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

Article excerpt

I. INTRODUCTION

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. …