A couple of circuit opinions dealing with the law of lawyering

(h/t: The Manhattan Barrister) The Eighth Circuit, in US v. Green, held that a conflict of interest was not per se grounds for reversal of a conviction in a case where a PD represented the accused before trial, ended the ACR, and then later represented a witness at the trial of the accused.Excerpts:

Green bases his argument on what he perceives to be a violation of the Rules of Professional Conduct. The District Court for the Eastern District of Missouri has adopted the Rules of Professional Conduct promulgated by the Supreme Court of Missouri. E.D. Mo. Local R. 83-12.02. Under “Duties to Former Clients,” spelled out in Missouri Supreme Court Rule 4-1.9(a):

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client gives informed consent, confirmed in writing.

Green asserts on appeal that Vicente’s representation of Herrod violated this rule because Herrod’s interest, in not facing criminal prosecution for illegally possessing the gun for which Green was charged, was materially adverse to Green’s interest.

While it may have been a better practice to have Herrod advised by an attorney who had never represented Green, such error, if it is one, is neither clear nor obvious under current law. The district court did not plainly abuse its discretion.

Green also failed to demonstrate he was in any material way prejudiced by Vicente’s representation of Herrod. The district court appointed an attorney to advise the witness in this case because the witness’s testimony could potentially subject him to criminal prosecution and the witness needed to be informed of his constitutional privilege not to self-incriminate. Green does not suggest a different attorney appointed in Vicente’s place would have advised Herrod any differently. Herrod testified on Green’s behalf, despite the advice he received from his allegedly conflicted counsel. Although Herrod may not have testified precisely as Green expected, Herrod did not invoke his Fifth Amendment privilege when asked whether he ever possessed or owned the firearms at issue. Herrod also testified he did not see Green with the subject firearms and he had never seen Green with a firearm. Green has failed to demonstrate any error affected his substantial rights or affected the fairness, integrity, or public reputation of the judicial proceeding.

The Third Circuit, in In re Grand Jury, addressed an unusually complex set of issues (anonymous parties; interlocutory standing to challenge an order to produce documents before a grand jury; application of the crime-fraud exception; and how to handle documents that were in the hands of the accused's outside counsel). An excerpt:

We summarize our holdings.

1. ABC Corp. has standing to contest the grand jury subpoenas because it claims privilege in the sought-after documents and testimony. John Doe 1 and John Doe 2, in contrast, lack standing because they are not privilege holders, and do not have any other legally cognizable interest in the documents or testimony.

2. Even though ABC Corp. has standing, we lack jurisdiction to hear its appeal from the March Order because ABC Corp. may travel the well-worn contempt path to jurisdiction. If ABC Corp. wishes to appeal this Order immediately, it must take possession of its documents from Blank Rome, refuse to produce them to the Government, and appeal any resulting contempt sanctions. Because the parties have been unable to agree on a mechanism for transferring the documents, we lift the stay to allow the District Court to effect an appropriate transfer. In doing so, the Court, if it wishes, may designate a representative of ABC Corp. to receive delivery of the documents or direct ABC Corp. to do so.

3. We have jurisdiction to hear the appeal by ABC Corp. from the June Order because that Order is not directed to it and its former employees are unlikely to risk contempt sanctions on its behalf. Contrary to the Government’s suggestion, we decline to hold that the Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S.100, 130 S. Ct. 599 (2009), precludes Perlman appeals by grand jury subjects.

4. Finally, in reaching the merits of ABC Corp.’s appeal from the June Order, we hold that the Court correctly (a) applied the crime-fraud exception to deny ABC Corp. a privilege protection over testimony and two documents sought from its former in-house counsel and (b) determined that three documents sought from those counsel do not qualify as privileged.

In this context, we dismiss the appeals by John Doe 1 and John Doe 2 for lack of standing, dismiss the appeal by ABC Corp. from the March Order for lack of jurisdiction, and affirm the June Order.26

Comments

[Stephen Gillers]

I don't quite understand the court's conclusion in Green and will read the opinion. It is true that a conflict of interest will not alone suffice to the legal error required to reverse a conviction. And it sadly is also true that the courts are more tolerant of conflicts in the area of indigent representation.

But it is perplexing to say that Green had no complaint when his lawyer showed up as counsel for a witness against him at Green's trial -- if that is the court's position. I don't think it is doctrinally helpful to cite the "better practice" and rely on the abuse of discretion standard to deflect the issue. Green's former lawyer had his confidential information and we'll never know the substance of the lawyer's conversations with his witness client.

[John Steele]

Steve, I had similar concerns about that holding.