300.27.4.1    Conflict of Interest Between Counsel And Defendant

PRACTICE NOTE: "The Sixth Amendment right to counsel includes a correlative right to representation free from conflicts of interest." (Lewis v. Mayle (9th Cir. 2004) 391 F3d 989, 995.) To establish a violation of the right to conflict-free counsel, the petitioner must show either that (1) in spite of an objection, the trial court failed to allow him the "opportunity to show that potential conflicts impermissibly imperil his right to a fair trial;" or (2) that an actual conflict of interest existed. (Cuyler v. Sullivan (1980) 446 US 335, 348 [64 LEd2d 333;100 SCt 1708.)

    In several cases in which the Supreme Court has defined the right to conflict-free counsel, the defense attorney actively and concurrently represented conflicting interests. (Mickens v. Taylor (2002) 535 US 162, 166-167 [152 LEd2d 291; 122 SCt 1237] [discussing earlier authority]; see also Holloway v. Arkansas (1978) 435 US 475 [55 LEd2d 426; 98 SCt 1173] [attorney representing co-defendants]; Cuyler, 446 US at 337-38 [same].) In those cases, the Court created, in effect, a distinction between an actual conflict of interest, and a mere hypothetical one. It pointed out that dual representation by an attorney does not per se create a conflict of interest. Indeed, in many situations, dual representation may work in the defendant's favor. (Holloway, 435 US at 482; Cuyler, 446 US at 348.) Nevertheless, the Court concluded that "joint representation of conflicting interests is suspect" because of the effect it may have on counsel's performance. (Holloway, 435 US at 489-490.) Accordingly, the Sixth Amendment does not protect against a "mere theoretical division of loyalties." (Mickens, 535 US at 171.) Rather, it protects against conflicts of interest that adversely affect counsel's performance. (Id. at 172 n.5.) Indeed, in Mickens, the Court held that "actual conflict" is defined by the effect a potential conflict had on counsel's performance. In Mickens, the Court explained, "[A]n actual conflict of interest [means] precisely a conflict that affected counsel's performance--as opposed to a mere theoretical division of loyalties." (Id. at 171; see also id. at 172 n.5 ["[W]e have used 'conflict of interest' to mean a division of loyalties that affected counsel's performance."].)

    When counsel objects to potentially conflicted representation, the trial court has an opportunity to eliminate the possibility of an impact on counsel's performance through seeking a waiver from the defendant, appointing separate counsel, or taking adequate "steps to ascertain whether the risk [is] too remote to warrant separate counsel." (Holloway, 435 US at 484; Mickens, 535 US at 173; see also [NF] Alberni v. McDaniel (8/9/2006, 9th Cir. No. 05-15570) 2006 U.S. App. LEXIS 20390. If the trial court fails to make such an inquiry into the potential conflict, reversal is automatic. (Holloway, 435 US at 488.)