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The Limits of Waivers of Attorney Conflicts of Interest In Federal Criminal Cases

The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. Implicit in this right is that the accused shall also have the right to the assistance of counsel who is unhindered by conflicting interests. Holloway v. Arkansas, 435 U.S. 475, 482 (1978). If defense counsel is prevented by a conflict of interest from advocating his “client’s contentions without fear or favor, the integrity of the adversary system is cast into doubt because counsel cannot play the role necessary to ensure that the trial is fair.” Campbell v. Rice, 265 F.3d 878, 883 (9th Cir. 2001)(citations and quotations omitted).

It is therefore understood that an accused does not have an absolute right to counsel of his or her choosing. See, Wheat v. United States, 486 U.S. 153, 159 (1988). As noted in Wheat, “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Id.

For example, “there appears to be general agreement among the courts which have considered disqualification motions at the grand jury stage that an irreconcilable conflict of interest may arise when one lawyer represents targets and nontargets . . . .” Matter of Investigative Grand Jury Proceedings on April 10, 1979, 480 F. Supp. 162, 168 (N.D. Ohio, 1979); See also, In Re Grand Jury Proceedings 859 F.2d 1021, 1025-26 (1st Cir. 1988) (citing The Model Code of Professional Responsibility EC 4-5). Where testimony of a witness could have been detrimental to the target of investigation who was the employer of the witness and was represented by the same counsel, a district court has held that disqualification of the witness’ counsel was warranted and that the witness could not waive her right to conflict free counsel. In Re Grand Jury Investigation, 436 F. Supp. 818, 821-22 (W.D. Penn. 1977). Further, termination of the attorney-client relationship between defense counsel and the grand jury witness will not automatically remedy the conflict. “In successive representation, conflicts of interests may arise if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties.” Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988) citing United States v. Wheat, 813 F.2d 1399, 1402 & n.1 (9th Cir.), cert. granted on other grounds, 486 U.S. 157 (1988).

Where a potential conflict is brought to the court’s attention, the trial judge must take adequate measures to protect the defendant’s rights. Holloway, 435 U.S. at 484-85. In deciding a motion for disqualification, the district court must recognize a presumption in favor of the accused’s chosen counsel. This requires the court to look into the potential conflict, and, where the court determines an actual conflict exists, it must secure a knowing and intelligent waiver of the conflict from the defendant or provide the defendant an opportunity to obtain new counsel. Campbell, 265 F.3d. at 884-85.

When an actual conflict of interest exists it may still be permissible to allow the accused to retain counsel of his choice if the matter can be cured by a voluntary, knowing, and intelligent waiver. See e.g., Garcia v. Brunnell, 33 F.3d 1193,1195 (9th Cir. 1994). However, the conflict must not be irreconcilable and the inquiry must be “searching,” id. at 1197, and “targeted at the conflict issue.” Campbell, 265 F.3d at 887 (quotes and citation omitted). The court has a duty to question defense counsel “closely about [his] ability to wage and effective defense and to inform [the defendant] of all the risks associated with [defense counsel’s] representation.” Id. at 888 (quotes and citations omitted). Indeed, the Ninth Circuit requires that defendant know all the risks that are likely to develop. United States v. Allen, 831 F.2d 1487, 1500 (9th Cir. 1987) (citing with approval United States v. Agosto, 675 F.2d 965 (8th Cir. 1982) (waiver ineffective where defendant informed of possible conflict due to attorney’s prior representation of codefendant and told that conflict may arise from prior confidential communications but not told that conflict may arise from attorney’s continued loyalty to codefendant). In Allen, the appellate court disapproved of a magistrate’s acceptance, without further inquiry, of a defendant’s statement that he knew all of the possible consequences, noting that defendant had not been advised of the risks of joint plea bargaining, relative culpability, counsel’s ongoing relationships to other persons involved in the litigation, or the impact that a conflict might have on pretrial proceedings. In addition, several courts note the importance of obtaining a waiver of the former client’s right, and the attorney’s ethical obligation, of maintaining privileged communications and question whether they are waivable at all. U.S. v. Moscony, 927 F.2d 742, 748 (3rd Cir. 1991); Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1352-53 (6th Cir.1993); U.S. v. O’Malley, 786 F.2d 786, 792 (7th Cir.1986).

Increasingly, Courts of Appeals have shown an apparent willingness to entertain ineffective assistance of counsel claims from defendants who have specifically waived the right to conflict-free representation, under the theory that the right to effective assistance of counsel is so fundamental as to be virtually unwaivable. Wheat v. United States, 486 U.S. 157, 108 S. Ct. 1692, 1698 (1988). Indeed, as one Ninth Circuit panel noted, if the conflict of interest problem raised on appeal had been a completely unknown contingency prior to trial, the court would be reluctant to find an effective waiver of conflict; to do so might force a defendant to waive his right to object to an unknown problem at trial. United States v. Partin, 601 F.2d 1000, 1008 (9th Cir. 1979).

Because the likely dimensions of nascent conflicts of interest are hard to predict, the Supreme Court has stated that the district court must be allowed substantial latitude in refusing waivers of conflict of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common case where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. Wheat, at 1699. A trial court can decline a defendant’s waiver of conflicts and insist that a defendant be represented by conflict-free counsel. Wheat, 108 S. Ct. at 1697.

[W]hile the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant, rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers….The district court must recognize a presumption in favor of a petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.

Wheat, 486 U.S. at 157 and 164. As the Ninth Circuit noted in United States v. Rewald, 889 F.2d 836, 858 (9th Cir. 1989), in deciding whether or not the disqualification of an attorney is mandated, the potential for a conflict of interest is determinative. The potential for conflict must be determinative because, “[w]ere it otherwise, trial courts confronted with multiple representations would face the prospect of being whip-sawed by assertions of error no matter which way they ruled.” United States v. Kenney, 911 F.2d 315, 321 (9th Cir. 1990), citing Wheat.

Though a trial judge has substantial latitude in determining whether an attorney’s conflict may be ameliorated by the process of obtaining waivers from all concerned, courts have consistently ruled that a conflict cannot be waived where multiple clients were involved in the same crime, and one may be called to testify against the other (emphasis added). See, e.g., Wheat, 486 U.S. 153 (disqualification based upon prior representation of conspirator who pled guilty and was likely to testify for the prosecution); U.S. v. Locascio, 6 F.3d 924 (2nd Cir. 1993) (disqualification based upon prior representation of a government witness); , 870 F.2d 854 (2nd Cir.1989) (disqualification based upon prior representation of government informant); United States v. Agosto, 675 F.2d 965 (8th Cir. 1982) (disqualification based upon prior representation of co-defendant).

In U.S. ex rel. Stewart on Behalf of Tineo v. Kelly, cited supra, at 856-57, the court held that the integrity of the proceedings outweighed the interests of both the defendant and the informant because the defense attorney could not serve the defendant’s interests by limiting his cross examination of the witness, and he could not effectively impeach the witness without the possibility violating the witness’ rights.   As noted in United States v. Dolan, 570 F.2d 1177 (3rd Cir. 1978):

[W]hen a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant’s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendant’s comprehension of the waiver.

70 F.2d at 1184. Moreover, the “district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly” United States v. Wheat, 486 U.S. at 162. It is for this reason that courts have consistently refused to allow counsel to represent both a defendant and a witness in the same proceeding.

The author of this post, Daniel W. Layton, Esq., is a former federal prosecutor in the Los Angeles U.S. Attorney’s Office’s Tax Division and is currently the principal of Tax Attorney Daniel W. Layton, Esq., in Newport Beach, Orange County, California.

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