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July 15, 2023 Ethics

The Right to (Unbiased) Counsel

Peter A. Joy and Kevin C. McMunigal

Whether a defense lawyer being biased against the accused on the basis of race and religion renders assistance of counsel ineffective is an unanswered question. One court will decide that issue when the Massachusetts Supreme Judicial Court renders a decision in Commonwealth of Massachusetts v. Dew. In this case, a court-appointed attorney, Richard Doyle, made over 20 bigoted and racist social media posts while representing his Black Muslim client, Anthony Dew. These public postings, made from 2014 through 2017, contained highly disparaging references to Muslims and Black people, including comments about Doyle’s own Black clients as “[a]ssorted thugs and bad guys” and reference to a specific client’s “gangbanging.” These and other bigoted and racists posts were discovered after Dew was convicted in 2016.

In 2017, the Massachusetts Committee for Public Counsel Services (CPCS) became aware of the bigoted postings. The CPCS determined that because of his racism and anti-Muslim biases, Doyle had an actual conflict of interest with Muslims and people who did not appear to be white. It suspended Doyle from representing indigent criminal clients in Massachusetts. Doyle died in 2021.

When he became aware of Doyle’s racist and bigoted posts in 2021, Dew filed a motion for a new trial. Dew argued that Doyle’s racial and religious biases against him constituted a conflict of interest that rendered his representation ineffective and prejudice should be presumed, thereby entitling Dew to a new trial. At the hearing on his motion, Dew testified that at their first meeting, Dew “was wearing a kufi prayer cap and holding dhikr prayer beads” when “Doyle demanded that he take it off and ‘not wear that shit in a courtroom.’” When Doyle met with Dew a few weeks later, Dew was again wearing his kufi and “this time, Doyle left the room without” speaking to Dew. Dew also testified that they did not meet again until shortly before trial was scheduled. A guilty plea offer from the prosecution was pending and “Doyle advised [Dew] to take the plea offer and told him that any attempt to seek a new court appointed counsel would be futile, given that the matter was scheduled for trial.” The trial court credited Dew’s testimony but denied him relief, stating that Dew failed to show either that his lawyer’s “performance was deficient, or, if it was, that this likely had some impact on the outcome of the case.”

Conflict of interest issues arise in criminal cases in many contexts, but this appears to be the first case to address whether a defendant has the right to unbiased counsel. Typical conflicts of interest involve conflicts between two or more current or former clients. There are few reported instances of a conflict of interest between the personal interests of the lawyer and the client’s interests in criminal cases. One such example is a defense lawyer having sex with a client while a case is pending, which, if discovered, will lead to the lawyer being taken off the case. The attorney is prevented from continuing the representation because the risk is too high that the lawyer’s personal interest will impair the representation, effectively denying the client the right to counsel.

Is the risk that a lawyer’s racial and religious biases against certain clients similarly so high that it should be treated aseffectively denying the right to counsel? In this column, we examine the policies behind conflict of interest rules and explore the likelihood that the Massachusetts high court will determine that the right to counsel demands isunbiased counsel.

Dew’s Claims

In his appeal, Dew alleges that the appointment of Doyle to represent him violated his right to equal protection under the US Constitution and the Massachusetts Declaration of Rights and that the trial court erroneously used the ineffective assistance of counsel standard of review to deny him relief. In its amici brief in support of Dew urging reversal, the NAACP Legal Defense & Education Fund and the New England Innocence Project also argue that, under Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment of the US Constitution, the appointment of a racially and religiously bigoted attorney denied Dew his right to counsel.

Dew and amici framed the appeal as one involving structural error, which under federal law does not require a showing of prejudice for reversal. They also relied on Article 12 of the Massachusetts Declaration of Rights, which the Massachusetts high court has interpreted as relieving the accused of the burden of proving prejudice or adverse effect on counsel’s performance once a conflict of interest is proven. See, e.g., Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986) (“Once a genuine conflict of interest is shown, the defendant is not required under art. 12 to shoulder the additional burden of proving actual prejudice or an adverse effect on his counsel’s performance.”); Commonwealth v. Hurley, 391 Mass. 76, 81 (1984) (“Such a fundamental right [the right to counsel] should not depend on a defendant’s ability to meet the nearly impossible burden of proving that a genuine conflict of interest resulted in an adverse effect on his trial counsel’s performance.”).

If the Massachusetts high court views Dew’s claims either as involving structural error under federal law or under Massachusetts precedent applying Article 12 of the Massachusetts Declaration of Rights, Dew will not have to satisfy the two-part test typically governing ineffective assistance claims. Under the two-part test, a claimant must show (1) objectively unreasonable performance by the lawyer and (2) prejudice—a reasonable probability that the lawyer’s inadequate performance adversely affected the outcome of the case. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Actual Conflict

Dew and amici argue that his counsel had an actual conflict of interest due to the lawyer’s racial and religious biases against him. Courts have used varying and confusing definitions for actual conflicts in criminal cases. For example, the Supreme Court stated in Young v. United States ex rel. Vuitton, 481 U.S. 787, 807 (1987), that “[a]n arrangement represents an actual conflict of interest if its potential for misconduct is deemed intolerable.” This definition of an actual conflict is based on a high risk of misconduct. Other courts, such as the Oregon Supreme Court in In re Porter, 584 P.2d 744, 747 (Or. 1978), have defined actual conflict as one in which “the lawyer’s independent professional judgment . . . will be adversely affected.” Instead of risk, this latter definition is based on the conflict’s adverse impact on the representation.

The two leading sources of authority for legal ethics also define conflicts of interest generally in terms of risk. Rule 1.7 of the Model Rules of Professional Conduct define a conflict of interest as “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Similarly, the Restatement of the Law (Third) Governing Lawyers § 121 defines a conflict of interest as “a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another current client, a former client, or a third person.”

Neither the Model Rules nor the Restatement use the phrase “actual conflict.” But each recognizes that there are some conflicts of interest based on the personal interests of the lawyer that are flatly prohibited due to high risk. For example, Model Rule 1.8(d) prohibits a lawyer from making or negotiating an agreement giving the lawyer literary or media rights prior to the conclusion of the representation of the client. And Model Rule 1.8(c) forbids a lawyer from soliciting any substantial gift from a client, including a testamentary gift, or preparing for a client any instrument, such as a will, giving the lawyer or person related to the lawyer any substantial gift unless the lawyer is related to the client. Additionally, Model Rule 1.8(j) proscribes a lawyer from having sexual relations with a client unless a consensual sexual relationship existed between them prior to the legal representation commencing.

High Risk and Monitoring Difficulty

The conflicts of interest that are strictly prohibited, such as obtaining literary rights to a client’s case while representing a client, sex with a client, and other strictly prohibited personal conflicts of interest, share two things in common: (1) a high risk of a negative impact on legal representation, and (2) extreme difficulty in monitoring such impact . In our view, having a defense lawyer who is racially and religiously biased against a client poses a high risk of negative impact on representation that is extremely difficult to monitor.

Doyle’s bias, vehemently expressed in his social media posts, clearly presented a high risk that it would negatively impact his representation of Dew. Doyle’s conduct of belittling Dew for his religious kufi prayer cap and prayer beads and refusing to meet with Dew show that those biases influenced Doyle’s attitude and conduct. But it is difficult if not impossible to determine after the fact whether those biases negatively impacted the advice Doyle provided or his efforts to assist Dew. Did Doyle, for example, fail to attempt to negotiate a better plea bargain for Dew because of his biases against Dew? Or did Doyle simply go through the motions of representation without actually advancing or seeking to advance Dew’s interests? Did Doyle explore possible defenses? Was Doyle willing to put the state’s burden to the test? In a typical case, it is impossible to answer these questions. But in Dew’s case, it is clear that Doyle’s biases negatively affected his representation of Dew.


In Commonwealth v. Shraiar, 397 Mass. at 20, the Massachusetts Supreme Judicial Court stated that “under art. 12 of the Massachusetts Declaration of Rights is the defendant’s right to the full and undivided loyalty of his attorney.” In other words, Dew had the right to have an attorney devoted to advancing his interests. Doyle was not that lawyer. Not only did Doyle harbor racial and religious animus toward Dew, but such animus played itself out when Doyle criticized Dew’s religious kufi prayer cap and religious beads and when Doyle refused to meet with Dew, which was necessary to represent him adequately.

Sixty years ago, Gideon v. Wainwright, 372 U.S. 335 (1963), established the right to counsel for people too poor to afford representation, such as Dew. In a unanimous decision, Justice Hugo Black stated that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him. This seems to us to be an obvious truth.” Id. at 344. In our view, it also seems to be an obvious truth that the high risk posed from representation by a defense lawyer known to have racial and religious biases is sufficient to merit reversal. This is especially true in the context of the criminal justice system, where public confidence in the system operating fairly is essential. As the U.S. Supreme Court stated in Offutt v. United States, 348 U.S. 11, 13 (1954), “justice must satisfy the appearance of justice.” If the Massachusetts high court follows its precedent concerning Article 12 of the Massachusetts Declaration of Rights and the rationale of fairness underlying Gideon, it should reverse Dew’s conviction. He should have new counsel appointed whose representation poses no risk of being tainted by racial and religious biases.

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Peter A. Joy

Washington University School

Peter A. Joy is the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri.

Kevin C. McMunigal

Case Western Reserve University School of Law

Kevin C. McMunigal is the Krupansky and Vargo Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio.