Student Review:

In this article, Green discusses when a court should allow a defendant to waive a conflict of interest.  Many times in criminal trials, a defendant's attorney may have a conflict of interests which would prevent him from waging a strong defense on behalf of his client.  In these cases (usually when an attorney simultaneously represents two defendants who have been jointly charged), the prosecutor makes a motion to disqualify the lawyer.  It is then up to the judge to make a determination whether to grant the motion and disqualify an attorney due to conflicts of interest.  Green explores, through recent cases, what the role of the trial judge should be in these cases.
      Not only is the conflict of interests question a constitutional problem, but it is also difficult for courts to make a determination of conflict prior to the trial when the issues surrounding the case are still unclear.  While the Supreme Court has recognized the right to a conflict-free trial, it also has recognized that the defendant may waive this right.  However, in Wheat v. United States the Court established that a judge still has the discretion to disqualify a defense attorney who has or may have a conflict of interests, even over the defendant's waiver.  The court provided three reasons for this holding.  First, the Court was concerned about the ethical standards of lawyers.  The Court also has an interest in making sure trials seem fair to observers.  Finally, the Court attempted to have less judgments overturned on appeal.  Green discusses each of these reasons in depth.
      Green finds that although the Court believed that ethical standards insist that lawyers be disqualified even at the possibility of a conflict, no current or past professional standards demand this.  As long as the defense attorney concludes that there will be no conflict of interests and properly informs her client, there are no bars to representation.  Such a careful standard may be necessary when a lawyer represents multiple defendants in the same trial, but in the Wheat situation, the attorney would be separately defending the accused.  This type of conflict is treated more liberally by the model rules, and Green feels that the Court should have made a distinction.  Thus, Green believes that the Court's decision was based on a misunderstanding of current ethical rules.
      Furthermore, in the Wheat decision the Court did not recognize the ability of defense lawyers to uphold ethical standards themselves rather than relying on the intervention of the trial court.  Earlier Supreme Court decisions acknowledged that attorneys could make this determination.  In fact, the defense attorney is more closely involved with the case than the trial judge and in a better position to determine when a conflict might arise.  An in-depth inquiry into the factual issues of the case may also harm the attorney-client relationship.   This process may reveal confidential information, erode the defendant's trust in her attorney, and impair the work of the defense attorneys themselves.  Another result of the Wheat decision is to remove the autonomy of the criminal defendant.  Instead of recognizing a voluntary waiver made by the defendant, the Court decided that a trial judge may behave in a paternalistic manner.  Likewise, the judicial interests cited in the Wheat decision do not provide a strong basis for allowing the court to override the defendant's choice of counsel.
      Since the Wheat Court did not offer advise to trial judges in exercising their disqualification discretion, Green offers a framework for deciding disqualification motions.  First, during inquiries into a defense attorney's potential conflicts, the judge must be careful to avoid making the questioning too intrusive in order to avoid injuring the attorney-client relationship.  Furthermore, the court should explore other procedural alternatives (such as severing the trial, using stipulations, or delaying trial).  Finally, the court should take into account the competing interests of the judiciary and the defendant.  Due to the fact that the Wheat decision represents a step backwards for the attorney-client privilege and the autonomy of defendants, Green urges trial courts to exercise their discretion in light of all of these factors.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999