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Richard B. v. State6/13/2003
the present case by his own attorney. Throughout these termination proceedings, Richard received the services of a nonconflicted attorney whose loyalty and competence remain unchallenged.
To be sure, improprieties directed against a defendant by a co-defendant's attorney can cause serious prejudice and, in that sense, can hamper the defendant's attorney's ability to present a successful defense. But error of that kind is no different than any other error emanating from sources beyond the defense counsel's control. Because such errors do not derive from or reflect any shortcoming in the quality of the defendant's legal representation in the case at issue, they cannot fairly be said to infringe the defendant's constitutional guarantee of effective assistance of counsel. Richard offers no authority to the contrary. The only case he cites involving a co-defendant's improper representation by an attorney who formerly represented the defendant, State v. Sanders, is readily distinguishable: because the conflicted attorney in Sanders initially represented the defendant in the same case, the conflict at issue there directly implicated the defendant's right to counsel in that case.
We therefore see no reason to assume that Richard suffered the same kind of fundamental, constitutionally subversive harm that LaPierre and Cuyler presume will occur when a defendant's own counsel actively serves interests adverse to the defendant's.
Moreover, Richard suggests no other sound reasons to apply a harmless error test like LaPierre's, which builds in a presumption of prejudice. Although he cursorily asserts that a presumption of prejudice is necessary because the prejudicial effects of conflicted representation may be difficult to prove, Richard fails to explain why this is so. The assertion that prejudice is difficult to prove may have considerable merit when a defendant is represented by a conflicted attorney, and perhaps even when a co-defendant is improperly represented by an attorney who formerly represented the defendant in the same case. But the inherent difficulty of proving prejudice does not seem self-evident when the conflict arises from former representation in a different proceeding. Assisted by current counsel, the defendant would presumably be able to recall or discover most previously revealed confidences and would be capable of identifying and guarding against their possible exploitation by defendant's former counsel. Hence, it would not seem unreasonable to require some showing of actual prejudice as a prerequisite to reversal.
Nor would any deterrent purpose be served in this case by replacing the conventional harmless error test, which demands a showing of actual prejudice, with a rule that presumes prejudice. To the contrary, in the present case a reversal based on presumed prejudice would have perverse consequences: it would have no direct impact on the offending attorneys or their client; yet it would severely penalize the state and, consequently, the three children whose interests the state represents - even though the state actively sought to disqualify Kay at the superior court level.
This is not to say that a conflict like this could never have constitutional ramifications. But if the ethical breach in this case raises constitutional concerns, they center on notions of fairness - procedural due process. We can imagine circumstances in which representation of a co-defendant by the defendant's former counsel might generate a risk of unfair prejudice so grave as to violate the defendant's right to due process. But beyond showing the bare existence of a conflict here, Richard points out no specific circumstances suggesting fundamental unfairness. Nor ar
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