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October 11, 2023 BEST OF ABA SECTIONS

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 v. Dew, SJC-13356 (Mass. 2023). (See note at the end of this article regarding their ruling, which was handed down after this article originally appeared in Criminal Justice.)

In this case, a court-appointed attorney, Richard Doyle, made more than 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 racist 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. It suspended Doyle from representing indigent criminal clients in Massachusetts. When he became aware of Doyle’s racist and bigoted posts in 2021, Dew filed a motion to withdraw his guilty plea and to obtain a new trial, arguing that Doyle’s racial and religious biases against him constituted a conflict of interest that rendered his representation ineffective and prejudice should be presumed. 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. The two men 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 motion judge 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” (Commonwealth v. Dew, at rec. app. 110).

Dew’s Claims

In his appeal, Dew alleges that the appointment of Doyle to represent him violated his right to equal protection under the U.S. 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. An amici brief in support of Dew urging reversal argues that, under Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment of the U.S. 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. If the Massachusetts high court views Dew’s claims either as involving structural error under federal law or under Massachusetts precedent applying Article 12, 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.

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 U.S. Supreme Court stated in Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (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 American Bar Association Model Rules of Professional Conduct defines 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 by 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.

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.

Note: After this article originally appeared in Criminal Justice, the Massachusetts Supreme Judicial Court ruled that Dew was entitled to a new trial because his attorney’s racist and anti-Muslin animus created an actual conflict of interest that did not require Dew to demonstrate how the conflict adversely affected his representation (Commonwealth v. Dew, 210 N.E.3d 904, 913 (Mass. 2023)).


This article is an abridged and edited version of one that originally appeared on page 58 of Criminal Justice, Summer 2023 (38:2).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.


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Peter A. Joy

Washington University School of Law

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.