suited to Cuyler s stringent rule. 128 The court noted that legal rules of ethics and professional conduct often distinguish between an attorney s duty of loyalty in self-interest cases and the duty of loyalty in multiple representation cases. 129 The court held that applying a single, inflexible rule to a spectrum of potential ethical problems is a draconian remedy. 130 Moreover, a lawyer s duty of loyalty in multiple representation cases is straightforward, warranting Cuyler s rule of not quite per se prejudice. 131 Conflicts between a lawyer s self-interest and his duty of his direct testimony that Beets was oblivious to the potential death benefits of her husband. Id. Beets further alleged the media contract gave rise to a separate conflict of interest. Id. The district court, applying Cuyler, held that Andrews failure to withdraw and testify resulted in an actual conflict of interest that adversely affected his representation. Id. at Beets, 65 F.3d at 1260 (evaluating whether Cuyler or Strickland applies) Id. at (implicating Glasser and Holloway applied to multiple representation conflicts not selfinterest conflicts) Id. at Id. at (reviewing Supreme Court cases after limiting Cuyler s scope to multiple representation situations); see, e.g., Nix v. Whiteside, 475 U.S. 157, 176 (1986) (holding conflict between lawyer and client regarding perjury not within Cuyler standard); Strickland v. Washington, 466 U.S. 668, 692 (1984) (citing passage from Cuyler discussing lawyer s active representation of multiple parties); Wood v. Georgia, 450 U.S. 261, (1981) (inferring lawyer representing employees and acting as agent for employer may have conflict of interest) Beets, 65 F.3d at (arguing ambiguity in scope of attorney s duty of loyalty). [A] lawyer s duty of loyalty is an enterprise set in shifting sand. The term duty of loyalty, narrowly defined, refers to an attorney s responsibility to place his client s interest ahead of his own interest or, in the case of multiple representation, not to sacrifice one client s interest for the other s. But even on this level, legal ethics rules generally distinguish between the duty of loyalty as measured against an attorney s self-interest and cases of multiple representation. More troublesome, the boundaries of the duty of loyalty are elastic; they potentially subsume or overlap a number of other ethical responsibilities to the client. Id. at 1269 (citation omitted) Id. at 1269 (stressing Cuyler standard not one size fits all approach) Id. at (noting breach of duty of loyalty clearest in multiple representation cases) Beets, 65 F.3d at 1271 (suggesting Cuyler s limited presumption of prejudice standard unsuitable for self-interested conflicts of interest) Beets, 65 F.3d at (positing multiple representation creates danger of conflict of interest).

14 110 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:97 loyalty to the client fall along a wider spectrum rang[ing] from wholly benign to devastating, and lend themselves to the higher threshold of Strickland for reversal of criminal convictions. 132 The Fifth Circuit feared that if Cuyler applied to breaches of loyalty outside the multiple representation realm, criminal defendants would re-characterize ineffectiveness claims based on Cuyler s lower standard of prejudice. 133 The Beets court alleged this would undermine the uniformity and simplicity of Strickland, which would blur the [applicability of the] Strickland standard. 134 Strickland best addresses attorney self-interest conflicts, [because] the scope of the duty of loyalty with respect to attorney self-interest is inherently vague and overlaps with professional effectiveness, Strickland ought to set the constitutional norm of adequate representation The Adoption of Beets Other federal circuits resisted full adoption of the Beets test, although a minority of circuits recognize that Cuyler is not suitable for all conflicts of interest. 136 The Second Circuit recognized Cuyler s limitations and developed its own test for reviewing ineffective assistance claims due to an attorney s conflict of interest. 137 The Second Circuit s approach, while more rigorous than Cuyler s adverse affect test, requires a three-stage analysis of conflicts arising between the interests of criminal defendants and their attorneys. 138 In this analysis, the defendant must first establish that defense counsel had 132. Id. at 1271 (articulating difficulties when duty of loyalty challenged by attorney s self-interest) Id. at 1272 (indicating Cuyler offers criminal defendant more advantages due to lesser standard of prejudice). If Cuyler s more rigid rule applies to attorney breaches of loyalty outside the multiple representation context, Strickland s desirable and necessary uniform standard of constitutional ineffectiveness will be challenged. Recharacterization of ineffectiveness claims to duty of loyalty claims will be tempting because of Cuyler s lesser standard of prejudice. Id Id. (discussing consequences of applying Cuyler to self-interested conflicts); see also DeNeve, supra note 104, at 1700 (reviewing rationale employed by Beets majority in reaching decision) Beets, 65 F.3d at 1271 (arguing similarities between attorney s duty of loyalty and duty of competence justify application of Strickland) See Coverdale, supra note 7, at 228, 233 (acknowledging federal circuits rejecting Beets standard); see also supra notes and accompanying text (revealing Fifth Circuit s apprehension applying Cuyler to attorney s self-interested conflict) See Winkler v. Keane, 7 F.3d 304, (2d Cir. 1993) (articulating heightened Cuyler standard). Defendant Winkler entered into a contingency fee agreement with his attorney after being charged with murder. Id. at 306. Winkler was subsequently convicted of second-degree murder and sentenced to twenty-five years to life. Id. Winkler moved to vacate the judgment contending the contingency arrangement with his attorney created an actual conflict of interest, giving rise to a Sixth Amendment violation. Id. at 307; see also Edward L. Wilkinson, Conflicts of Interest in Texas Criminal Cases, 54 BAYLOR L. REV. 171, (2002) (discussing alternative to Beets test) United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000) (applying Winkler); see Winkler, 7 F.3d at (delineating analytical steps).

15 2004] THE DEGREE OF SEPARATION 111 an actual conflict of interest. 139 An actual conflict arises during the course of the representation [when] the attorney s and defendant s interests diverge with respect to a material factual or legal issue or to a course of action. 140 The defendant must then establish that the actual conflict of interest adversely affected the representation. 141 To demonstrate adverse effect, the defendant must establish an actual lapse in representation. 142 When a defendant argues adverse effects from counsel s failure to take certain actions, the defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. 143 Finally, the defendant must establish causation. 144 While the Second Circuit recognized this new approach, the court chose to limit its use, thereby making the circuit s approach to self-interested conflicts unclear. 145 The Eighth Circuit, while offering support for adoption of the Beets test, refrained from fully adopting the standard. 146 The Eighth Circuit analyzed the conflict of interest claim under both Cuyler and Beets, holding that the defendant failed to satisfy either standard. 147 Other federal circuits have impliedly rejected Beets, tending to apply Cuyler to most self-interested conflicts. 148 IV. A NEW WRINKLE TO THIS CONSTITUTIONAL QUAGMIRE A. Rubin v. Gee The United States Supreme Court has yet to address the conflict between Cuyler and Strickland in the context of allegations that a conflicted lawyer has 139. Winkler, 7 F.3d at 307 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)) (restating first prong of Cuyler standard) Id. at 307 (addressing requirements for demonstrating actual conflict of interest) Id. at (discussing second prong of test requiring defendant to prove adverse affect) Id. at 309 (describing requirements for establishing adverse effect) Winkler, 7 F.3d at 309 (quoting United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988)) (noting defendant need not demonstrate alternate strategy s likelihood of sucess) Id. at 309 (addressing causation requirement). The court defined the causation requirement as but for the attorney s other loyalties or interests the alternative defense was not undertaken, because it was inherently in conflict with the attorney s own self-interests. Id Winkler, 7 F.3d at (limiting the application of standard). A contingency fee between defense counsel and defendant, however inappropriate and unethical, falls into neither category and thus the per se rule does not apply. Accordingly, to prove a Sixth Amendment violation, Winkler must meet the Cuyler standard. Id.; see also Coverdale, supra note 7, at 230 (stressing Second Circuit s unclear approach to self-interested conflicts unclear). The Second Circuit s current approach requires application of the Strickland test only for self-interested conflicts that concern a violation of ethical rules. Coverdale, supra note 7, at 235. All other self-interested conflicts fall under Cuyler s standard. Id See Caban v. United States, 281 F.3d 778, (8th Cir. 2002) (reviewing standards of Cuyler and Beets) Id. at The court held that the defendant would be unsuccessful under either the Strickland or Cuyler standard, thereby avoiding adoption of either. Id. at See Coverdale, supra note 7, at (commenting on federal circuits failure to adopt Beets).