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February 17, 2014

"Disqualifying Defense Counsel: The Curse of the Sixth Amendment"

The title of this post is the title of this intriguing new paper available via SSRN authored by Keith Swisher. Here is the abstract:

Lawyer disqualification — the process of ejecting a conflicted lawyer, firm, or agency from a case — is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest (or other misconduct) render that counsel constitutionally ineffective. Most cases and commentary are arguably directed too late in the process — i.e., at the post-conviction stage in which the deferential Sullivan or even more deferential Strickland standard applies. A much faster and more effective remedy might be to disqualify problematic counsel on the front end. But the government might periodically use motions to disqualify as tools to weaken criminal defendants’ defense by depriving defendants of their chosen and effective advocates — just as civil litigants use motions to disqualify.

This Essay takes a close look at the application of the Sixth Amendment in disqualification cases and concludes: (1) that when compared to other litigants, criminal defendants generally have weaker, not stronger, rights to ethical representation; and (2) that disqualification law in criminal practice generally weakens, not strengthens, defendants’ representation.

February 17, 2014 at 01:33 PM | Permalink


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Most prosecutors are reluctant to file motions to disqualify due to the right of a defendant to choose counsel. They are more likely to simply make sure that the potential conflict is on the record and request that the court obtain a facially valid waiver of the conflict.

As to the ethical issue, my reading of Supreme Court IAC jurisprudence is that they have made relatively clear that legal ethics is something distinct from the constitutional right to counsel (including the sub-right to effective counsel). While there is some overlap (e.g. incompetence on the part of defense counsel is an ethical violation regardless of prejudice), the analysis of the two is separate.

Posted by: tmm | Feb 17, 2014 2:13:33 PM

Disqualification of counsel of the defendant's choice was a major issue in a recent appeal to the Eleventh Circuit, after the Government served counsel with a trial subpoena. Because the trial Judge determined that counsel's testimony would not be necessary, in light of stipulations the defendant and counsel were willing to make with the Government, the Court quashed the subpoena, but by then, counsel could not clear his calendar of other client matters to represent the defendant thru his 9 month long trial in 2001, so the defendant had to hire a different lawyer. See, "United States v. Sholam Weiss", No. 09-13778 (11th Cir. 9/24/13). Mr. Weiss is seeking certiorari at the U.S. Supreme Court now. Sholam Weiss is serving the longest white-collar prison sentence ever imposed in the history of America, 835 years in Federal prison (reduced from 845 years upon re-sentencing, following resolution of a habeas corpus petition).

Posted by: Jim Gormley | Feb 17, 2014 5:50:34 PM

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