Conflicts of interest – ABA Principle 5

In 1932, the U.S. Supreme Court stated in Powell v. Alabama: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Non-lawyers, they argued, do not know the rules of evidence or the code of criminal procedure. If defendants attempt to mount their defense alone, they risk being convicted based upon immate­rial facts or conjecture. They cannot know whether the state’s plea offer is good or bad. They are incapable of preparing for trial. They do not know how to cross-examine witnesses. That is why the Supreme Court held in Powell that an accused person “re­quires the guiding hand of counsel at every step in the proceedings against him.”

But what if the defendant does not trust that his appointed attorney’s “guiding hand” is in fact guiding him honestly? What if the accused person suspects that his lawyer’s advice accounts for interests irrelevant – or worse, entirely contrary – to his own? What if, when his lawyer speaks, the defendant thinks: is he really advocating on my behalf? The accused, certainly, has a constitutional right to be heard. But how can he when trust is lost?

Trust is central, therefore, to the proper functioning of our American system of jus­tice, and is a principal tenet upon which the entire legal profession is founded.

At the annual meeting of its House of Delegates in July 2000, the American Bar Association (ABA) adopted a resolution reaffirm­ing the core values of the legal profession, which included the lawyer’s duty to main­tain “undivided loyalty” to the client and to “avoid conflicts of interest” with the client. The ABA codified and expanded upon these core values in its Model Rules of Professional Conduct. The Model Rules were first adopted by the ABA House of Delegates in 1983, and have since been adopted by the state bar as­sociations in 49 of 50 states, plus the District of Columbia. Failure to adhere to the bar rules of each state may result in disciplinary action against the attorney – even loss of license to practice law.

The Model Rules expressly prohibit all lawyers from representing a client whenever a conflict of interest exists, commenting further that “[l]oyalty and independent judgment are essential elements in the lawyer’s relationship to a client.” It is therefore imperative that the attorney avoids any conflict of interest between himself and his client – whether real or merely perceived – and the attorney must decline to represent, or withdraw from representing, the client with whom a conflict exists.

So, what is a conflict of interest, anyway? We know that they are to be avoided, but what does one look like in real terms?

Conflicts come in three basic categories:

Another Current Client: where the attorney already represents another individual whose interests are in opposition to the newly appointed defendant;

Former Client or Third Person: where the attorney previously represented another individual or owes a duty to a third party and those interests are in opposition to the newly appointed defendant;

Personal Interest: where the attorney’s personal interests are in direct conflict with the client’s case-related interests.

Because an attorney cannot represent two or more clients whose interests might be at odds with each other, separate representa­tion must be provided for all co-defendants in a particular criminal case.  And, for example, an attorney can­not represent a defendant if the attorney already represents a client in a different case who happens to be the state’s main witness to the alleged offense. Further, just as an individ­ual attorney has to decline to represent the person with whom there is a conflict, so too does the entire law firm in which that attorney practices (other than in conflicts that relate solely to the personal interests of the lawyer). Because of this, conflicts of inter­est involve systemic considerations as much as they do a single lawyer and his client.

How excessive caseloads cause conflicts of interest

By establishing that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless coun­sel is provided for him,” the U.S. Supreme Court in Gideon v. Wainwright made it an obligation of state govern­ments to establish the structure (or meth­od) through which such representation is provided. This structure must provide constitution­ally effective services for the clients of the primary and conflict systems alike.

Take, for example, the flat fee contract system. In jurisdictions across the country, private attorneys are appointed to conflict cases under annual contracts with the local court (or with local or state government, as the case may be), and in return those attorneys are paid an annual fee. Each attorney is paid the same flat fee each year, no matter how few or how many cases he is assigned. Such flat fee systems are rife with financial incentives for attorneys to do as little work as possible on their appointed cases – and are therefore prohibited under national stan­dards, including the ABA Ten Principles. The more effort an attorney expends on the appointed client’s case, the less money he takes home on his private paying clients’ cases. The contract itself places the attor­ney’s “personal interests” in direct conflict with each of his appointed clients’ case-relat­ed interests.

But the contract also creates a conflict between the attorney’s current clients. As Professor Norman Lefstein, Dean Emeritus of Indiana University Law School, details in his semi­nal book, Securing Reasonable Caseloads: Ethics and Law in Public Defense:

“Excessive caseloads among lawyers representing indigent criminal and juvenile clients implicate a number of state rules of professional conduct. The most important of these are the requirements to be ‘competent’ pursuant to [ABA Model Rules] Rule 1.1 (‘provide … the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation’) and ‘diligent’ pursuant to Rule 1.3 (‘act with reasonable diligence and promptness in representing a client’). The comment to Rule 1.3 contains an explicit admonition: ‘A lawyer’s work load must be controlled so that each matter can be handled competently.’”

In other words, an individual attorney cannot provide “competent” and “diligent” representation to a limitless number of clients. Eventually, the attorney will reach a point whereby the addition of one more client will cause the attorney to breach his ethical duties. Lefstein says: “when a lawyer has too many clients to represent simultaneously, a ‘concurrent con­flict of interest exists’ because ‘there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client . . . .’”

In other words, if the addition of one more client will cause the attorney to no longer provide effective representation to his existing clients or to the newly appointed client, then the attorney’s code of ethics requires he not take that next client’s case. Instead, as Lefstein reminds us, he must “either decline the representation or seek to withdraw from the representa­tion.”

For these reasons, all national standards – including ABA Principle 5 – require that “[d]efense counsel’s workload is controlled to permit the rendering of quality repre­sentation.” Wherever attorneys are allowed – or worse, are compelled – to accept a limitless number of appointed cases, then “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing” inevita­bly will be violated.