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 and eliminates any conflict of interest between himself and his client – whether real or merely perceived – or else the attorney must withdraw from representing the client with whom the 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 Client: where the attorney already represents another individual whose interests are in opposition to the newly appointed defendant.
Third Person: where the attorney represents an individual in a different matter unrelated to the defendant’s case.
Personal Interest: where the attorney’s personal interests are in direct conflict with the client’s case-related interests.
The first two are fairly straightforward. 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. Similarly, under the “third-person” rule, 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. But, just as an individual attorney in both of these scenarios has to withdraw from representing the person with whom there is a conflict, so too does the entire law firm in which that attorney practices. Because of this, conflicts of interest involve systemic considerations as much as they do a single lawyer and his client.
How excessive caseloads are a new source of conflicts
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.
The last type of conflict, however, – where the attorney’s personal interests are in direct conflict with the client’s case-related interests – is a bit more complex when applied to indigent defense. The “personal interest” rule is most frequently applied to business law, but in reality there are clear everyday examples of this type of conflict in public defense delivery systems across the country.
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 new conflict between the attorney’s 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. The result places the attorney in conflict with his newly assigned client: the client’s case-related interests versus the attorney’s professional interests (i.e., retention of his job or ability to practice law).
Recall here the first type of conflict, where the attorney already represents another individual whose interests are in opposition to the newly appointed defendant. 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.