Conflict Case Analysis

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The court only addressed the issue of prejudice, and finding none, never considered whether an actual conflict of interest existed.

As a result, it is likely that some enterprising prisoners will latch onto this decision, and make similar claims, arguing that their cases are distinguishable for one reason or another on the prejudice issue.

Admittedly, it is unseemly if a defendant obtains favorable treatment by agreeing to testify or provide information against a former client of his attorney. A respectable attorney should withdraw in that situation to avoid the appearance of a conflict.

There is no actual conflict, however, assuming, of course, that the two representations are not related.

C.J.S. Attorney and Client sec. 187 states in relevant part as follows: “In order for an attorney to be disqualified from representing another client, the subject matter of the prior and subsequent representation must be substantially related, or there must be a relationship between the subsequent matter and the confidential information previously acquired, or it must appear that the attorney can use, to the detriment of such client, the information and confidences acquired during the existence of their relation as attorney and client (citing Whiting Corp. v. White Machinery Corp., 567 F.2d 713 (7th Cir. 1977)).

The section concludes, “In addition, the interests of the former client must have been adverse in the sense that they are in conflict with, or hostile to, the interest subsequently represented. A test of inconsistency between interests of an attorney’s former and present clients has been stated to be whether he or she will be required to do anything which will injuriously affect the former client in any matter in which the attorney formerly represented the client, and whether the attorney will be called upon to use against the former client any knowledge or information acquired through their former connection (citing U.S. v. Mandell, 525 F.2d 671 (7th Cir. 1975)).”

In practice, a criminal defense attorney is not in much of a position to do anything to injure the former client when a new client cooperates with the government against the former one. The former client will have been prosecuted and either acquitted or convicted. Jeopardy having attached, the former client’s interests are not at risk.

Only if jeopardy never attached, because the case was dismissed without prejudice, or without charges ever being filed, is there a potential for injury to the former client and a conflict of interest. That was the case in Holleman v. Cotton, 301 F.3d 737 (7th Cir. 2001), and even then, the Seventh Circuit found no conflict of interest, albeit over a far better reasoned dissent by Judge Ilana Diamond Rovner.

Furthermore, Holleman involved a case that went to trial. Where a defendant elects to cooperate with the government against another actor, the attorney’s role is rather limited.

In such cases, the attorney advises the client of the likely consequences of cooperation and non-cooperation; he either makes sure the client gets a binding agreement from the government, or provides advice on the likelihood of receiving benefit from the prosecutor even in the absence of a binding agreement; the attorney is present while the client provides the information to the prosecutor and the FBI agent; he sits outside the grand jury room while the client testifies; he declines the request by the target’s attorney to interview the client; and he sits passively in the courtroom while the client testifies.

In short, if a client is cooperating with the government, rather than going to trial, there is no point at which any confidential disclosure by the former client to the attorney comes into play.

Furthermore, Lafuente’s argument, taken to its logical conclusion, would impose an absurdity on the criminal defense bar.

Defense attorneys have client bases that include members of the same family, neighbors, denizens of the same taverns, etc. It is normal for those clients to have some knowledge of one another’s various criminal activities.

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If Gambino can be considered to have a conflict of interest in the case at bar, every defense attorney would have a conflict of interest, every time he represented a client who has a relationship as described above with another of the attorney’s clients.

Merely because those clients could all obtain some benefit by volunteering information against one another to the government, the attorney would be barred from representing any of them.

Obviously, if a client expressed a wish to his attorney to provide information against a former client, or if the government expressed a willingness to provide a benefit if the client provided information against a former client, then there could be a conflict.

If the attorney advised him not to, in order to protect the former client, then there would be both a conflict, and prejudice, as a result.

That is not what Lafuente alleged, however; what Lafuente alleged does not remotely rise to the level of an actual conflict of interest. The case law would have been better served had the court decided this case on that ground.

– David Ziemer

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David Ziemer can be reached by email.