Conflict of Interest? Supreme Court Says No.

This is interesting...

I would agree with Scalia that the law says it's not a conflict of interest until it actually affects his performance. I would certainly want some fact-gathering body to audit his work though to see if there's any indication it did affect his performance. The appearance here is just awful.

Usually conflict comes into play when you represent an opposing party in a previous lawsuit...the law says that even that isn't necessarily a complete roadblock...the question is whether or not the representation allowed you to learn facts about the other side that would help your client....that doesn't seem to be applicable analogy here.

My verdict: I DON'T KNOW!! How's that for a lawyer's evasive answer!!! But if you pay me my hourly rate I'll do some more research on it and give you a better answer!!!

 

I think Scalia is creating a test that's impossible to meet. How do you determine if a conflict "actually affects" an attorney's performance. Do you check after a conviction, at which time you will have potentially subjected a person to the rigors of a trial with an inadequate defense? Or is there some attorney-performance meter of which I'm unaware? Scalia doesn't answer that and his literalism is both ridiculous and frightening,

Max, I can see your point about whether or not facts learned from the first client helps (or hurts) the second client. Still, how would you determine whether a certain fact (or facts) are enough to say that there's a conflict of interest? Wouldn't it be safer(not to mention cheaper, because there'd be less legal wrangling) to just say "Let's err on the side of caution and get the second guy a new attorney?"

 

Ethically, I think there was certainly a conflict of interest. The attorney should never have been appointed to the case in the first place. Now, I doubt that there was any harm done here, because the victim was a former (not current) client in a wholly unrelated matter. But simply the appearance of impropriety that was created by the attorney's involvement should have been enough for him to step aside from the case, especially in something as important as a death penalty murder trial.

I would be interested in knowing whether the attorney disclosed to the court and, more importantly, to his client about the prior representation of the victim. If he informed the criminal defendant about the representation and offered to step aside in favor of new counsel, that would have mitigated some of the damage caused.

 

CNN article has a bit more information:

http://www.cnn.com/2002/LAW/03/27/scotus.deathpenalty.ap/index.html

The Supreme Court split 5-4 in death row case Wednesday, ruling against a convicted killer who wanted a second chance because his lawyer didn't disclose that he previously represented the victim.

...

The lawyer, Bryan Saunders, did not tell the jury that Hall may have been a willing sexual partner for Mickens, the new lawyers said, which could have changed the penalty.

When the jury was deciding if the crime merited a death sentence, Saunders did not challenge Hall's mother when she made an emotional statement about her son on the stand. Saunders knew that all was not well between mother and son -- he had represented Hall in an assault case brought by Hall's mother.

 

The first part is inexcusable, as long as Mickens revealed this to Saunders. If he did not, then I'm not sure if Saunders should have revealed this information.

The second part seems less serious to me, unless there was evidence that Hall had attacked Mickens.

In any case, this seems like a terrible precedent to set. Mickens probably deserves severe punishment, but that punishment should be applied through honorable means. That may seem overly idealistic, but this precedent could lead to poor representation for an innocent person. And that's inexcusable.

 

First off, Scalia isn't "creating" a new test here...this is basically the same "legal harm" doctrine that's been around forever. Someone can do all sorts of things that smell real bad, but until they actually harm you, you have no legal rights against them. That's kinda what Sam already said.

Second...how can you tell if a guy did a good job until after he does it??? there's really no other way to test it.

Third...would it be cheaper at this point to get the guy a new attorney??? of course not. he didn't disclose it earlier, so we can't do anything about that now except maybe punish that attorney in some way for failing to disclose it. But at this point to put us through a new trial would be quite costly. That's what this is balanced against. I agree, if they knew up front they would never have appointed this guy...but they didn't.

Fourth...Sam's exactly right...if he spoke to the defendant and told him about it and the defendant said he wanted him anyway, there's no problem...of course that conversation is priviliged information.