presumed only if the Δ demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.” (makes it clear that adverse affect must be demonstrated) 3. (c) Thomas v. State – both husband and wife were accused of drug trafficking. Each client had waived possible conflict of interest. Prosecutor offered plea bargain to couple’s attorney that allowed husband and wife to each accept responsibility for half of the drugs, and serve reduced jail sentence, or one spouse to accept responsibility for all drugs and serve 25-year statutory minimum sentence. Attorney advised each party to accept half, but somehow the wife took responsibility for the entire amount. Court granted her post-conviction relief on the grounds that she did not have effective assistance of counsel. B. T HE P UBLIC I NTEREST IN O BJECTING TO M ULTIPLE R EPRESENTATION 2. Does the Government have the power to disqualify counsel to “protect the interest” of the accused and make it easier for the Government to get a conviction? What should be the standard for overriding the Δ’s choice of counsel. United States v. Gonzalez-Lopez: Involved a trial court’s erroneous refusal to grant pro hac vice status to the defendant’s first choice of counsel. SC states that the right to counsel of choice does not extend to defendant’s who require counsel to be appointed for them. A violation of the Sixth
Amendment right to effective representation is not complete until the defendant is prejudiced. Strickland C. C ONFLICTS OF I NTEREST F ACED B Y P ROSECUTORS 1. Of what relevance is it that the prosecutor in this problem is highly motivated to get convictions that will tend to further his political ambitions? Could a prosecutor’s personal motives ever constitute a conflict of interest with his or her duties as a public prosecutor? 1.7(a)(2) personal interest; see also Rule 3.8 PROBLEM 12: CONFLICTS BETWEEN CLIENT INTERESTS AND THE LAWYER’S PERSONAL INTEREST Rule 1.8: Conflict of Interest: Current Clients: Specific Rules A. A CCEPTING P AYMENT IN THE F ORM OF S TOCK ; B USINESS T RANSACTIONS WITH A C LIENT 1. Does the law prohibit lawyers from taking all or part of their fee in the form of stock in the client’s business? (a) ABA Formal Opinion 00-418 makes clear that Rule 1.8(a) treats such fees as business transactions with a client. 2. Why do the courts view business dealing with clients with suspicion? What are the ways in which the lawyer might take advantage of the client? 3. Are all business transactions with clients suspect? Is Model Rule 1.8(a) a trap for the unwary? (a) Passante v. McWilliam— lawyer loaned client $100,000. In gratitude, company gave lawyer 3% of the common stock. The lawyer never sought repayment of the loan, but when the 3% share became worth $33 million, he asked for the shares. The court said he could not have them. If they were a gift from the company, he had no contractual right to the shares. Further, as a business deal, he had not complied with the professional rules.
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