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Counsel – Conflict of Interest – Prior Appearance as Prosecutor

State v. Michael Love, 227 Wis.2d 60, 594 N.W.2d 806 (1999), reversing State v. Love 218 Wis.2d 1, 579 N.W.2d 277 (Ct. App. 1999)
For Love: Philip J. Brehm.

Holding: Love was represented at sentencing after revocation by an attorney who had been the prosecutor at the original sentencing, 20 months earlier; the attorney couldn’t remember appearing for the state at the original sentencing. The supreme court holds that Love may not obtain relief without showing an actual conflict of interest, something he failed to do.

Prior cases establish the need to show an “actual” conflict (“adverse” effect on representation) stemming from unobjected-to representation of multiple defendants. Cuyler v. Sullivan, 446 U.S. 335 (1980); State v. Kaye, 106 Wis. 2d 1, 315 N.W.2d 337 (1982). No exception, the court now holds, exists for unobjected-to “serial” (prior prosecutorial) representation. What, exactly, is an “actual” conflict? The term “remains ‘somewhat ambiguous’ and deserves clarification.” The court provides the following formulation: “An actual conflict of interest exists when the defendant’s attorney was actively representing a conflicting interest, so that the attorney’s performance was adversely affected.” A footnoted aside suggests, perhaps more illuminatingly, that you’ve got to show the attorney was placed in a situation where s/he was constrained to make a tactical choice that was antagonistic to the client’s interests. Fn. 5. The court’s summation of its holding makes clear that counsel’s knowing failure to disclose prior representation is itself basis for relief:

¶40 We hold that in order to establish a Sixth Amendment violation on the basis of a conflict of interest in a serial representation case, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel converted a potential conflict of interest into an actual conflict of interest by (1) knowingly failing to disclose to the defendant or the circuit court before trial the attorney’s former prosecution of the defendant, or (2) representing the defendant in a manner that adversely affected the defendant’s interests. If either of these factors can be shown, the circuit court should provide the defendant with appropriate relief. If an attorney knowingly fails to disclose to a defendant or the circuit court his or her former role in prosecuting the defendant, the attorney is subject to discipline from the Board of Attorneys Professional Responsibility.

The following remarks of the court are also worth mention:

¶37 In extending Cuyler-Kaye standards to serial representation, we are bound to extend also the requirement that all potential conflicts of interest that result from an attorney switching sides be made known to the court as soon as feasible before trial so that the court can inform the affected parties and conduct an appropriate inquiry. When an attorney who has switched sides informs the defendant and informs the court of the potential conflict, the attorney will often realize that he or she cannot proceed under Supreme Court Rules 20:1.9 or 20:1.11. When a former prosecutor enjoys the confidence of a defendant despite the potential conflict, the defendant’s waiver should be formalized on the record so that it can be evaluated by the court and so that it will not later serve as a basis for post-conviction relief.¶38 In all these situations, the court must be empowered to disqualify attorneys in the interest of justice. …

Although Kaye, as the foregoing quote indicates, authorizes waiver of a conflict — also see Wis JI-Crim No. SM 45 (2000) –, waiver shouldn’t be taken as a mere formality. For a good illustration of the exacting standard of knowing intelligent waiver of a potential conflict, albeit on interesting facts, see Lewis v. Mayle, 391 F. 3d 989 (9th Cir. 2004):

However, there is no evidence that Lewis understood “any of the specific ramifications of his waiver,” 250 F.3d at 1233, since he did not seek the advice of outside counsel and had only a cursory discussion with the judge. Cf. Garciav. Bunnell, 33 F.3d 1193, 1196-98 (9th Cir. 1994) (finding a waiver valid where the defendant had an extensive discussion with the judge about the conflict, received a continuance to consult with his family on the matter, and clearly understood his right to unbiased counsel).In Belmontes, we concluded that a defendant was not sufficiently informed of the consequences of a waiver, in part because he was not told that his attorney owed a continuing duty of loyalty to a former client whom the defendant now implicated in the murder. 350 F.3d at 885. Here, too, there is no evidence that Lewis was told that Weiner had any continuing obligations to Berg. Even if Lewis understood the theoretical risk of an attorney being biased towards a former client, and dismissed that risk as unlikely, it is less likely that he foresaw other potential consequences of the waiver — for instance, the fact that the charges on which Weiner previously represented Berg might provide material for impeachment.

We must “indulge every reasonable presumption against the waiver of fundamental rights.” United States v. Allen, 831 F.2d 1487, 1498 (9th Cir. 1987) (citation omitted). Accordingly, we hold that Lewis did not validly waive his right to conflict-free counsel.

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