Sixth Amendment Right to UnConflicted Counsel
Ann Sheperd, who owned a home-health agency, retained a lawyer after being indicted for Medicare fraud. What she didn’t know was that her lawyer also represented one of the Government’s star witnesses. She retained a new lawyer right before trial, but was convicted by a jury. She complained that she was prejudiced by her first lawyer’s conflict of interest.
The Fifth Circuit agreed that effective assistance of counsel demands conflict-free representation even during the pre-trial phase of court proceedings. One of the most indispensable duties that any lawyer owes his client is the duty of loyalty. He breaches that duty when he labors under an actual conflict of interest. And if he breaches the bedrock of loyalty, then his representation will fall below the objective standard of reasonableness that the Constitution requires.
But defendants still need to show prejudice in actual-conflict cases. Did the conflict “adversely affect[]” counsel’s performance? Proving prejudice directly means showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” On the other hand, the limited presumption of prejudice in actual-conflict cases turns on whether the conflict adversely affected the representation itself. One way defendants can answer that mixed question of law and fact is through “evidence that counsel’s judgment was actually fettered by concern over the effect of certain trial decisions on other clients.”
Sheperd complained that her first lawyer was not “proactive” in seeking a plea deal for her. That might have been because his other client, the Government’s star witness, was able to obtain a Section 5K1.1 motion for testifying against Sheperd. The court remanded the case for an evidentiary hearing about whether Sheperd’s lawyer’s conflict of interest actually resulted in prejudice to her.