of Interest: Case in Point
By Ernest T. Lindberg
Conflicts-of-interest issues often present intriguing challenges to lawyers. In order to avoid such dilemmas, lawyers are well advised to weigh ethical issues in light of the impact on both current and former clients.
This month’s column summarizes a fascinating case involving the conflicting interests of a former client and a current client. On March 27, in a 5-4 decision, the Supreme Court decided Mickens v. Taylor, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), a case involving a potential conflict of interest where counsel previously represented the petitioner’s victim.
In 1993 the petitioner, Walter Mickens, was convicted of and sentenced to death for sodomizing and murdering Timothy Hall. In June 1998 Mickens filed a petition for writ of habeas corpus in the Court of Appeals for the Fourth Circuit, alleging he was denied effective assistance of counsel because his attorney, Byron Saunders, was conflicted at the trial.
Saunders was appointed to represent Hall in an earlier assault and concealed weapons case and had met with Hall just 10 days before Hall’s body was found. Four days after Hall’s body was discovered, the court dismissed the charges against Hall and dismissed Saunders from the case. Three days later the same judge appointed Saunders to represent Mickens for the murder and sodomy of Hall.
Saunders failed to disclose the previous representation to Mickens, the court, or cocounsel. The court failed to inquire into the potential conflict created by Saunders’s appointment. Mickens discovered the conflict and appealed. The Court of Appeals affirmed the conviction, finding the petitioner had failed to show both an actual conflict of interest and an adverse impact.
The petitioner sought and was granted certiorari on the sole issue of what a defendant must show in order to demonstrate a Sixth Amendment violation where the court failed to inquire into a potential conflict of interest that the court knew or should have known about. Id. at 1240.
The majority found the petitioner failed to satisfy a two-prong test, requiring "both an actual conflict of interest and an adverse effect even if the trial court failed to inquire into a potential conflict about which it reasonably should have known." Cuyler v. Sullivan, 446 U.S. 335 (1980). The majority considered three other key opinions: Strickland v. Washington, 466 U.S. 688 (1984); Wood v. Georgia, 450 U.S. 261 (1981); and Holloway v. Arkansas, 435 U.S. 475 (1978).
The petitioner argued a defendant has no obligation to establish adverse impact when the trial judge neglects a duty to inquire into a potential conflict. The majority rejected this argument. Applying Sullivan, it found no Sixth Amendment violation, as Mickens failed to establish that a conflict of interest adversely affected the trial’s outcome. The court relied on the district court’s findings that (1) the petitioner’s counsel did not make an objection to representation (as in Holloway), Mickens at 1243; (2) Saunders did not believe he had any conflicts that would impair his ability to represent Mickens; (3) it was unlikely Saunders learned anything relevant to the murder case during his representation of Hall; and (4) Saunders’s prior representation did not influence the decisions he made in the handling of the trial, id. at 1247.
The majority’s focal point was not that an ethical violation had occurred, but whether Sullivan applied. Applying Sullivan, the majority found the petitioner was entitled to a reversal only after establishing that his attorney’s conflict had an adverse impact on the trial’s outcome. It further found automatic reversal is not an "appropriate means" of enforcing Sullivan’s inquiry mandate.
Justice Stevens raised three issues in his dissent: (1) whether a capital defendant’s attorney has a duty to disclose he was representing the alleged victim at the time of the murder; (2) where there is disclosure, whether the capital defendant has a right to refuse the appointment of a conflicted attorney; and (3) whether the trial judge, who knows or should have known of the prior representation, has a duty to obtain the defendant’s consent before making the appointment.
On these points Justice Stevens found Saunders’s failure to disclose his prior representation to be a "severe lapse in his professional duty" and indefensible. He further found that since the judge knew or should have known of the potential conflict, the judge had a duty to inquire, even if no objection was made. Id. (citing Wood v. Georgia).
Justice Stevens speaks specifically to the ethical issues raised, stating a conflict is nonwaivable if a disinterested lawyer would conclude that the client should not agree to the representation. Justice Stevens’s dissent at note 5. He said, "Every state bar in the country has an ethical rule prohibiting a lawyer from undertaking a representation that involves a conflict of interest unless the client has waived the conflict." Id. note 13. Every conflict, or ethics violation, is not a violation of the Constitution. Id. note 6.
So why does Mickens matter? The court determined there was no Sixth Amendment violation. It did not rule on the issue of an ethics violation. The majority found that if there was a conflict, the conflict did not adversely impact the quality of representation. The minority, however, found the conviction should be set aside because of the counsel’s conflict of interest and the court’s failure to inquire: "It [reversal] is the only remedy that is consistent with the legal profession’s historic and universal condemnation of the representation of conflicting interests without the full disclosure and consent of all interested parties." Mickens at 1252 (emphasis added).
Legal ethics counsel Lisa Weatherspoon and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at firstname.lastname@example.org.