Interesting Conflict Waiver Case

The New York Court of Appeals this week highlighted the special care with which courts should approach client waivers of actual conflicts of interest in criminal cases. The client in this case, People v. Solomon, was charged with child sex abuse. Defense counsel simultaneously represented a police officer who testified at Solomon's trial that he confessed to the crime. The Court found that Solomon's conflict waiver did not suffice because the trial court failed to ensure that Solomon understood the nature of the conflict. The prosecution, however, argued lack of prejudice, because this conflict did not adversely affect the performance of Solomon's lawyer, who cross-examined the officer effectively. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (a defendant must "establish that an actual conflict of interest adversely affected his lawyer's performance"). The Court of Appeals rejected the prosecution's argument, concluding:

[W]e have never held, and decline now to hold, that
the simultaneous representation of clients whose interests
actually conflict can be overlooked so long as it seems that the
lawyer did a good job.  Our cases, and the United States Supreme
Court's, make clear that, where such an actual conflict exists
and is not waived, the defendant has been deprived of the
effective assistance of counsel.

ABA Journal article here. Court's opinion here.

Comments

[Tigran Eldred]

It seems to me that this case is more about the proper standard for proving a claim of ineffectiveness in conflicts cases, as the waiver by all accounts was inadequate. On that point, the Solomon(ic?) reasoning is curious. The NYCA concludes that a different standard is applicable in cases of simultaneous representation than in other types of conflicts (i.e., former client conflicts such as in Mickens v. Taylor, 535 U.S. 162 (2002)). In cases of simultaneous representation, all the defendant needs to prove is that there is an “actual conflict,” which the Solomon Court says is “the simultaneous representation of clients whose interests were opposed.” Slip Op. at 8 (what does “opposed” mean?). In contrast, in all other situations the defendant must prove that the attorney’s performance was “impaired,” Slip. Op. at 9, which seems to align with the Cuyler “adverse effects” test. Yet, the Solomon Court provides no rationale for such a categorical distinction, nor do I think there is any. A situation in which a lawyer represents simultaneous clients can produce a de minimis risk that the lawyer’s representation will be impaired, while other situations can produce a significant risk of such a limitation. That’s why I have argued that the proper inquiry in all cases should always be about risk, not result (picking up on the language of MRPC 1.7 - 1.9): simply put, the 6th Amendment is violated when, based on the facts known to the lawyer at the time, there was substantial risk that the lawyer's responsibilities owed to the defendant would be materially and adversely affected by duties owed to others – whether a current client, former client, third person, or the lawyer (see The Psychology of Conflicts of Interest in Criminal Cases, 58 Kan. L. Rev. 43 (2009)).

[John Steele]

Tigran, I'm no expert in criminal law conflicts but your argument seems to accord with MR 1.7.