U.S. v. Williams, Eleventh Circuit Court of Appeals, Filed September 4, 2018: Divided Loyalties and Conflict of Interest

Can an attorney represent two defendants who are charged in the same case? What if there is a conflict of interest when one client becomes a witness against the other?

In U.S. v. Williams, the same attorney represented 1) a defendant at trial on drug conspiracy charges (Williams) and 2) a cooperating witness who testified in Williams’ trial (Bennett). Although Bennett had already pled guilty to his charges, the attorney also represented him on his appeal.

The Eleventh Circuit found that there was an actual conflict of interest in the attorney’s representation of both clients and remanded the case to determine whether the conflict adversely affected the attorney’s performance – if the district court finds that it did, then Williams may be granted a new trial.

Can a Defense Lawyer Represent a Defendant and a Government Witness at the Same Time?

In Williams, the attorney represented one client who was on trial in a drug conspiracy case (Williams) and another client who had previously pled in a separate conspiracy case (Bennett).

Bennett’s case was on appeal and Bennett was called as a witness against Williams in Williams’ trial, although they were not codefendants in the same trial. What do the ethics rules say about it?

Rule 1.7: Conflict of Interest: Current Clients

Although there are separate rules for a conflict of interest with a current client or a former client, Rule 1.7 of the Rules of Professional Conduct applies when the attorney represents both clients simultaneously:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Both of the issues above are present when an attorney simultaneously represents a defendant on trial and a witness who is testifying in their trial, because the attorney must effectively cross-examine the witness and destroy their credibility if possible, using every means possible – including confidential information gained during their representation.

Because of the attorney’s duty of loyalty to the client on trial, the attorney’s representation of the witness will be directly adverse to the attorney’s client who is on trial.

And, because of the attorney’s duty of loyalty to their client who is a witness at the trial, they cannot effectively cross-examine the witness – there is “a significant risk that the representation… will be materially limited by the lawyer’s responsibilities to another client…”

Can Each of the Attorney’s Clients Waive the Conflict?

Rule 1.7 goes on to say:

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

So, a client can give “informed consent, confirmed in writing,” waiving a conflict with another client, but only if “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

The problem in Williams is that it is practically impossible to give “competent and diligent representation” to a client when your hands are tied, and you cannot cross-examine a government witness in the case against them.

And, the representation under these circumstances involves “the assertion of a claim by one client against another client represented by the lawyer,” which means that the conflict cannot be waived.

Does Williams Get a New Trial Because of the Conflict of Interest?

The Eleventh Circuit found that “the undisputed facts” of this case established a conflict of interest because the attorney “represented two clients concurrently, and when one of them testified at the other’s trial, [the attorney] had to decide whether to cross-examine.”

In this case, the attorney chose not to cross-examine the witness at all. In an attempt to avoid the conflict, the attorney, prosecutor, and judge agreed that the witness would not mention Williams’ name – despite this, the witness’s testimony established the elements of a conspiracy that damaged Williams’ case without any challenge or questions from Williams’ attorney.

Did Williams’ Attorney Have to Cross-Examine the Witness?

In Bennett’s previous conspiracy case, where he was represented by Williams’ attorney, Bennett was given an enhancement and increased sentence for obstruction of justice. Specifically, the enhancement for obstruction was based on:

• A letter that Bennett sent to Williams’ codefendant asking him to “cooperate on Mr. Bennett’s behalf as a third party in exchange for a substantial payment;” and
• Asking him to “to market a cooperation-for-hire scheme to inmates seeking sentence reductions.”

In essence, the witness was “cheating,” trying to get a sentence reduction through “cooperation” that may have involved false testimony by himself or other inmates – and he was attempting to do this with Williams’ codefendant.

Williams’ attorney had an absolute duty to cross-examine Bennett on these and other issues during Williams’ trial but did not ask any questions because he represented Bennett for his guilty plea, sentencing, and his appeal on the obstruction enhancement.

A question that the Court does not address – why was the government calling a witness that they had previously sentenced for obstruction of justice?

Of course, the prosecutor did not want Bennett to be cross-examined – any cross-examination based on the facts that the attorney had available would have shown the jurors that the government was knowingly using a witness in their case who had previously demonstrated he was willing to lie to help himself.

Strickland Prejudice or “Adverse Effect?”

In a case involving a conflict of interest between clients, the defendant does not have to prove “prejudice” as required by Strickland v. Washington – he only needs to prove an “adverse effect” from the representation.

“Adverse effect” is easier to prove than Strickland “prejudice” – “to demonstrate adverse effect, [the client] must point to some ‘plausible alternative defense strategy or tactic that might have been pursued.’”

“Plausible” means that the defendant does not have to show that the alternative strategy would have been likely to result in an acquittal – if Williams can show that an alternative strategy (in this case, cross-examining Bennett) would have been “reasonable under the facts” and a “viable alternative,” then he is entitled to a new trial.

Was There an Adverse Effect?

Although the Eleventh Circuit all but said Williams suffered an adverse effect, and explained why in detail, they remanded the case to the district court for an evidentiary hearing to decide whether the conflict resulted in an adverse effect.

Questions the district court will need to answer before making a final ruling include:

• Whether Williams was told that his attorney also represented Bennett;
• Whether Williams was given a hearing pursuant to United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975);
• Whether Williams was given the opportunity to seek independent counsel about the conflict;
• What the specifics were of any agreements among the parties and the court to limit Bennett’s testimony;
• Whether the attorney and Bennett had any discussions about Bennett’s testimony; and
• Whether the attorney had any other reasons for failing to cross-examine Bennett.

How Do Attorneys Get into Situations Like This?

In some cases, the government does not disclose the fact that an attorney’s client will be a witness in a federal trial against another of the attorney’s clients until the last minute – which creates logistical problems with substituting counsel and providing the new attorney enough time to prepare for trial.

In other cases, it is simply a matter of money – when an attorney gets relieved from representation in a case or declines representation, they lose money…

When the bills must get paid and office staff must get their paychecks, it can be hard for a lawyer to turn down a paying case. What’s the solution?

Never make decisions about conflicts in representation based on money – it should not be a consideration at all.

Always err on the side of caution when there is a possibility that staying on a case could hurt another client. When a defendant calls to retain you, and their codefendants also want to retain you, take the first one who calls and refer the others to the best attorneys who will be able to protect their interests independently.