If you’ve ever had to respond to an opposing party’s filing in Court, you know that some are very good and make your job challenging. And you know that some are so bad that you don’t know where to start. You sit and stare at the pleading or brief or whatever it may be and you stare at a blank computer screen because the depths and lengths of the sheer absurdity of the filing that you are tasked with criticizing and rebutting is unimaginable and it is swallowing your brain whole because there is no possible way any human being can even begin to deconstruct the stupendously mindboggling arguments that have been made. And you stare and stare in the hopes that someone will rescue you by showing up in your office and saying “April Fool’s! That’s not the real thing” or “hey, never mind about that reply because they withdrew their filing out of sheer embarrassment when they realized how it’s not even wrong” and then you resign yourself to the fact that you can’t actually submit a response that consists entirely of the Picard facepalm, because, while funny, it’s not very professional and so you write several different opening sentences only to delete them all and try again while swimming in the despair and futility of it all.
This is how I feel right now – and have felt since 11:30am yesterday morning, when the Connecticut Supreme Court issued its opinion in Anderson v. Commissioner [PDF].
Anderson is an appeal of an Appellate Court decision that I wrote about in October 2011. It was a post-conviction appeal in which Mr. Anderson argued that his conviction was illegal because his lawyer represented him in a way that violated the Sixth Amendment because the lawyer was operating under a conflict of interest.
This is a big deal, because everyone has the Constitutional right to have a lawyer whose only interest is the interest of that client and no one else. See Cuyler v. Sullivan. You can easily imagine why this is paramount. The client hires the attorney with the intention that the attorney will represent the client and only the client in his case and that the attorney is working for the client and what the client wants and thus the attorney’s loyalties cannot be divided.
There are very strict Rules of Professional Conduct that govern this matter and whether lawyers in the same law firm can represent two parties whose interests are at odds with one another. The rules are pretty clear, stating that you cannot do that, unless you get waivers from both clients. Unless, of course, you’re not a “real lawyer”. By which I mean you’re a public defender.
The Appellate Court Anderson decision, which is adopted by the Supreme Court instead of the Supreme Court writing an opinion with its own reasoning, lays out the basis for finding no conflict of interest by saying that “the plain language” of Rules 1.10 and 1.11 of the Rules of Professional Conduct make it clear that conflicts are not imputed within members of a governmental agency. Like public defenders.
Except as I said in my post in 2011, that’s total and complete bullshit. Here is Rule 1.11 of the Rules of Professional Conduct (and if you scroll up a page, Rule 1.10) [PDF].
The Court’s argument seems to be that because no Rule of Professional Conduct specifically talks about current government lawyers’ conflicts with one another, the default is that there is no conflict, not that the default is that the regular rules for conflict of interest apply. It relies on the following language:
Because of the special problems raised by imputation within a government agency, subsection (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.
What does subsection (d) say?
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) Is subject to Rules 1.7 and 1.9; and (2) Shall not:
The “shall not” is irrelevant so I’ve left it out. A public employee is subject to Rules 1.7 and 1.9, which talk about conflicts of interest for every other lawyer. But Gideon, you say, what about the language that you just quoted above that?
Think about it in the context of where it is found. Rule 1.11 is specifically talking about conflicts that lawyers may have due to their prior employment. A lawyer cannot represent X because of prior involvement. And because of the nature of government agencies, it would be a burdensome rule to say that because Lawyer A cannot represent person X because of Lawyer A’s prior, private employment, no one in the governmental agency can represent person X.
That’s not what happened to Anderson. The rule says absolutely nothing about when the conflict is caused because of a fellow government employee’s current representation of a person.
Anderson one day realized that the guy who snitched on him in his case was represented by the person who occupied the cubicle next to his own lawyer. My response would’ve also been to file a habeas corpus petition, but after saying “Are you fucking kidding me?” as loudly as I could.
What happened to the snitch? Did the two lawyers get together to sell one down the river? Did one hide information from the other? Why did neither one of them, once, say: “hey maybe this sounds like a bad idea?” While there may have been no direct evidence that Anderson was prejudiced, the Court’s decision goes beyond that. It says – well, it doesn’t say shit. The Appellate Court says – that while there is no direct conflict, it is advisable to appoint outside counsel. Not necessary; not that I am a member of my office with other lawyers in my office. Not that we are a team or that we are part of the same firm. No. We are islands unto ourselves, who just happen to share physical space?
The Appellate Court doesn’t impose requirements on how to effectively manage this: no prophylactic measures are necessary: we will rely on the goodwill of the lawyers to ensure that no untoward activity occurs: but wait! It isn’t a conflict, so there is no untoward activity that can occur. I can represent one client, the guy in the office next door can represent the co-defendant who gave a statement implicating my client, we can go to trial together and I can cross examine his client and my client doesn’t have a right to any sort of conflict-free representation because I’m not a real lawyer in a real law firm. As the habeas court said in its opinion and I repeat in my initial post:
[W]hat if this case had gone to trial and not resulted in a plea? Would Lawyer A have cross-examined his next-door office occupier Lawyer B’s client? How could either Defendant A or Defendant B have any confidence that the two lawyers weren’t sharing notes and information. How are the two defendants’ interests not adverse?
Why is this even a discussion?
You know who didn’t think it was a discussion? The Supreme Court of Georgia. Yeah, fuckin’ Georgia. The State that cares less about the rights of criminal defendants than any other state in the country save Texas. Georgia’s Supreme Court thought this was a no-brainer. In fact, they thought it was such a no-brainer that their opinion was per curiam [PDF].
Yet in its own “we can’t even be bothered to write an opinion or sign our names to this” per curiam opinion, the Connecticut Supreme Court today said this was okay. It was okay for two public defenders, but it would not have been okay for two private attorneys in a law firm together. What the Supreme Court is saying is that if it were a real law firm, the harm or prejudice to the defendant would be presumed. No one would need to show that harm. But because Anderson was represented by a public defender and not a “real lawyer”, Anderson has to show how he was harmed, if at all. Two different standards for two types of lawyers.
Because we aren’t really a law firm. Because we aren’t real lawyers who represent real clients. Because we don’t have enough problems with our clients thinking that we are part of the system; that we are there to fuck them over and get them to plead; that we are there as arms of the state; that we aren’t real lawyers.
And the Court today just reaffirmed that notion based on a misreading and misunderstanding of the Rules of Professional Conduct.
And the Court couldn’t even be bothered to take the time I did to write this post to write its own opinion in this case.
Next time you wonder why the justice system is going to shit, this is your answer.