Should a Judge Remove the Defendant’s Choice of Attorney?

David McGowan (University of San Diego School of Law) has posted The Criminal Conflicts Paradox on SSRN.

Here is the abstract:

Prosecutors may seek to disqualify defense counsel based on conflicts among defendants. In doing so prosecutors do not assert rights of current, former, or prospective clients, as in the usual conflicts assertion. They instead assert other interests, the most concrete of which is the interest in not wasting resources in a retrial if a conviction is tainted by a conflict.

Wheat v. United States sets a lenient standard for assessing such assertions. Judges may disqualify defense counsel even if the relevant parties are willing to waive conflicts that should be waivable as both a positive and normative matter. Wheat rested this standard on a set of concerns that are insufficient to justify its holding. As colloquy at argument showed, the Court was particularly concerned that defendants would not be held to waivers but instead would challenge on appeal even knowing and intelligent waivers of waivable conflicts.

Wheat was wrong on the facts, wrong on the law, and sets bad policy. It was wrong on the facts because the conflict at issue was waivable and the trial court abused its discretion in holding that it was not. It was wrong on the law because it collapsed materially different conflicts into one category and because it refused to decide whether a knowing waiver would bind a court. It set bad policy because it sought to offset the free option of appeal with a free option to prosecutors to challenge defense counsel.

The Court’s concern illustrates the risk to defendants of permissive standards of appeal. A defendant unable to commit credibly to a waiver may lose the benefits a waiver would provide, with little or no gain to offset the loss. This paper frames the problem of permissive standards of appeal by drawing a partial analogy to the familiar “lemons” framework. The problem is discussed more fully in future work.

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