There are many contexts in which original counsel is disqualified by a conflict of interest from rendering effective assistance of counsel, if new counsel would be obligated to raise the issue of original counsel’s ineffectiveness.  For example, if original counsel represents the defendant on appeal, s/he may render ineffective assistance by failing to raise the issue of his or her own ineffectiveness at trial.  Similarly, trial counsel may render ineffective advice not to appeal, even though the defendant has a viable appeal issue of ineffective assistance of trial counsel in the trial court.  Counsel cannot be expected to identify his or her own errors, or to appeal on those grounds, because of a conflict of interest.[262]

 

            The Ninth Circuit held that an attorney was subjected to “an inherent conflict of interest” when the district court forced trial counsel to prove his own ineffectiveness at an evidentiary hearing on a motion for a new trial.[263]  In Del Muro, the defendant filed a Rule 33 motion for new trial, claiming trial counsel had rendered ineffective assistance by failing to interview or subpoena witnesses suggested by Del Muro, and requested that the district court appoint substitute counsel to present the motion on his behalf, but the district court denied the request.  This court held that “There was an actual, irreconcilable conflict between Del Muro and his trial counsel at the hearing on the motion for new trial.  The interests of counsel were diametrically opposed to those of Del Muro.”[264]

 

            The standard of reversal for ineffective counsel is the same on appeal as for inadequate representation in the trial court.[265]  An appellate attorney confronting the necessity of demonstrating, on appeal, his or her own ineffectiveness at trial faces the same conflict of interest as an attorney facing the same situation at a hearing in the trial court.  They face an identical “actual, irreconcilable conflict” in which the “interest of counsel were diametrically opposed to those of [the client]” and counsel “was burdened with a strong disincentive to engage in vigorous argument and examination, or to communicate candidly with his client.  The conflict was not only actual, but likely to affect counsel’s performance.”[266]

 

            California law is in accord.  In In re Fountain,[267] an attorney was timely retained to file a notice of appeal, yet failed to file a notice of appeal until too late, and then filed an inadequate notice which did not meet the requirements of Penal Code § 1237.5 or California Rules of Court, rule 31(d).  He later filed a petition for habeas corpus concerning this issue.  The court stated:

 

This case presents the paradigm of why an attorney who is caught in a conflict of interest is unable to provide effective assistance of counsel.  The petition was verified by the attorney and seeks relief from the consequences of his failure to act.  Rather than advocate Fountain’s cause, the petition seeks to establish there was no attorney‑client relationship until after the appeal time had run.[268]

 

The court held: “We conclude the attorney is, and will continue to be, in such conflict of interests with Fountain that he cannot effectively represent Fountain on his appeal.”[269]

 

            Moreover, in People v. Bailey,[270] the state court of appeal held there is an inherent conflict of interest when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal: “Counsel is in the untenable position of urging his own incompetency.”[271]

[262] See Billy-Eko v. United States, 113 S.Ct. 2989 (1993); Barker v. United States, 7 F.3d 629 (7th Cir. 1993).

[263] United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996).

[264] United States v. Del Muro, 87 F.3d at 1080 (reversing and remanding for new hearing with new, unconflicted counsel).

[265] United States v. Birtle, 792 F.2d 846 (9th Cir. 1986).

[266] United States v. Del Muro, supra, 87 F.3d at 1080.

[267] In re Fountain (1977) 74 Cal.App.3d 715, 141 Cal.Rptr. 654.

[268] Id. at p. 719.

[269] Ibid.

[270] People v. Bailey (1992) 9 Cal.App.4th 1252, 12 Cal.Rptr.2d 339, 340.

[271] Ibid.

Other

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CONFLICT OF INTEREST " CONFLICT BETWEEN ATTORNEY AND CLIENT RESPECTING CLAIM THAT ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
A guilty plea may be rendered legally invalid if defense counsel suffered from a debilitating conflict of interest. Counsel who had previously rendered ineffective assistance may well have been aware of his error at the time of the entry of the plea. On the one hand, he was obligated to inform his client of his own error. In effect, he had a duty to inform the client of his own ineffective assistance. On the other hand, he had a personal interest in concealing his error from his client, to protect his professional reputation, to protect his license to practice law, and to protect himself against the possibility of liability in damages for professional negligence. A person suffering this acute conflict of interest is disabled from vigorously representing his client. See Annot., Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel " Federal Cases, 53 A.L.R. FED. 140; Developments in the Law " Conflicts of Interest in the Legal Profession, 94 HARVARD L. REV. 1244, 1381 (1981). This conflict can have a real impact on counsels representation of his client at the plea hearing. Among other errors, counsel may fail to disclose his error to his client until after the plea and sentence had become final, thus relegating his client to the difficult road of seeking post-conviction relief. He should have told his client immediately and offered to withdraw from the representation, allowing the client to pursue his remedies at the time, before plea and sentence, when something might have been salvaged from the situation. The Sixth Amendment guarantees criminal defendants effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Cuyler, 446 U.S. at 345, 100 S.Ct. at 1716; Duncan v. Alabama, 881 F.2d 1013, 1016 (11th Cir.1989). Part of effective assistance of counsel is the avoidance of conflicts of interest. The Supreme Court has emphasized that when counsel is burdened with a conflict of interest, she breaches the duty of loyalty, perhaps the most basic of counsel's duties and has therefore failed to provide effective assistance of counsel. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; see also Buenoano v. Singletary, 963 F.2d 1433, 1438 (11th Cir.1992). A defendant may only waive the right to conflict-free counsel if that waiver is knowing and intelligent. For a waiver [t]o be knowing and intelligent the defendant must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel. Duncan v. Alabama, 881 F.2d 1013, 1017 (11th Cir. 1989). The Supreme Court has held that attorney conflict of interest is per se prejudicial under the second prong of Strickland. That rule reflects the impossibility of proving prejudice in certain contexts, such as an attorney conflict of interest. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980) (attorney conflict of interest affecting representation). Here, defense counsels conflict of interest was per se prejudicial, because it disabled him from making many arguments in his clients favor during the plea hearing because if he did so, his client would learn of the ineffectiveness of his prior representation. Under ABA standards, Rule 1.2, [a] lawyer shall abide by a clients decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. ABA Model Rules of Professional Conduct 1.2(a) (2000) (emphasis added). Moreover, as advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. Id. Preamble [2]. The lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Id. 1.4(b); see Rule 1.4 cmt. (The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.). Courts have recognized actual conflicts of interest between an attorney and his client when pursuit of a clients interests would lead to evidence of an attorneys malpractice. United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994) (citing United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)). In Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991), the court affirmed a district court finding that petitioners state appellate counsel, faced with disciplinary proceedings and possible liability for causing a six-year delay in the appeal, suffered from a conflict of interest that created a per se Sixth Amendment violation and required the state to afford petitioner a new state appeal. Similarly, in Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995), the court held that petitioners right to effective assistance of counsel at his sentencing had been violated, and ordered him resentenced with new counsel representing him. Where petitioner had filed a pro se motion to withdraw his plea, on the ground his attorney had coerced him into entering it, a conflict of interest arose resulting in denial of effective assistance of counsel. Id., citing United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir. 1992). A conflict of interest existed where appellant was unable to raise an issue (that he committed the act on advice of counsel) because his specific lawyer was representing him, that he would have been able to raise with other counsel. The court stated: The conflict would have been particularly acute if the advice Mitchell supposedly gave would have constituted a violation of the rules of professional ethics. The presumption of prejudice extends to a conflict between a client and his lawyers personal interest. Mannhalt, 847 F.2d at 580 (citations omitted). United States v. Miskinis, 966 F.2d 1263, 1269 (9th Cir. 1992).