Criminal Justice Section  


Criminal Justice Magazine
Spring 2002
Volume 17 Issue 1



Peter A. Joy and Kevin C. McMunigal

The Supreme Court and Defense Counsel Conflicts

The Supreme Court recently heard oral argument in a case in which the Court has the opportunity to clarify and improve its constitutional jurisprudence dealing with conflict of interest and criminal defense counsel. In Mickens v. Taylor, 227 F.3d 203, rev’d en banc, 253 F.3d 1274 (4th Cir. 2001), the Court confronts the troubling situation of a criminal defendant in a capital murder case who was represented by a lawyer who had previously represented the murder victim and failed to disclose that fact to the client. Despite the seemingly obvious inappropriateness of the lawyer’s conduct, the judges in the lower courts who considered Mickens’s Sixth Amendment claim struggled to determine the applicable constitutional standard and reached disparate conclusions as to what that standard is and whether it provides relief to Mickens.

The facts

On March 20, 1992, Bryan Saunders was appointed to represent Timothy Hall, a 17-year-old charged with assaulting his mother and possessing a concealed weapon. Saunders subsequently met with Hall to discuss the charges. Saunders, though, never had to appear in court because Hall was killed before his case could be resolved. On April 3, 1992, Judge Aundria Foster dismissed the charges against Hall.

The next day, police arrested Walter Mickens for the murder and attempted forcible sodomy of Hall. On April 6, Judge Foster telephoned Saunders and asked him to accept an appointment to represent Mickens. Saunders accepted, never mentioning his prior representation of Hall to the trial court, cocounsel, or Mickens. Convicted and sentenced to death in state court, Mickens filed a federal habeas case in which his new counsel for the first time discovered Saunders’s prior representation of Hall. In his federal habeas case, Mickens raises a Sixth Amendment ineffective assistance of counsel argument based on conflict of interest due to Saunders’s undisclosed prior representation of Hall.

The applicable legal standard

A two-part test has typically governed ineffective assistance claims. Under it, the 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).) The Court has not applied the Strickland test, however, to ineffective assistance claims based on conflict of interest. In the conflicts area, the Court has used a number of different tests. In some situations, the claimant must show (1) an actual conflict that (2) adversely affected the lawyer’s performance. ( See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).) In other situations, the Court has appeared to dispense with the adverse impact element, and required only an actual conflict. ( See Wood v. Georgia, 450 U.S. 261, 272 (1981).) In still other situations, automatic reversal is warranted without a showing of either an actual conflict or adverse impact on the defense lawyer’s performance. ( See Holloway v. Arkansas, 435 U.S. 475, 488–89 (1978).)

Which of these tests should apply to a situation in which (1) the trial judge knew or should have known about a conflict but failed to conduct an inquiry and (2) the claimant was never informed of the conflict? This is the key issue in Mickens.

The district court and en banc Fourth Circuit held that the Cuyler standard applied to such a case and found that Mickens failed to show adverse impact on his lawyer’s performance. Two judges on the Fourth Circuit panel, who became dissenters to the en banc opinion, concluded that a more lenient standard applied under which Mickens needed to prove only an actual conflict. The dissenters relied on Wood v. Georgia, 450 U.S. 261, 272 (1981) for the proposition that adverse affect is not required "when the trial court has failed to make an inquiry even though it knows or reasonably should know that a particular conflict exists." These judges found that Mickens met the Wood test because the trial judge "knew or should have known about an apparent conflict" and failed to conduct any inquiry. ( Mickens, 227 F.3d at 211.)

At the very least, the Supreme Court needs to clarify the standard applicable to Mickens. But the Court could also use Mickens to improve its Sixth Amendment conflict of interest jurisprudence by abandoning both its use of the term "actual conflict of interest" as well as Cuyler’s adverse impact requirement.

Actual conflict

Courts and commentators have often employed the phrase "actual conflict of interest." At times "actual conflict" is used to refer retrospectively to a situation in which a conflict of interest has already resulted in impairment of the lawyer’s representation of a client. At other times, an "actual" conflict is defined prospectively as one in which "the lawyer’s independent professional judgment . . . will be adversely affected." ( See In re Porter, 584 P.2d 744, 747 (Or. 1978).) The Supreme Court stated in Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987) that "[a]n arrangement represents an actual conflict of interest if its potential for misconduct is deemed intolerable." Unfortunately, the Supreme Court’s definition provides no criteria for determining when a conflict of interest’s potential for misconduct becomes intolerable.

One remedy for this situation would be for the Court to abandon use of the phrase "actual conflict of interest" in favor of the phrase "conflict of interest" as defined by ethics authorities. The Restatement of the Law Governing Lawyers, for example, 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." (Restatement of the Law Governing Lawyers § 121 (2000).) The Restatement definition is preferable because it clearly states that conflict of interest is about risk of impairment, and that the acceptability of such risk is determined by its magnitude (i.e., "substantial"). If the Supreme Court were to use the term conflict of interest as defined by ethics authorities, it would clarify the Court’s terminology and assist the Court’s analysis of conflicts and the proper remedies.

Conflict in Mickens

Was there a substantial risk that Saunders’s prior representation of Hall would affect his representation of Mickens? Once a representation is concluded, a lawyer typically no longer advises or acts on behalf of the former client, especially a deceased one. Ethics doctrine on conflicts between past and present clients tends to focus on issues of confidentiality, because the obligations of confidentiality continue to bind the lawyer even after a representation has ended. In the typical case, the concern is that the former client will be hurt by the current client having access to the former client’s confidences.

The district court in Mickens’s federal habeas case found that Saunders met with Hall and that there were at least four confidences from Hall that were relevant to Mickens’s case and that Saunders was prohibited from revealing under the Virginia Code of Professional Responsibility DR 4–101: 1) Hall had been charged with carrying a concealed weapon; 2) Hall’s mother had pressed charges against him for assault; 3) Hall was not living with his mother at the time of his death; and 4) Saunders had discussed with Hall "the circumstances surrounding each of the charged crimes." ( Mickens v. Greene, 74 F. Supp. 2d 586, 599–600 (E.D. Va.1999).)

How, though, could Mickens be hurt in this situation since Hall’s confidences were at risk and Mickens could have benefited from such a disclosure? The concern here is that Saunders’s obligations to Hall created incentives for Saunders to avoid investigating Hall. As the Court recognized in Holloway, "representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing." ( Holloway, 435 U.S. at 489.) As Mickens’s lawyer, Saunders was obligated to investigate "all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." (ABA Standards of Criminal Justice § 4–4–1(a) (1991).) This duty included investigating potentially embarrassing behavior by Hall, including the criminal conduct of Hall during the time Hall was Saunders’s client. At odds with this duty to investigate was Saunders’s duty to maintain as confidential the information concerning Hall’s criminal charges, his strained family relationship, and any other information Hall may have disclosed to Saunders that might have helped Mickens. "The mere presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters." ( Holloway, 435 U.S. at 490.)

The "substantial relationship" test is the classic standard for assessing successive conflict of interest between a present client and a former client—the sort of conflict that existed in the Mickens case. That test states that a lawyer "may not . . . represent another client in the same or a substantially related matter in which the interests of the former client are materially adverse" unless "both the affected present and former clients consent to the representation." (Restatement of the Law Governing Lawyers § 132 (2000).)

Since Saunders could have obtained from Hall information that would prove relevant in Mickens’s case, the cases were substantially related. ( See Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983).) And the interests of Hall and Mickens, as defendant and crime victim, were obviously adverse to one another. Accordingly, ethics doctrine would view Saunders as having had a conflict of interest.

Adverse impact?

Unlike the substantial relationship test, which is clearly based on risk avoidance, Sixth Amendment jurisprudence requiring defendants to demonstrate "adverse impact" poses significant proof problems for defendants. The decisions lawyers make on behalf of criminal defendants—deciding what strategies to use at trial, for example, or what evidence to present at sentencing—often require complex judgments involving many factors that cannot be measured with precision. And the processes by which lawyers resolve such questions are largely internal, almost never on the record, and not easily subject to proof by the client, especially months or even years later. Conditioning enforcement of conflicts rules on proof of adverse impact makes them hard to enforce ex post and undermines their deterrent effect ex ante.

The Supreme Court recognized as much. In Holloway, the Court made clear that when a judge fails to explore the risks of a conflict raised by a defendant’s objection at the trial, reversal is automatic without a showing of either adverse impact on the lawyer’s performance or the outcome of the trial. The Court stated that requiring a defendant to show an adverse impact on the lawyer’s performance or outcome at trial "in some specific fashion would not be susceptible of intelligent, even-handed application." ( Holloway, 435 U.S. at 489.) It reasoned that if a conflict causes a defense lawyer to refrain from taking action it is difficult to assess the impact of the conflict because the record is silent.

In Mickens, Saunders was ethically required to reveal the conflict to Mickens and the court. If Saunders had disclosed his prior representation of Hall, then Mickens could have decided whether or not to waive the conflict and the court would have been required to investigate the conflict to determine if Mickens made a fully informed, knowing waiver. The court would also have been required to determine if Saunders would have been laboring under a conflict so great that it could not have been waived. By failing to reveal the conflict, Saunders denied Mickens his right to consent and the court the opportunity to police the conflict to maintain the integrity of the trial process.

An adverse impact rule imposes an almost insurmountable burden of proof on a defendant. Mickens, for example, would have had to have access to the confidences Hall disclosed to Saunders to demonstrate how Saunders’s failure to provide Mickens with conflict-free representation adversely affected the outcome of his case.

In addition to these pragmatic concerns, a risk approach engenders the greater confidence on the part of the defendant and the public in the quality of defense representation, especially in a death penalty case. In short, neither Mickens nor the public should have to speculate about whether Saunders’s representation of Hall diminished his ability to provide conflict-free representation to Mickens.


The Supreme Court should grasp the opportunity in Mickens to take several significant steps regarding defense counsel and conflict of interest. First, the Court should use Mickens to clarify that trial courts must inquire into conflicts of interest in cases such as Mickens. Second, the Court should simplify its conflict of interest terminology by abandoning the phrase "actual conflict of interest" and using, instead, just "conflict of interest" as defined by ethics authorities. Finally, the Court should rethink its approach to conflicts by focusing on the risks presented by a conflict and not requiring a defendant to prove adverse impact either on the lawyer’s representation or the outcome at trial or sentencing. By taking the first step, the Court will do justice in Mickens. By taking the latter two steps, the Court will substantially improve its Sixth Amendment jurisprudence in the area of conflict of interest.


Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.

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