Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?

By Poulin, Anne Bowen | American Criminal Law Review, Summer 2010 | Go to article overview
Save to active project

Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?

Poulin, Anne Bowen, American Criminal Law Review


Suppose that you face charges for driving under the influence. Knowing that a conviction will expose you to incarceration, fines, and loss of your driver's license, you hire an attorney in whom you have confidence. Guided by counsel, you go through trial and are convicted. After sentencing, you ask counsel about filing an appeal. When counsel informs you that she cannot represent you on appeal, you learn for the first time that a few days before your trial your lawyer accepted a position as Chief Assistant District Attorney with the office prosecuting you in the case. (1) Are you confident that counsel gave you the zealous representation you expected, or do you fear that counsel may have pulled her punches or, even worse, shared information with her new employer? Should someone have told you that your attorney had agreed to switch sides? Was the trial fair? Are you entitled to any relief?

Put yourself in the shoes of a different criminal defendant. You are charged with a sexual offense and facing a possible life sentence. You hire a criminal defense attorney with a strong reputation. On the eve of trial, the attorney moves to withdraw, but the court denies the motion. Rejecting the prosecution's offer of a plea to reduced charges, you go through trial and are convicted of the most serious charges. Only after conviction do you learn that your attorney had personally been battling the criminal justice system while representing you. The attorney was indicted on felony drug charges shortly after being hired for your case and pleaded your conviction. (2) At sentencing you guilty to reduced charges about a month after

are represented by a new, court-appointed attorney, since your attorney's license has been suspended. You receive a long sentence of incarceration. As you sit in prison, do you question the quality of the representation you received? Would you have chosen to continue with your retained attorney had you known that the attorney was charged with a felony? Did your attorney, the prosecutor, or the trial judge have a duty to inform you of your attorney's legal problem? Was the trial fair? Are you entitled to any relief?

For our criminal justice system to function properly both the prosecution and defense must be free to provide robust representation uninhibited by conflicts of interest. (3) Currently, concerns raised by widespread ineffective assistance of counsel undermine confidence in our criminal justice system. (4) Deficient assistance of counsel can result from counsel's incompetency or from a conflict of interest. Claims based on a conflict of interest are of special importance because a conflict--the claim that the attorney served two masters--creates an even greater appearance of unfairness both to the defendant and to the general public than a mere claim that the attorney was incompetent. (5) As lawyers, we should be concerned with the appearance of unfairness as well as provable unfairness and should seek actively to eliminate deficient defense representation. (6)

This article explores two types of conflicts of interest which threaten to inhibit zealous defense representation: (1) when defense counsel has, had, or seeks employment as a prosecutor; and (2) when defense counsel is faced with criminal charges while simultaneously representing a criminal defendant. Both these situations pose a conflict for counsel and also create an appearance of unfairness. The common thread in cases involving these types of conflict is that the prosecution has ready access to information pertinent to the conflict, while neither the court nor the defendant, and sometimes not even counsel, will be aware of the problem.

When such a conflict threatens to impair the defendant's representation, it is critical to raise it as early as possible. If the conflict is raised before trial, the trial court can determine whether there is a serious problem, let the defendant decide whether to waive conflict-free representation for that case, or disqualify counsel.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?